Maryland Attorney General Opinion 100OAG003

NATURAL RESOURCES

LAW ENFORCEMENT OFFICERS – AUTHORITY TO INSPECT

VESSELS FOR AQUATIC INVASIVE SPECIES

February 27, 2015

The Honorable Wendell R. Beitzel

The House of Delegates of Maryland

The Honorable George C. Edwards

The Senate of Maryland

You have asked whether Maryland law authorizes the

Department of Natural Resources (“DNR”) to inspect vessels, and

prevent their use on State waters, in an effort to control the spread

of aquatic invasive species (“AIS”). We understand your inquiry

to be primarily directed at whether members of the Department’s

Natural Resources Police Force (“NRP” or “NRP officers”) may

conduct warrantless on-shore inspections of vessels that are

brought to the lake. Minnesota has recently enacted legislation

that specifically authorizes those actions, and you seek our

opinion as to whether similar legislation is needed here in

Maryland.

We conclude that Maryland law already gives NRP officers

the authority to combat the introduction of AIS through vessel

inspections and, when necessary, prevent a vessel from launching

into the lake. The NRP’s existing statutory authority, however,

must be exercised in a manner that comports with the Fourth

Amendment’s proscription on unreasonable searches and seizures

and the similar proscription in Article 26 of the Maryland

Declaration of Rights. The real question here, then, is not

whether vessels may be inspected for AIS, but rather how those

inspections may be conducted within the restrictions of the Fourth

Amendment.

The Fourth Amendment ordinarily prohibits searches and

seizures carried out without a warrant issued on probable cause,

which we expect would be difficult for NRP officers to obtain in

the context of vessel inspections for AIS. There are, however,

several specific types of warrantless inspections that NRP officers

could carry out consistent with constitutional limitations. For

example, we believe that DNR could condition the use of the lake

on a person’s consent to the inspection of vessels and equipment

that might contain AIS. DNR could also authorize its officers to

conduct checkpoint inspections for AIS, so long as DNR

establishes procedures that clearly define the circumstances under

which checkpoints may be set up. Finally, DNR may promulgate

a protocol for administrative spot inspections that would likely

3

4 [100 Op. Att’y

meet the “special needs” exception to the warrant requirement.

All of these measures, however, would require that DNR

promulgate regulations to ensure that NRP officers carry out these

inspections according to an established program and not as matter

of individual discretion. Minnesota’s AIS program, summarized

in section II.C. below, provides one example of the measures that

we believe DNR could adopt by regulation.

Ultimately, the legality of a particular search or seizure will

turn on the balance between the government’s need for the

particular search or seizure—here, the need for warrantless

inspections of vessels for AIS before they are launched into the

lake—and the individual’s “reasonable expectation of privacy.”

Although that balance will vary with the facts of each case, two

sets of facts will often tip a properly-confined search for AIS in

favor of DNR’s authority: First, the owners of most vessels in

Maryland already have a diminished expectation of privacy

because NRP officers may board and inspect their vessels for

compliance with the safety and registration provisions of the State

Boat Act. Second, given the importance of the State’s aquatic

resources and the difficulty of detecting AIS, DNR should be able

to establish its legitimate need for warrantless AIS inspections.

We thus conclude that DNR already has statutory authority to

establish a regulatory protocol that would enable it to conduct

warrantless searches and seizures in a manner that is consistent

with the Fourth Amendment.

I

Background

A. Aquatic Invasive Species

Aquatic invasive species are broadly referred to as

“organisms introduced to marine or freshwater ecosystems to

which they are not native and whose introduction causes harm to

human health, the environment, or the economy.” U.S. Envtl.

Prot. Agency, EPA842-B-05-002, Overview of EPA Authorities

for Natural Resource Managers Developing Aquatic Invasive

Species Rapid Response and Management Plans, at 1 (2005)

(“EPA Report”). Under Maryland law, AIS qualify as “nuisance

organisms,” which are defined as any “nonnative aquatic

organism that will foreseeably alter or threaten to harm the

ecosystem or the abundance and diversity of native or naturalized

fish and other organisms.” See Md. Code Ann., Natural Res.

Gen. 3] 5

(“NR”) § 4-205.1(a)(8).1 Aquatic invasive species are spread,

both intentionally and unintentionally, via various pathways (also

called “vectors”), including the discharge of ships’ ballast water;

the release of marine organisms intended for human consumption,

aquaculture, bait, horticulture, aquaria, and the pet trade; and

“biofouling” on commercial and recreational vessels.2 EPA

Report at 1. According to EPA, AIS are “considered one of the

greatest threats to coastal environments and can significantly

affect public water supplies; recreational activities, such as

boating; and valuable natural resources, such as fisheries.” EPA

Report at 1. Nationwide, the economic impact of invasive fish

species alone is estimated at $5.4 billion annually. See David

Pimentel et al., Update on the Environmental and Economic

Costs Associated with Alien-Invasive Species in the United States,

52 Ecological Economics 273, 278 (2005).

Maryland has not been immune from the ill effects of AIS.

In the fall of 2013, the nonnative aquatic plant species Hydrilla

verticillata was found in multiple parts of Deep Creek Lake. In a

letter to Deep Creek property owners about a rapid response plan

that DNR created to control the species, DNR explained that

Hydrilla’s “quick growth rate” and its ability “to grow under low

light conditions and in deep water” mean that it “can unbalance

the lake ecosystem and will negatively impact recreation, fishing

and boating.” See Letter from DNR to Deep Creek Lake Property

Owners (May 29, 2014), http://www.dnr.maryland.gov/public

lands/pdfs/DCL_propertyownerletter.pdf (last visited Feb. 10,

2015); see also COMAR 08.02.19.04B(2)(b) (listing Hydrilla as a

“nonnative aquatic organism” under DNR’s Nuisance and

Prohibited Species regulations). The publication advised boat

owners that Hydrilla “reproduces via fragmentation” and that they

should “refrain from boating in or around it, as your propeller can

cut plants into smaller pieces, which can then reproduce.” Id.

Other aquatic invasive species of concern in Maryland

include:

▪ Didymo (or “Rock Snot”), an invasive alga

of cold flowing waters that can dominate

1

All references to the Natural Resources Article are to the 2012

Replacement Volume of the Maryland Annotated Code, as updated in

the 2014 supplement.

2

Biofouling is the accumulation of aquatic organisms such as

microorganisms, plants, and animals on surfaces and structures

immersed in or exposed to the aquatic environment. This is the

pathway that would be targeted by the inspection measures you

describe in your request.

6 [100 Op. Att’y

infected rivers and streams. Didymo can be

spread from one stream to another in a

number of different ways, including on felt-

soled waders;3

▪ Zebra mussels, which have been found in

some Maryland waters and can be spread

from one body of water to another through

contaminated bilge water, propellers, and

other boat parts and muddy equipment.

Zebra mussels out-compete native mussel

species for phytoplankton and other nutrients

and accumulate in drinking water intakes,

culverts, and other man-made structures;4

and

▪ Northern Snakehead, a large and aggressive

fish that, because of its high reproduction

rates and voracious feeding style, could

outcompete popular sport fish such as

largemouth bass.5

B. Current Maryland Law on AIS Control and Prevention

In 2002, a school of northern snakeheads was discovered in

a pond in Crofton, Maryland. The school had spawned from two

snakeheads that had been dumped in the pond more than two

years earlier. The episode revealed “significant gaps in Maryland

law regarding management of nonnative aquatic species.” Md.

Dep’t of Legislative Servs., The 90 Day Report, A Review of the

2003 Legislative Session, at K-1 (2003). For example, Maryland

law at the time did not contain a statutory prohibition on the

3

DNR News, “Felt-Soled Waders and Wading Shoes Are On the

Way Out – Effective March 21” (Nov. 19, 2011),

http://www.dnr.state.md.us/fisheries/news/story.asp?story_id=120 (last

visited Feb. 19, 2015).

4

DNR News, “More Zebra Mussels Found in Upper Chesapeake

Bay” (Dec. 17, 2012), http://news.maryland.gov/dnr/2012/12/17/more-

zebra-mussels-found-in-upper-chesapeake-bay/ (last visited Feb. 10,

2015); EPA, “Indicator: Invasion of Zebra Mussels (Dreissena

Polymorpha) and Quagga Mussels (Dreissena Bugensis),”

http://www.epa.gov/med/grosseile_site/indicators/sos/dreissena.pdf (last

visited Feb. 10, 2015).

5

DNR, Information Page on Northern Snakeheads,

http://dnr.maryland.gov/fisheries/Pages/snakehead.aspx (last visited

Feb. 10, 2015).

Gen. 3] 7

release of nonnative species, and DNR lacked the authority to

adopt regulations covering nonnative species. Id.

In direct response to the snakehead discovery, the

Legislature adopted § 4-205.1 of the Natural Resources Article.

See 2003 Md. Laws, ch. 373. That statute explicitly authorizes

DNR’s Secretary to adopt regulations to “[p]rohibit the

importation, possession, or introduction into State waters of a

nonnative aquatic organism in order to prevent an adverse impact

on an aquatic ecosystem or the productivity of State waters.” NR

§ 4-205.1(b)(1)(i). Furthermore, the legislation authorizes DNR

to “enter and inspect a property to determine whether a state of

nuisance exists” as long as DNR has provided reasonable notice

of its intent to do so. NR § 4-205.1(c)(1). The statute defines a

“state of nuisance” as “a condition in which a nuisance organism

will foreseeably alter and threaten to harm the ecosystem or the

abundance and diversity of native or naturalized fish and other

organisms.” NR § 4-205.1(a)(9). The statute does not, however,

explicitly address the inspection of vessels.

DNR issued new regulations in 2004 pursuant to its

expanded authority. The stated purpose of the regulations “is to

control the importation, possession, propagation, transport,

purchase, sale, or introduction into State waters of certain

nonnative aquatic organisms that, if accidentally or deliberately

introduced into or further spread in the waters of the State, would

alter and threaten to harm the ecosystem, the abundance and

diversity of native or naturalized aquatic organisms, or the

productivity of State waters.” COMAR 08.02.19.01. The

regulations explicitly prohibit a person from “plac[ing] or

attempt[ing] to place upon or into State waters a watercraft or

associated equipment with attached or contained aquatic plants,

zebra mussels, or other prohibited species of nonnative

organisms.” COMAR 08.02.19.05A; see also COMAR

08.02.08.01C (“Except as permitted by the Secretary of Natural

Resources, a person may not import into the State or possess any

living life stage or reproductive products of mussels of the genus

Dreissena”); COMAR 08.02.19.04 (“A person may not import,

transport, purchase, possess, propagate, sell, or release into State

waters the following nonnative aquatic organisms,” including

Asian horseshoe crabs, walking catfish, and zebra mussels).

Furthermore, “[w]ater taken from waters infested by prohibited

nonnative species may not be diverted, appropriated, or

transported on public roads,” except in a declared emergency or

by permit. COMAR 08.02.19.05B.

In 2011, DNR again exercised its regulatory authority under

NR § 4-205.1(b), this time to ban the use of felt-soled waders and

boots “in State waters or within five feet of State waters.”

COMAR 08.02.19.07. DNR implemented the ban in an effort to

8 [100 Op. Att’y

prevent the spread of Didymo, which resource managers across

North America had discovered was being transported from stream

to stream on the felt-soled waders of fly fisherman. DNR, Felt-

Soles Ban – FAQ, http://dnr.maryland.gov/fisheries/Documents/

Felt_sole_faq.pdf (last visited Feb. 20, 2015).

Maryland’s invasive species laws and regulations carry

significant penalty provisions. Any person who violates the AIS

provisions of NR § 4-205.1 or a regulation adopted under that

section is guilty of a misdemeanor and on conviction is subject to

imprisonment not exceeding 30 days or a fine not exceeding

$2,500 or both. NR § 4-205.1(i).

II

Analysis

A. Whether DNR Has Statutory Authority to Inspect Vessels

for the Presence of AIS and Prevent Them from Entering

the Lake

The first issue raised by your question is whether the State

has delegated to DNR the authority to stop, search, and, if

necessary, detain vessels before they are launched into the lake.

The decision to grant “a broad general delegation of regulatory

authority to administrators, or a more specific delegation, is a

choice for the General Assembly.” Christ v. Maryland Dep’t of

Nat. Res., 335 Md. 427, 439 (1994). Here, the General Assembly

made a broad grant of authority. The enactment of NR § 4-

205.1(b)(1) permits DNR to issue any regulations that would

“[p]rohibit the importation, possession, or introduction into State

waters of a nonnative aquatic organism in order to prevent an

adverse impact on an aquatic ecosystem or the productivity of

State waters.” Although DNR’s exercise of that authority must be

“consistent with the letter and spirit of the law under which the

agency acts,” Christ, 335 Md. at 437, DNR’s regulatory

prohibition on placing or attempting to place AIS-contaminated

vessels into State waters is undoubtedly consistent with NR § 4-

205.1(b)(1).

The NRP “specifically is charged with enforcing the natural

resource and conservation laws of the State.” NR § 1-204(a). In

fact, NRP officers are given “all the powers conferred upon police

officers of the State,” and they have “statewide authority” to

exercise those powers. Id.; see also NR § 1-201.1(a). NRP

officers are thus charged with enforcing all natural resources laws

and regulations, including the regulatory prohibition against

“plac[ing] or attempt[ing] to place upon or into State waters a

watercraft or associated equipment with attached or contained

aquatic plants, zebra mussels, or other prohibited species of

nonnative organisms.” COMAR 08.02.19.05A.

Gen. 3] 9

We conclude that the inspection of a vessel6 for AIS before

it is launched is a reasonable and effective method of enforcing

the statutory and regulatory prohibition on introducing AIS into

the waters of the State and, thus, falls within the existing powers

of the NRP. No further legislation is necessary to authorize the

NRP to carry out such inspections.

B. Whether the Fourth Amendment Permits the Types of

Warrantless Inspections Necessary to Determine the

Presence of AIS on a Vessel

DNR’s inspection authority, though consistent with its

statute and regulations, must also be carried out consistently with

the “search and seizure” protections afforded by the United States

and Maryland constitutions. See, e.g., Blair v. United States, 665

F.2d 500, 505 (4th Cir. 1981) (stating that the authority granted

by NR § 8-727 to stop, board, or inspect a vessel in the course of

enforcing the State Boat Act “must be read . . . in light of the

fourth amendment’s requirements . . . , for no statute can

authorize a violation of the Constitution”); see also People v.

Maikhio, 253 P.3d 247, 257 (2011) (fact that a game warden had

the implicit authority to stop a vehicle whose occupant had

recently been fishing and demand the display of the catch did not

necessarily mean that the search comported with the Fourth

Amendment). The Fourth Amendment to the U.S. Constitution

and Article 26 of the Maryland Declaration of Rights protect

citizens from “unreasonable” searches and seizures.7 The purpose

of the protection is to impose a standard of “reasonableness” upon

the exercise of discretion by government officials in order “to

safeguard the privacy and security of individuals against arbitrary

invasions.” Camara v. Municipal Court of the City and County of

San Francisco, 387 U.S. 523, 528 (1967); see also Wilson v.

State, 409 Md. 415, 427 (2009) (“Reasonableness ‘depends on a

balance between the public interest and the individual’s right to

personal security free from arbitrary interference by law

6

The term “vessel” is defined by statute to mean “every

description of watercraft, including an ice boat but not including a

seaplane, that is used or capable of being used as a means of

transportation on water or ice.” NR § 8-701(s). The term “includes the

motor, spars, sails, and accessories of a vessel.” Id.; see also COMAR

08.04.01.01B(28).

7

Article 26 is generally interpreted consistently with the Fourth

Amendment. See, e.g., Byndloss v. State, 391 Md. 462, 465 n.1 (2006)

(“Article 26 of the Maryland Declaration of Rights is, generally, in pari

materia with the Fourth Amendment of the United States

Constitution.”).

10 [100 Op. Att’y

officers.’”) (quoting Maryland v. Wilson, 519 U.S. 408, 411

(1997)).

The threshold question under the Fourth Amendment is

whether a search or seizure has even occurred, as not every

encounter with a law enforcement officer is a “seizure,” and not

every inspection is a “search.” See, e.g., Brower v. County of

Inyo, 489 U.S. 593, 598-99 (1989) (addressing whether a

roadblock intended to block suspect’s passage was a “seizure”);

Minnesota v. Dickerson, 508 U.S. 366, 375 (1993) (addressing

whether observation of contraband from a public vantage point

was a “search”). If a search or seizure occurred, however, the

inquiry then turns to whether the search or seizure was

unreasonable. Brower, 489 U.S. at 599.

Generally, a particular search or seizure is unreasonable

unless it is either authorized by a valid warrant issued upon a

showing of probable cause or permissible under a recognized

exception. Riley v. California, 134 S. Ct. 2473, 2482 (2014) (“In

the absence of a warrant, a search is reasonable only if it falls

within a specific exception to the warrant requirement”). The

transient nature of vessels and the difficulty detecting AIS make it

unrealistic to expect NRP officers to obtain a warrant before

detaining a vessel contaminated with AIS. See, e.g., United States

v. Kaiyo Maru No. 53, 699 F.2d 989, 996 (9th Cir. 1983)

(explaining that “the logistical problems in establishing a

successful inspection program requiring warrants are

insurmountable” in the fisheries context and that, “if there is to be

a successful inspection program at all, it must be a warrantless

one”). Consequently, the permissibility of a vessel search and

seizure would depend on whether it qualifies under one of the

“‘few specifically established and well-delineated exceptions’ to

the search warrant requirement.” United States v. Brown, 701

F.3d 120, 126 (4th Cir. 2012) (quoting Katz v. United States, 389

U.S. 347, 357 (1967)).

In determining whether a given type of search qualifies

under one of the established exceptions, the Supreme Court

balances, “on the one hand, the degree to which [the search]

intrudes upon an individual’s privacy and, on the other, the degree

to which it is needed for the promotion of legitimate

governmental interests.” Riley, 134 S. Ct. at 2484 (quoting

Wyoming v. Houghton, 526 U. S. 295, 300 (1999)). The Court

will examine whether the application of an exception to a

particular search results in the “appropriate balance,” id., because

the “ultimate touchstone of the Fourth Amendment is

reasonableness.” Id. at 2482.

The balancing of interests required by the reasonableness

standard is heavily fact-dependent. As a result, the degree to

Gen. 3] 11

which an officer’s inspection of a vessel for the presence of AIS

implicates Fourth Amendment protections will vary with the

particular circumstances and the type of exception involved. See,

e.g., Santos v. Frederick County Bd. of Comm’rs, 725 F.3d 451,

460 (4th Cir. 2013) (explaining that each of the three different

categories of police-citizen encounters identified by the Supreme

Court—“consensual” encounters, “brief investigative detentions,”

and arrests—“represents differing degrees of restraint and,

accordingly, requires differing levels of justification”), cert.

denied, 134 S. Ct. 1541 (2014); see also Illinois v. Gates, 462

U.S. 213, 232 (1983) (remarking that the Fourth Amendment

reasonableness standard is not susceptible to a “neat set of legal

rules”). We begin our analysis with the types of warrantless

inspections that raise the fewest Fourth Amendment concerns and

then discuss those that require greater justification.

1. Plain-View Inspections and Seizures When AIS Are

in Open View

Not every inspection is a “search” for purposes of the Fourth

Amendment. For example, “what a person knowingly exposes to

the public . . . is not a subject of Fourth Amendment protection.”

Katz, 389 U.S. at 351. The rationale behind the so-called plain-

view doctrine is that, “if contraband is left in open view and is

observed by a police officer from a lawful vantage point, there

has been no invasion of a legitimate expectation of privacy and

thus no ‘search’ within the meaning of the Fourth Amendment.”

Dickerson, 508 U.S. at 375. Accordingly, “law enforcement

officers may seize evidence in plain view, provided that they have

not violated the Fourth Amendment in arriving at the spot from

which the observation of the evidence is made.” Kentucky v.

King, 131 S. Ct. 1849, 1858 (2011) (citing Horton v. California,

496 U.S. 128, 136-140 (1990)). The visual inspection of the

exterior hull of a vessel by an NRP officer thus would not be a

“search” within the scope of the Fourth Amendment unless the

officer has improperly arrived at the spot from which the officer

made the observation.

Assuming that an NRP officer sees AIS on a vessel from a

lawful vantage point, such as a public boat ramp, the next

question is whether the officer may prevent the vessel from

launching by detaining the operator. An officer may conduct a

brief investigative detention, known as a “Terry stop,” if he or she

has “a reasonable, articulable suspicion that criminal activity is

afoot.” Illinois v. Wardlow, 528 U.S. 119, 123 (2000) (citing

Terry v. Ohio, 392 U.S. 1, 30 (1968)). A Terry stop, however,

must be brief; the police must “diligently pursue[] a means of

investigation that [is] likely to confirm or dispel their suspicions

quickly. . . .” United States v. Sharpe, 470 U.S. 675, 686 (1985).

If the stop extends beyond that point, it will ripen into a full

12 [100 Op. Att’y

arrest—the “most intrusive type of police-citizen encounter.”

Santos, 725 F.3d at 460. A full arrest must be supported by

probable cause, that is, “facts and circumstances within the

officer’s knowledge that are sufficient to warrant a prudent

person, one of reasonable caution, in believing, in the

circumstances shown, that the suspect has committed, is

committing, or is about to commit an offense.” Michigan v.

DeFillippo, 443 U.S. 31, 37 (1979); see also United States v.

Carillo-Rivas, 438 F. App’x 227, 228 (4th Cir. 2011) (same).

The detention of an operator to prevent him from

introducing AIS into State waters would likely qualify as an

arrest. But, if the NRP officer has seen AIS in plain view and the

operator has refused the officer’s lawful order to refrain from

entering the water, we believe the officer would have probable

cause to arrest the person and prevent the launch of the vessel.

See, e.g., United States v. Raub, 637 F.2d 1205, 1210-11 (9th Cir.

1980) (upholding seizure of an illegal catch in plain view). There

is no need for additional regulations to authorize NRP officers to

carry out these types of plain-view searches and seizures.

2. Consensual Inspections

Consensual encounters, like the plain-view inspections

discussed above, “do not implicate Fourth Amendment

protections.” Santos, 725 F.3d at 460; see also Florida v. Bostick,

501 U.S. 429, 434 (1991). Specifically, “[l]aw enforcement

officers do not violate the Fourth Amendment[] . . . merely by

approaching individuals on the street or in other public places and

putting questions to them if they are willing to listen.” State v.

Green, 375 Md. 595, 609 (2003) (quoting United States v.

Drayton, 536 U.S. 194, 200 (2002)). Thus, “[a]s long as police

officers do not induce cooperation by coercive means, they may

pose questions, ask for identification, and request consent to

search luggage even if they have no basis for suspecting that a

particular individual has engaged in criminal activity.” Id. at 609

(internal quotation marks omitted).

Applying these principles in a context relevant to your

question, the Minnesota Supreme Court held that the conduct of

an officer who “walk[ed] up to [the boat owner] and convers[ed]

with him while [the] boat rested on the trailer of a parked portage

truck” did not amount to a seizure for Fourth Amendment

purposes. State v. Colosimo, 669 N.W.2d 1, 4 (Minn. 2003).

Although a factual dispute might arise as to whether a particular

encounter is truly consensual, see, e.g., Santos, 725 F.3d at 461-

62 (addressing the question of whether the person being

interviewed felt free to leave), or whether an inspection exceeded

the scope of the consent, see, e.g., Florida v. Jimeno, 500 U.S.

248, 251 (1991) (addressing whether the defendant’s consent to

Gen. 3] 13

the search of his car included the bags inside it), a truly

consensual search does not raise Fourth Amendment issues.

There is no need for additional regulations to authorize an

NRP officer to approach a member of the public on or near the

public boat ramp, ask to inspect the vessel and related equipment

for AIS, and, upon consent, carry out the inspection. But DNR

might be able to expand the universe of inspections that fall

within the “consensual” category by issuing a regulation that

explicitly conditions the use of vessels on the lake on the

operator’s consent to inspection for AIS. We base this conclusion

on the General Assembly’s specific grants of authority to DNR to

manage the lake.

Both the Maryland Code and DNR’s regulations make clear

that DNR has broad authority to regulate the use of Deep Creek

Lake. The State bought and owns the lake, “including the land

under the lake and the buffer strip.” COMAR 08.08.01.01B. 8

The DNR Secretary, along with the Deep Creek Lake Policy and

Review Board, must prepare “a plan that provides for the wise

use, protection, and management of the natural and recreational

resources of [the lake],” and DNR may adopt regulations to

“[p]rotect the . . . natural resources and the environment” or to

implement the plan. NR § 5-215.1(b)(1), (d); see also COMAR

08.08.01.01C (“The Department has authority and responsibility

under State law to regulate many public, recreational uses of

natural resources in and around the lake, such as boating and

fishing.”). In fact, DNR’s regulations make clear that the use of

the lake is a privilege, not a right: “The Department has allowed

and will allow the public and surrounding landowners to use, and

in certain instances to occupy, the waters of the lake, the land

beneath the lake, and the buffer strip, but only as a matter of

privilege.” COMAR 08.08.01.01B.9

A case involving Tennessee wildlife officers’ search and

seizure of duck blinds on a state-managed lake suggests the extent

to which a state may explicitly condition the exercise of a state-

granted recreational privilege on a person’s consent to

inspections. In Hamilton v. Myers, a federal court noted that,

8

A history of the lake and the State’s purchase of it can be found

on DNR’s website, at http://dnr.maryland.gov/publiclands/Pages/

western/deepcreeknrma.aspx.

9

DNR already imposes a number of conditions on the use of the

lake. See, e.g., § 5-215(c) (boat ramp fee); COMAR 08.18.03.03 (noise

limits); 08.18.03.08 (use of a muffler); 08.18.33.03 (speed limits); and

08.18.33.02 (permissible types of vessels and date, time, and location

restrictions).

14 [100 Op. Att’y

under Tennessee law, “he who undertakes to avail himself of a

privilege granted by the State must do so on whatever terms and

conditions the State chooses to annex to the exercise of the

privilege, including the waiver of constitutional rights.” 281 F.3d

520, 532 (6th Cir. 2002) (quoting Monroe v. State, 253 S.W.2d

734, 735-36 (Tenn. 1952)). Then, the court stated that, by state

statute, “[e]veryone who participates in the privilege of hunting

has a duty to permit inspections to determine whether they are

complying with applicable laws” and that a “boat or blind can be

searched at any time during hunting season.” Id. at 531-32.

Based on this State law, the court held that “officers clearly have

the authority to go on property to inspect visible waterfowl blinds

during an open hunting season” and that the officers in question

did not act unconstitutionally when they searched, and then

seized, the plaintiffs’ duck blind. See id. Other courts have

reached similar conclusions. See United States v. Whitaker, 592

F.2d 826, 829-30 (5th Cir. 1979) (explaining that there is a low

expectation of privacy on boats subject to numerous regulatory

restrictions); United States v. Greenhead, Inc., 256 F. Supp. 890,

893 (N.D. Cal. 1966) (holding that hunting wildfowl “is a high

privilege granted by the people and subject to immediate

withdrawal”); Colosimo, 669 N.W.2d at 5 (“Recreational fishing

is a highly regulated and licensed privilege. Those who choose to

apply for this privilege accept the conditions imposed.”).10

Some courts have upheld searches on the theory that a

person who hunts or fishes impliedly consents to inspections of

fish or game bags even in the absence of a statute expressly

requiring such consent as a condition of using State natural

resources. See State v. Halverson, 277 N.W.2d 723, 724-25 (S.D.

1979) (“Since it is a privilege to hunt wild game, a hunter tacitly

10

In other contexts, courts have made clear that there are limits to

the principle that a government may impose conditions on its

discretionary grant of benefits. Specifically, the doctrine of

unconstitutional conditions prohibits the termination of benefits “if the

termination is based on motivations that other constitutional provisions

proscribe.” Adams v. James, 784 F.2d 1077, 1080 (11th Cir. 1986)

(citing Thomas v. Review Bd., 450 U.S. 707 (1981)); cf. 63 Opinions of

the Attorney General 595, 601-02 (1978) (concluding that conditioning

entrance to port facility on a search for stolen goods, as opposed to a

search for security purposes, would likely be impermissible). The

doctrine would not apply here, however, as the State’s motivation to

protect the lake from AIS is not proscribed by constitutional provisions.

As discussed in greater detail below, a programmatic search for AIS is

more akin to a preventative security search, which is permissible, than

to a warrantless search for the evidence of a crime, which is not. See

infra at 14-16.

Gen. 3] 15

consents to the inspection of any game animal in his possession

when he makes application for and receives a hunting license.”);

State v. Layton, 552 N.E.2d 1280, 1287 (Ill. App. 3d. 1990) (“The

roving conservation officer patrol stopping hunters, encountered

in the field . . . does not violate the fourth amendment” because

hunters are deemed to have “consent[ed] to some intrusions”

when they get a hunting license or hunt without one.). As stated

by the Ninth Circuit, “a person’s relationship with the state can

reduce that person’s expectation of privacy even within the

sanctity of the home.” Sanchez v. County of San Diego, 464 F.3d

916, 927 (9th Cir. 2006) (upholding warrantless home visit by

social workers to verify a benefit-recipient’s actual presence at the

place designated as their residence).11

There are, however, limits to this approach. Like all

searches and seizures, a search justified by implied consent must

be reasonable under the circumstances. See 4 LaFave, Search and

Seizure § 8.2(l), at 165 (5th ed. 2012). But we believe that a

properly-noticed regulation informing boaters that, by using the

lake, they consent to a properly-focused search for AIS would

enable NRP officers to conduct warrantless searches that would

survive constitutional scrutiny under the cases discussed above.

The management of the lake through such a regulation might

obviate the need for the types of inspections that we discuss next,

which raise other Fourth Amendment concerns.

3. Fixed Checkpoint Searches

The stop of a vehicle at a checkpoint is a “seizure” for

Fourth Amendment purposes. United States v. Brignoni-Ponce,

422 U.S. 873, 878 (1975). The constitutionality of a particular

checkpoint stop or inspection is determined by “balancing the

intrusion on the individual’s Fourth Amendment interests against

the promotion of legitimate governmental interests.” Delaware v.

Prouse, 440 U.S. 648, 654 (1979). “Suspicionless checkpoint

searches are permissible under the Fourth Amendment when a

11

The Ninth Circuit rejected the implicit consent theory in another

case in which wildlife officials conducted a roving stop of a motorist in

a national forest. United States v. Munoz, 701 F.2d 1293, 1301 (9th

Cir. 1983). There, the court reasoned that Congress did not intend to

condition the use of national parks on the surrender of one’s privacy

when “one of the primary purposes” of national parks is for the

visitor’s “respite and reflection” and “fundamental right to be left

alone.” Id. at 1298. Munoz does not control your question; the General

Assembly has already made clear that there is little privacy interest in

most vessels and that the use of the lake is subject to extensive State

regulation.

16 [100 Op. Att’y

court finds a favorable balance between ‘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.’” United States v. Hartwell, 436 F.3d

174, 178-79 (3d Cir. 2006) (quoting Illinois v. Lidster, 540 U.S.

419, 427 (2004)). For example, the Maryland Court of Appeals

has concluded that the intrusion on individual liberties caused by

a temporary sobriety checkpoint was minimal when “balanced

against the State’s compelling interest in detecting and deterring

drunk driving.” Little v. State, 300 Md. 485, 506 (1984).

Nonetheless, the courts have cautioned that checkpoints may

not be used as a pretext for random searches for general law

enforcement purposes; after all, the purpose of the warrant

requirement is to protect the public from suspicionless searches

and seizures that are wholly at the discretion of police officers.

See Katz, 389 U.S. at 358-59 (“[B]ypassing a neutral

predetermination of the scope of a search leaves individuals

secure from Fourth Amendment violations only in the discretion

of the police.” (internal quotation marks omitted)). Courts

therefore have stressed that checkpoints set up to further a

specific programmatic purpose must be conducted in accordance

with a predetermined protocol that limits the discretion of the

officers in the field. See Little, 300 Md. at 506. In upholding the

constitutionality of the sobriety checkpoint at issue in Little, the

Court of Appeals noted the characteristics that made the

checkpoint permissible:

The checkpoints are operated under

limitations imposed by clear, carefully

crafted regulations approved by high level

administrators. The regulations severely

restrict the discretion of the officers in the

field. All vehicles are stopped; there is

virtually no risk that motorists will be singled

out arbitrarily. The procedures to be

followed when communicating with each

driver are set forth in detail in the

regulations; thus, the risk of police

harassment is greatly reduced.

Id.; see also 89 Opinions of the Attorney General 158, 159 n.1

(2004) (“Although stopping a driver at a sobriety checkpoint is a

seizure for purposes of the federal and State constitutions, such a

seizure may be reasonable, particularly if it is conducted in a

manner that limits officer discretion.”). An enforcement agency’s

adoption of procedures can thus serve to affect the balance

between individual privacy interests and governmental interests

by reducing the risk of arbitrary searches and thereby lessening

the inspection’s intrusion on individual liberties.

Gen. 3] 17

State courts across the country have regularly upheld the use

of checkpoints for the enforcement of fish and wildlife laws in

cases where the officers used set procedures reasonably related to

the enforcement goal. In these cases, the courts found that the

programmatic purpose of resource conservation, combined with

the difficulty of enforcing those laws through other means,

outweighed what the courts have generally perceived to be a

minimal privacy interest in the contents of a fish or game bag.

See, e.g., State v. Sherburne, 571 A.2d 1181, 1184 (Me. 1990)

(noting the “important conservation purpose furthered by a

roadblock” set up to enforce fishing laws); Drane v. State, 493

So.2d 294, 298 (Miss. 1986) (“It is difficult to see how [the]

purposes [of the wildlife conservation statute] can be effected if

game wardens were not empowered to make routine stops of

vehicles in wildlife management areas.”); State v. Tourtillott, 618

P.2d 423, 430 (Or. 1980) (“We conclude that the governmental

interest in the enforcement of laws for the preservation of wildlife

in this state is sufficiently substantial to justify the minimal

intrusion upon the Fourth Amendment rights of those stopped for

brief questioning and a visual inspection of their

vehicles.”); Halverson, 277 N.W.2d at 725 (“The intrusion into

the right of the non-hunter to the uninterrupted use of the

highways is slight and greatly outweighed by the public interest in

the management and conservation of wildlife in this state.”).

Likewise, the Ninth Circuit has held that a checkpoint stop

by a federal ranger posted at an information station was

reasonable where the purpose was to distribute litter bags, “which

included regulations concerning campfires for fire safety, refuse

disposal for litter control, and camp restrictions.” United States v.

Faulkner, 450 F.3d 466, 470 (9th Cir. 2006). As the court

explained, “[t]he primary purpose of the information station was

not to advance the general interest in crime control, and the

gravity of the public concerns served by the seizure and the

degree to which the seizure advanced the public interest outweigh

the minimal interference with individual liberty.” Id. at 474. The

interest identified there was instead the prevention of “littering,

illegal fires, and driving while intoxicated,” which, the court

concluded, “serves a purpose beyond the general interest in crime

control.” Id. at 471; see also United States v. Rodriguez, C.R. C-

09-1026M, 2009 WL 5214031, at *4 (S.D. Tex. Dec. 23, 2009)

(holding that a ranger’s checkpoint stop of a park visitor,

conducted as part of program to audit the collection of park fees,

was not an unreasonable seizure because it “involve[d] an

important public concern, a method that advance[d] that concern,

and minimal encroachment into the private lives of park

visitors”).

The procedures followed at the checkpoint addressed in

United States v. Fraire, 575 F.3d 929 (9th Cir. 2009), provide

18 [100 Op. Att’y

another example of practices found acceptable in the resource

conservation context. There, park rangers set up a checkpoint to

prevent individuals from illegally hunting animals in the park. Id.

at 930. The court held that “a momentary checkpoint stop of all

vehicles at the entrance of a national park, aimed at preventing

illegal hunting,” was reasonable under the Fourth Amendment

because it was “minimally intrusive, justified by a legitimate

concern for the preservation of park wildlife and the prevention of

irreparable harm, directly related to the operation of the park, and

confined to the park gate where visitors would expect to briefly

stop.” Id. The court described the checkpoint as follows:

The checkpoint was implemented near one of

the multiple park entrances and stopped all

vehicles entering and exiting the park at that

point. Rangers posted signs prior to the

checkpoint instructing drivers to prepare to

stop, concluding with stop signs, a cone

pattern, a ranger station, and a ranger in a

reflective jacket directing traffic. All rangers

participating in the checkpoint were

uniformed.

After a vehicle was stopped at the

checkpoint, a ranger would approach the

vehicle, identify himself or herself as a park

ranger, state that he or she was conducting a

hunting checkpoint, and then ask the driver,

“have you been hunting” or “are you

hunting?” If the driver responded that he or

she was not hunting, the ranger would not

search the vehicle’s trunk.

Id. at 931.

In our opinion, DNR may institute similar checkpoint

searches for AIS by promulgating “clear, carefully crafted

regulations” that limit the scope of the search to the specific

programmatic purpose of preventing the spread of AIS, “severely

restrict the discretion of the officers in the field,” and “set forth in

detail” the “procedures to be followed when communicating with

each driver.” See Little, 300 Md. at 506. Like the fish and game

searches upheld in the cases cited above, a search conducted

properly under regulations like these would likely strike the

appropriate balance between the gravity of the State’s needs and

Gen. 3] 19

the degree to which the inspection intrudes on a person’s

reasonable expectation of privacy.12

On the “State needs” side of the balance, the need to prevent

the spread of AIS is well-established. See EPA Report at 1. Also

well-established is the legitimacy of Maryland’s interest in

protecting and conserving its natural resources. See, e.g., Smith,

Owner of the Sloop Volant, v. Maryland, 59 U.S. 71 (1855)

(affirming Maryland’s power to enact a law that banned the

taking of oysters by certain means and authorized the seizure and

forfeiture of vessels used for those purposes). Moreover, the

State’s programmatic need for the ability to inspect for AIS in the

field, without first obtaining a warrant based on probable cause, is

also easily established. As the courts have noted in the fish and

wildlife cases discussed above, a warrant requirement would

make it practically impossible to enforce laws governing mobile

activities like fishing and hunting. See, e.g., Kaiyo Maru, 699

F.2d at 996.

On the “privacy” side of the balance, the degree to which the

operators of vessels have a reasonable expectation of privacy as to

the vessel will vary with the type of vessel, the areas searched,

and other factors. See United States v. Gollwitzer, 697 F.2d 1357,

1360 (11th Cir. 1983) (“The degree of privacy one may

reasonably expect varies according to the vessel one is aboard.”);

Colosimo, 669 N.W.2d at 5-6 (examining whether there were

“any areas of the open boat where [the owner’s] expectation of

privacy was unreasonable”); People v. Butorac, 3 N.E.3d 438 (Ill.

App. Ct. 2013), appeal denied, 5 N.E.3d 1125 (Ill. Mar. 26, 2014)

(reviewing cases in which courts applied motor-vehicle

checkpoint case law to suspicionless stops of various watercraft).

For almost all vessels used on the lake, however, a person’s

expectation of privacy is likely minimal, for two reasons. First,

DNR regulations limit the size of vessels that may be used on the

lake, so it is unlikely that an inspection at the lake’s boat ramps

12

By contrast, we have previously disapproved of a program that

would have given Maryland Port Administration officers the discretion

to decide which vehicles to stop at port facility entrances to search for

stolen cargo. See 63 Opinions of the Attorney General at 604-05. The

opinion concluded that the officers had too much discretion, that case

law at the time did “not support finding justification for a full

automobile search in the face of danger of economic loss alone,” and

that “the balance remains tipped against the intrusion and in favor of

the individual’s right to privacy.” Id.

20 [100 Op. Att’y

would involve the operator’s living quarters.13 Second, and more

importantly, vessels are already subject to safety and registration

inspections by NRP officers under the State Boat Act; in the

course of enforcing that law, an NRP officer “may stop, board, or

inspect” any vessel. NR § 8-727(b). A person thus does not have

a reasonable expectation of privacy in the areas of a vessel that

might be inspected under those provisions. In United States v.

Albers, 136 F.3d 670 (9th Cir. 1998), for example, the court held

that the warrantless search of a houseboat on Lake Powell did not

intrude upon places in which the defendant had a reasonable

expectation of privacy. The court explained:

[The Defendant] had . . . a reduced

expectation of privacy because at any time an

authorized person could have stopped and

boarded his boat “to determine compliance

with regulations pertaining to safety

equipment and operation.” Indeed, the

government’s traditional power to board a

vessel is far greater than its power to enter a

motor home or a car, see United States v.

Villamonte-Marquez, 462 U.S. 579, 592

(1983) (suspicionless boarding of ships for

inspection of documents not contrary to

Fourth Amendment).

Id. at 673 (internal citation omitted). For the most part, then, an

inspection of vessels for AIS probably would not intrude on a

person’s reasonable expectation of privacy.

In sum, the State’s need to prevent the spread of AIS will in

most cases outweigh a person’s diminished expectation of privacy

in a vessel that the person proposes to launch into the lake.

Accordingly, in our view, DNR’s use of checkpoint inspections

for AIS would be lawful so long as (1) DNR adopts clear

procedures that further the enforcement goal of preventing the

spread of AIS and restrict the discretion of the officers and (2) the

inspections are in fact conducted in accordance with those

procedures.

13

Boats on Deep Creek Lake generally may not exceed 26 feet in

length, or 30 feet for pontoon boats, and houseboats are not permitted.

See COMAR 08.18.33.02; see also DNR’s “Deep Creek Lake NRMA

Resource Guide” (rev’d June 2010), http://www.dnr.state.md.us/

publiclands/pdfs/DCL_BoatingResourceGuide.pdf (last visited Feb. 10,

2015).

Gen. 3] 21

4. Other Warrantless Detentions and Inspections: The

“Special Needs” Exception

There are other circumstances, in addition to those discussed

above, in which it may be permissible for an officer to conduct a

warrantless vehicle stop. One example is the so-called “Terry

stop,” which we discussed above in the context of plain-view

inspections that fall outside the Fourth Amendment. See supra at

9. It may be difficult, however, to formulate the “reasonable

articulable suspicion of criminal activity” that a Terry stop

requires when some invasive species are either too small to see or

attached to equipment not in plain view.14 Because the officer’s

“suspicions must be more than an inchoate and unparticularized

suspicion or hunch,” United States v. Johnson, 599 F.3d 339, 345

(4th Cir. 2010) (citations and internal quotation marks omitted), a

Terry stop might be difficult to justify in this context.

The fact that it may be difficult to conduct a valid Terry stop

thus raises the question of whether an officer may conduct spot

inspections of vessels when the officer does not have reasonable

articulable suspicion that the vessel is contaminated by AIS and is

not stationed at a fixed checkpoint. Cases from other jurisdictions

mostly, but not uniformly, suggest that officers may conduct spot

inspections to enforce fish, game, and park laws when the search

is limited to the scope necessary to enforce the particular law.

The courts that have upheld such inspections have generally

reached that result by one of two routes—the implied consent of

an individual to the search, or the characterization of such

inspections as “special needs” searches exempt from the warrant

requirement—and sometimes through reasoning that seems to

combine the two.

As discussed above, we believe that the implied consent

theory could justify a warrantless search for AIS, but that DNR

could bolster its authority in this respect by expressly making the

boater’s consent a condition to the use of the lake. See supra at

14

For example, in addressing a Maine law designed to prevent the

introduction of nonnative parasites into Maine waters by prohibiting the

importation of out-of-state baitfish, the Supreme Court noted testimony

that “the small size of baitfish and the large quantities in which they are

shipped made inspection for commingled species a physical

impossibility.” Maine v. Taylor, 477 U.S. 131, 141 (1986) (internal

quotation marks omitted); see also Emi Kondo et al., Are State

Watercraft Inspections Constitutionally Permissible Searches?, 3 Ariz.

J. Envtl. L. & Pol’y 105, 113-14 (2013) (discussing warrantless

searches in the context of AIS control and noting the difficulty of

perceiving some types of AIS).

22 [100 Op. Att’y

11-12. We also believe, however, that suspicionless inspections

of vessels for AIS, before the vessels are launched into the lake,

would fall within the “special needs” exception to the Fourth

Amendment’s warrant requirement.

Under the “special needs” doctrine, “[a] search unsupported

by probable cause can be constitutional . . . when special needs,

beyond the normal need for law enforcement, make the warrant

and probable-cause requirement impracticable.” Griffin v.

Wisconsin, 483 U.S. 868, 873 (1987) (internal quotation marks

omitted); see also Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2081

(2011) (citing examples, including the need to test train operators

to ensure that they are not under the influence of drugs or

alcohol). In order for this exception to apply, the State’s “special

need” for the search must be “divorced from the State’s general

interest in law enforcement.” Ferguson v. City of Charleston, 532

U.S. 67, 79 (2001). The doctrine does not apply when the state’s

interest “is ultimately indistinguishable from the general interest

in crime control.” Id. at 81 (quoting Indianapolis v. Edmond, 531

U.S. 32, 44 (2000)).

The special needs exception originated in the context of spot

inspections of regulated commercial premises, which are deemed

to implicate a lesser privacy interest than that attached to a

person’s home. See, e.g., Marshall v. Barlow’s, Inc., 436 U.S.

307, 313 (1978) (“Certain industries have such a history of

government oversight that no reasonable expectation of privacy

. . . could exist for a proprietor over the stock of such an

enterprise.”). In that context, the exception was known as the

Biswell-Colonnade exception after two early cases justifying

warrantless searches of liquor licensees, Colonnade Catering

Corp. v. United States, 397 U.S. 72 (1970), and gun shops, United

States v. Biswell, 406 U.S. 311 (1972). Since then, courts have

applied the exception to warrantless inspections of a variety of

business enterprises, including automobile junkyards and mining

operations. See New York v. Burger, 482 U.S. 691, 701 (1987).

Although the special needs doctrine developed within the

commercial context, it is now applied more generally to any

context in which the government’s “need for a search” in a

particular category of cases outweighs “the offensiveness of the

intrusion.” United States v. Edwards, 498 F.2d 496, 500 (2d Cir.

1974). For example, it has been applied to uphold the

constitutionality of warrantless searches of individuals at airports,

id., and subways, MacWade v. Kelly, 460 F.3d 260, 269-73 (2d

Cir. 2006), where the government’s anti-terrorism interests are

strong and the stigma associated with the search is minimal. This

broader articulation of the principle came to be known as the

“special needs” exception after Justice Blackmun first used the

term in his concurrence in New Jersey v. T.L.O., 469 U.S. 325,

Gen. 3] 23

351 (1985). See also Ferguson, 532 U.S. at 74 n.7 (describing

origin of the term).

The Supreme Court has set three threshold criteria for the

special needs exception: (1) there is “a substantial government

interest that informs the regulatory scheme pursuant to which it is

made”; (2) “[t]he warrantless search . . . [is] necessary to further

the regulatory scheme”; and (3) “[t]he statute’s inspection

program, in terms of the certainty and regularity of its application,

. . . provide[s] a constitutionally adequate substitute for a

warrant.” Burger, 482 U.S. at 702-03 (internal quotation marks

omitted). Further, the exception applies only “[i]n limited

circumstances, where the privacy interests implicated by the

search are minimal, and where an important governmental interest

furthered by the intrusion would be placed in jeopardy by a

requirement of individualized suspicion.” Chandler v. Miller, 520

U.S. 305, 314 (1997) (quoting Skinner v. Railway Labor

Executives’ Ass’n, 489 U.S. 602, 624 (1989)). Thus, like the

types of warrantless searches discussed above, the permissibility

of a warrantless administrative search ultimately turns on the

balance between the property owner’s privacy interest and the

government’s need for the inspection.

Although the Supreme Court has not addressed the

applicability of the special needs exception to spot inspections to

enforce fish, game, and park laws, other courts have regularly

upheld warrantless searches of vessels in the resource

conservation context. For example, in one Ninth Circuit case, a

fisheries officer discovered an illegally-caught salmon when he

boarded a fishing vessel to check the operator’s papers for

compliance with fishing regulations, as he was authorized to do

by federal law. Raub, 637 F.2d at 1207. Noting the “historical

and pervasive regulation of the salmon fishing industry in the

Puget Sound area, the important federal interests at stake, and the

limited possibility of abuse,” the court held that the warrantless

searches authorized by the federal statute did not violate the

Fourth Amendment. Id. at 1211 (applying the Biswell-Colonnade

exception).

In Kaiyo Maru, the Ninth Circuit similarly applied the

administrative search exception to uphold warrantless inspections

of vessels within the Fishery Conservation Zone (FCZ); the

inspections were a means of enforcing federal fisheries laws and

were authorized under the Fisheries Conservation and

Management Act. 699 F.2d at 996-97. Ultimately, the Court

concluded that “the statute and enforcement policy of the Coast

Guard sufficiently limit the discretion of the inspecting officers in

the field as to render warrantless FCMA inspections ‘reasonable’

within the meaning of the fourth amendment.” Id. at 996

(footnote omitted).

24 [100 Op. Att’y

State courts have also applied the special needs concept in

the resource conservation context. For example, the Minnesota

Supreme Court upheld the warrantless inspection of a recreational

fisherman’s vessel on the grounds that “[r]ecreational fishing is a

highly regulated and licensed privilege” and, thus, the fisherman

“had no reasonable expectation of privacy” in “the areas of his

open boat or other conveyance used to typically store or transport

fish.” Colosimo, 669 N.W.2d at 4-8. The California Supreme

Court applied the same exception to justify a state game warden’s

stop of a driver he had earlier seen fishing with a “handline”—a

method used for catching lobster, which was out of season at the

time. Maikhio, 253 P.3d at 250. The court upheld the stop,

explaining that, “[i]n light of the number and nature of the

regulations that apply to fishing and hunting and the type of

enforcement procedures that are necessary to enforce such

regulations, anglers and hunters have a reduced reasonable

expectation of privacy when engaged in such activity.” Id. at 262.

In our view, DNR could adopt and implement a program of

spot inspections that would meet the three criteria set by Burger

and, in most circumstances, the overall reasonableness

requirement of the Fourth Amendment. As to the first criterion,

the State clearly has a “substantial government interest” in

protecting its natural resources from AIS; the Court of Appeals

has recognized that “fisheries constitute one of the most important

and valuable natural resources of the State, and their protection,

preservation, development and maintenance are an imperative

duty of Government.”15 Dorsey v. Petrott, 178 Md. 230, 235

(1940); see also, e.g., Kaiyo Maru, 699 F.2d at 995 (upholding

warrantless administrative inspections of vessels within the

federal Fishery Conservation Zone and recognizing the “strong

federal interest in protecting natural resources within the [zone]”);

State v. McKeen, 977 A.2d 382, 386 (Me. 2009) (upholding

statute authorizing warrantless inspections of all-terrain vehicles

15

The General Assembly has stated, in multiple contexts, that the

State’s natural resources must be protected and conserved. See NR § 1-

302 (declaring that “[t]he protection . . . of the State’s diverse

environment is necessary for the maintenance of the public health and

welfare and is a matter of the highest public priority”); NR § 5-

102(a)(1) (“find[ing]” that “[f]orests, streams, valleys, wetlands [and]

parks . . . are basic assets and their proper use . . . and preservation are

necessary to protect and promote the . . . general welfare”); Md. Code

Ann., Envir. § 4-101 (2013 Repl. Vol.) (“find[ing]” and

“determin[ing]” that “lands and waters comprising the watersheds of

the State are great natural assets and resources”); see also Md. Code

Ann., Land Use § 1-201 (2012) (including “resource conservation” as a

“vision” to be implemented through the land planning process).

Gen. 3] 25

and recognizing Maine’s “legitimate and substantial interest in its

natural resources”); cf. United States v. Oceanpro Indus., Ltd.,

674 F.3d 323, 331 (4th Cir. 2012) (in addressing whether

Maryland and Virginia had suffered harm from illegal harvesting

of rockfish, stating that the states “surely did possess a legitimate

and substantial interest in protecting the fish in their waters as part

of the natural resources of the State”). Moreover, the regulations

adopted pursuant to NR § 4-205.1(b) are for the express purpose

of “preventing an adverse impact on an aquatic ecosystem or the

productivity of State waters.” There is thus little doubt that

Maryland has a “substantial government interest,” see Burger,

482 U.S. at 702-03, in protecting its aquatic ecosystems and

maintaining the productivity of State waters by preventing the

spread of AIS.

The second criterion—that a program of warrantless

inspections is necessary to further the particular regulatory

scheme—should also be easy to meet for warrantless inspections

for AIS. Courts have long recognized that hunting and fishing

laws may be difficult to enforce without a program of warrantless

searches. See Kaiyo Maru, 699 F.2d at 996; see also Layton, 552

N.E.2d at 1287 (“It is elemental that wildlife licensing and

regulatory provisions must be enforceable during the hunt and

immediately following it.”); Maikhio, 253 P.3d at 263 (“[A]

substantial number [of cases] have upheld roving suspicionless

stops of persons a game warden reasonably believes have been

fishing or hunting.”); Elzey v. State, 519 S.E.2d 751, 755 (Ga. Ct.

App. 1999) (citing cases that “correctly recognize that actions by

wildlife law enforcement officers in questioning hunters and

checking their licenses and identification may be reasonable, even

though such actions might be unreasonable outside the hunting

context”). Similarly, a requirement that NRP officers procure a

warrant before inspecting vessels for AIS contamination would

significantly interfere with the State’s ability to prevent the spread

of AIS through field inspections.

Third, in order to provide an adequate substitute for the

warrant requirement, the controlling law must advise the owner of

the searched premises “that the search is being made pursuant to

the law and has a properly defined scope, and it must limit the

discretion of the inspecting officers” by limiting the “time, place

and scope” of the inspection. Burger, 482 U.S. at 703 (internal

quotation marks omitted); see also Tarabochia v. Adkins, 766

F.3d 1115, 1123-24 (9th Cir. 2014) (finding a search

unconstitutional in part because the fisheries laws that the officers

were purportedly enforcing when they stopped an individual’s car

on the highway did not limit the scope of searches that could be

performed under that authority).

26 [100 Op. Att’y

As of now, there is no such law that would apply to

sufficiently limit the scope of vessel inspections for AIS.

However, in our opinion, DNR has the authority to issue

regulations that would meet the standard set by Burger. The

powers delegated to DNR to manage Deep Creek Lake include

the authority to issue regulations to “[p]rotect the . . . natural

resources, and the environment.” NR § 5-215.1(d)(1)(i).

Legislative regulations issued pursuant to this grant of authority

have the force of law. See Building Materials Corp. of Am. v. Bd.

of Educ. of Baltimore County, 428 Md. 572, 591 n.25 (2012)

(distinguishing interpretive regulations from legislative

regulations, which “result from a specific statutory grant, and are

treated and enforced as binding law”); 75 Opinions of the

Attorney General 37, 43-50 (1990) (same).

With respect to the content of such regulations, they should

specify the areas of watercraft that are subject to inspection for

AIS control so that people who launch vessels into State waters

understand the level of privacy they might reasonably expect in

their vessel, equipment, and other possessions both on the water

and at a boat ramp. The regulations should also define the

manner in which inspections are carried out so that the time,

place, and scope of the inspection is not left to the discretion of

the inspecting officer. We believe that warrantless inspections

carried out pursuant to such regulations would fall within the

“special needs” exception to the Fourth Amendment’s warrant

requirement.

C. Minnesota’s Approach

The State of Minnesota has already provided one example of

such an administrative enforcement program. In 2011, the state

enacted legislation establishing a comprehensive mandatory

vessel inspection program. See 2011 Minn. Laws, ch. 107 § 27.

Compliance with the program’s inspection requirements was

made “an express condition of operating or transporting water-

related equipment.” Minn. Stat. § 84D.105, subd. 1. Under its

program, inspectors are authorized to “visually and tactilely

inspect watercraft and water-related equipment” for the presence

of AIS. Id., subd. 2(b). Inspections are limited to those areas of

the vessel and water-related equipment that might reasonably

contain AIS, such as the exterior and certain internal areas such as

bilges, livewells, bait containers, and other areas that may contain

contaminated water. Id.; see also Minn. Stat. § 84D.01, subd. 18a

(defining “water-related equipment”).

The law authorizes placement of inspection stations “at or

near public water accesses or in locations that allow for servicing

individual or multiple water bodies.” Id., subd. 2(f). In

recognition of the time, place, and scope restrictions developed by

Gen. 3] 27

the courts, the program requires that inspection stations have

“adequate staffing to minimize delays to vehicles and their

occupants,” be “located so as to not create traffic delays or public

safety issues,” and not “reduce the capacity or hours of operation

of public water accesses.” Id. Inspectors are given express

authority to “prohibit an individual from placing or operating

water-related equipment in water of the state if the individual

refuses to allow an inspection of the individual’s water related

equipment or refuses to remove and dispose of aquatic invasive

species.” Id., subd. 1.16

Although no court has evaluated the constitutionality of the

Minnesota program in the context of the Fourth Amendment case

law discussed above, it is our view that the Minnesota inspection

program, on its face, strikes a good balance between individual

privacy interests and the state’s interest in protecting and

preserving its natural resources. In our opinion, DNR could

institute such a program via its broad regulatory authority under

NR § 4-205.1(b)(1).

III

Conclusion

The General Assembly has delegated to DNR broad

authority to prohibit the introduction of AIS into State waters and

to manage Deep Creek Lake. No further legislation is needed to

authorize NRP officers to carry out vessel inspections as a means

of implementing that prohibition. Additional regulations,

however, would clarify DNR’s authority to proceed, without a

warrant, to inspect a vessel for AIS and prevent the operator from

launching it into the lake. Minnesota’s AIS program, summarized

above, exemplifies the type of administrative search program that

we believe DNR could adopt by regulation.

Additionally, the State may condition the use of the lake,

which the State owns, on the operator’s express consent to the

inspection and, if necessary, on the de-contamination of any

16

The law also provides expanded authority for “conservation

officer[s] or other licensed peace officer[s].” Minn. Stat. § 84D.105,

subd. 2(c). Those officers can inspect any vessel that is stopped at a

water access site, any public location, or even on private property if the

vessel is in plain view, but only if the officer has reason to believe AIS

is present on the vessel. Id. As with inspectors, the conservation and

licensed peace officers are authorized to “utilize check stations” near

water access points so long as they are “operated in a manner that that

minimizes delays to vehicles, equipment, and their occupants.” Minn.

Stat. § 84D.105, subd. 2(d).

28 [100 Op. Att’y

vessel and equipment, such as anchors, that someone has brought

to the lake for use there. Such a condition could be imposed by

DNR, pursuant to its authority to issue regulations to prevent the

introduction of AIS into State waters, see NR § 4-205.1(b) and to

protect the lake, see NR § 5-215.1. If AIS searches are likely to

extend to parts of a vessel that are not already subject to

inspection under the fishing laws and the State Boat Act, DNR

may bolster the legality of such searches by issuing and

publicizing regulations that put boat owners on notice of the areas

likely to be searched at the boat ramps.

Brian E. Frosh

Attorney General of Maryland

Mark C. Talty

Assistant Attorney General

Adam D. Snyder

Chief Counsel, Opinions & Advice

* Ann MacNeille, Assistant Attorney General, contributed

significantly to the preparation of this opinion.