Petition for Writ of Certiorari — Colosimo v. Minnesota
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03106 6 JAN 22 2004
~OFRIGESE Sco
In the
Supreme Court of the United States
John M. Colosimo,
No.
_ Petitioner,
Vv.
State of Minnesota,
Respondent.
ON PETITION FOR WRIT OF CERTIORARI
TO THE MINNESOTA SUPREME COURT
PETITION FOR WRIT OF CERTIORARI
Joseph L. Daly
Counsel of Record
Hamline University School of Law
1536 Hewitt Avenue
St. Paul, MN 55104
(651) 523-2121
Edwin J. Butterfoss
Hamline University School of Law
1536 Hewitt Avenue
St. Paul, MN 55104
(651) 523-2141
Attorneys for Petitioner
|
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2004 — Bachman Legal Printing & (612) 339-9518 @ 1 715-3582 @ Fax (612) 337-8053
a a
QUESTIONS PRESENTED
Whether a state may criminally punish citizens for
refusing to submit to suspicionless searches and seizures of
motor vehicles, boats, or other conveyances used to
typically store or transport fish?
TABLE OF CONTENTS
er BN vce vensessaeciivesabianscearseneesen ]
FE Ts 6 cicignasssncnincnn neem 1
STATUTORY AND CONSTITUTIONAL PROVISIONS
Be ie itcis nn x0seressionntvonseeeineeecaaaienaciabanantos ]
IIT ishncenxsacssincentsioeienaeeceeanaanes 2
REASONS FOR GRANTING THE WRIT................... 4
A. The Applicability Of The Fourth Amendment’s
Protections Against Unreasonable Search And
Seizure In The Context Of Enforcing Hunting
And Fishing Regulations Has Never been
Aabipeaned Thy TRG Caan sigeieccnncencccsscoceves 5
B. The Minnesota Supreme Court’s Decision
Permitting A Search And Seizure Without
Suspicion Of Criminal Behavior Violates The
Fourth Amendment’s Prohibition Against
Unreasonable Searches And Seizures............ 7
an The Minnesota Supreme Court Incorrectly Found
That Individuals Have No Legitimate
Expectation Of Privacy In Areas Of Boats Or
Other Conveyances Used To Typically Store Or
RIO FU iisiticksncniinicioceaneanaan ?
D. The Minnesota Supreme Court’s Holding That The
State May Criminally Punish Individuals Who
Refuse To Permit Inspections Of Their Motor
Vehicle, Boat, Or Other Conveyance Used While
Taking Or Transporting Fish, In the Absence of
Probable Cause and In the Absence Of Any
Limits On The Search, Impermissibly Burdens
The Right To Assert One’s Constitutional Rights
Without Fear Of Criminal Punishment.......... 1]
CAPO BE oo cianincnnnscnnbnachunnwebenen ne elmat ania 12
il
APPENDIX A: Finding of Fact Conclusions of Law,
VGPGICE OG MEMOTONGUMN. ........-.sccccvcscercsvecssesoees A-1
APPENDIX B: State v. Colosimo, 648, N.W. 2d 271
I I vc nncavcccvencstcecasesucesveswasesees A-6
APPENDIX C: Entry of Judgment and Opinion, State v
Colosimo, 669 N.W. 2d 1 (Minn. 2003).................. A-18
ill
TABLE OF AUTHORITIES
CASES
‘Almeida-Sanchez v. United States, 413 U.S. 266 (1973)....9
Camara v. Municipal Court of City and County of San
PEEING: FEF UT. FES CIPO Po skcenvgrvssssccsnsene 7-8, 9
Chandler v. Miller, 520 U.S. 305 (1997)..............00.0e0es 7
City of Indianapolis v. Edmond,
Se Wes PI ckskisk nisin peitst reise, 7, 8
Delaware v. Prouse,
Ge Ge Be Fe i tnve nvesnsivisnciesecanvanscen 5, 6, 8,9
Drane v. State, 493 So.2d 294 (Miss. 1986)...............4 6
Frost v. Railroad Commison of State of California,
BB ee iss bn Daieiihaesontecvcscosecsancinienen 13
Hamilton v. Meyers, 281 F.3d 520 (6" Cir. 2002).......... 6
Hill v. State, 238 So.2d 608 (Fla. 1970)..................08- 5
Michigan v. Sitz, 496 U.S. 444 (1990)............ 2c. eee eens 8
Michigan v. Tyler, 436 U.S. 499 (1978)...........0c0c0ceeee 7
New York v. Burger, 482 U.S. 691 (1987)...............006 7
People v. Coca, 829 P.2d 385 (Colo. 1992)................04 5
People v. Levens, 306 Ill.App.3d 230,
239 Ill.Dec.425, 713 N.E.2d 1275 (S.Ct. Ill.1999)...... 5
People v. Perez, 51 Cal.App.4” 1168 (Ct. App. 1996)..... 6
Skinner v. Railway Labor Executives’ Assn.,
i Se OE So bievestckcprsnenseromciareeoaricke 8
State v. Boyer,
308 Mont. 276, 42 P.3d 771 (2002).................206. 6,7
State v. Colosimo,
68 N.W. 2d 271 (Minn. Ct. App. 2002).................. 4
State v. Colosimo,
669 N.W. 2d 1 (Minn. 2003)................ . , 4&3, 149
iV
State v. Creech, 111 N.M. 490 (Ct. App. 991).............. 5
State v. Kehner, 425 N.W.2d 41 (Iowa 1988)............... 6
State v. Legg, 536 S.E.2d 110 (W.Va. 2000)............... 5-6
State v. Halverson, 277 N.W.2d 723 (S.D. 1979)........... 6
State v. Larson, 650 N.W.2d 144 (Minn. 2002)............. 11
State v. Tourtillott, 289 Or. 845, 618 P.2d 423 (1980)..... 6
Treasury Employees v. Von Raab, 489 U.S. 656 (1989)... 8
United States v. Martinez-Fuerte,
SE Aas 0 sn ci niin eeionntcntcasaeassnensaaneaeeee 10
United States v.Ross, 456 U.S. 795 (1982)............0. cece 10
United States v. Villamonte-Marquez,
OE Sh tr ix tacnnxsiotsaselclsssentacersocas 8, 10
Vernonia School Dist. 47J v. Acton,
AP tie PLANE ss ccannarecees oases 8
CONSTITUTIONAL PROVISIONS
Fourth Amendment to U.S. Constitution...................... ]
STATUTES
BO MRS & LB wiih cncevcessasierayssddouneananleanunsernnen een ]
Minn. Stat. § 97A.251, subd. 1 (3) (2000)............... 2, 3,4
Petition for Writ of Certiorari to the
Minnesota Supreme Court
PETITION FOR WRIT OF CERTIORARI
Petitioner, John M. Colosimo, respectfully requests
that this court issue a Writ of Certiorari to the Supreme
Court of Minnesota to review that court’s judgment and
opinion entered on October 27,2003.
OPINIONS BELOW
The Findings of Fact, Conclusions of Law, Verdict
and Memorandum of the State of Minnesota Sixth Judicial
District Court is unreported (Appendix A, at A-1). The
opinion of the Court of Appeals of Minnesota (Appendix B,
at A-6) is reported at 648 N.W. 2d 271 (2002). The
opinion of the Supreme Court of Minnesota (Appendix C,
at A-18) is reported at 669 N.W. 2d 1 (2003).
JURISDICTION
The Supreme Court of the State of Minnesota issued
its opinion in this case on September 25, 2003. Judgment
was entered on October 27, 2003. The Petitioner is relying
in filing his petition on the fact that the Minnesota Supreme
Court’s decision directly conflicts with previous decisions
of the United States Supreme Court. The jurisdiction of
this court is invoked under 28 U.S.C § 1257.
STATUTORY AND
CONSTITUTIONAL PROVISIONS INVOLVED
The Fourth Amendment to the Constitution
provides in relevant part: “The right of the people to be
secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated,
and no warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly
]
describing the place to be searched, and the persons or
things to be seized.”
The relevant provisions of the Minnesota Statute, §
97A.25 1, subd. 1 (3) (2000): “A person may not... (3)
refuse to allow inspection of a motor vehicle, boat or other
conveyance used while taking or transporting wild
animals.”
“Wild Animals” is defined to include “fish”. Minn
Stat § 97A.251 subd. 1 (3) (2000).
STATEMENT
Petitioner John M. Colosimo, an attorney, was
convicted for refusal “to allow inspection of a boat.” Minn
Stat § 97A.251, subd 1 (3) (2000).
Mr. Colosimo was ending a fishing trip with a law
school friend and the friend’s two adult children on Rainy
Lake at Kettle Falls in the Voyager’s National Park on the
morning of September 18, 2000. The group had stowed
their personal belongings on Mr. Colosimo’s open bowed
Doat in order to make the trip back to the far shore of Lake
Namakan where they had left their vehicles. The stowed
gear included suitcases, duffle bags, and several coolers in
the 19-foot Crestliner boat. Mr. Colosimo’s friend was in a
hurry to return to the Twin Cities because his new boat and
motor had some mechanical malfunctions so he wanted to
get back before the dealership closed.
The Crestliner boat, owned by Mr. Colosimo, was
being trailered by a truck owned by a National Park
licensee along the National Park roadway between Rainy
Lake and Namakan Lake. As the portage truck and
trailered boat made a loop on the National Park roadway to
allow the portage truck driver to back the trailer and boat
into the water of Namakan Lake, the occupants of the
Crestliner boat observed an unmarked boat tied by its bow
to the dock adjacent to the boat ramp. It was a boat used by
the Department of Natural Resources. Once the tow truck
operator had stopped the truck to unhook the boat, Officer
Lloyd Stein, a uniformed and armed Department of
Resources officer, walked toward the truck. He struck up a
conversation with Mr. Colosimo who was sitting at the
steering wheel of his boat. Officer Stein asked Mr.
Colosimo if his group had caught any fish. Mr. Colosimo
responded that they had caught some. Mr. Colosimo told
Officer Stein that they were in a hurry to go because of
mechanical problems associated with his friend’s new boat.
Officer Stein asked how many fish the group had caught.
Mr. Colosimo responded that they had not been fishing that
day and had less then their limit. Officer Stein next asked
how they had the fish packaged. Mr. Colosimo responded
they had gutted and gilled the fish in accordance with the
regulations affecting Rainy Lake. Officer Stein asked if he
could take a look at the fish. Mr. Colosimo inquired as to
why they were being questioned on principle and as a
citizen of the United States and the State of Minnesota.
Attorney Colosimo asked Officer Stein several times his
basis for searching and inspecting the fish, what was his
probable cause, and did he have a search warrant. Mr.
Colosimo told Officer Stein he would agree to a search if
the officer could articulate legitimate and valid reasons for
searching the boat.
The armed conservation officer stated that he didn’t
need a reason as long as he knew there were fish on the
boat. Apparently Officer Stein interpreted Mr. Colosimo’s
principled refusal to consent as an indication of guilt of
wrongdoing. The conservation officer then issued Mr.
Colosimo a ticket for failing to allow an inspection of his
boat pursuant to Minn Stat. § 97A.251, subd. 1 (3). ;
The state and Mr. Colosimo agreed to a bench trial.
A bench trial was held and the court issued Findings of
Fact, Conclusions of Law, Verdict and Memorandum
[Appendix A]. The court found Mr. Colosimo guilty of
refusal to allow inspection of a boat Minn Stat § 97A. 251,
subd. 1 (3) and assessed a fine of $100.00 plus a $37.00
surcharge. Mr. Colosimo appealed the conviction to the
3
Minnesota Court of Appeals. The Minnesota Court of -
Appeals in State v Colosimo, 68 N.W. 2d 271 (Minn. Ct.
App. 2002) reversed the District Court, concluding that in
order to inspect Mr. Colosimo’s boat the officer must have
probable cause of a violation of a fish or game law
[Appendix B]. The Minnesota Court of Appeals held that
because the officer did not have constitutional authority to
inspect the boat, Mr. Colosimo could not be convicted for
refusal to allow inspection of the boat.
The State of Minnesota appealed the case to the
Minnesota Supreme Court. The Supreme Court in State v.
Colosimo, 669 N.W. 2d 1 (Minn. 2003), reversed the
Minnesota Court of Appeals and held that because Mr.
Colosimo had no reasonable expectation of privacy, the
areas of his open boat or other conveyance used to typically
store or transport fish were subject to an inspection
pursuant to Minn Stat § 97A.251, subd. 1 (3), [Appendix
C]. The court held that an expectation of privacy in all
parts of an open boat or other conveyance admittedly used
to transport fish is not reasonable. The court held that it
was permissible for the conservation officer io conduct a
nonconsensual inspection of the area of Mr. Colosimo’s
open boat, including areas where fish are typically stored or
transported. Such areas are subject to inspection pursuant to
Minn Stat § 97A.251, subd. 1 (3). The court held that by
refusing to submit to the DNR officer’s request to inspect.
all these areas of his open boat, Mr. Colosimo had violated
Minn Stat § 97A.251, subd. 1 (3). This petition for Writ of
Certiorari is made as a result of the Minnesota Supreme
Court holding.
REASONS FOR GRANTING THE WRIT
The privilege of fishing is important but the nights
of citizenship are vital. A constitutional right must
outweigh a broad, unlimited right of inspection by a
conservation officer. No citizen should be criminally
punished for not consenting to a search.
4
A) The applicability of the Fourth Amendment’s
protections against unreasonable search and seizure in
the context of enforcing hunting and fishing regulations
has never been addressed by this Court. Generally, the
state and lower federal courts that have addressed this
issue have protected citizens against unconstrained,
suspicionless searches and seizures of the type
authorized by the Minnesota Supreme Court in this.
case.
In his concurring opinion in Delaware v. Prouse,
Justice Blackmun emphasized that in his view the case did
not address the constitutionality of “the necessarily
somewhat individualized and perhaps largely random
examinations by game wardens in the performance of their
duties.” 440 U.S. 648, 664 (1979). Since that time,
numerous state and lower federal courts have addressed the
issue, but it has not been addressed by this Court.
The state and lower federal courts that have
addressed this issue have recognized the important
government interests in protecting the natural resources of
their states, but have also imnosed limits to protect citizens
from being subject to indiscriminate searches and seizures
undertaken at the whim of individual officers.
Several courts have permitted searches or seizures if
the officer has reasonable suspicion that a violation of fish
and game laws has occurred. See, é.g., People v. Coca, 829
P.2d 385 (Colo. 1992) (reasonable suspicion of illegal
hunting required before stopping vehicle); Hill v. State, 238
So.2d 608 (Fla. 1970) (officers may board ship to view
shrimping permit, but may only search or inspect boat with
probable cause of violation); People v. Levens, 306
Ill. App.3d 230, 239 Ill.Dec.425, 713 N.E.2d 1275 (S.Ct. Ill.
1999) (stopping motorist is permissible only if officer has a
reasonable suspicion that motorist presently engaged in
illegal hunting); State v. Creech, 111 N.M. 490 (Ct. App.
1991) (reasonable suspicion that game laws were violated
required for stop by conservation officer); State v. Legg,
5
536 S.E.2d 110 (W.Va. 2000) (same). But see, Hamilton v.
Meyers, 281 F.3d 520 (6" Cir. 2002) (upholding the right
of game wardens to make inspections and conduct searches
without warrants when it is clear that someone has been:
hunting); State v. Kehner, 425 N.W.2d 41 (Iowa 1988)
(permitting stops of vehicles of individuals “engaged in an
activity which may be reasonably interpreted as
‘hunting.””).
Similarly, consistent with this Court’s decision in
Prouse, several courts have upheld traffic checkpoints to
enforce hunting and fishing law in an effort to limit the
discretion of individual officers in the field to make random
stops. See, e.g., People v. Perez, 51 Cal.App.4” 1168 (Ct.
App. 1996) (upholding a traffic checkpoint near hunting
areas during hunting season to inspect licenses, tags,
equipment, and any wildlife taken); State v. Halverson, 277
N.W.2d 723 (S.D. 1979) (upholding game checkpoint stops
by DNR officers); Drane v. State, 493 So.2d 294 (Miss.
1986) (upholding checkpoint for wildlife and game
violations); State v. Tourtillott, 289 Or. 845, 618 P.2d 423
(1980) (upholding wildlife checkpoint).
Even in State v. Boyer, 308 Mont. 276, 42 P.3d 771
(2002), a case very similar to the present case and relied on
by the Minnesota Supreme Court, the Montana Supreme
Court was careful to justify the seizure of defendant as
based on reasonable suspicion that an offense had occurred.
Id. at 286, 42 P.3d at 777 (“It is the presence of reasonable
suspicion that allowed Jones to proceed with the
investigative stop.”). The court was further careful to limit
the intrusion onto to the boat to the transom, an area it
equated to the bumper of a vehicle, and in which the court
found the defendant had no reasonable expectation of
privacy. Jd. at 287, 42 P.3d at 778. And finally, the court
justified the officer looking into the live well as plain view.
The court emphasized the importance of the fact that the
officer “did not conduct a search of the boat, look under the
seats, remove or rearrange any personal belongings, or even
open the top of the live well.” Jd. at 288, 42 P.3d at 780.
The indiscriminate searches and seizure
conservation officers authorized by the Minnesota Supreme
Court in this case place Minnesota citizens at the metcy of
the whim of conservation officers and violate the Fourth
Amendment’s guarantee of freedom from unreasonable
searches and seizures.
B) The Minnesota Supreme Court’s decision
permitting a search and seizure without suspicion of
criminal behavior violates the Fourth Amendment’s
prohibition against unreasonable searches and seizures.
The Minnesota Supreme Court’s decision in this
case authorizes searches and seizures of individuals absent
any suspicion of criminal behavior. By eliminating any
decision directly conflicts with previous decisions of the
United States Supreme Court.
“The Fourth Amendment requires that searches and
seizures be reasonable. A search or seizure is ordinarily
unreasonable in the absence of indivualized suspicion of
wrongdoing.” City of Indianapolis v. Edmond, 531 U.S.
32, 37 (2000), citing Chandler v: Miller, 520 U.S. 305, 308
(1997). While such suspicion is not an “irreducible”
component of reasonableness, the Court has recognized
only limited circumstances in which the usual rule does not
apply. Id. at 37.' The Court has been particularly vigilant
' The Court has permitted searches for administrative purppses without
particularized suspicion of wrongdoing in instances where
administrative schemes insured the searches were appropriately limited.
See, e.g. New York v. Burger, 482 U.S. 691 (1987); Michigan v. Tyler,
436 U.S. 499 (1978); Camara v. Municipal Court of City and County of
against seizures and searches resulting from an officer’s
exercise of “standardless and unconstrained discretion.”
Edmond, 531 U.S. at 37, quoting Delaware v. Prouse, 440
U.S. 648, 661 (1979).
Although the Minnesota Supreme Court held that
the initial encounter with the conservation officer did not
amount to a seizure, the court also held, “There may be
little doubt that after Colosimo admitted to having been
fishing and the fact that he was transporting fish, he was
seized by Officer Stein.” Colosimo, 669 N.W.2d at 4. The
court justified this seizure as “not suspicionless” because it
was “based on the fact that Colosimo admitted to
transporting fish in his boat, but refused to allow inspection
of the boat.” Jd In fact, the seizure and search was
“suspicionless” in that the officer had no reason to suspect
a violation of the fishing laws—all he knew was that
petitioner had been engaged in the lawful activity of fishing
and presently was engaged in the transportation of fish, also
a lawful activity.2 Thus, the Minnesota Supreme Court’s
San Francisco, 387 U.S. 523 (1967). Similarly, the Court has upheld
brief, suspcionless seizures of motorists at a fixed Border Patrol
checkpoint designed to intercept illegal aliens, United States v.
Martinez-Fuerte, 428 U.S. 543 (1976), and at a sobriety checkpoint,
Michigan v. Sitz, 496 U.S. 444 (1990). And finally, the Court has
upheld “certain regimes of suspicionless searches where the program
was designed to serve ‘special needs, beyond the normal need for law
enforcement.’” City of Indianapolis v. Edmond, 531 U.S. 32, 37
(2000), citing Vernonia School Dist. 47) v. Acton, 515 U.S. 646 (1995)
(random drug testing of student-athletes); Treasury Employees v. Von
Raab, 489 U.S. 656 (1989) (drug tests for United States Customs
Service employees seeking transfer or promotion to certain positions);
Skinner v. Railway Labor Executives’ Assn., 489 U.S. 602 (1989) (drug
and alcohol tests for railway employees involved in train accidents or
found to be in violation of particular safety regulations).
? Even if the petitioner’s principled refusal to consent to the search is
viewed, as the Minnesota Supreme Court ruled, as a violation of
Minnesota law, it cannot provide suspicion that petitioner was
unlawfully transporting fish.
I Rated SLR all i ish 3
decision permits searches based solely on mere suspicion
that an individual has been engaged in the lawful activity of
fishing and/or transporting fish, opening the door to
searches and seizures at the unbridled discretion of
individual officers. As this Court stated in Delaware vy.
Prouse, “This kind of standardless and unconstrained
discretion is the evil_the Court has discerned when in
previous cases it has insisted that the discretion of the
official in the field be circumscribed, at least to some
extent.” 440 U.S. at 661, citing Almeida-Sanchez v. United
States, 413 U.S. 266, 270 (1973); Camara v. Municipal
Court of City and County of San Francisco, 387 U.S. 523,
532-533 (1967).
C) The Minnesota Supreme Court incorrectly
found that individuals have no legitimate expectation of
privacy in areas of boats or other conveyances used to
typically store or transport fish.
The Minnesota Supreme Court’s holding that
petitioner had no reasonable expectation of privacy in “the
areas of his open boat or other conveyance used to typically
store or transport fish” conflicts with established United
States Supreme Court precedent. While this Court has
recognized that the privacy expectation in a vehicle,
including a boat, is less than that of a home, it has never
held that individuals have no reasonable expectation of
privacy in vehicles and boats, thereby surrendering the
protections of the Fourth Amendment. In Delaware v.
Prouse, this Court pointedly stated, “An individual
operating or traveling in an automobile does not lose all
reasonable expectation of privacy simply because the
automobile and its use are subject to government
regulation.” 440 U:S. at 662.
This Court consistently has recognized that citizens
enjoy an expectation of privacy in containers found within
a vehicle. See United States v. Ross, 456 U.S. 795, 822-23
(1982) (concluding that "the Fourth Amendment provides
protection to the owner of every container that conceals its
contents from plain view.”). In upholding a suspicionless
boarding of a vessel in waters providing access to the open
sea in United States v. Villamonte-Marquez, this Court
emphasized the fact that “Neither the [vessel] nor its
occupants are searched, and the visual inspection of the
[vessel] is limited to what can be seen without a search.”
462 U.S. 579, 592 (1983) (quoting United States v.
Martinez-Fuerte, 428 U.S. 54, 558 (1976)).
With its holding that petitioner did not have a
reasonable expectation of privacy in "areas of an open boat
or other conveyance used to typically store or transport
fish," the Minnesota Supreme Court, contrary to United
States Supreme Court precedent, has authorized
suspicionless searches of packages and containers on a boat
likely to contain items that an individual is seeking to keep
private.’
The mere fact that petitioner was engaged in the
lawful activity of fishing or transporting fish cannot strip
him of his reasonable expectation of privacy. The
Minnesota Supreme Court itself has stated:
[UJnder our statutory scheme a violation of
fishing regulations is a misdemeanor only.
Indeed, in the context of the regulatory
scheme, it is no more pervasive or
comprehensive than the state’s traffic rules
and regulations, .. . an area of law
> Although in the present case the Minnesota Supreme Court did not
specifically delineate the limits of a legal search of an open boat, the
court nevertheless permitted a search of areas used to typically store or
transport fish. This must include areas not in plain view and
presumably includes containers, which are often used to transport fish.
In this case, Colosimo told the officer that the party was transporting
fish “gutted and gilled in accordance with the regulations affecting
Rainy Lake,” thus they were likely to be found in closed containers. j
10 |
i
enforcement this court has consistently held
may not be initiated without at least a
reasonable articulable suspicion of unlawful
conduct.
State v. Larson, 650 N.W.2d 144, 153 (Minn. 2002)
(finding that citizens have a reasonable expectation of
privacy in ice fishing houses).
Thus, the Minnesota court’s decision in this case
improperly strips petitioner of the reasonable expectation of
privacy to which he was entitled in the closed containers
within the trailered boat in which he was traveling.
D) The Minnesota Supreme Court’s holding that
the state may criminally punish individuals who refuse
to permit inspections of their motor vehicle, boat, or
other conveyance used while taking or transporting fish,
in the absence of probable cause and in the absence of
any limits on the search, impermissibly burdens the
right to assert one’s constitutional rights without fear of
criminal punishment.
The burden on citizens as a result of the Minnesota
Supreme Court’s decision permitting indiscriminate
searches by conservation officers is exacerbated by the fact
that a citizen is criminally punished for refusing to consent
to such inspections. The danger of granting “standardless
and unconstrained” authority to conservation officers is
illustrated by the Minnesota court’s holding that the lawful
limits of the search in this case need not be delineated.
Colosimo, 669 N.W.2d at 8 n.4.
In the court’s view, because at least some portion of
the boat was subject to search, by refusing any search the
petitioner was guilty of a crime. /d. But how was
petitioner to know the search demanded by the
conservation officer would be limited to lawful areas?
There was no search warrant describing the places to be
searched, there were no administrative regulations or
guidelines in place to limit the search and, under the court’s
1]
ruling, probable cause did not limit or define the scope of
the search. The limit the court articulated in its
opinion—areas of the open boat typically used to store or
transport fish—if adequate, was created by the court and
was not in place at the time of the demand to search that led
to petitioner’s criminal conviction. Petitioner in this case
was faced with a demand for a broad, unlimited search of
the trailered boat in which he was traveling and the
containers on that boat, and was criminally punished for
refusing to consent to such a search. This is precisely the
type of “standardless and unconstrained discretion” by the
officer in the field that the Fourth Amendment was
designed to protect against. If Minnesota seeks to utilize
suspicionless searches to enforce its hunting and fishing
laws, the Fourth Amendment at a minimum requires that
such searches be appropriately limited by statute,
regulation, or administrative policy.
CONCLUSION
As Justice Page eloquently stated in his dissenting
opinion:
Rather than requiring the state to properly
manage Minnesota's wildlife resources, the
court has instead decided to grant the state
the power to compel the relinquishment of
an individual's constitutional right not only
to be free from unreasonable searches, but
also the freedom to assert one’s
constitutional right without fear of criminal
punishment.
7 * *
In upholding Colosimo’s conviction, the
court forces individuals to choose between
waiving their constitutional right to be free
from unreasonable searches in exchange for
the "privilege" of hunting, fishing, trapping,
or possessing wildlife.
12
Sener vee cn essere
x * *
Today’s sweeping decision holding that
there is no expectation of privacy in areas of
an open boat where fish are typically stored
overturns recent precedent and eviscerates
the constitutional protection against
unreasonable searches. . . . [T]he court’s
decision has now opened the door for
warrantless searches by any peace officer
upon the mere suspicion that an individual is
[or] has been . . . hunting or fishing. As the
Court said in Frost v. Railroad Commission
of State of California, 271 US 605 (1926),
‘It is inconceivable that guarantees in the
Constitution * * * may thus be manipulated
out of existence.’ 271 U.S. at 593-94, 46
S.Ct. at 605.
Colosimo, 669 N.W.2d at 17-18.
For all of the foregoing reasons petitioner John
Mark Colosimo respectfully urges this court to grant his
Petition for Writ of Certiorari.
Respectfully Submitted,
Edwin J. Butterfoss
Hamline University
School of Law
1536 Hewitt Avenue
St. Paul, MN 55104
(651) 523 — 2141
Joseph L. Daly
Counsel of Record
Hamline University
School of Law
1536 Hewitt Avenue
St. Paul, MN 55104
(651) 523 — 2121
i gaaalia
ETO ie RY TATE LOTT
ROT LAA Le
APPENDIX A
STATE OF MINNESOTA
COUNTY OF ST. LOUIS
\
State of Minnesota,
Plaintiff,
vs.
John Mark Colosimo,
Defendant.
DISTRICT COURT
SIXTH JUDICIAL DISTRICT
No. TX-00-303509
FINDINGS OF FACT,
CONCLUSIONS OF LAW,
VERDICT AND
MEMORANDUM
A court trial was scheduled in above-captioned matter for
September 18, 2001. The parties decided to forego the court
trial and have the Court render a decision based on written ,
arguments and transcript testimony. Jeffrey M. Vlatkovich,
Assistant County Attorney, represented the State. Michael K.
Kearney, Attorney, represented Defendant.
Defendant is charged with the following:
Refusal to Allow Inspection of a Boat, in violation of
Minnesota Statutes § 97A.25 I, Subdivision 1(3).
Based upon the files and records herein, the Court does
make the following:
i ie,
FINDINGS OF FACT
The attached Memorandum shall constitute the findings of
Fact of the Court. Upon the foregoing Findings of Fact, the
Court does make the following:
CONCLUSIONS OF LAW
The attached Memorandum shall constitute the Conclusions
of Law of the Court.
VERDICT
1. The Court finds Defendant guilty of the charge of Refusal
to Allow Inspection of a Boat, in violation of Minnesota
Statutes § 97A.251, Subdivision 1(3).
2. Based upon a prior waiver of appearance at sentencing, the
Court sentences Defendant to a fine of $100.00 plus
surcharge, totaling $137.00 payable within 30 days.
Dated this 6th day of November, 2001.
i aR Gea si sido
BY THE COURT:
Bee a ae
s/
Jeffry S. Rantala
Judge of District Court }
A-2
MEMORANDUM
The remaining charge in this case is an alleged violation
of Mine, Stat. § 97A.251, Subd. 1(3). The applicable statutory
language states, "A person may not...refuse to allow
inspection of a motor vehicle, boat, or other conveyance used
while taking or transporting wild animals," On April 13,
2001, a hearing was held upon Defendant's motion to dismiss
for lack of probable cause. On May 23, 2001, the Court
issued an Order and Memorandum denying Defendant's
motion. As the parties have raised no additional fact disputes,
the factual summary set forth in the Order and Memorandum
is incorporated into this decision.
This case involves essentially two issues. First, was there
a stop? Second, did Officer Steen have authority to inspect
Defendant's boat once it was established that Defendant had
been fishing and was transporting fish?
As previously discussed in this matter, conservation
officers are subject to the same Fourth Amendment
requirements as other law enforcement officers. It logically
follows that conservation officers need reasonable, articulable
suspicion to stop a motor vehicle, or boat for that matter. But
as the Court found in its earlier Order, there was no stop in
the present case. An officer's act of approaching a parked
vehicle and talking with the driver does not constitute a stop
for Fourth Amendment purposes. State vs. Vohnoutka, 292
N.W.2d 756, 757 (Minn. 1980); Crawford v. Commissioner
of Pub. Safety, 441 N.W.2d 837, 839 (Minn. Ct. App. 1989).
The testimony of Shawn Obeson, the portage operator, was
clear. He stopped on his own volition, not because of
anything Officer Steen said or did.
If Officer Steen had actually stopped Defendant, the result
would be different. Upon approaching Defendant's boat,
Officer Steen had no specific or articulable facts of criminal
activity and, therefore, was without legal authority to execute
a stop. At this point in time, Officer Steen did not even know,
although he suspected, that Defendant and his party had been
fishing. It was not until after Officer Steen began conversing
with Defendant that it became apparent that Defendant had
been fishing and was now transporting fish.
The Court believes that once a conservation officer
determines that an individual has engaged in a regulatory
activity such as fishing or hunting, the officer has a right to
inspect pursuant to § 97A.251. This is the only logical
conclusion if fish and game laws are to be enforced. If, as
Defendant argues, conservation officers were required to have
probable cause prior to inspection, then the regulatory scheme
intended by the legislature would lose all force and effect.
Fish and game violations, by their very nature, would be
extremely difficult and oftentimes impossible to detect if
probable cause, or even reasonable suspicion, was required
before an inspection could ensue. Therefore, it is both logical
and necessary that conservation officers have authority to
inspect once it becomes apparent, either through observation
or dialogue, that an individual has engaged in a regulatory
activity, when Defendant acknowledged that he had been
fishing and was in the process of transporting fish, Officer
Steen then had the authority to inspect Defendant's boat,
Defendant's refusal do allow the inspection constituted a
statutory violation.
From a hypothetical standpoint, if Defendant had not
indicated his involvement in fishing, then Officer Steen
would probably have lacked the authority to inspect. Under
this hypothetical, Officer Steen would have had no evidence
that Defendant had engaged in a regulatory activity. With the
exception of a depth finder, Officer Steen did not observe any
A-4
fishing rods, tackle boxes, or other items to show that
Defendant and his party had been fishing. For example, the
Court doubts that a conservation officer could lawfully
inspect the boat of a water skier or recreational boater for
illegal fish because, quite simply, water skiers and
recreational boaters are not engaged in fishing. The officer
would first need reasonable suspicion of a regulatory activity,
just as a police officer needs reasonable suspicion to stop a
motor vehicle. But once it is determined that fishing or
hunting has taken place, the Court believes that a
conservation officer then has the authority to investigate, in
the form of an inspection, potential fish and game violations.
The Court's decision makes no implication that Defendant
was in possession of illegal fish. The Court merely finds that
there was a technical violation of § 97A.251 because of the
unique circumstances of this case. The Court believes that
Defendant refused to allow~inspection of his boat out of
principle, not because he may have had illegal fish on board.
In other words, it was clear from the testimony that Defendant
truly believed that the officer could not legally search his
boat. Had the officer actually stopped the boat, this would
have been true. Having said this, the Court must still reach a
legal conclusion. While Defendant is guilty under the statute,
the circumstances here warrant only a minimal fine.
J.S.R.
A-5
APPENDIX B
Court of Appeals of Minnesota.
STATE of Minnesota, Respondent,
v.
John Mark COLOSIMO, Appellant.
: No. C7-01-2181.
July 23, 2002.
Defendant was convicted in the District Court, St. Louis
County, Jeffry S. Rantala, J., of refusal to allow inspection of
a boat. Defendant appealed. The Court of Appeals, Hanson,
J., held that: (1) a boat owner cannot be convicted of the
crime of refusal to allow inspection of a boat unless the state
can prove that the officer had probable cause to request that
inspection, and (2) a boat owner involved in the recreation
activity of fishing is only required to allow inspection of his
boat while taking or transporting fish when a conservation
officer has probable cause that such fish are taken or
possessed in violation of game and fish laws; and (3) boat
owner's refusal to allow officer to inspect boat did not give
officer probable cause to believe that owner had incriminating
evidence of fish violations on the boat, and thus, owner's
conviction for refusal to allow inspection of boat warranted
reversal.
Reversed.
West Headnotes
{1] Criminal Law 1139
110k1139 Most Cited Cases
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a
:
h
Si RAE TT ATI Hose 9
Appellate review of the district court's denial of a m tion to
dismiss is de novo.
[2] Criminal Law 1139
110k1139 Most Cited Cases
Whether a statute has been properly construed is a question of
law, subject to de novo review. |
[3] Shipping 17 |
354k17 Most Cited Cases
A boat owner cannot be convicted of the crime of refusal to
allow inspection of a boat unless the state can prove that the
officer had probable cause to request that inspection.
U.S.C.A. Const.Amend. 4; M.S.A. § § 97A.215, subd. 1(b),
97A.251, subd. 1(3).
[4] Searches and Seizures 79
349k79 Most Cited Cases
Warrantless searches conducted to enforce regulatory
schemes are only reasonable in the context of a pervasively
regulated business activity, not a personal recreational
activity.
[5] Fish 16
176k16 Most Cited Cases
A boat owner involved in the recreation activity of fishing is
only required to allow inspection of his boat while taking or
transporting fish when a conservation officer has probable
cause that such fish are taken or possessed in violation of
game and fish laws. U.S.C.A. Const.Amend. 4; M.S.A.
97A.215, subd. 1(b), 97A.251, subd. 1(3).
[6] Searches and Seizures 171
349k171 Most Cited Cases
The Fourth Amendment gives a person a constitutional nght
to refuse to consent to entry and search where the officer
lacks probable cause; passive refusal cannot be a crime, nor
can it be evidence of a crime. U.S.C.A. Const.Amend. 4.
[7] Fish 16
176k16 Most Cited Cases
Boat owner's refusal to allow officer to inspect boat did not
give officer probable cause to believe that owner had
incriminating evidence of fish violations on the boat, and
thus, owner's conviction for refusal to allow inspection of
boat warranted reversal. U.S.C.A. Const.Amend. 4; M.S.A.
§§ 97A.215, subd.1(b), 97A.251, subd. 1(3).
*272 Syllabus by the Court
1. A bodt owner involved in recreational fishing is only
required to "allow inspection of * * * [the] boat * * *, used
while taking or transporting [fish]," under Minn.Stat. §
97A.251, subd. 1(3) (1998), when the conservation officer has
probable cause to believe that "[fish] taken or possessed in
violation of the game and fish laws are present," under
Minn.Stat. § 97A.215, subd.1(b) (1998).
2. Absent probable cause, the boat owner's refusal to allow
inspection is not a crime.
Mike Hatch, Attorney General, St. Paul, and Jeffrey M.
Viatkovich, Hibbing, for respondent.
John Mark Colosimo, Virginia, pro se appellant.
Considered and decided by HALBROOKS, Presiding Judge,
KLAPHAKE, Judge, and HANSON, Judge.
A-8
PAE SLE ARMING Os i a
%
§
gy
Fs
OPINION
HANSON, Judge.
Appellant challenges his conviction of refusal to allow
inspection of a boat, arguing that he was unlawfully stopped
by a conservation officer; that the officer did not have
probable cause to inspect the boat; and that the officer's
request to inspect the boat was an unlawful seizure. We
reverse.
FACTS
Pro se appellant John Mark Colosimo, an attorney, and four
others were in Colosimo's boat as it was being towed to a boat
landing by a truck driven by Sean Oveson. When Oveson
stopped at the landing, Conservation Officer Lloyd Steen,
who was standing nearby, approached the boat and asked
Colosimo if they had been fishing. Colosimo said they had
and discussed the types and amounts of fish they had caught
and were transporting. Officer Steen asked to see the fish.
Colosimo refused, stating that Officer Steen had stopped the
fishing party without reasonable suspicion for doing so and
that Officer Steen did not have probable cause to inspect the
boat. When Colosimo asked Officer Steen to articulate a
reason for stopping and detaining his fishing party, and to
explain why he had a right to inspect the boat, Officer Steen
replied that he did not need a reason and, because he knew
they had fish on board, he had a right to inspect the fish. After
a lengthy conversation and Colosimo's continued refusal to
allow the inspection, Officer Steen ticketed Colosimo for
refusal to allow inspection of a boat. Colosimo and his party
then left the scene.
A-9
Colosimo was charged with hindering and obstructing an
officer in the performance of his official duties, in violation of
Minn.Stat. § 97A.251, subds. 1 and 2 (1998), and refusal to
allow inspection of a boat, in violation of Minn.Stat. §
97A.251, *273 subd. 1(3). Colosimo moved to suppress the
evidence of his refusal and to dismiss both charges, alleging
that the evidence was acquired by Officer Steen's illegal
seizure of him.The district c@urt dismissed the obstruction
charge, holding that Colosimo acted in good faith to assert his
constitutional rights and no physical obstruction occurred,
citing State v. Tomlin, 622 N.W.2d 546 (Minn.2001). But the
court denied the motion as to the refusal charge, finding that
Officer Steen's conversation with Colosimo did not constitute
a seizure because Oveson had already stopped the truck.
The parties stipulated to the facts in the omnibus hearing
transcript. The district court found Colosimo guilty of refusal
to allow inspection of a boat. While the district court agreed
that Officer Steen could not have stopped Colosimo without
reasonable suspicion, it reasoned that Officer Steen had a
right to inspect the fish when he approached the stopped
vehicle and learned there were fish on board. Colosimo
appealed.
ISSUE
Is a boat owner guilty of the crime of refusal to allow
inspection of a boat when the conservation officer does not
have probable cause to request the inspection?
ANALYSIS
[1}[2] Our review of the district court's denial of the motion to
dismiss is de novo. See State v. Linville, 598 N.W.2d 1, 2
(Minn.App. 1999) (reviewing dismissal for lack of probable
cause); see also State v. Harris, 590 N.W.2d 90, 98
(Minn.1999) (stating that courts may independently review
A-10
the facts and determine whether the district court erred by not
suppressing evidence). Whether a statute has been properly
construed is a question of law, also subject to de novo review.
State v. Nerz, 587 N.W.2d 23, 2425 (Minn.1998).
I
Colosimo was found guilty of violating Minn.Stat. § 97A.251,
subd. 1(3) (1998), which states:
A person may not:
2K
(3) refuse to allow inspection of a motor vehicle, boat, or
other conveyance used while taking or transporting wild
animals. "Wild animals" is defined to include "fish."
Minn. Stat. § 97A.015, subd. 55 (1998).
We first address the question of whether the state must prove,
as a predicate to the crime of refusal to allow inspection, that
the officer had probable cause to request the inspection.
Although the description of the crime in MinnStat. §
974.251, subd. 1(3) does not expressly include that predicate,
we conclude that it must be implied because of constitutional
and other statutory requirements.
Constitutional Requirements
[3] We analyze a conservation officer’s request to inspect fish
in a boat under the constitutional standards applicable
generally to searches and seizures. The Minnesota Supreme
Court has consistently held that the Fourth Amendment's
prohibition against unreasonable searches and seizures applies
to searches made by conservation officers. State v. Richards,
284 N.W.2d 549, 551 (Minn.1979); State v. Sorenson. 441
N.W.2d 455, 459 (Minn. 1989); see also State v. Krenz. 634
N.W.2d__231, 234 (Minn.App.2001) (holding that
conservation officer violated the Fourth Amendment when he
entered defendant's fish house without consent, a warrant,
A-1]
probable cause or any articulable basis for suspicion)
*274 Further, we have held that an owner of a vehicle has a
reasonable expectation of privacy sufficient for Fourth
Amendment protections to attach to the vehicle. See State v.
Nace, 404 N.W.2d 357, 360-61 (Minn.App.1987), review
denied (Minn. June 25, 1987) (stating that an automobile
owner's expectation of privacy in an automobile is somewhat
less than in a home, but a warrantless search of an automobile
still must be supported by probable cause); see also Carroll v
United States, 267 U.S. 132, 147-55, 45 S.Ct. 280, 283-86, 69
L.Ed. 543 (1925) (explaining that probable cause is required
to search an owner's automobile because of the owner's
reasonable expectation of privacy). We see no reason to
distinguish between an automobile and a boat, both of which
are vehicles that transport people and goods in a regulated
environment. [FN 1]
FN1. Such a distinction is further blurred under
our facts, where the boat is being towed by a
motor vehicle.
‘
If, under these constitutional standards, a conservation officer
must have probable cause to believe that a crime has been
committed in order to justify a warrantless search of a boat
without the owner's consent, then it follows that any evidence
obtained by an inspection of a boat without consent would be
subject to suppression on grounds that the officer did not have
probable cause to search the boat. That being so, could the
legislature constitutionally require a person to consent to a
warrantless search of protected property without probable
cause, or make it a crime for a person to refuse such consent?
Although the narrow words of Minn.Stat. § 97A.251, subd.
1(3), could be read to do just that, when we construe that
section to be consistent with the constitution, we conclude
that it implies a predicate that the officer requesting
inspection has either a search warrant or probable cause to
A-12
support the request. Minn.Stat. § 645.17(3) (1998) (providing
the presumption thai the legislature does not intend to violate
the constitution of the United States or of this state).
Other Statutory Requirements
This conclusion, that the crime of refusal to permit inspection
of a boat implies the predicate that the officer has a warrant or
probable cause to support the request, is reinforced by the
statutory provisions that authorize inspections under the game
and fish laws. Minn.Stat. § 97A.215 , subd.1(b) (1998), states:
When an enforcement officer has probable cause to
believe that wild animals taken or possessed in violation
of game and fish laws are present, the officer may:
(1) enter and inspect any place or vehicle; and
(2) open and inspect any package or container.
(Emphasis added.)
Construing the provisions establishing the crime of refusal to
allow inspections of a boat, under Minn.Stat. § 97A.251,
subd. 1(3), together with the limitations placed on the
authority of an enforcement officer to conduct an inspection
only upon probable cause, we conclude that a boat owner
cannot be convicted of the crime of refusal to allow
inspection of a boat unless the state can prove that the officer
had probable cause to request that inspection.
il
At oral argument, the state asserted that probable cause was
not a necessary predicate to a request to inspect the boat
because of the regulated activity exception. Some courts have
recognized that a *275 person engaged in a pervasively
regulated activity may have a reduced expectation of privacy
and, therefore, certain searches of the place where that
activity occurs may not be unreasonable under the
constitution, even in the absence of probable cause. See, e.g.,
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New_York v. Burger, 482 U.S. 691, 107 S.Ct. 2636, 96
L.Ed.2d 601 (1987) (holding reasonable warrantless
inspections of junkyards because vehicle dismantlers
constitute "closely regulated" industry). The state argues that
recreational fishing has been regulated by the requirement of
a fishing license and by the imposition of specified
restrictions.
[4] We have already rejected the state's argument as applied
to recreational fishing in Minnesota. Krenz, 634 N.W.2d at
236-37 (declining to accept the state’s argument that
warrantless searches of fish houses are justified to enforce the
regulatory scheme for recreational fishing); see also State v.
Larsen, 637 _N.W.2d 315, 321 (Minn.App.2001) ("a citizen
accused of stealing ... fish has the same constitutional
guarantees of fairness and due process as citizens accused of
other crimes"), review granted (Minn. Mar. 19, 2002). [FN2]
As we said in Krenz, warrantless searches conducted to
enforce regulatory schemes are only reasonable in the contex
of a pervasively regulated business activity, not a personal
recreational activity. 634 N.W.2d at 236. Krenz dealt with a
warrantless search of a fish house and it could be argued that
a person in a fish house had a greater expectation of privacy
than one in a boat. But the limitation placed by legislature on
the authority of an officer to inspect applies equally to a
"place" and a "vehicle." Minn.Stat. § 97A.215, subd. 1(b)(1).
This effectively establishes that persons in a boat have the
same reasonable expectation of privacy. Thus, unless a person
is using a boat for a pervasively regulated business activity,
the statute requires probable cause to enter and inspect a boat.
FN2. Other jurisdictions have also rejected such
arguments. See, e.g., People ex rel. Attorney
General v. Younger Mun. Judge 327 Mich. 410, 42
N.W.2d 120, 125 (1950) (rejecting argument that a
fishing license is distinguishable from a driver's
license); Sitz_v. Dep’t of State Police, 443 Mich.
A-14
eth
744, 506 _N.W.2d_ 209, 222 (1993) (rejecting
regulatory argument).
The state suggests that this construction of the statute places
an unreasonable burden on conservation officers. We
acknowledge the difficulty a conservation officer faces in
acquiring probable cause for fishing violations that are
committed essentially in private. And, while we agree that the
analysis of constitutional requirements and the construction of
the statute should not simply be mechanistic, we are not
persuaded that public policy concerns raised by the state can
override otherwise applicable constitutional protections or
statutory limitations. Further, we cannot conclude that the
legislature has clearly expressed an intent to prefer the
enforcement of the fish laws to individual privacy rights. We
have required such a clear expression in other licensing
contexts.
For example, in State _v. Greyeagle, 541 N.W.2d 326
(Minn.App.1995), we considered whether the application for
and display of a special series license plate, to an owner who
has a limited driver's license, implies consent by the driver to
stops of the vehicle based solely on the plates, without some
independent reasonable suspicion or probable cause. We held
that it did not, noting that the statute did not expressly
authorize stops based solely on the plates. /d. at 328. After
Greyeagle, the legislature amended the statute to provide that
specific authorization. In State v. Henning, 644 N.W.2d 500,
593_(Minn.App.2002), we construed the amended statute
*276 to establish the driver's implied consent to stops based
solely on the plates.
[5] In contrast here, Minn.Stat. Ch. 97A does not expressly
authorize a conservation officer to inspect a boat based solely
on the fact that a fishing license is required to take or
transport fish, or because there are fish in the boat. To the
contrary, the statute conditions the conservation officer's
A-15
|
\
inspection authority to situations where the officer has
"probable cause." Minn.Stat. § 97A.215, subd. 1(b). Thus, as
in Greyeagle, we need not address the ultimate question,
"whether states may statutorily provide that [fishing licenses]
be granted on condition that the user enjoys lesser
constitutional rights." See Greyeagle, 541 N.W.2d at 328 n. 3
(stating that the question of an officer's statutory power to
make suspicionless stops need not be addressed in the
absence of specific statutory authority to do so). —
ill
The state argues that if probable cause is required, Colosimo's
refusal to allow the inspection, together with knowledge that
fish were being transported in the boat, gave Officer Steen
sufficient probable cause to believe that Colosimo violated
fish laws and that there was a fair probability that evidence of
the violation was in the boat. Officer Steen testified that in the
previous 21 years, no one had ever refused his request to
inspect fish in a boat.
[6][7] But the "[Fourth] Amendment gives [the occupant] a
constitutional right to refuse to consent to entry and search;
where the-officer lacks probable cause. United States v.
Prescott, 581 F.2d 1343, 1350-51 (9th Cir.1978). Passive
refusal cannot be a crime, nor can it be evidence of a crime.
Id. at_ 1351. Therefore, Colosimo's refusal to allow Officer
Steen to inspect the boat did not give Officer Steen probable
cause to believe that Colosimo had incriminating evidence on
the boat. A contrary conclusion would effectively eliminate
the requirement of probable cause from the law because an
officer could always avoid the requirement by simply
requesting inspection: if the boat owner consents, probable
cause would not be required, and if the boat owner refuses,
the officer would use that refusal to supply probable cause.
A-16
Officer Steen admitted that he had no probable cause to
inspect the boat when he approached the boat, and Colosimo's
refusal could not give Officer Steen probable cause.
DECISION
We do not address Colosimo's other arguments, concerning
whether Officer Steen had reasonable suspicion to effectuate
an investigatory stop or to seize the boat or its occupants. The
dispositive issue before us, when considering Colosimo's
conviction for refusal to allow inspection, is whether Officer
Steen was required to have probable cause to request
inspection of Colosimo's boat. We hold that Officer Steen was
required to have probable cause to request inspection of the
boat; that he did not have probable cause to make such
request; and that, absent probable cause to request inspection,
Colosimo cannot be convicted for refusal to allow inspection.
648 N.W.2d 271
END OF DOCUMENT
A-17
APPENDIX C
STATE 0F MINNESOTA JUDGMENT
State of Minnesota, petitioner, Supreme Court
Appellant vs. John Mark
Colosimo, Respondent. Appellate Court
# 980701002181
Trial Court
# TX00303509
Pursuant to a decision of Supreme Court duly trade
and entered, it is determined and adjudged that the decision
of the St. Louis County District Court, Hibbing Criminal
Division herein appealed from be and the same hereby is
affirmed and judgment is entered accordingly. A certified
copy of the entry of judgment and the court's decision is
herewith transmitted and made part of the remittitur.
Dated and signed: October 27, 2003
FOR THE COURT
Attest: Frederick K. Grittner
Clerk of the Appellate Courts
By:s/
Assistant Clerk
—_—
STATE OF MINNESOTA SUPREME COURT “
TRANSCRIPT OF
JUDGMENT
I, Frederick K Grittner, Clerk of the Appellate Courts,
do hereby certify that the foregoing is a full and true copy of
the Entry of Judgment in the cause therein entitled, as
appears from the original record in my office; that I have
carefully compared the within copy with said original and
that the same is a correct transcript therefrom.
Witness my signature at the Minnesota
Judicial Center,
October 27, 2003
In the City of St. Paul___ October 27, 2003
Dated
Frederick K. Grittner
Clerk of the Appellate Courts
By:s/
Assistant Clerk
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Supreme Court of Minnesota.
STATE of Minnesota, Petitioner, Appellant,
V.
John Mark COLOSIMO, Respondent.
No. C7-01-2181.
Sept. 25, 2003.
Defendant was convicted in the District Court, St. Louis
County, Jeffry S. Rantala, J., of refusal to allow inspection of
a boat. Defendant appealed. The Court of Appeals, 648
N.W.2d_ 271, Hanson, J., reversed. State appealed. The
Supreme Court, Gilbert, J., held that: (1) defendant was not
"seized" for purposes of the Fourth Amendment when
conservation officer approached his open boat while it rested
on the trailer of a parked portage truck and asked defendant if
he and his group had caught any fish; (2) nonconsensual
warrantless search of areas of defendant's open boat where
fish were typically transported was not prohibited by Fourth
Amendment; and (3) conservation officer was not required to
have probable cause to conduct a limited warrantless
inspection of defendant's boat.
Reversed.
Page, J., dissented and fled a separate opinion.
Paul H. Anderson, J., concurred in part, dissented in part, and
filed a separate opinion.
A-20
West Headnotes
[1] Arrest 68(4)
35k68(4) Most Cited Cases
Defendant was not "seized" for purposes of the Fourth
Amendment when conservation officer approached his open
boat while it rested on the trailer of a parked portage truck
and asked defendant if he and his group had caught any fish,
but rather, the seizure came after defendant's admission to
transporting fish and subsequent refusal to allow inspection of
the catch or boat where catch was being transported.
U.S.C.A. Const.Amend. 4; M.S.A. § 97A.251, subd.1(3).
[2] Searches and Seizures 26
349k26 Most Cited Cases
For a search to be held unconstitutional under the Fourth
Amendment the one searched must have had an actual
expectation of privacy in the area searched and _ that
expectation of privacy must be one that society is prepared to
recognize as reasonable._U.S.C.A. Const.Amend. 4
[3] Fish 16
176k16 Most Cited Cases
Defendant had no reasonable expectation of privacy in the
open areas of his boat, and thus nonconsensual warrantless
search of areas of defendant's open boat where fish were
typically transported was not prohibited by Fourth
Amendment; defendant admitted to having been fishing and
transporting fish in his boat, and the minimal intrusion
involved was markedly less than that occurring when the
privacy of the private, home-like dwelling of a fish house was
invaded. U.S.C.A. Const.Amend.4; M.S.A. Const. Art. 13, §
12; M.S.A. § 97A.251, subd.1(3).
A-2]
[4] Criminal Law 1139
110k1139 Most Cited Cases
Courts review questions of statutory interpretation de novo.
[5] Fish 16 |
176k16 Most Cited Cases
Conservation officer was not required to have probable cause |
to conduct a limited warrantless inspection of defendant's |
boat, for purposes of conviction for refusal to allow
inspection of a boat; fishing was a largely recreational
privilege that anglers chose to engage in with knowledge of
the regulations governing their conduct, and an expectation of
privacy in all parts of an open boat or other conveyance,
admittedly used to transport fish, was not reasonable.
U.S.C.A. Const.Amend. 4; M.S.A. § 97A.251, subd.1(3).
*2 Syllabus by the Court
A conservation officer approaching an open boat while it rests
on the trailer of a parked portage truck and asking the
occupants whether they had caught any fish is not a seizure
for the purposes of the Fourth Amendment.
When the occupant of an open boat admits to having been
fishing and transporting fish in the boat or other conveyance
used to transport wild animals, but refuses to present the catch
for inspection, a nonconsensual search of the areas of an open
boat where fish are typically transported is constitutionally
permissible. Refusing to allow such an inspection is a
violation of Minn. Stat. § 97A.251, subd. 1(3) (2000).
Mike Hatch, Minnesota Attorney General, St. Paul, MN, Alan
L. Mitchell, St. Louis County Attorney, by Jeffrey M.
Vlatkovich, Assistant County Attorney, Hibbing, MN, for
Appellant.
A-22
—————————————————————————eVo
John M. Colosimo (Pro se), Virginia, MN, for Respondent.
Teresa Nelson, Minnesota Civil Liberties Union, St. Paul,
MN, by Howard S. Carp, Volunteer Attorney on Behalf of
Minnesota Civil Liberties Union, Minneapolis, MN, for
Amici Curiae.
Heard, considered, and decided by the court en banc.
OPINION
GILBERT, Justice.
Respondent John M. Colosimo was convicted for refusal to
allow inspection of a boat, Minn.Stat. § 97A.251, subd. 1(3)
(2000). Colosimo challenged his conviction arguing he was
unlawfully stopped by the conservation officer, the officer did
not have probable cause to inspect the boat and the request to
inspect the boat was an unlawful seizure. The court of appeals
reversed the conviction concluding that the conservation
officer was required to have probable cause to request
inspection of Colosimo's boat and that because the officer did
not have probable cause to request inspection, Colosimo
could not be convicted for refusing inspection. We reverse.
Colosimo was on a fishing trip with four other men on Rainy
Lake at Kettle Falls in the Voyageur’s National Park. On the
morning of September 18, 2000, the group stowed their
personal belongings on Colosimo's open bow boat in order to
make the trip back to the far shore of Lake Namakan where
they had left their vehicles. To get from Rainy Lake, where
they had been fishing, to Lake Namakan required portage.
Colosimo's boat was being trailored by a truck driven by
Shawn Obeson, who was employed portaging boats between
the two lakes.
A-23
Obeson described the boat as a 19- or 20-foot Crestliner
fishing boat, which contained the fishing party's luggage and
a cooler or two. Obeson testified that he had loaded
Colosimo's boat on to his trailer, and portaged the boat, while
the entire fishing party rode in the boat. During the portage,
as Obeson was about to put the boat in the Lake Namakan
side of the portage, he saw Officer Lloyd Steen, a uniformed
Department of Natural Resources (DNR) officer, walking
towards the truck. Obeson stopped the truck at that point.
When asked at Colosimo's trial the reason he stopped, Obeson
testified, "well I stopped to unhook John's [Colosimo's] boat
there." when asked if Officer Steen did anything to cause
Obeson to *3 stop, Obeson testified, "No, he didn't. He didn't
stop me."
Officer Steen testified that he knew where the portage truck
operator would stop in order to unhook the boat and receive
payment for the portage and he waited in that vicinity. Once
the operator had stopped the truck to unhook the boat Officer
Steen walked up to the boat and struck up a conversation with
Colosimo, who was sitting at the steering wheel of the boat.
Officer Steen asked if they had caught any fish. Colosimo
responded that they had caught some. Officer Steen asked
how many they had; Colosimo responded that they had not
been fishing that day and had less than their limit. Officer
Steen next asked how they had the fish packaged. Colosimo
said they had gutted and gilled the fish in accordance with the
regulations affecting Rainy Lake.
Officer Steen eventually asked if he could take a look at the
fish; Colosimo refused that request. The refusal to allow the
inspection of the fish started an argument between the officer
and Colosimo, an attorney, over the officer's legal authority to
board the boat to inspect the catch. Officer Steen told the
portage truck driver not to put the boat in the water. Colosimo
A-24
a
was equally adamant in telling the driver to put the boat into
the water.
Realizing that he and Colosimo were at an impasse and
fearing that the argument would escalate into a physical
confrontation, Officer Steen issued Colosimo a ticket for
failing to present wildlife for inspection, Minn.Stat.§
97A.251, subd. 2, and allowed the group to go along their
way. Later, upon reviewing the relevant statutes, Officer
Steen sent Colosimo a separate ticket citing him for
obstructing an officer in violation of Minn.Stat. § 97A.251,
subd. 1, and refusing to allow inspection of a boat being used
to transport wild animals, Minn. Stat. § 97A.251, subd. 3.
The parties agreed to a bench trial. A bench trial was held and
the court issued findings of fact, conclusions of law, a verdict
and memorandum. The district court concluded that the case
consisted of two legal issues: first, whether there was a stop,
and second, did the officer have the authority to inspect
Colosimo's boat once it had been established that Colosimo
had been fishing and was transporting fish. The court held
that approaching the boat did not amount to a stop,
concluding that once the conservation officer determined the
individual had engaged in fishing, the officer had the
authority to inspect the boat pursuant to Minn.Stat. §
97A.251. The court then found Colosimo guilty of refusal to
allow inspection of a boat, Minn.Stat. § 97A.251, subd. 1(3)
and assessed a fine of $100, plus a $37 surcharge. Colosimo
appealed the conviction to the Minnesota Court of Appeals.
The court of appeals reversed the district court, concluding
that in order to inspect Colosimo's boat the officer must have
probable cause of a violation of a fish or game law. The court
held that because the officer did not have authority to inspect
the boat, Colosimo could not be convicted for refusal to allow
inspection of the boat. State v. Colosimo, 648 N.W.2d 271,
276 (Minn.App.2002)
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I.
Colosimo contends that Officer Steen stopped his fishing
party and that the stop was prohibited by the Fourth
Amendment. Colosimo testified that he initially objected to
the conservation officer's attempts to converse by asking what
the officer's reasonable articulable suspicion for this "stop"
was. However, Officer Steen and members of Colosimo's
fishing party testified that the conversation began with Officer
Steen asking about fish and that Colosimo then stated that the
group had been fishing *4 .the previous days, and was
transporting gutted and gilled fish. The district court found
that there "was no stop in the present case" and cited the
testimony of the portage operator that he stopped on his own
volition, not because of anything that Officer Steen said or
did and that an officer's act of approaching a parked vehicle
does not constitute a stop for Fourth Amendment purposes.
[1] Colosimo, in his brief to this court, cites Delaware _v.
Prouse, 440 U.S. 648, 99 S.Ct.1391, 59 L.Ed.2d 660 (1979),
where the United States Supreme Court concluded that
random suspicionless stops of drivers violated the Fourth
Amendment. However, as the district court properly
concluded, the initial interaction between Officer Steen and
Colosimo did not amount to a stop. Rather, Officer Steen
merely began conversing with Colosimo after the portage
truck driver had on his own volition stopped the truck pulling
the trailer upon which Colosimo's boat rested. Thus, we are
presented with a situation quite distinct from that facing the
Court in Prouse. Here, Officer Steen walked up to the already
stopped boat that rested on the trailer of a parked truck. As
the district court found, there is no seizure for Fourth
Amendment purposes when an officer merely walks up to a
parked motor vehicle and converses with the driver. See State
v. Vohnoutka, 292 N.W.2d 756 (Minn. 1980); see also
Crawford vy. Comm'r_of Public Safety, 441 N.W.2d 837
(Minn.App.1989). Likewise, we hold that Officer Steen
A-26
walking up to Colosimo and conversing with him while
Colosimo's boat rested on the trailer of a parked portage truck
does not amount to a seizure for Fourth Amendment
purposes. See Matter of Welfare of E.D.J., 50? N.W.2d 779,
782 (Minn.1993) (generally an officer approaching and asking
questions of a person standing on a public street or sitting in a
parked car is not a seizure).
There may be little doubt that after Colosimo admitted to
having been fishing and the fact that he was transporting fish,
he was seized by Officer Steen. However, the seizure came
after Colosimo's admission to transporting fish and
subsequent refusal to allow inspection of the catch or boat
where the catch was being transported. At that point the
seizure was not suspicionless, but rather, was based on the
fact that Colosimo admitted to transporting fish in his boat,
but refused to allow inspection of the boat, a violation of
Minnesota law. Minn.Stat. § 97A.251, subd. 1(3). Because
the parties dispute the constitutionality of this statute, we now
turn to that issue.
Il.
The remaining question before us is whether Officer Steen
had the authority to search Colosimo's open boat for the
purpose of inspecting fish that appellant admitted
transporting. The fish that were admittedly in Colosimo's
possession are subject to an array of rules designed to protect
recreational fishing against depletion. These rules include
licensing, daily and possession limits, size, species, season,
location, bait, preparation and fishing method requirements
and many other rules established in numerous statutes and
regulations. See Minn. R. 6264.0300, subps. 1 & 56 (2001)
and Minn.Stat. § 97C (2002).
A-27
In a typical Fourth Amendment case, an appellate court has
the opportunity to review the specific facts of the challenged
search to determine whether the search violated the
defendant's Fourth Amendment rights. In this case, no search
occurred. Rather, Officer Steen issued a ticket for refusing to
allow an inspection of Colosimo's motorboat used to
transport.
*5 wild game fish. Thus, we must determine whether a
nonconsensual search of the boat, being used to take or
transport game fish in the field, could have occurred within
the limits imposed by the Fourth Amendment.
[2] The Fourth Amendment prohibits "unreasonable searches
and seizures." U.S. Const. amend. IV. For a search to be held
unconstitutional under the Fourth Amendment the one
searched must have had an "actual expectation of privacy” in
the area searched and that expectation of privacy must be
"one that society is prepared to recognize as reasonable."
Bond v. United States, 529 U.S. 334, 338, 120 S.Ct. 1462, 146
L.Ed.2d 365 (2000). In this case, as the district court found,
Colosimo refused to allow inspection of his boat out of
principle because he "truly believes that the officer could not
legally search his boat."
We must decide whether under these circumstances Colosimo
had a reasonable expectation of privacy. We have stated the
"existence of probable cause is relevant only when a person
has demonstrated a legitimate or reasonable expectation of
privacy." State _v. Sorenson, 441 N.W.2d 455, 458, 460
(Minn. 1989) (concluding "the open-fields doctrine permits a
conservation officer to enter almost any area in order to
enforce the state's game and fish laws"). If Colosimo's
expectation of privacy was not reasonable, the Fourth
Amendment's prohibition on "unreasonable searches" is not
implicated, and his conviction for refusing to allow the search
A-28
EE
should be upheld. In order for Colosimo's conviction for
refusing to allow inspection of his boat to stand, we must
determine whether there are any areas of the open boat where
Colosimo's expectation of privacy was unreasonable. If there
were areas of Colosimo's boat where an expectation of
privacy was not reasonable, the conservation officer had the
authority to search those areas, and Colosimo's conviction for
preventing the officer from inspecting the open boat stands.
In determining whether Colosimo's expectation of privacy
was reasonable, we must consider both the nature of
recreational fishing and the characteristics of an open boat, as
well as the fact that this request occurred in open season near
a game fishing habitat. Recreational fishing is a highly
regulated and licensed privilege. Those who choose to apply
for this privilege accept the conditions imposed, unique to the
sport of game fishing. See Minn. Stat. 97A.015, subd. 25.
Among those conditions is allowing conservation officers to
inspect their catch and boat or other conveyance used to
transport fish. Minn.Stat. § 97A.251, subd. 1(2) and (3). The
Montana Supreme Court has also recognized this fact:
In engaging in this highly regulated activity, anglers must
assume the burdens of the sport as well as its benefits. Thus,
no objectively reasonable expectation of privacy exists
when a wildlife enforcement officer checks for hunting and
fishing licenses in open season near game habitat, inquires
about game taken, and requests to inspect game in the field.
In this capacity, game wardens are acting not only as law
enforcement officers, but as public trustees protecting and
conserving Montana's wildlife and habitat for all of its
citizens. State v. Boyer, 308 Mont. 276, 42 P.3d 771, 776
(2002).
In Boyer, the Montana Supreme Court held that a fisherman
had no reasonable expectation of privacy in the fish he
possessed. Furthermore, a Montana Fish, Wildlife, and Parks
warden was permitted to step on the transom of a fisherman's
A-29
boat to inspect the catch contained in the live well of the boat.
The court held that *6 the fisherman had no legitimate
expectation of privacy that society was willing to recognize as
objectively reasonable in the rear platform of the boat. The
live well was open and was subject to plain view by the
warden once he stepped on the boat. The Montana court held
that the nature of the warden's intrusion was so minimal as
not to violate any alleged privacy interest of the fisherman. Jd.
at 779.
The important role fishing plays in the lives of many
Minnesotans and the corresponding need for effective
regulation to protect the viability of our state's fish and game
resources recently inspired an amendment to the Minnesota
Constitution. The legislature proposed the amendment in the
Spring of 1998. Act of April 20, 1998, ch. 392, § 1, 1998
Minn. Laws 1228. The proposed amendment was then
submitted to the citizens of Minnesota, who adopted it in the
1998 general election. The amendment provides, "Hunting
and fishing and the taking of game and fish are a valued part
of our heritage that shall be forever preserved for the people
and shall be managed by law and regulation for the public
good." Minn. Const. art. XIII, sec. 12. This provision of the
Minnesota Constitution must be considered in our analysis
along with the extensive laws and regulations passed to
manage fishing for the public good.
[3] This provision of the Minnesota Constitution recognizes
the link between enforcement of fishing regulations and the
preservation of Minnesota's game and fish resources. We
have numerous statutes relating to the taking of game in this
state, and numerous regulations implemented by the
Department of Natural Resources. See Méinn.Stat. §§
97A.011-97A.552; Minn. R. 6262.0100--6262.3300 (2001)
(fishing regulations). These laws work in tandem with the
constitutional mandate of Minn. Const. art. XIII, sec. 12.
When anglers purchase licenses they also routinely receive
A-30
pamphlets relating to the limitations and regulations. The
widespread knowledge of the restrictions accompanying the
privilege of fishing casts doubt on the reasonableness of an
expectation of privacy that would allow an angler to refuse
inspection of his catch. Those who apply to the state for
permission to harvest Minnesota's natural game are on notice
that they are subject to such regulations. Colosimo, who
encountered the conservation officer at Kettle Falls, a known
fishing destination near the Canadian border, acknowledged
not only having been fishing on Rainy Lake, a border water
extending into Canada, but also admitted to transporting his
catch in his open boat. Accordingly, we hold that because
Colosimo had no reasonable expectation of privacy, the areas
of his open boat or other conveyance used to typically store or
transport fish were subject to inspection pursuant to
Minn.Stat. § 97A.251, subd.1(3).
Courts around the country have come to similar conclusions
when analyzing searches of those choosing to take game.
People v. Perez, 51 Cal.App.4th 1168, 1177, 59 Cal.Rptr.2d
596 (Cal.Ct.App.1996) ("The high degree of regulation over
the privilege of hunting, in turn, reduces a hunter's reasonable
expectation of privacy."); Hamilton v. Myers, 281 F.3d 520,
532 (6th Cir.2002) ("Everyone who participates in the
privilege of hunting has a duty to permit inspections to
determine whether they are complying with applicable
laws."); 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 consents to the inspection of any game animal in his
possession when he makes application for and receives a
hunting license.").
Our decision is consistent with our recent ruling prohibiting
the search of a fish *7 house where the officer lacked
probable cause. State v. Larsen, 650 N.W.2d_ 144
(Minn.2002). In Larsen, we held as follows:
A-31
We consider the nature of the premise here--a fish house,
erected and equipped to protect its occupants from the
elements and often providing eating, sleeping, and other
facilities--as providing privacy for activities 'recognized and
permitted by society.’ While clearly not a substitute for
one's private dwelling, during the period of occupancy
important activities of a personal nature take place. We
therefore conclude appellant had a reasonable expectation
of privacy in his fish house.
Id. at 149 (internal citation omitted).
The dissent would have us treat an open fishing boat the same
as the "private fish house" from Larsen. We decline to do so.
In stark contrast to Larsen, the minimal intrusion involved
here is markedly less than that occurring when the privacy of
the private, homelike dwelling of a fish house is invaded.
Here, we are asked to conclude that an angler has a
reasonable expectation of privacy in every area of his open
boat, including those areas where fish are normally stored or
transported. Under these facts, Colosimo did not have a
legitimate expectation of privacy in certain areas of his
already stopped open boat, where fish are typically stored or
transported.
To conclude otherwise, that police officers require probable
cause of any gaming law violation, would prevent the state
from meeting its constitutional mandate that it manage and
regulate fishing to preserve our natural resources. This is an
undeniable fact given that the state would only be able to
inspect boats when it observes or has information from a
"confidential reliable informant" on the actual catching and
keeping of fish in excess of the applicable limits, size, season
or species. The idea that officers would be required to
personally witness illegal catch activity, coupled with the
reality that fishing can take hours or even days, illustrates
how absurd it would be to recognize a privacy interest
inherent in an angler's take and only then have probable cause
A-32
to inspect. Similarly, "informants" would need first-hand
knowledge of the violations, as the dissent recognizes, as
mere fishing would not constitute probable cause that allows
inspection. The only other option would be continued
surveillance of one particular angler until a conservation
officer had a basis to believe that a law was violated.
The unreasonableness of this expectation can be easily
illustrated. Minnesota has specific regulations for the taking
of fish on the Minnesota- Canadian boundary waters. Minn.
R. 6266.0700. This allows, for example, the taking and daily
possession of thirty sunfish per angler. Minn. R. 6266.0200
subd. 2(c). There were five anglers in Colosimo's fishing
party. The dissent would force the game officer to have
probable cause to believe that more than one hundred and
fifty sunfish had been taken before an inspection can be
allowed. Walleye fish have a daily possession limit of six fish
in the aggregate, in general. Minn. R. 6266.0700, subd. 2(a).
The dissent would restrict inspection until the officer had
probable cause to believe the party had thirty-one walleye in
their possession. We disagree, and again find persuasive the
Montana Supreme Court's reasoning in Boyer. The Montana
court held that: |
Montana's vast geography, the angler's somewhat
uninhibited freedom of movement, and the remoteness
from warrant issuing magistrates and law enforcement
entities would severely impede game _ violation
investigations. The inevitable result would be the
unnecessary depletion of Montana's wildlife and fish,
which *8 we are bound to protect and preserve. We
decline to impose this burden.
Boel, 43 P.3d at 776. [FN 1]
FN 1. The intrusion here does not raise similar concerns
of a "roadblock" that we addressed in Ascher, where a
large number of motor vehicle drivers were stopped on
the public highways in the hope of discovering evidence
A-33
of alcohol impaired driving by some of them. Ascher v.
Comm’r_of Pub. Safety, 519 N.W.2d_ 183, 187
(Minn.1994). In contrast, Colosimo, whose boat was
being portaged by a third party, had already come to a
stop when the exchange with the conservation officer
began. The conservation officer who requested to
inspect Colosimo's catch knew that Colosimo had been
fishing and that he possessed game fish, and that those
fish were being transported in the open boat.
Minnesota's 10,000 lakes, along with numerous streams and
rivers rival Montana's vast geography and provide anglers
largely uninhibited freedom of movement in remote areas in
pursuit of our abundant fish resources. In Prouse, Justice
Blackmun wrote a concurrence joined by Justice Powell
where they highlighted the clear difference between the
situation in Prouse and that present in the sport fishing
context:
I would not regard the present case as a precedent that
throws any constitutional shadow upon the necessarily
somewhat individualized and perhaps largely random
examinations by game wardens in the performance of their
duties. In a situation of that type, it seems to me, the Court's
balancing process, and the value _ factors under
consideration, would be quite different.
Prouse, 440 U.S. at 659, 99 S.Ct.1391.
III.
Having determined that the Fourth Amendment does not
prohibit a limited inspection of Colosimo's open boat, we
must determine whether the statute under which Colosimo
was convicted, Minn.Stat. § 97A.251, subd. 1(3), requires
probable cause in order to undertake a search. The court of
appeals read a probable cause requirement into Minn.Stat. §
97A.251, subd.1(3). The statute provides:
A-34
A person may not:
(1) intentionally hinder, resist, or obstruct an enforcement
officer, agent, or employee of the division in the
performance of official duties;
(2) refuse to submit to inspection of firearms while in the
field, licenses, or wild animals; or
(3) refuse to allow inspections of a motor vehicle, boat, or
other conveyance used while taking or transporting wild
animals.
Id.
[4] We review questions of statutory interpretation de novo.
Burkstrand v. Burkstrand, 632 N.W.2d 206, 209 (Minn.2001).
The court of appeals interpreted this statute to require the
state to prove, as a predicate to the crime of refusal to allow
inspection, that the officer had probable cause of a violation.
We disagree. The statute at issue provides a conservation
officer the authority to inspect a boat or other conveyance
[FN2] used "while taking or transporting wild animals."
Minn.Stat. § 97A.215, subd. 1(3). This statute makes no
mention of a requirement that the officer have probable cause
in order to undertake the inspection. The court of appeals,
operating under the belief that attributing meaning to the plain
wording of the statute would result in the statute violating the
constitution, implied a probable cause requirement in order to
uphold the statute. *9 State _v. Colosimo, 648 N.W.2d 271,
274 (Minn.App.2002). The court of appeals supported their
interpretation by referencing Minn. Stat. § 97A.215, subd.
1(b) (2002) which provides:
FN2. Conveyance: "A means of carrying or
transporting something.” See Webster's International |
Dictionary 499 (3d ed.1993).
When an enforcement officer has probable cause to believe
that wild animals taken or possessed in violation of game
A-35
a
and fish laws are present, the officer may:
(1) enter and inspect any place or vehicle; and
(2) open and inspect any package or container.
We decline to interject a probable cause requirement into
Minn.Stat. § 97A.251 merely because the legislature in
Minn.Stat. § 97A.215, subd. 1(b)(1) granted conservation
officers with probable cause the authority to "enter and
inspect any place or vehicle."
[5] Our decision in this case does not grant conservation
officers power beyond that of other law enforcement officers.
[FN3] Rather, the difference between the inspection permitted
under the facts of this case and searches impermissible under
the Fourth Amendment is that fishing is a largely recreational
privilege that anglers choose to engage in with knowledge of
the regulations governing their conduct. Our decision merely
acknowledges that an expectation of privacy in all parts of an
open boat or other conveyance, admittedly used to transport
fish, is not reasonable. Therefore, a limited inspection of
certain parts of the open boat would not be prohibited under
the Fourth Amendment. [FN4] As such, under the facts of this
case, it was permissible for the conservation officer to
conduct a lawful nonconsensual inspection of the areas of
Colosimo's open boat typically used to store or transport fish.
By refusing to submit to the officer's lawful request to inspect
these areas of his open boat, Colosimo violated Mimnn.Stat. §
97A.251, subd. 1(3).
FN3. Minnesota Statutes § 97A.205, which sets forth
the powers of game and fish enforcement officers,
provides, "Nothing in this section grants an
enforcement officer any greater powers than other
licensed peace officers.”
FN4. Because Colosimo refused any search, we do not
need to specifically delineate the limits of a legal
search of an open boat.
A-36
Reversed.
HANSON, J., took no part in the consideration or decision of
this case.
PAGE, Justice (dissenting).
[A]s a general rule, the state, having the power to deny a
privilege altogether, may grant it upon such conditions as it
sees fit to impose. But the power of the state in that respect
is not unlimited, and one of the limitations is that it may not
impose conditions which require the relinquishment of
constitutional rights. If the state may compel the surrender
of one constitutional right as a condition of its favor, it may,
in like manner, compel a surrender of all. It is inconceivable
that guaranties embedded in the Constitution * * * may thus
be manipulated out of existence.
Frost v. Railroad Comm'n, 271 U.S. 583, 593-94, 46 S.Ct.
605, 70 L.Ed. 1101 (1926). This means, "the state may not
impose upon the permission to take wildlife the condition that
the state be allowed to invade the constitutional rights of the
individual." People ex rel. Roth v. Younger, 327 Mich. 410,
42 N.W.2d 120, 125 (1950); see also Garrity v. New Jersey,
385 _ U.S. 493, 500, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967)
(concluding that public employment may not be hinged on the
relinquishment of the right of the individual to invoke their
Fifth Amendment privilege aga:*st *10 self-incrimination);
Blackburn v. Snow, 771 F.2d 556, 58 (1st Cir.1985) (stating
that it is long settled "that government may not condition
access to even a gratuitous benefit or privilege it bestows
upon the sacrifice of a constitutional nght").
By its decision today, the court permits precisely that which
the Supreme Court in Frost prohibited--it grants the privilege
of taking wildlife conditioned on the infringement of
A-37
constitutional rights. By concluding that one who ..gages in
the regulated activity of fishing has no expectation of privacy
in the areas of an open boat or other conveyance used to
typically store or transport fish, [Ficl] the court ensures that
every such search will be reasonable, even when based on a
conservation officer's whim, thereby making a warrant based
on probable cause unnecessary. In the end, because no such
warrantless searches will be violative of the Fourth
Amendment's and article I, section 10's, protections against
unreasonable searches, individuals engaging in or who are
believed to have engaged in hunting or fishing will be subject
to searches otherwise constitutionally forbidden.
FN1. While the court's opinion refers to the
expectation of privacy in the areas of an open boat
or other conveyance used to typically store or
transport fish, it does not define or explain what
constitutes these areas. Presumably, the court is
referring to packages or containers that are present
on the boat. Also, presumably, the court fails to
define or explain what constitutes these areas
because it wants to avoid the probable cause
requirements of Minn.Stat. § 97A.215, subd. Ib(2).
The expansive language in the opinion makes it
apparent that a peace officer, whether a police
officer or a conservation officer, will be able to
search not only open boats, but any boat, car, or
truck on the mere hunch that the occupants have
engaged in the regulated activity of hunting or
fishing.
Under Minnesota law, conservation officers, as licensed
peace officers, are the functional equivalent of police officers.
See Minn. Stat. § 626.84, subd. 1(c)(1) (2002). As such, the
constitutional constraints that limit the ability of a police
officer to conduct searches also apply to searches conducted
by conservation officers. See State v. Larsen, 650 N.W.2d
A-38
144, 154 (Minn.2002) (stating that "conservation officers are
subject to the same constitutional constraints as other law
enforcement officers in the performance of their duties,"
therefore, any restrictions this court has found applicable to
police officers also apply to conservation officers); Minn.Stat.
§ 626.05, subd. 2 (2002).
Individuals have the right to be free from unreasonable
searches under both the United States and Minnesota
Constitutions. [FN2] U.S. Const. Amend. IV; Minn. Const.
Art. 1, § 10. This right "protects people, and not places," by
protecting what an individual seeks "to preserve as private,
even in an area accessible to the public." Katz v. United
States, 389 U.S. 347, 351, 88 S.Ct. 507, 19 L.Ed.2d 576
(1967). In order for a person to receive constitutional
protection, (1) the search must be of an area in which the
individual has an expectation of privacy and (2) the
individual's expectation of privacy must be one that is
recognized within society as reasonable. *11 See Bond _v.
United States, 529 U.S. 334, 338, 120 S.Ct. 1462, 146
L.Ed.2d 365 (2000). Generally, searches conducted without
prior approval of a magistrate or judge are per se
unreasonable, unless they fall within a judicially-recognized
exception. See Coolidge v. New Hampshire, 403 U.S. 443,
45455, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971).
FN2. When interpreting a provision of the
Minnesota Constitution that contains nearly identical
language to a provision in the United States
Constitution, decisions from the United States
Supreme Court discussing that constitutional
provision are "inherently persuasive, although not
necessarily compelling." State v. Wiegand, 645
N.W.2d 125, 132 (Minn.2002). However, our
constitution may not provide an individual with less
protection than the United States Constitution,
Coolidge v. New. Hampshire, 403 U.S. 443, 453, 91
A-39 ..
Ree ren eT I TT LL IT I TC I TOL TT EEOC CT A A A -SSs
S.Ct. 2022, 29 L.Ed.2d 564 (1971), although we
may construe our constitution to extend greater
protections than a comparable provision of the
United States Constitution. Wiegand, 645 N.W.2d at
132; State _v. Carter, 596 N.W.2d 654, 656-57
(Minn.1999)
While courts have recognized that the privacy expectation in
a moving vehicle, including a boat, is less than that of a
home, this does not mean that the Fourth Amendment fails to
provide any protection. See Carroll v. United States, 267 U.S.
132, 153, 45 S.Ct. 280, 69 L.Ed. 543 (1924) (recognizing that,
while the search of a "ship, motor boat, wagon, or
automobile" is necessarily different from a search of a "store,
dwelling house, or other structure’ under the Fourth
Amendment, the protections guaranteed in the Fourth
Amendment still apply); United States v. Ross, 456 U.S. 798,
805-06, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982) (recognizing
that Fourth Amendment applies to vessels as well as cars);
Cardwell v. Lewis, 417 U.S. 583, 590-91, 94 S.Ct. 2464, 41
L.Ed.2d 325 (1974) (noting that, while occupants and their
belongings are in plain view and exposed to the public eye
and therefore are not protected under the Fourth Amendment,
this does not mean that no part of the interior of a motor
vehicle is protected or that an individual's right to be free
from unreasonable searches and seizures is waived); see also
United States v. Lauchli, 724 F.2d 1279, 1282 (11th Cir.1984)
(applying the vehicle exception to a boat to determine
whether the warrantless search was appropriate under the
Fourth Amendment); United States v. Whitaker, 592 F.2d
826, 828 n. 2 (Sth Cir.1979) (recognizing that the Fourth
Amendment has long been considered applicable to boats and
that there exists an expectation of privacy in a vessel). As we
recognized in State _v. Wiegand, 645 N.W.2d_ 125
(Minn.2002), " '[a] search, even of [a vehicle], is a substantial
invasion of privacy,’ " to which Fourth Amendment
protections apply. Jd. at 131 (quoting United States v. Ortiz,
A-40
| EEL LLL EEE AEE NT ETT
| 422 U.S. 891, 896, 95 S.Ct. 2585, 45 L.Ed.2d 623 (1975)).
| Because individuals have a diminished expectation of privacy
in their vehicles, courts have created and applied an exception
to permit warrantless searches so long as the search was
"reasonable." California v. Carney, 471 U.S. 386, 392-94,
105 S.Ct. 2066, 85 L.Ed.2d 406 (1985).
In the context of fishing and hunting, a search is "reasonable"
when the conservation officer has probable cause to search
arising from a belief that the individual to be searched is
engaged in or has very recently engaged in either hunting or
fishing and that a violation of the fishing or hunting laws may
have occurred. See Younger, 42 N.W.2d at 122 (stating that
probable cause based on the belief that a lawful act, like
fishing or hunting, has been, is being, or in the future will be
committed has never rendered a search reasonable under the
constitution, and therefore concluding that "probable cause"
requires knowledge or belief of an unlawful act). Without
such probable cause restrictions, individuals will be subject to
searches based on the conservation officer's whim rather than
based on actual suspicion that the individual has engaged in
conduct that may have violated the state's fishing and hunting
laws. See State _v. Henning, 666 N.W.2d 379, 385
(Minn.2003) (stating that peace officers "should not be
allowed to define the reasonableness of their own conduct");
Delaware v. Prouse, 440 U.S. 648, 661, 99 S.Ct. 1391, 59
L.Ed.2d 660 (1979) (stating that when an official lacks either
probable cause to believe that a violation has occurred or
other articulable basis upon which a reasonable suspicion may
be based before effectuating *12 a search or seizure "[t]his
kind of standardless and unconstrained discretion is the evil
the Court has discerned when in previous cases it has insisted
that the discretion of the official in the field be circumscribed,
at least to some extent"); Brinegar v. United States, 338 U.S.
160, 180, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949) (Jackson, J.,
dissenting), quoted in Ascher v. Comm'r of Public Safety, 519
N.W.2d_ 183, 186 n. 1 (Minn. 1994) (stating that
A-41
"[ujncontrolled search and seizure is one of the first and most
effective arsenal of every arbitrary government"); see also
Ortiz, 422 U.S. at 896, 95 S.Ct. 2585 (finding that a search is
a "substantial invasion of privacy" and, therefore, to protect
individual's right to be free from "official arbitrariness,” those
effectuating the search must have probable cause).
The historic protection of an individual's right to be free from
unreasonable searches has been effectively eliminated by
today's decision. The court concludes that Colosimo had no
reasonable expectation of privacy in areas of his open boat
used to transport or store fish [FN3] because of the
extensiveness of state regulation of fishing and hunting
activities and because recreational fishing is a privilege. That
is a rationale this court firmly rejected in Larsen less than a
year ago. [FN4]
FN3. Obviously, to the extent that the boat is open and
items are in plain view, there is no reasonable
expectation of privacy in those items because the
individual has not sought to keep them private. The
problem is that the court extends this rationale to any
place on the boat where fish are typically stored and to
items not in plain view. However, the test is whether
there are areas in the boat that the individual has sought
to keep private, even though the area might otherwise be
accessible to the public. See Katz, 389 U.S. at 351, 88
S.Ct. 507; see also Cardwell, 417 U.S. at 590-91, 94
S.Ct. 2464 (noting that, while occupants and their
belongings are in plain view and exposed to the public
eye and therefore are not protected under the Fourth
Amendment, this does not mean that no part of the
interior of a motor vehicle is protected or that an
individual's right to be free from unreasonable searches
and seizures is waived).
A-42
In failing to define "areas of an open boat or other
conveyance used to typically store or transport fish,” the
court has opened the door to searches of packages and
containers present on a boat which are likely to have
items that an individual is seeking to keep private. See
Ross, 456 U.S. at 822-23, 102 S.Ct. 2157 (concluding
that "the Fourth Amendment provides protection to the
owner of every container that conceals its contents from
plain view" unless one of the _ well-establ*shed
exceptions apply).
If such containers may be searched without probable
cause, what about the same containers found on an
enclosed boat when the enclosed boat's occupants are
suspected of having been fishing? Whether the boat is
open or closed cannot be the determining factor.
Moreover, under the court's reasoning, there is no basis
for treating them differently.
FN4. The court relies on four cases to support this
conclusion. That reliance is misplaced. The first case,
State v. Boyer, 308 Mont. 276, 42 P.3d 771 (2002),
involved a conservation officer who stepped on the
transom of a fishing boat, looked into an already opened
live well, and discovered a violation of Montana's
fishing regulations. Jd. at 779. The question before the
Montana Supreme Court did not turn on_ the
conservation officer's search because the violation was
in the officer's plain view and did not require the officer
to "conduct a search of the boat, look under the seats,
remove or rearrange any personal belongings, or even
open the top of the live well." /d. (distinguishing a
search that required opening the vehicle's door and
conducting a search of the interior from just looking in a
live well that was already open).
In this case, the conservation officer testified that he
could not determine from what he could see on the boat
that the party had been fishing or that they had engaged
in any violations of the fishing laws. Because all of
Colosimo's belongings were packed, for the
conservation officer to inspect Colosimo's catch,
personal belongings would have needed to be
rearranged, and coolers or live wells would have had to
be opened, all actions that the Boyer court indicated
would have required probable cause to conduct a search.
The court's reliance on People v. Perez, 51, Cal.App.4th
1168, 59 Cal.Rptr.2d 596 (Cal.Ct.App.1996), and State
v. Halverson, 277 N.W.2d 723 (S.D.1979), is also
misplaced as support because these two cases involved
searches that arose out of the use of fish and game
checkpoints, which are impermissible under the
Minnesota Constitution. See Ascher, 519 N.W.2d at 187
(concluding that sobriety checkpoints violate the
Minnesota Constitution, which requires the police to
have an objective individualized articulable suspicion of
criminal wrongdoing before subjecting a driver to an
investigative stop). The final case, Hamilton v. Myers,
281 F.3d 520 (6th Cir.2002), justified a warrantless
search and seizure based on the idea that fishing and
hunting are regulated activities, a concept that, as noted,
this court soundly rejected in Larsen. Larsen, 650
N.W.2d_ at 152-53 (concluding that fishing is not
comparable to "running an automobile junkyard
business, operating a licensed gun dealership, or
engaging in the sale of alcoholic beverages for the
purpose of the closely regulated industry exception").
As none of these cases provide any legal support under
Minnesota law, I can only conclude that the court's
decision is based on the exercise of its will.
~
A-44
*13 In Larsen, we recognized that this state's fish and game
rules and regulations were no more pervasive or
comprehensive than the state's traffic rules and regulations.
Id. at 153. We noted that the state's interest in protecting and
regulating wildlife was less than its interest in deterring drunk
driving, which we have concluded does not outweigh the
privacy expectations of a motor vehicle occupant. Jd. (relying
on Ascher, 519 N.W.2d_ 183). If, in the face of extensive
regulation, the search of a motor vehicle may "not be initiated
without at least a reasonable articulable suspicion of unlawful
conduct," Larsen, 650 N.W.2d at 153, then the search of a
fishing boat should not be treated any differently. As we
noted recently, "[w]e have never before simply allowed the
ends to justify the means when the means void our citizens'
constitutional protections." See Henning, 666 N.W.2d at 386.
Today's decision effectively overturns Larsen. In doing so,
the court implicitly concludes that the state's interest in
protecting and regulating its wildlife resource is more
important than its interest in protecting human life by
deterring drunk driving. See Ascher, 519 N.W.2d at 186-87
(recognizing that, although a substantial portion of the society
would agree that a sobriety checkpoint was a permissible way
to eliminate drunk driving, suspicionless stops still violated
our constitutional requirements even though the searches
were only minimally intrusive). In its breadth, the court's
decision appears to go so far as to permit any peace officer to
search any vehicle based on the officer's mere suspicion that
the occupants have engaged in the regulated activity of
hunting or fishing. This decision turns our court's search and
seizure law on its head.
The result is that individuals may be stopped on numerous
occasions without a reasonable suspicion of any criminal
activity merely because a conservation officer believes that
A-45
the individuals have been engaged in the regulated activities
of hunting or fishing. The court's interpretation "eliminate[s]}
the constitutional safeguard requiring an officer to have
reasonable articulable suspicion of criminal activity before
stopping [an individual], but provides no substitute to protect
[individuals who appear to have engaged in the regulated
activity] from repeated stops at the unchecked discretion of
[peace] officers." Henning, 666 N.W.2d at 385; see Prouse
440 U.S. at 660, 99 S.Ct. 1391 ("To insist neither upon an
appropriate factual basis for suspicion directed at a particular
[motor vehicle] nor upon some other substantial and objective
standard or rule to govern the exercise of discretion 'would
invite intrusions upon constitutionally guaranteed *14 nights
based on nothing more substantial than inarticulate
hunches."") (citation omitted).
The court attempts to justify its result by relying on the
concurrence in Prouse, which states in part, "I would not
regard the present case as a precedent that throws any
constitutional shadow upon the necessarily somewhat
individualized and perhaps largely random examinations by
game wardens in their performance of their duties." Prouse
440 U.S. at 664, 99 S.Ct. 1391 (Blackman, J., concurring).
However, in its desire to find some case to support its
untenable position, [FN5] the court *15 ignores the clear
language in the Prouse majority: "There are certain ‘relatively
unique circumstances’ in which consent to regulatory
restrictions is presumptively concurrent with participation in
the regulated enterprise. Otherwise regulatory inspections
unaccompanied by any quantum of individualized articulable
suspicion must be undertaken pursuant to previously specified
‘neutral criteria.'"" Prouse, 440 U.S. at 662, 99 S.Ct. 1391
(citation omitted) (emphasis added). This language makes
clear that the Court is drawing a distinction between those
regulated industries for which the "closely regulated industry
exception” is applicable and every other regulated activity,
like driving, for which "some quantum of individualized
A-46
| |
suspicion" is required to ensure that an individual's reasonable
expectation of privacy is protected. See id. at 654-55, 99 S.Ct.
1391. Because, in Minnesota, this court has explicitly
excluded recreational fishing from the "closely regulated
industry exception" to probable cause requirements, the result
is clear. See Larsen, 650 N.W.2d at 152-53 ("We do not
perceive recreational * * * fishing * * * comparable to
running an automobile junkyard business, operating a
licensed gun dealership, or engaging in the sale of alcoholic
beverages for purposes of the closely regulated industry
exception."). Gaming and fishing "regulatory inspections
unaccompanied by any quantum of individualized articulable
suspicion must be undertaken pursuant to previously specified
‘neutral criteria.' " Prouse, 440 U.S. at 662, 99 S.Ct. 1391;
Brown v. Texas, 443 U.S. 47, 51, 99 S.Ct. 2637, 61 L.Ed.2d
357 (1979) ("[T]he Fourth Amendment requires that a seizure
must be based on specific, objective facts indicating that
society's legitimate interests require the seizure of the
particular individual, or that the seizure must be carried gut
pursuant to a plan embodying explicit neutral limitations on
the conduct of individual officers."). Because in this case the
conservation officer did not follow any "previously specified
‘neutral criteria,’ " but was merely acting on his "inarticulable
hunch," any resulting search would violate the constitution.
FNS. As noted previously, Boyer did not answer the
question of whether the search of a fishing boat for
fishing and gaming violations would require probable
cause because the Montana Supreme Court found that
there was a reasonable suspicion to effectuate the stop
and that once stopped the fishing violations were in
plain view, thus no search was required. 42 P.3d at 778-
79. Boyer is not the only court to require either some
objective, articulable basis upon which to justify
violating an individual's right to privacy or a "neutral
criteria" to constrain the officer's unbridled discretion.
See Prouse, 440 U.S. at 662, 99 S.Ct. 1391. Rather, a
A-47
review of case law across the country reveals that this
court's decision allowing searches and seizures to be
conducted based on an officer's whim is contrary to the
majority of cases deciding whether a conservation
officer's search or seizure of an individual violates
constitutional protections. See United States v. Munoz,
701 F.2d 1293, 1300-01 (9th. Cir.1983) (concluding that
roving stops by conservation officers to check for
compliance with hunting regulations without any
founded suspicion violates an individual's Fourth
Amendment rights to be free from unreasonable
searches and seizures); People v. Coca, 829 P.2d 3851
387 (Colo. 1992) (stating that when the conservation
officers had no reason to believe that the vehicle had
been involved in hunting or was in violation of the
state's wildlife laws "[t]he conduct in question parallels
that condemned in Delaware v. Prouse, 440 U.S. 648,
99 S.Ct. 1391, 59 L.Ed.2d 660 (1979), in that the * * *
vehicle was stopped merely to see if it had been
involved in the commission of a hunting infraction.
Nothing that was known by the wildlife officers
provided them with a reason to believe that a violation
of the wildlife laws was occurring, had occurred, or was
about to occur."); Hill v. State, 238 So.2d 608, 611
(Fla.1970) (stating that the authority to search a boat for
violations of the conservation laws is bound by the
requirement that the conservation officer have probable
cause to believe that a conversation law violation has
occurred); People v. Levens, 306 Ill.App.3d 230, 239
Ill.Dec. 425, 713 N.E.2d 1275, 1277-78 (1999) ("[A]
conservation officer may not stop a motorist if the
officer merely believes that the motorist is currently or
was very recently engaged in lawful hunting. Because a
traffic stop is a greater intrusion than a brief detention in
the field, we require that an officer must reasonably
believe that a motorist's hunting is illegal before the
officer may make a valid stop." 'Reason to believe’ is
A-48
probable cause to search which arises from indicia that
the person is a hunter who is immediately or was very
recently engaged in hunting."); State v. Keehner 425
N.W.2d 41, 45 (lowa 1988) (upholding a stop to check
for hunting licenses because the stop was designed "not
to commit the seizure to the unfettered discretion of the
officer: In order to be stopped, the individual must first
be engaged in an activity which may be reasonably
interpreted as ‘hunting.’ "); Drane v. State, 493 So.2d
294. 297-98 (Miss.1986) (allowing the use of
roadblocks or checkpoint stops in game areas to stop
individuals as part of scheme to manage wildlife
resources, but requiring the conservation officer to have
probable cause to believe that a violation of the hunting
and gaming laws has occurred before a search of the
contents of a boat, car, or other vehicle may be
conducted); State v. Creech, 111 N.M. 490, 806 P.2d
1080, 1083 (Ct.App. 1991) (noting that, while the
concurrence in Prouse discussed a potentially different
standard for conservation officers conducting random
stops, so long as reasonable suspicion is not present "the
stop must ‘be carried out pursuant to a plan embodying
explicit, neutral limitations on the conduct of individual
officers' ") (quoting Brown v. Texas, 443 U.S. 47, 51, 99
5.Ct. 2637, 61 L.Ed.2d 357 (1979)); State v. Tourtillott,
289 Or. 845, 618 P.2d 423, 430 (1980) (upholding a
wildlife roadblock stop because "[t]here was no exercise
of discretion in the sense that the policeman would pull
over any vehicle based upon a ‘hunch’ "), Hughes v.
State, 195 Tenn. 290, 259 S.W.2d 527, 528 (1953)
(holding that, while a search and inspection may be
done without a warrant, this power does not mean that a
search may be conducted at "at any time or place after
the privilege has been exercised, such as searching the
premises and person of the accused days after the hunt
is over"); State v. Legg, 207 W.Va. 686, 536 S.E.2d 110,
117__(2000) (concluding that random stops by
A-49
conservation officers to search for violations of hunting
laws without an articulable, reasonable suspicion
constitutes "[s]uch unbridled use of authority by a law
enforcement officer [which] is precisely what the State
and Federal constitutions are intended to prohibit");
State v. Flanagan, 251 Wis. 517, 29 N.W.2d 771, 773
(1947) (upholding a search and seizure by a
conservation officer who had probable cause to believe
that a violation of the gaming laws had occurred)
The presence of extensive regulations does not, as the court
concludes, result in the elimination of an expectation of
privacy. See Prouse, 440 U.S. at 662, 99 S.Ct. 1391 ("The
‘grave danger’ of abuse of discretion does not disappear
simply because the automobile is subject to state regulation
resulting in numerous instances of police-citizen contact * * *
'if the government intrudes * * * the privacy interest suffers
whether the government's motivation is to investigate
violations of criminal laws or breaches of other statutory or
regulatory standards.' ") (citations omitted). At most, it is one
ground for deciding whether the vehicle exception to the
Fourth Amendment is applicable to boats. See Carney, 471
U.S. at 394, 105 S.Ct. 2066 (concluding that vehicles have a
reduced expectation of privacy warranting the vehicle *16
exception because they are readily mobile and because of the
pervasive regulations governing their use). Indeed, even if the
vehicle exception is applicable to boats, and I believe it is, a
warrantless search of a fishing boat still needs to be based on
probable cause before a search may be upheld. /d. at 392, 105
S.Ct. 2066 (concluding that, when "pervasive schemes of
regulation, which necessarily lead to reduced expectations of
privacy, and the exigencies attendant to ready mobility justify
searches without prior recourse to the authority of a
magistrate so long as the overriding standard of probable
cause is met") (emphasis added).
A-50
Requiring a conservation officer to have probable cause
before conducting a warrantless search of a boat is consistent
with the statutory scheme governing the conduct of
conservation officers in the field. The legislature does not
have the power to "redefine the constitutional parameters of
[peace officer] conduct," and this court has no authority to
ignore clear and unambiguous legislative pronouncements
when trying to ascertain the intent of the legislature. Henning,
666 N.W.2d at 385. The presumption is that the legislature
did not intend an absurd or unreasonable result and that the
legislature intends the entire statute to be effective and
certain. Minn.Stat. § 645.17 (2002). Here, Minnesota Statutes
§ 97A.215, subdivision Ib (2002), provides that a
conservation officer must have probable cause to believe that
wild animals were taken or possessed in violation of the game
and fish laws before he or she is authorized to conduct an
inspection of a vehicle, package, or container that may
contain game or fish. Minnesota Statutes § 97A.251 (2002)
describes those actions that are prohibited by a licensee and
specifies those that will be criminal violations and those that
are subject to civil action. It does not, contrary to the court's
reading, grant a conservation officer authority to conduct an
inspection of a vehicle merely upon the officer's belief that
the licensee has engaged in fishing or hunting. Rather, the
"inspection referenced in Minn.Stat. § 97A.251, subd. 1(3), is
the inspection authorized under Minn.Stat. § 97A.215, subd.
lb. To read these statutes in the way the court does produces
an absurd result. On one hand, the enforcement officer cannot
conduct an inspection without probable cause; on the other
hand, a person can be criminally penalized for refusing to
allow an inspection that the enforcement officer has no
statutory authority to conduct in the first instance.
A-51
To the extent that the "inspection" referenced in section
97A.251, subdivision 1(3), is not the "inspection" authorized
under section 97A.215, subdivision Ib, the court's expansion
of the scope of the inspection to include "areas of an open
boat or other conveyance used to typically store or transport
fish” goes well beyond that permitted by the express language
of section 97A.251, subdivision 1(3). Subdivision 1(3) of
section 97A.251 makes it unlawful for a person to "refuse to
allow inspection of a motor vehicle, boat, or other
conveyance used while taking or transporting wild animals"
(emphasis added). The statute does not contain any language
authorizing the "inspection" of packages or containers. Thus,
the plain language of the statute does not make it unlawful to
refuse to allow an inspection of such packages or containers.
If the legislature intended for it to be unlawful for a person to
refuse to allow inspection of packages or containers found on
a boat, it clearly knew how to and could have done so by
using the language of section 97A.215, subdivision Ib. The
legislature, however, did not. Here, there is no evidence in the
record that supports a conclusion that probable cause existed;
all the evidence shows that the conservation *17 officer
searched Colosimo's boat on a whim. [FN6] See Jn re Welfare
of D.A.G., 484 N.W.2d 787, 792 (Minn.1992) ("Although
there are situations where we must entrust the police * * * and
allow them to conduct a warrantless search, they cannot
assume this role in every instance or at their own whim.").
FN6. The conservation officer admitted that he had no
reason to suspect or believe that Colosimo was engaged
in conduct that had violated the fishing and hunting laws
or that he had contraband in his vehicle. There were no
visual signs, in terms of fishing poles, coolers, or other
fishing gear, which would indicate that Colosimo's party
had been fishing that day or any other. According to the
- conservation officer, the only reason he approached
A-52
Colosimo's boat was because five men were sitting in a
boat, which led him to conclude that they were a fishing
party. As the opinion authored by Justice Gilbert so
aptly recognized in Henning, it is a violation of our
constitution for officers to seize individuals based on
their "unchecked discretion," even when only a small
number of individuals are affected and even when the
state has given these individuals permission to engage in
the regulated activity. Here, the officer acknowledged
that had there been children or women in Colosimo's
boat he would not have approached the boat, let alone
seized its passengers. It is this type of constitutional
infringement that this court has sought to prevent in
Ascher, Henning, and Larsen, yet in this case the court
is willing to ignore those same _ constitutional
protections.
The court attempts to justify its decision further by
relying on the conservation officer's knowledge after he
approached Colosimo's boat. However, Colosimo's
responses to the conservation officer's questions did not
create probable cause or even reasonable suspicion of
criminal activity justifying the conservation officer's
request that he be able to search the boat. All that was
elicited was that Colosimo was engaged ir sawful
conduct before being approached by the conservation
officer, which is not enough to warrant a search. See
State v. Harris, 265 Minn. 260, 268, 121 N.W.2d 327,
333 (1963) (concluding that "[s]earches which are
‘exploratory and general and made solely to find
evidence of * * * guilt’ are invalid" when there is no
indication that a crime has been or is about to be
committed) (citations omitted).
While a probable cause requirement might make fishing
violations more difficult to detect, as we concluded in Larsen,
the "ease in enforcing the law has never been a sufficient
justification for government intrusion."650 N.W.2d at 150 n 5.
A-53
EE a
The court claims that requiring probable cause in order to
search a boat "would prevent the state from meeting its
constitutional mandate that it manage and regulate fishing to
preserve our natural resources." However, the state offered no
evidence to show that this was the only effective enforcement
measure and in fact conceded that requiring conservation
officers to comply with the constitutional requirements of
probable cause "[d]oes not pose any kind of direct threat to
fish, per se. The resource itself can be protected even if
individual harvest behaviors cannot be regulated." Without
empirical evidence to the contrary, there is no way to reach
the conclusion that the random seizure of an individual on the
mere, belief that the individual has engaged in either fishing
or gaming is at all an effective means of promoting resource
preservation. See Prouse, 440 U.S. at 661, 99 S.Ct. 1391.
(requiring more than a "marginal contribution" to prevent the
violation to justify subjecting individuals to seizures based on
an officer's whim). As the Court stated in Prouse, "Given the
alternative mechanisms available, both those in use and those
that might be adopted, we are unconvinced that the
incremental contribution to [gaming and fishing resource
management] justifies the practice under the Fourth
Amendment." 440 U.S. at 659, 99 S.Ct. 1391.
Rather than requiring the state to properly manage
Minnesota's wildlife resources, the court has instead decided
to grant the state the power to compel the relinquishment of
an individual's constitutional *18 nght not only to be free
from unreasonable searches, but also the freedom to assert
one's constitutional right without fear of criminal punishment.
By allowing Colosimo's passive refusal to consent to the
search of his boat to be used as the basis for establishing one
of the necessary elements to prove a violation of Minn.Stat. §
97A.251, subd. 1, the court renders section 97A.251, sub-
division 1, unconstitutional and Colosimo's conviction
invalid. See District of Columbia v. Little, 339 U.S. 1, 7, 70
S.Ct. 468, 94 L.Ed. 599 (1950) (concluding that under no
A-54
circumstances is passive refusal to consent to a search ever to
be treated as evidence of a crime); United States v. Prescott,
581 F.2d 1343, 1351 (9th Cir.1978) (stating that "[oJne
cannot be penalized for asserting this right, regardless of one's
motivation. Just as a criminal suspect may validly invoke his
Fifth Amendment privilege in an effort to shield himself from
liability, so may one withhold consent to a warrantless search,
even though one's purpose be- to conceal evidence of
wrongdoing.") (citations omitted); United States v. Alexander,
835 F.2d 1406, 1409 n. 3 (11th Cir.1988) (concluding that a
defendant's refusal to consent to a search cannot establish
probable cause upon which to obtain a warrant to conduct the
search). "If the government [can] use such a refusal against
the citizen, an unfair and impermissible burden would be
placed upon the assertion of a constitutional right and future
consents would not be ‘freely and voluntarily given.’ "
Prescott, 581 F.2d at 1351 (citation omitted).
In upholding Colosimo's conviction, the court forces
individuals to choose between waiving their constitutional
right to be free from unreasonable searches in exchange for
the "privilege" of hunting, fishing, trapping, or possessing
wildlife. If an individual consents to a conservation officer's
requested search, that individual waives the ability to later
object to the search. See State v. Harris, 265 Minn. 260, 269,
121 N.W.2d 327, 334, (1963). If the individual objects to the
search, then under the court's interpretation, irrespective of
whether the sought after search would violate the Fourth
Amendment, that individual has violated Minn.Stat. §
97A.251 and may be charged with a criminal offense. See
Minn. Stat. § 97A.251.
Today's sweeping decision holding that there is no
expectation of privacy in areas of an open boat where fish are
typically stored overturns recent precedent and eviscerates the
constitutional protection against unreasonable searches.
Because both conservation officers and police officers are
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a
bound as peace officers by the same _ constitutional
constraints, the court's decision has now opened the door for
warrantless searches by any peace officer upon the mere
suspicion that an individual is, has been, or will in the future
engage in hunting or fishing. As the Court said in Frost, "It is
inconceivable that guaranties embedded in the Constitution *
* * may thus be manipulated out of existence." 271 U.S. at
593-94, 46 S.Ct. 605.
Therefore, I respectfully dissent.
ANDERSON, PAUL H., Justice (concurring in part and
dissenting in part).
I concur in part and dissent in part. I concur in the majority's
conclusion that Officer Steen had the right to inspect the open
sections of Colosimo's fishing boat and that Colosimo
prevented Steen from doing so; therefore, Steen was justified
in issuing Colosimo a citation for violating Minn.Stat. §
97A.251, subd. 1(3). But, unlike the majority, I would end the
analysis at this point. The majority goes beyond what is
necessary to decide this case when it holds that Steen had the
right to inspect any "other conveyance" used by Colosimo to
transport fish.
*19 While the record is unclear as to why and how
Colosimo's boat came to a stop at the portage, once it did
stop, Steen engaged in conversation with Colosimo, and
Colosimo admitted to Steen that his party had been fishing
and that the party had fish on board the boat. While the
accounts vary as to exactly how Steen then phrased his
request to inspect Colosimo's boat, it is undisputed that Steen
made numerous requests, all of which Colosimo adamantly
refused. Accounts of the demeanor of the parties also vary,
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but one or the other or both of the men were concerned
enough about any escalation in the standoff such that Steen,
without making any attempt to look in the open sections of
the boat, issued Colosimo a citation for violating Minn.Stat. §
97A.251, subd. 1(3). Colosimo then accepted the citation
without further ado.
As a fisherman in an open boat who admitted he had been
fishing, Colosimo had no reasonable expectation of privacy to
the open sections of his boat even though having an officer
look into those sections of the boat is intrusive to some
degree. Colosimo improperly refused and hindered Steen
when he prevented Steen from conducting an inspection of
the open sections of the boat. Accordingly, Colosimo violated
Minnesota law, and his conviction by the district court should
be affirmed.
Affirming Colosimo's conviction on this basis is sufficient to
resolve the case before us. Nevertheless, the majority expands
its holding to include any "other conveyance" used to
transport fish. This overly broad holding is both unnecessary
and inadvisable. Steen was prevented from getting anywhere
close to an attempt to search any "other conveyance” used by
Colosimo to transport fish, and we do not know what other
conveyance, if any, Steen sought to inspect. In the context of
the case we have before us today, it is difficult to ascertain
with any degree of certainty what other conveyances are
subject to a search. Therefore, we should leave to another day
the resolution of the question of what mnght, if any, a
conservation officer has to inspect more than the open
sections of a fisherman's boat.
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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.