Possession Limit - Revisited

[Musky Mauler]

With regard to recent postings re: “Possession Limit,” it seems obvious that the REAL answer to any questions would have to come from an attorney. In other words, what have the courts said regarding cases that have been prosecuted under this law?

For one thing, how in the world would the DNR (or any other enforcement agency) know how many walleyes anybody might have in their freezer?

Can they somehow spy within a person’s domain to determine whether or not certain walleyes which they watched being caught have been cooked and eaten, or have, instead, been stashed in the freezer with numerous other “secreted” fish?

Would they then be able to convince a judge regarding the necessity of obtaining a search warrant to then enter a person’s domain and seize the “evidence?” On what basis would such a warrant be sought and subsequently issued? “Judge, I’ve got nothing more than a hunch that this guy might be hoarding a few too many walleyes.” I doubt that such a warrant would ever be issued on such a basis. (Keeping in mind, of course, of the legal “expectation of privacy” that we’re all entitled to within our own domain.)

As for the law, itself, have the courts ruled on the consideration of “equal application of the law?” In other words, is it not discriminatory to enforce such a “possession restriction” on a person who lives “on the shoreline” (however the law might tend to describe such a location other than in an unusable nebulous fashion) but NOT enforce such a restriction on a person who lives “such-and-such a distance” away from the shoreline?

Is it not considered to be a “restraint of trade” to preclude a “shoreline person” from purchasing 20 walleye fillets at the supermarket to place in the freezer for a subsequent celebratory dinner?

And, how could an enforcement agency differentiate between walleyes purchased in the supermarket as opposed to walleyes caught in adjacent waters? Have they secreted some sort of dye or foreign substance in Flowage walleyes to differentiate them accordingly?

All in all, it sounds to me that there’s a lot of bark but certainly no bite in the so-called “possession limit” that we’ve come to know and love. Sure, its written there for all to see. But, from a practical point-of-view, I don’t think it is realistic at all. It’s probably hoped that folks will be intimidated by the language and will abide by the limit. In such a case, well and good. Although I’m still not sure what detrimental effect would entail if a person were to keep 20 legally-caught or legally-purchased walleye fillets in their freezer for any amount of time that they might choose to do so. Would the sun then decide not rise tomorrow?

This, of course, reflects upon the “reasonableness” of the law. And, if it ain’t reasonable, the courts are certainly apt to rule that the law is unenforceable. But, all of that is for the legal-beagles to contemplate and digest. I only toss it out for a glance at the other side of the coin.

Musky Mauler

[BretRobert1]

DNR can enter someone's home without a search warrant.

[Hot Runr Guy]

MM,
If you have nothing to hide, you have nothing to worry about.

HRG

[Musky Mauler]

That's true - - in Nazi Germany or Soviet Russia. none of which exist anymore. But, this happens to be the United States of America. We do not (yet) live in a police state. The idea that the DNR can enter your home without a search warrant is absolutely absurd.

[Musky Mauler]

All you would have to worry about would be the complete abrogation of your constitutional rights. To submit to an illegal search of your property on the basis that you "shouldn't have anything to hide" would also be totally and completely absurd.

[wally1]

Not yet is correct Mauler, but keep letting the Liberals have there way, and we will be there before you know it. The constitution is nothing more than a thorn in their hind quarters.

[BretRobert1]

That's true - - in Nazi Germany or Soviet Russia. none of which exist anymore. But, this happens to be the United States of America. We do not (yet) live in a police state. The idea that the DNR can enter your home without a search warrant is absolutely absurd.

It seems to be a fuzzy rule and one that brings up a lot of debate. There's no question, DNR can enter your property (as in land)http://definitions.uslegal.com/o/open-field-doctrine/, but entering your personal residence is like I said before, fuzzy at best. Just last week I actually spoke to a good friend of mine about this very subject. Not saying he's the end-all source, but he studied law enforcement, and has worked for the DNR and our local police force.

Keep in mind, I'm not an attorney, and laws seem to vary from state-to-state (as you'll see shortly). But based on what I've been told, and what I've consistently read; DNR officials need either a.) A warrant to search a private residence or b.) Probable/reasonable cause. It's not both. It's either-or.

Illinois law:

(520 ILCS 5/1.19) (from Ch. 61, par. 1.19)
Sec. 1.19. All authorized employees of the Department are empowered, pursuant to law, to enter all lands and waters to enforce the provisions of this Act. Authorized employees are further empowered to examine all buildings, private or public clubs (except dwellings), fish markets, cold storage houses, locker plants, camps, vessels, cars (except sealed railroad cars or other sealed common carrier), conveyances, vehicles, watercraft or other means of transportation or shipping whatsoever, tents, game bags, game coats or other receptacles, and to open and examine any box, barrel, package, or other receptacle in the possession of a common carrier, which they have reason to believe contains wild birds or any part thereof (their nests or eggs), or wild mammals or any part thereof, taken, destroyed, bought, sold or bartered, shipped or held in possession contrary to any of the provisions of this Act, including administrative rules, or that the receptacle containing the same is falsely labeled.
All authorized employees of the Department shall be given free access to and shall not be hindered or interfered with in making such examination, and any license issued by the Department held by the person preventing such free access or interfering with or hindering such authorized employee shall be subject to confiscation by the Department; and no license or permit of any kind whatsoever shall be issued to such person for the period of one year thereafter.
Authorized law enforcement employees of the Department are empowered to conduct examination of equipment and devices in the field, pursuant to law, to ensure compliance with the provisions of this Act.
(Source: P.A. 85‑152.)

Wisconsin law:

29.924(4) (4) Access to storage places. The owner or occupant of any cold-storage warehouse or building used for the storage or retention of wild animals, or their carcasses, that are subject to regulation under this chapter shall permit the department and its wardens to enter and examine the premises subject to s. 66.0119. The owner or occupant, or the agent or employee of the owner or occupant, shall deliver to the officer any such wild animal or carcass, in the warehouse or building, that the officer has reasonable cause to believe is possessed or was taken in violation of the law, whether taken within or without the state. The owner or occupant, or the agent or employee of the owner or occupant, shall permit the department to examine and copy any record pertaining to the storage or retention of any wild animal either when the owner, occupant, agent, or employee is present or upon 24 hours' notice.

If you're still with me here, the nuts & bolts of the matter seems to come down to one's definition of probable/reasonable cause. It's a generic term that seems to be pretty difficult to tighten up as needed to answer your initial question from the original post.

Finally, here's something to browse over from the Lakeland Times published in (I believe) 2011. Interesting read that seems to make things even cloudier yet.
http://www.lakelandtimes.com/main.as...rticleID=12476

FYI: I'm not saying you're right or wrong on this issue, or I'm right or wrong on the issue. Rather, I am just trying to share some of the info I've come across on the subject that was of interest to me.

[Musky Mauler]

You seem to have done some applicable homework. However, a person’s home can hardly be considered as a “cold-storage warehouse or building used for the storage or retention of wild animals, or their carcasses,” as defined in the Wisconsin law to which you have referred.

And, naturally, the U.S. Constitution takes precedence over any state law with regard to search and seizure. To wit, the Fourth Amendment of the U.S. Constitution:

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.

“Probable cause” does not give carte blanche for the illegal entry into someone’s premises by game wardens, DNR personnel, police officers or anyone else. It applies to the reason that has to be presented to a judge in order to obtain a necessary and legal search warrant PRIOR to anyone making any such entry. As I mentioned, telling the judge that you have a “hunch” that somebody has more than ten walleyes in their freezer hardly constitutes “probable cause” for the issuance of a warrant. If that were the case, such a “hunch” could be used for ANY AND ALL requests for a search warrant. This would obviously make a mockery of the Fourth Amendment. Therefore, it doesn’t happen that way.

There is also a “probable cause” for entry that is made without a search warrant. If someone is crying for help, warrantless entry can certainly be made. If police have probable cause to believe that someone’s life is being threatened within, they have probable cause for warrantless entry. But, suspicion of excess walleyes in one’s freezer hardly qualifies in a similar manner. ‘Nuf said about that.

Let me make it clear - - I’m not opposed to proper observance of the possession limit, although I still am curious as to the rationale that applies to this particular limit. But, I AM opposed to the convoluted idea that the DNR can invade your premises without first obtaining a legal search warrant. It just isn’t done that way in this free nation of ours.

Also, with regard to the admonition that if I have nothing to hide, I should not fear an illegal search of my premises - - I might say that this is probably just exactly what the Gestapo thugs said as they entered people’s homes in Adolph Hitler’s Germany. It’s not difficult to imagine the brown-shirt thugs saying: “You have nothing to fear from us if you have nothing to hide!”

That was hardly adequate justification for such dreadful acts. And, it still isn’t.

Musky Mauler