State v. McHugh

• Decision Date: 10 April 1992
• Docket Number: No. KW,KW
• Citation: 598 So.2d 1171
• Parties: STATE of Louisiana v. Robert B. McHUGH, et al. 91 0664.
• Court: Court of Appeal of Louisiana — District of US

Page 1171

598 So.2d 1171

STATE of Louisiana v. Robert B. McHUGH, et al.

No. KW 91 0664.

Court of Appeal of Louisiana First Circuit.

April 10, 1992.

Rehearing Denied May 28, 1992.

Writ Granted Oct. 9, 1992.

Anthony Thibodeaux, Berwick, for McHugh.

Bernie B. Boudreaux, Dist. Atty., Walter J. Senette, Asst. Dist. Atty., Franklin, for State.

Before SHORTESS, LANIER and CRAIN, JJ.

CRAIN, Judge.

Defendants separately were charged by bills of information with possession of untagged deer meat, violations of La.R.S. 56:125(B). Defendants pled not guilty and filed motions to suppress the evidence and statements. After hearing testimony on the motions, the trial court denied the motions. Upon defendants' request, the trial court stayed the proceedings; and defendants filed an application with this Court seeking a review of the trial court's decision. We issued a writ of certiorari and ordered the parties to file briefs and appear for oral argument.

On November 18, 1990, defendants were issued citations for possession of untagged deer meat after being stopped in the Intracoastal Waterway near Bayou Chene in St. Mary Parish by agents of the Louisiana Department of Wildlife and Fisheries. Robert C. McHugh; his wife, Billie McHugh; their son, Robert B. McHugh; and a friend, Michael Moore, had spent the weekend at the McHugh camp. On the way back to the landing, the McHugh family and Mr. Moore travelled together in one boat. They were followed by a boat in which Kernis Peltier, a longtime hunting companion of the senior Mr. McHugh, and Sandy Sonnier rode.

As the two boats approached the Amelia boat ramp, at some time between 10:30 a.m. and noon, Sergeant Donald Miculek, an agent with the Department of Wildlife and Fisheries, motioned for the boats to stop. At that location, Sgt. Miculek and five other Wildlife and Fisheries agents were conducting game violation and boat safety checks. Because of the number of duck hunters who had killed their limit on the previous day, the agents had decided to check hunters in the area for what was referred to as "duck tripping." Lt. Wayne Vidos was supervising the agents; and he instructed Sgt. Miculek to stop the two boats containing the McHugh party, along with a third boat. Lt. Vidos testified that he "probably [would] have stopped [the boats] anyway," but he specifically wanted to stop these three boats because of the configuration in which they were traveling. He explained that game violators occasionally travel in such a manner, using a lead boat to detract the attention of the agents. As it turned out, the third boat was not with the McHugh party. Lt. Vidos testified that the "primary" and "main" purpose behind stopping these boats was to check for game violations, especially "duck tripping." The secondary reason for the stop was to check for boat and safety violations. Lt. Vidos also explained at the hearing that he recognized the senior Mr. McHugh. The two men were neighbors and, during the previous year, Lt. Vidos had once stopped Mr. McHugh and had found him to be in violation of the rabbit tagging requirements, although he did not cite Mr. McHugh for the offense. Lt. Vidos also was aware that, in 1975, Mr. McHugh had committed a night hunting violation.

After the boats had stopped, Sgt. Miculek asked the occupants if they had been hunting or fishing. Someone on the McHugh boat replied that they had been hunting (with the exception of Mrs. McHugh who did not hunt) and that Mr. Moore had killed a deer. The agents observed a buck head in the boat's live well; and, after the occupants of the boat let the agents look inside the ice chest, the agents found that the deer was fully dressed and quartered. Because the deer was not tagged, the agents issued citations to the occupants of both the McHugh and Peltier boats.

After hearing testimony, the trial court denied defendants' motions to suppress. The trial judge reasoned that, pursuant to La.R.S. 34:851.29, Wildlife and Fisheries agents may stop vessels at any time to examine the boats for compliance with safety statutes. The court implied that, because of this authority, the agents also can stop to check for any possible game violations without the necessity of having probable cause or reasonable suspicion that a violation has occurred.

La.R.S. 34:851.29 statutorily authorizes Wildlife and Fisheries agents to stop boats under the following circumstances:

It shall be the duty and responsibility of every wildlife agent and peace officer of this state and its subdivisions to enforce the provisions of this Part [which requires special safety equipment on vessels and proscribes certain conduct by boat operators, such as operating a vessel while intoxicated], and in the exercise thereof, they are hereby authorized to stop and board any vessel for the purpose of addressing inquiries to those on board, requiring appropriate proof of identification therefrom, examining the certificate of numbers issued under this Part or in the absence of such certificate requiring appropriate proof of identification of the owner or operator of the vessel, and in addition, examining such vessel for compliance with this Part. Officers so boarding any vessel shall first identify themselves and such officer in the performance of his duties shall be without liability for trespass.

A special statute also authorizes agents to "inspect ..., with or without search warrant, records, ... boat, ... or any place of deposit for wild birds, ... whenever there is probable cause to believe that a violation has occurred." La.R.S. 56:55(A).

In the application for writs, defendants argue that the trial court's ruling was in error and that evidence seized from them should be suppressed. Specifically, defendants assert that the trial court erred in holding that Wildlife and Fisheries agents may randomly stop people riding in a motorboat to investigate possible game violations without first having at least a reasonable suspicion that the suspects were engaged in criminal activity. Defendants also claim that "dragnet checkpoint blockades" conducted by Wildlife and Fisheries agents are illegal under the Louisiana Constitution and that, even if checkpoint stops by Wildlife and Fisheries agents are legal under the Louisiana Constitution, the checkpoint stop in the instant case is illegal because it did not comply with federal constitutional requirements. Finally, defendants assert that statements made by them to the Wildlife and Fisheries agents should be suppressed as fruits of the illegal stop and search and because defendants were not advised of their constitutional rights before the statements were made.

In response, the prosecution contends that the agents had reasonable suspicion that defendants were engaged in criminal activity and, thus, were justified in detaining defendants. The state further argues that, once defendants were properly detained, the agents' subsequent search of the boat and seizure of evidence was justified under several theories: some of the evidence was in plain view; defendants consented to the search; probable cause for the search existed; and the automobile exception to the warrant requirement applied. Alternatively, the state asserts that, even if the agents did not have reasonable suspicion to stop defendants, the stop was legal because Wildlife and Fisheries agents are authorized by legislation to stop vessels at any time and without any supporting facts to conduct boating safety checks. In connection with this argument, the state maintains that decisions of the Louisiana Supreme Court which proscribe the use of evidence secured at sobriety checkpoint and roadblock stops in DWI cases do not apply to wildlife inspections.

In an amicus curiae brief filed with the permission of this Court, the Louisiana Department of Wildlife and Fisheries states that resolution of the issues presented in defendants' writ application is "of the utmost importance" to the Department. The Department asserts that "[g]iven the greatly increased pressure on our wildlife resources and the need for more wildlife enforcement, the authority of wildlife enforcement agents to make random stops in the field and to perform game checks without the need for a warrant or probable cause in the strictest sense must be recognized and upheld." The Department concludes that random investigatory stops by Wildlife and Fisheries agents are not "unreasonable" under either the United States or Louisiana constitutions.

The Fourth Amendment to the federal constitution protects people against "unreasonable searches and seizures." See also La.Const. art. I, Sec. 5. The protection applies to a seizure of the person, including a brief investigatory stop such as that involved in the stop of a vehicle or a vessel. Moresi v. Department of Wildlife & Fisheries, 567 So.2d 1081, 1086 (La.1990). See also Brower v. County of Inyo, 489 U.S. 593, 109 S.Ct. 1378, 1381, 103 L.Ed.2d 628 (1989) (a Fourth Amendment seizure occurs "when there is a governmental termination of freedom of movement through means intentionally applied") (emphasis omitted).

Agents of the Department of Wildlife and Fisheries are "vested with the same authority and powers conferred by law upon other law enforcement officers." La.R.S. 56:55.2(A). Article 215.1 of the Louisiana Code of Criminal Procedure, as well as federal and state jurisprudence, recognizes the right of a law enforcement officer to temporarily detain and interrogate a person whom he reasonably suspects is committing, has committed, or is about to commit a crime. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Lanter, 391 So.2d 1152, 1153 (La.1980). Reasonable suspicion for an investigatory detention is something less than probable cause and must be determined under the facts of each case by whether or not the officer had sufficient knowledge of facts and circumstances to justify an infringement on the individual's right to...