Contributor: Adam Justinger
Fall is in the air. As a result, many different hunting seasons are beginning to open. North Dakota’s early Canada goose season began on August 15, 2020. The mourning dove season opened on September 1, 2020. Bowhunting for deer, elk, moose, and pronghorn antelope began on September 4, 2020. Along with the hunting opportunities, the fishing is beginning to pick back up. Fall is a great time to be in North Dakota and there are many opportunities to harvest game. However, what happens if a game warden shows up at your residence?
Search and Seizure
Under North Dakota law, game wardens have the powers of a peace officer to enforce state laws and rules in this state. A game warden’s primary duty is to investigate game and fish violations. These can include fish and game infractions, all the way up to a fish and game felony.
The Fourth Amendment of the United States Constitution protects individuals against unreasonable searches and seizures. Warrantless searches are presumptively unreasonable subject to a few exceptions to the warrant requirement. Some exceptions to the warrant requirement include consent to search, an emergency situation, and the automobile exception (among others).
Being an avid outdoorsman, I have found that it is a common misconception in the hunting and fishing community that people believe that game wardens have unfettered power. This is simply untrue. Game wardens must still comply with the constitutional protections awarded to private citizens. So, what does that mean? It means that absent a warrant, or one of the recognized exceptions, a game warden cannot search your residence and/or your vehicle. However, as in most cases, there is no concrete answer and it is important to look at the facts and circumstances surrounding the search.
Because each case is fact-specific, it is best to use an example. Elmer Fudd (Mr. Fudd) decides to take a break from rabbit hunting. Instead, on September 1, 2020, Mr. Fudd went goose hunting during North Dakota’s early goose season. Mr. Fudd harvested 5 Canada geese. He takes a picture and posts it on Instagram. Mr. Fudd goes out the next day and shoots 10 more Canada geese. He again posts his success on Instagram. Mr. Fudd cleaned all 15 of his geese and placed them inside of his freezer in his basement. The bag limit is 15 Canada geese and the possession limit is 45 Canada geese.
After seeing several pictures of Mr. Fudd’s success, a game warden stops by Mr. Fudd’s residence. Mr. Fudd answers the door and the game warden asks to search his home. Specifically, the game warden wants to check Mr. Fudd’s freezer. Mr. Fudd politely denies the game warden’s request unless he has a search warrant.
In this scenario, in order for the game warden to enter Mr. Fudd’s residence, he would need to obtain a search warrant from a judge. If the game warden did not get a search warrant or was denied a search warrant, no search could be conducted. However, if a judge grants the game warden’s search warrant, the game warden could go back and search Mr. Fudd’s residence pursuant to the search warrant.
Now, if the facts are altered just slightly, this scenario could be substantially different. Instead, let’s say that Mr. Fudd consented to the search of his residence. The warden entered the residence and searched Mr. Fudd’s freezer. While searching the freezer, the game warden finds 50 Canada geese, 5 over Mr. Fudd’s possession limit. The game warden then cites Mr. Fudd for the violation.
In this case, Mr. Fudd consented to allow the game warden to search his residence. Consent is an exception to the warrant requirement. As a result, the game warden was permitted to search the residence without a warrant. Because Mr. Fudd was 5 over the possession limit, he would likely be charged with a class B misdemeanor.
Fish and game cases can be very complex. If you are approached by a game warden or are facing a fish and game offense, it may be in your best interest to contact an attorney. For help with game and fish violations in North Dakota, please contact Adam Justinger at SW&L Attorneys in Fargo at 701-297-2890. For future articles relating to game and fish violations, check our blog. This article is for informational purposes only.