State v. Boyer

• Citation: 2002 MT 33,42 P.3d 771,308 Mont. 276
• Decision Date: 26 February 2002
• Docket Number: No. 00-183.,00-183.
• Parties: STATE of Montana, Plaintiff and Respondent, v. James William BOYER, Defendant and Appellant.
• Court: United States State Supreme Court of Montana

42 P.3d 771

2002 MT 33

308 Mont. 276

STATE of Montana, Plaintiff and Respondent, v. James William BOYER, Defendant and Appellant.

No. 00-183.

Supreme Court of Montana.

Argued April 20, 2001.

Submitted May 3, 2001.

Decided February 26, 2002.

Michael G. Moses (argued), Moses Law Firm, Billings, MT, for Appellant.

Hon. Mike McGrath, Attorney General; Mark W. Mattioli (argued), Assistant Attorney General, Helena, MT, Ed Amestoy, Phillips County Attorney; Dan O'Brien, Deputy County Attorney, Malta, MT, for Respondent.

Justice JIM REGNIER delivered the Opinion of the Court.

¶ 1 James William Boyer appeals from an order issued by the Seventeenth Judicial District Court, Phillips County, which denied his motion to suppress evidence. We affirm.

¶ 2 The sole issue on appeal is whether the District Court erred in denying Boyer's motion to suppress.

BACKGROUND

¶ 3 On Sunday, April 18, 1999, Warden Steve Jones of the Department of Fish, Wildlife and Parks (Department) was patrolling by boat a portion of the Missouri River bordering Phillips County, Montana. Jones observed a boat anchored in the river which appeared unoccupied. Concerned for the prospective passengers' safety, Jones pulled his boat alongside the anchored boat and observed Boyer lying on the floor. Boyer sat up and told Jones he was just waking up from a nap. Jones inquired into Boyer's safety and Boyer stated that he was okay.

¶ 4 Upon further questioning, Boyer indicated that he had been fishing since Friday and produced his Montana fishing license. Additionally, Boyer disclosed that he had fish in his possession, stored in the boat's live well. Jones requested to see his catch. Boyer suggested Jones could inspect the catch later in the evening at a boat launch. Jones rejected this suggestion and Boyer reluctantly removed eight fish from the live well. At that time, the combined possession limit for sauger and walleye was ten fish.

¶ 5 In order to inspect the fish, Jones tied the boats together and stepped onto the transom, an exterior platform attached to the rear of Boyer's boat. From this vantage point, Jones could see that Boyer's live well, which was open, contained additional fish in excess of the legal possession limit. Boyer allowed Jones to remove the additional fish. Jones determined that Boyer had nineteen dead sauger and walleye in his possession. Jones confiscated the excess fish and issued Boyer a notice to appear for the possession of unlawfully killed game fish.

¶ 6 Boyer was convicted in Justice Court of possession of unlawfully killed game fish in violation of § 87-3-112(2), MCA. Boyer appealed that conviction to the District Court and filed a motion to suppress the evidence. After a hearing on the matter, the District Court found that no search occurred as Boyer did not have a reasonable expectation of privacy in his boat on a public waterway. Therefore, the District Court denied Boyer's motion. It is from this denial that Boyer appeals.

STANDARD OF REVIEW

¶ 7 In reviewing a district court's denial of a motion to suppress evidence, we determine whether the court's findings of fact are clearly erroneous and whether the court's interpretation and application of the law is correct. State v. Reesman, 2000 MT 243, ¶ 18, 301 Mont. 408, ¶ 18, 10 P.3d 83, ¶ 18.

DISCUSSION

¶ 8 Did the District Court err in denying Boyer's motion to suppress?

¶ 9 On appeal, Boyer argues that several of the District Court's findings constitute reversible error. First, Boyer argues that Jones initiated an investigatory stop on Boyer without the requisite particularized suspicion of wrongdoing. Further, Boyer insists that Jones unlawfully compelled production of his fishing license and catch. Finally, Boyer claims Jones performed an illegal search in stepping onto the back of his boat to inspect the fish and live well. We address each of Boyer's contentions below.

A. Jones' Initial Advance on Boyer's Boat

¶ 10 Boyer contends Jones' initial advance on his boat constituted an unlawful investigatory stop. Boyer argues that the District Court should have suppressed the inculpatory evidence revealed by Jones' inspection because Jones admitted having no particularized suspicion that the boat occupants had committed, were committing, or were about to commit an offense. See Section 46-5-401, MCA. Boyer's reliance on the investigatory stop statute and case law in support of his position is ill founded.

¶ 11 We have previously stated that:

Legal stops can also occur in noncriminal, noninvestigatory contexts. For example nothing prevents a police officer from making a stop to deliver an emergency message, assist a stranded motorist or warn of an impending danger. A police officer can legally stop a vehicle for a bona fide reason which is related to functions within his authority and duties.

Grinde v. State (1991), 249 Mont. 77, 81, 813 P.2d 473, 476, overruled on other grounds by Bush v. Montana DOJ, Motor Vehicle Div., 1998 MT 270, 291 Mont. 359, 968 P.2d 716

. Game wardens, appointed pursuant to § 87-1-501, MCA, are authorized officers with the authority to enforce the laws and adopted rules relating to parks and outdoor recreation contained in Title 23, Chapters 1 and 2 (excepting Part 7 in Chapter 2), MCA. Section 23-1-122(1), MCA. Section 23-2-501, MCA, provides that "[i]t is the policy of this state to promote safety for persons and property in and connected with the use, operation, and equipment of [watercraft]...."

¶ 12 On January 25, 2000, the District Court held a hearing on Boyer's motion to suppress. At the suppression hearing, Jones testified that an initial concern for the prospective occupants' safety drew his attention to Boyer's boat. From a distance, Boyer's boat appeared unoccupied. As Jones did not see anyone in the boat or on the surrounding shoreline, Jones testified that he was concerned that somebody may have "fallen overboard or something of that nature." Therefore, he inquired into the situation by approaching Boyer's boat.

¶ 13 Clearly, in approaching Boyer's boat, Jones acted within his express authority. We would never seek to discourage wardens or other law enforcement officials from assisting persons in potential distress. Thus, the District Court correctly determined that Jones lawfully approached Boyer's boat.

B. Request to Produce License and Catch

¶ 14 Boyer contends that if we conclude Jones' initial advance on his boat was a lawful "welfare check," the welfare check and Jones' corresponding safety concerns ended when Boyer responded that he was okay. In proceeding further, Boyer argues that Jones detained Boyer to request production of his fishing license. Therefore, Boyer states that Jones needed a particularized suspicion of wrongdoing, as required prior to initiating an investigatory stop, to effectuate the detention and request for Boyer's fishing license. Further, Boyer asserts that since he evinced an expectation of privacy in his catch by placing the fish in a concealed live well, Jones needed probable cause to inspect Boyer's catch. Boyer contends that Jones had neither a particularized suspicion or probable cause. Therefore, Boyer maintains that all of the evidence gathered by Jones following the initial welfare check must be suppressed.

1. The License Request

¶ 15 Section 87-2-109, MCA, provides:

(1) Except as provided in 87-2-114(2), it is unlawful for a person to whom a license or permit has been issued to fish ... unless the person is carrying the required license, licenses, or permit at the time.

(2) It is unlawful to refuse to exhibit a license or permit and the identification used in purchasing a license or permit for inspection to a warden or other officer requesting to see it.

Further, § 87-1-502(3), MCA, provides that wardens shall see that persons who fish possess the requisite licenses. Clearly, these statutes make no reference to a particularized suspicion requirement prior to requesting production of a game license.

¶ 16 Here, Boyer was on a fishing boat containing a visible live well. He admitted to Jones that he had been fishing for three days. Jones had the authority to request production of Boyer's fishing license pursuant to § 87-1-502, MCA, and his request fell within the scope of that statute. Fishing or hunting license requests play a vital role in preservation of wildlife and require only a minimal privacy intrusion. However, the Montana Fishing Regulations inform anglers of this intrusion warning that "it is unlawful and a misdemeanor to refuse to show one's fishing license upon demand." We decline Boyer's invitation to imply a particularized suspicion provision into these statutes. Therefore, we hold that a game warden may request production of a valid hunting or fishing license when the circumstances reasonably indicate that an individual has been engaged in those activities.

2. The Request to Produce Boyer's Catch

¶ 17 Boyer argues that Jones performed an unlawful warrantless search by requesting production of Boyer's catch. The request was unlawful, according to Boyer, because Jones did not have probable cause to believe that Boyer had committed a violation at the time Jones requested production of his catch. Boyer contends that § 87-1-506(1)(b), MCA, mandates this probable cause prerequisite. Section 87-1-506(1)(b), MCA, provides:

A warden may search, without a warrant, any tent not used as a residence, any boat, vehicle, box, locker, basket, creel, crate, game bag, or package, or their contents upon probable cause to believe that any fish and game law or department rule for the protection, conservation, or propagation of game, fish, birds, or fur-bearing animals has been violated. [Emphasis added.]

¶ 18 The State argues that § 87-1-502(6), MCA, authorizes wardens to make suspicionless stops of persons engaged in hunting and fishing activities to inspect their game. Section 87-1-502(6), MCA, states:

A warden has the authority to inspect any and all fish, game and

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