State v. McHugh

• Decision Date: 06 January 1994
• Citation: 630 So.2d 1259
• Parties: 92-1852 La
• Court: Louisiana Supreme Court

Page 1259

630 So.2d 1259

92-1852 La. 1/6/94

STATE v. Robert McHUGH, et al.

No. 92-KK-1852.

Supreme Court of Louisiana.

Jan. 6, 1994.

Richard P. Ieyoub, Atty. Gen., Bernard E. Boudreaux, Jr., for applicant.

Anthony Thibodeaux, for respondent.

Donald E. Puckett, Thomas M. Landrum, for Dept. of Wildlife and Fisheries amicus curiae.

Richard P. Ieyoub, Atty. Gen., Carol A. Jewell, for Attorney General Richard Ieyoub amicus curiae.

Berkley E. Rhorer, for Wildlife Federation amicus curiae.

W. Brian Babin, for East Ascension Sports League amicus curiae.

Marc Dupuy, Jr., for Louisiana Operation Game Thief amicus curiae.

[92-1852 La. 1] DENNIS, Justice. ^*

This case presents the question of whether a wildlife law enforcement officer may make a suspicionless stop of a hunter leaving a wildlife habitat during hunting season and detain him briefly to ascertain whether he has a valid hunting license, to ask whether he has game in his possession, and, if so, to request to inspect the game. After being subjected to such a stop, the defendants freely and voluntarily acknowledged their possession of game and allowed a wildlife officer to inspect a dressed and quartered buck deer in their ice chest. Because the divided deer portions were not tagged as required by law, La.R.S. 56:125, the officer charged the defendants with statutory violations. The defendants moved the trial court to suppress the evidence and statements obtained during the stop. The trial court denied their motion, but the court of appeal granted a writ, reversed, and ordered the evidence and statements suppressed. State v. McHugh, 598 So.2d 1171 (La.App. 1st Cir.). We granted certiorari. 605 So.2d 1105 (La.1992). We reverse the court of appeal judgment and remand the case to the trial court for a trial or other proceedings. Because the defendants were exiting a wildlife area during hunting season under circumstances clearly indicating that they had been hunting and possibly had game in their possession, it was not an unreasonable search, seizure or invasion of privacy under either the state or federal constitution for the [92-1852 La. 2] game agents to stop the defendants briefly for the limited purpose of demanding that they exhibit their hunting licenses, ask if they had any game, and request to inspect the game in their possession.

I.

On November 18, 1990, six wildlife law enforcement officers in three vessels were stopping and checking boat loads of hunters headed toward the Bayou Boeuf landing on the Intracoastal waterway. The officers' primary objective was to detect persons engaged in "duck tripping", a method frequently used by game law violators to smuggle illegally taken ducks from hunting areas. The violator usually divides his excess ducks into one or more groups, each of which can be made to appear as a hunter's legal daily bag limit. After attaching to each "limit" a tag indicating the species, date and place of taking, and hunting license number and signature of the taker as required by law, La.R.S. 56:124(6) (repealed by 1992 La. Acts No. 966, § 2; see now La.R.S. 56:116.1(B)(8)); 50 C.F.R. § 20.36, the outlaw arranges to have each limit ferried separately to the landing in several trips by another hunter. Game law enforcement officers attempt to foil suspected "duck tripping" schemes by consistently checking and recording the signatures on duck tags of limits being transported from the hunting areas. By this means agents often can determine whether hunters have taken and tagged more than their daily bag limits.

The officers began to suspect that "duck tripping" was under way at the Bayou Boeuf landing on November 17, 1990, the first day of the duck season, when they noticed that a large number of boats using the landing were being operated by single hunters carrying other hunters' tagged limits. Accordingly, the officers began to record the names of hunters shown on the duck tags so as to detect and apprehend any hunter sending out more than one daily bag limit. The six officers continued this process on the following [92-1852 La. 3] day, November 18th, by stopping and checking every boat that passed headed toward the landing. Occasionally, however, when traffic became heavier than they could handle expeditiously, the officers would allow some boats to pass unchecked.

At about 10:30 a.m., the officers stopped the defendants' two boats as they were headed toward the landing. Although there were some inconsistencies in the testimony, it seems most probable that the events unfolded as follows. One or two of the officers waved down or pulled alongside the defendants' lead boat and demanded to see the occupants' hunting licenses. After the defendants complied with this request, an officer asked them if they had any ducks. When they replied in the negative, the officer inquired if they had any other game in their possession. The hunters responded that one of them had killed a deer and pointed to the head of a buck deer in the well wash of one of the boats. The officer asked for and obtained permission to come aboard to examine the deer. After viewing the deer head, the officer asked whether the defendants had the body of the animal. The hunters acknowledged that they did, voluntarily opened an ice chest and displayed the dressed and quartered deer. Upon observing that there were no visible tags on the deer meat, the officer issued summonses charging the defendants with violating La.R.S. 56:125, which prohibits the division of a deer in the field, unless each portion is identified by the name, address, and license number of the slayer, and the sex of the animal, except as to portions cut from the carcass for consumption in camp.

The defendants moved to suppress any evidence or inculpatory statements obtained from them by the wildlife law enforcement officers on the ground that the search and seizure violated their state and federal constitutional rights. After a hearing, the trial court denied the motion to suppress, finding that the officers' primary reason for stopping the defendants was to look for game violations, but concluded that the officers were [92-1852 La. 4] authorized to stop the hunters to check their boats for safety violations under La.R.S. 34:851.29.

The court of appeal granted certiorari and held that the initial stop of the defendants by the wildlife law enforcement officers violated Article I, § 5 of the Louisiana Constitution, concluding that a stop for a license check and game inquiry is constitutional only if the enforcement officer reasonably suspects the presence of illegally taken or tagged game or the absence of a valid hunting license on the basis of articulable facts. State v. McHugh, 598 So.2d 1171 (La.App. 1st Cir.1992). We reverse and remand.

II.

Article I, § 5 of the Louisiana Constitution provides:

§ 5. Right to Privacy

Section 5. Every person shall be secure in his person, property, communications, houses, papers, and effects against unreasonable searches, seizures, or invasions of privacy. No warrant shall issue without probable cause supported by oath or affirmation, and particularly describing the place to be searched, the persons or things to be seized, and the lawful purpose or reason for the search. Any person adversely affected by a search or seizure conducted in violation of this Section shall have standing to raise its illegality in the appropriate court.

Subject only to a few exceptions that were specifically established and well-defined prior to the adoption of our state constitution, a search, seizure or invasion of privacy conducted without a warrant issued upon probable cause is constitutionally prohibited. State v. Moreno, 619 So.2d 62 (La.1993); State v. Hernandez, 410 So.2d 1381 (La.1982); State v. Banks, 363 So.2d 491 (La.1978); State v. Fearn, 345 So.2d 468 (La.1977); State v. Gordon, 332 So.2d 262 (La.1976). Once a defendant makes an initial showing that a warrantless search or seizure occurred, the burden of proof shifts to the state to affirmatively show that it [92-1852 La. 5] was justified under one of the narrow exceptions to the rule requiring a search warrant. State v. Banks, supra; State v. Franklin, 353 So.2d 1315 (La.1978).

It is undisputed that the stop in the present case was not authorized by a warrant. The state contends, however, that the stop was justified and came within an established exception to the warrant requirement, viz., the "investigatory stop" exception. A law enforcement officer may stop a person in a public place whom he reasonably suspects is committing, has committed, or is about to commit an offense and may demand of him his name, address, and an explanation of his actions. State v. Moreno, supra; State v. Lanter, 391 So.2d 1152 (La.1980); State v. Bolden, 380 So.2d 40 (La.1980); La.C.Cr.P. Art. 215.1; see Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Therefore, an investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be engaged in criminal activity, or there must be reasonable grounds to believe that the person has committed or is wanted for past criminal conduct. State v. Moreno, supra; Moresi v. Dept. of Wildlife & Fisheries, 567 So.2d 1081 (La.1990).

The state failed to carry its burden of showing that the wildlife agents' detention of the defendants came within the "investigatory stop" exception. The record clearly indicates that when the defendants arrived, the officers were still engaged in the process they had begun the previous day of indiscriminately stopping as many boats as possible to check licenses and inquire about game in hunters' possession. The principal purpose of each stop was to record the names of hunters appearing on tags attached to ducks in each boat for comparison with such data taken from other boats transporting ducks to the landing. The officer in charge testified that he observed some circumstances about the defendants that he...