California Court Slams Wardens for Illegally Stopping Motorists Over Lobsters

California Court Slams Wardens for Illegally Stopping Motorists Over Lobsters

California Court of Appeal smacks down Department of Fish and Game for stopping and searching cars without authority.

The California Court of Appeal for the Fourth District on Tuesday ruled that a state agency may not pull over and search a motorist on a mere hunch that a lobster might be hidden in the vehicle. The court considered the case of Bounh Maikhio, a motorist stopped by Department of Fish and Game Warden Erik Fleet on August 19, 2007 at 11pm. That evening, Fleet had been spying through a telescope on the Ocean Beach pier in San Diego when he saw Maikhio put something into his bag.

Fleet testified that he did not "necessarily" suspect Maikhio of a crime because he had no way of knowing whether the man had been fishing legitimately or not. Regardless, Fleet waited until Maikhio had driven away from the pier to stop him. While searching through his car. Fleet found Maikhio's bag, which contained a spiny lobster. Maikhio was handcuffed and cited for lobster possession during closed season.

The case is of particular interest because California Attorney General Jerry Brown argued that a state warden has the right to stop any driver "without reasonable suspicion that he committed any crime." Maikhio, in contrast, could not afford to hire an attorney and was represented by the public defender's office which argued no such authority existed. The appeals court agreed, citing a 1944 attorney general's ruling. The court argued that wardens could enforce the law without harassing motorists.

"It may be fairly implied from sections 1006 and 2012 that a DFG warden generally has the implied power to stop people who are fishing on a pier to demand they exhibit their catch and to inspect their receptacles (e.g., tackle boxes, pails, etc.) in which fish may be stored," Justice Alex C. McDonald wrote for the majority. "However, contrary to the people's conclusory assertion, it cannot be fairly implied from the DFG's express statutory powers that its wardens have the power to stop a specific vehicle on a public street and detain its occupants to make a section 2012 demand and conduct a section 1006 inspection."

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