This is a game warden stop of a duck hunter. The state argued, and the court agreed, that any confrontation between a game warden and the public amounted to a stop based on the Arkansas Game and Fish Commission Hunting Guidebook 18 (2012-13) available at any sporting goods store and online [2014-15 here]. A hunter cannot be confronted just to ask for his paperwork without reasonable suspicion. Hiibel is distinguished because that involved reasonable suspicion. Pickle v. State, 2014 Ark. App. 726 (December 17, 2014) (6-3):
Second, we reject the State’s argument that Pickle did not have any reasonable expectation of privacy because he was in an open field. While the State correctly articulates the open-fields doctrine, which holds that a person has no reasonable expectation of privacy in open lands or fields, the doctrine is inapplicable here. See, e.g., Hudspeth v. State, 349 Ark. 315, 322–23, 78 S.W.3d 99, 104 (2002). The open-fields doctrine applies to searches outside a property owner’s home or curtilage, on land visible to others, where the owner has no expectation of privacy. Id., 78 S.W.3d at 104. It does not stand for the much broader proposition that an officer may detain and search a person simply because he happens to be standing in an open field.
Third, we reject the State’s argument that Pickle had no reasonable expectation of privacy in his identity. Citing Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177, 185 (2004) (stating that “in the ordinary course a police officer is free to ask a person for identification without implicating the Fourth Amendment”) and Fowler v. State, 2010 Ark. 431, at 2–4, 371 S.W.3d 677, 680–81 (stating that officers may ask an individual to approach their vehicle and give his name even absent reasonable suspicion), the State argues that because the game wardens’ initial stop produced no prejudicial information or evidence against Pickle other than his name, the Fourth Amendment and article 2, section 15 do not apply. However, the State’s reliance on Hiibel and Fowler is misplaced because both cases involved reasonable suspicion of a crime prior to law enforcement’s initial contact with the defendant. As discussed above, Rule 2.2 allows officers to request that a person voluntarily provide identification or answer questions. However, neither case establishes the broader rule that police officers may demand an individual’s name or identification absent reasonable suspicion. As discussed above, a reasonable person in Pickle’s circumstances would not have believed himself to be free to refuse the game warden’s requests or terminate the encounter. Without reasonable suspicion, neither Hiibel nor Fowler provide authority for the game wardens’ detention and search of Pickle.
Having established that none of the State’s preliminary arguments provide a basis to affirm, we turn to the key inquiry in this case: whether game wardens must have reasonable suspicion in order to legally conduct routine hunting-compliance checks. The State urges the Court to follow Louisiana, Minnesota, and Montana in holding that game wardens may routinely conduct warrantless, suspicionless hunting-compliance checks without violating the Fourth Amendment. See State v. McHughes, 630 So. 2d 1259 (La. 1994); State v. Colosimo, 669 N.W. 2d 1 (Minn. 2003); State v. Boyer, 308 Mont. 276 (2002).
The circuit court adopted the rationale presented in these cases and found that,
Hunters and fishermen who elect to participate in those specialized activities do so with the understanding that everything from the guns they may use, the ammunition they may use, the amount and kind of waterfowl or fish they may kill or catch, the time when they may hunt or fish, and most everything else about their activity is regulated by the state.
Therefore, the circuit court reasoned, hunters like Pickle have no reasonable expectation of privacy as to game wardens’ hunting-related inquiries. Alternatively, the circuit court stated that, even if a reduced expectation of privacy existed, the game wardens’ actions did not violate Pickle’s rights because the State’s interests in conducting routine hunting-compliance checks are sufficiently compelling, they cannot be achieved through less restrictive means, and the intrusion on Pickle was slight.
We cannot affirm the circuit court’s determination that reasonable suspicion is not required for routine hunting-compliance checks because both Arkansas and federal law are exceedingly clear that, in those rare instances in which reasonable suspicion is not required, a different sort of safeguard must be in place: the stop or search must be conducted under a plan of explicit, neutral limitations that prevent the officers from exercising unbridled discretion.
Allen, 2013 Ark. 35, at 4, 425 S.W.3d at 757; Delaware v. Prouse, 440 U.S. 648, 661 (1979) (holding that “except in those situations in which there is at least articulable and reasonable suspicion … stopping an automobile and detaining the driver in order to check his driver’s license and registration … are unreasonable under the Fourth Amendment. This holding does not preclude the State … from developing methods for spot checks that involve less intrusion or that do not involve the unconstrained exercise of discretion”) (emphasis added). The explicit, neutral limitations-test is a necessary second prong of analysis in cases where reasonable suspicion is not required. Allen, 2013 Ark. 35, at 4, 425 S.W.3d at 757; Prouse, 440 U.S. 648, 661 (1979).
