However all the game wardens I know aren’t looking to just randomly harass people. There is usually a good reason when they go after someone, like shooting from a motor vehicle on the road.
However all the game wardens I know aren’t looking to just randomly harass people. There is usually a good reason when they go after someone, like shooting from a motor vehicle on the road.
I understand that English common law may have this notion of “lease holding” (if you buy property in the UK you’re technically renting it for 999 years from the queen). However, America is not England and in this country you actually own your property (and in many states can defend it with lethal force). So where is this authority coming from?
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 crux of the 4th Am. is reasonableness. A warrantless search of your home is presumptively unreasonable and can only be performed in very certain exigent circumstances. Most of these are emergencies. Say your house is on fire, the firepeople can enter to put it out, without a warrant, and if they see your mountain of cocaine while they are in there, you're fucked.
A game warden wanting to check your freezer is not an exigent circumstance that would bypass the warrant requirement. A game warden could easily go to a judge and get a warrant by showing the judge probable cause to believe you are doing something naughty.
So, I call bullshit.
I could be wrong in my recollections, I really should read the book. The one about Britain certainly was fascinating.
Still, on the law in question, I wouldn't be surprised if the (common) law upholds the right simply because it's never been challenged or re-legislated.
Then there is the land that is in the direct possession of the "Crown". The "Crown" is just a technical legal word which means the British State, stemming from times of absolute monarchy when the State and the Monarch were one and the same. But that has been abolished over the centuries and only this vestige remains. An example of land owned by the Crown/State would be Buckingham Palace or the White House.
Lastly there is private land. This is not owned by the Queen nor is it owned by the State. Yes the law provides that the State can take back land into its possession but this right exists in both the US and UK. In the UK it is called compulsory purchase and in the US it is called eminent domain.
The main practical difference is that the US has a constitutional right of privacy whereas the UK does not. The British Parliament is unrestricted in what it can take from you but the Queen cannot simply saunter onto your land and start playing croquet.
That depends on what you mean by “own”, and “the Queen”. The Crown, that is, the monarch in official capacity, holds ultimate title to most land in the UK (IIRC, the exceptions are some parts of the Orkney and Shetland Islands), but exercises the rights associated with that title, like many other rights and powers, on the advice of the government ministers (and in practice through government officers), rather than unilaterally, at risk of Constitutional crisis.
The monarch, as a corporation sole, owns the Crown Estate, in something more like private ownership, but for quite some time the rights of ownership of the Crown Estate have been exercised by a government-appointed body, with the monarch personally receiving a share of the proceeds and being relieved of the burden of funding government operations, for which they were previously responsible.
The monarch also has private estates, which are owned so what like typical private holdings, except the usual expectation of neutrality on legislation does not apply where legislation impacts the private estates, and so the monarch has an effective and quietly exercised veto on legislation to the extent that it impacts those estates.
One of the arguments in Miller II was that the monarch cannot be allocated any discretion to refuse a minister's order, because if she possessed that discretion then it would jeopardise her position as a politically neutral head of state. It is not that the monarch chooses to exercise powers on the advice of her ministers in fear of causing a constitutional crisis, but that her powers can only be lawfully exercised at ministers' direction.
As far as the monarch's veto on legislation affecting her (Queen's consent), this is not a legal power of the monarch but rather a privilege granted to the monarch by parliament. If parliament decided to rescind that privilege it could do so.
It's important to distinguish between language which describes the monarch from a symbolic point of view, and the actual constitutional reality. Symbolically the monarch is the personal manifestation of the state, but legally she is not much more than a rubber stamp for our democratic institutions.
This thread is teaching me a lot too, so I can’t directly answer your question as it pertains to State game wardens, but something to keep in mind with the framing of your question is that the States are not covered by Article II of the US Constitution. Article II speaks to the authority of the Executive power of the United States, which is the President, but the States are not subordinate to the President and neither are their officers and employees.
In general in the last century the Supreme Court has interpreted the Fourteenth Amendment as "incorporating" the Bill of Rights. Although the Bill of Rights was originally written to apply specifically to the federal government, the Due Process clause of the 14th Amendment has been read as applying these protections to state governments as well.
In particular, in Mapp v. Ohio in 1961 the Supreme Court held that under the Due Process clause the Fourth Amendment's prohibition of arbitrary search and seizure applies to state governments as well.
And no, poached game isn’t “papers and effects.”
Also land patents and allodial title[2] are virtually extinct in the USA. We all are renting our property. Stop paying your “property tax” if you’d like confirmation.
[1] https://en.wikipedia.org/wiki/Tenth_Amendment_to_the_United_...
Having to pay taxes on your property invalidates the nature of property no more than paying income tax invalidates the nature of income.
Title held in allod is subject to no superior landlord. That means it can’t be taxed or liened or otherwise legally encumbered.
Edit:
> And the fact that the state has a superior title in extremely limited circumstances doesn't make it a landlord.
Nah[1].
But that's silly, because it isn't really a tax. And the fact that the state has a superior title in extremely limited circumstances doesn't make it a landlord.
I think that one might say that income tax taxes not money per se but income—it's, as it were, a tax on velocity (though this seems not to be quite the classic sense of "velocity of money"), on moving money rather than money at rest. Property taxes, in turn, may be viewed as taxes not on hectares (or whatever), but on hectare-years—because a hectare can't easily be valued, but a hectare-year can (comparatively). (Of course ha-yrs are not fungible, but neither are $/yr, as evidenced by different marginal tax rates at different income levels.)
Incorporation doctrine after the 14th amendment is just an extension of the federal government saying "well if states agreed to the 14th amendment and the 14th amendment says privileges and immunities of us citizens can't be infringed, then the states are logically giving up whatever extra powers they held previously to not respect rights enumerated in the constitution". It's a bit dubious but it helped clean up the mess of slavery.
The point being that prior to Incorporation, the bill of rights was irrelevant to states. State governments didn't have to respect your right to free speech or guns or jury trials or anything (unless the constitution of that state required it to). So game wardens had plenty of power. Incorporation doctrine has had a long, messy history and it's possible that no one has specifically challenged game wardens power in the right way to trigger a review of it constitutionally.
[1] https://www.quora.com/Can-a-game-warden-come-into-your-house...
See section 12.102
It shows the truth is mostly "no, they can't", at least for Texas. "Residence" and "Temporary Residence" are specifically excluded. There's some room for maybe a freezer in plain view on your porch or similar.
Edit: Imagine thinking that acknowledging an odious but legal government power is “SovCit garbage.” By all means, mess with a game warden and see what happens. It’s about as stupid as sassing customs.
I found one case of searching on private property without a warrant where initial trial court said it was a Fourth Amendment + Louisiana Constitution violation but the appeal court reversed the decision[2] and the state supreme court denied the review request[3].
I think it's probably nuanced? Like if a game warden sees you unload game from your truck them maybe they can go into your home without a warrant? But they probably couldn't legally pick a random house and search it for no reason without a warrant? I am not a lawyer, not legal advice, etc etc.
[1] http://legis.la.gov/legis/Law.aspx?d=105379
[2] https://caselaw.findlaw.com/la-court-of-appeal/1491867.html
[3] https://calculators.law/caselaw/decisions/x5yN6QjJe3Z0/cason...
so just like if a cop sees you unloading dead people from your truck they can go into your home without a warrant.
However, the game warden only needs suspicion. That’s a considerably lower bar to clear. He definitely doesn’t need to see the poached animals.
I assume you don’t hunt. As I’ve said already, you don’t have to believe me. Talk to a game warden or an attorney who is familiar with conservation law and they will confirm that game wardens have expansive warrantless search powers.
The closest I can find is this https://www.findlaw.com/legalblogs/california-case-law/scotu...
To Quote: "The California Supreme Court ruled that a game warden who reasonably believes that a person has recently been fishing or hunting, but lacks reasonable suspicion that the person has violated an applicable fish or game statute or regulation, may stop the suspect's vehicle to demand the person display all fish or game the person has caught or taken."
This is obviously more power in some ways than a police officer has , but in some ways also very limited. If you can provide something more authoritative, extensive and to the point than that I think you should.
Why then have these interior searches never been challenged? One reason might be that these abuses virtually exclusively affect low income suburban and rural white men. They don't have the resources to take a case to the SCOTUS. The prestige media is uninterested in advocating for them and the ACLU and other pro bono law firms don't prioritize that demographic either. Given the choice of paying hundreds of thousands of dollars out of pocket to litigate or pleading to a misdemeanor and paying a $1,000 fine, so far everyone has chosen the latter.
[1] https://repository.uchastings.edu/cgi/viewcontent.cgi?articl....