Cal.4: Stop by “roadblock” of illegal fisherman was unreasonable

A fish and game officer in California does not have the authority to conduct suspicionless inspections of a vehicle [a boat yes, a car no] for lobster taken out of season. Considering the stop as a roadblock, it was invalid because it was for general law enforcement purposes. People v. Maikhio, 180 Cal. App. 4th 1178 (4th Dept. 2010), revd People v. Maikhio, 51 Cal. 4th 1074, 253 P.3d 247, 126 Cal. Rptr. 3d 74 (2011) posted June 21, 2011:

Accordingly, “[t]here is a two-step analysis applicable to Fourth Amendment checkpoint cases. First, the court must ‘determine whether the primary purpose of the [checkpoint] was to advance “the general interest in crime control.’” [Citation.] ’If so, then the stop … is per se invalid under the Fourth Amendment.’ [Citations.] [¶] If the checkpoint is not per se invalid as a crime control device, then the court must ‘judge [the checkpoint’s] reasonableness, hence, its constitutionality, on the basis of the individual circumstances.’ [Citation.] This requires consideration of ‘the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty.’ [Citations.]” (U.S. v. Fraire (9th Cir. 2009) 575 F.3d 929, 932.) Although Fraire’s two-step analysis specifically addressed vehicle checkpoints, there is no reason why the same analysis should not apply to other traffic stops of vehicles, including the stop of Maikhio’s vehicle in this case.

In the circumstances of this case, we conclude Fleet’s stop of Maikhio’s vehicle was indisputably made for normal law enforcement needs and to uncover evidence of ordinary criminal wrongdoing (i.e., a misdemeanor fishing offense) by a specific individual (i.e., Maikhio). As described in the factual and procedural section above, Fleet saw Maikhio hand-line fishing. He saw Maikhio catch something and place it in a black bag, but he could not see what Maikhio had caught. Fleet watched as Maikhio left the pier and drove away from the parking lot in his vehicle. Fleet then conducted a traffic stop of Maikhio’s vehicle on a public street because he “wanted to make sure … that [Maikhio] was in compliance with the California fishing laws and regulations.” Accordingly, the primary, if not sole, purpose of Fleet’s stop of Maikhio’s vehicle was to determine whether Maikhio had violated a fishing law (i.e., committed a misdemeanor fishing offense) and presumably to cite Maikhio if Fleet determined he had done so. That purpose was clearly to detect or uncover evidence of ordinary criminal wrongdoing and therefore promote the general purpose of crime control. Because Fleet’s stop of Maikhio’s vehicle did not serve a “special need” of government, it was per se unreasonable under the Fourth Amendment (absent the existence of reasonable suspicion that Maikhio was involved in criminal activity). (Edmond, supra, 531 U.S. at pp. 37-38, 41–42, 47; U.S. v. Fraire, supra, 575 F.3d at pp. 931–932.) “Because the primary purpose of [Fleet’s stop of Maikhio’s vehicle was to uncover evidence of ordinary criminal wrongdoing, the [stop] contravene[d] the Fourth Amendment [if Fleet had no reasonable suspicion that Maikhio was involved in criminal activity].” (Edmond, at pp. 41–42.) Like the court in Edmond, “[w]e decline to suspend the usual requirement of individualized suspicion where [a DFG warden] seek[s] to employ a [traffic stop of a specific vehicle] primarily for the ordinary enterprise of investigating crimes.” (Id. at p. 44.)