Game warden when asked for fishing license

[ELB]

... the Possum Kingdom dam. ... at Possum Kingdom state park ...

I had no idea someplace existed that was named "Possum Kingdom." That's a great name. I love it.

[srothstein]

There are really two questions to be considered in this case. The first is if being asked for a fishing license constitutes Id and the second is if the pistol is on or about your person.

I am not sure if a fishing license would constitute a demand for ID. I would recommend erring on the side of caution, but the wording of the law implies a DL or DPS issued ID being requested. Note that the warden did not ask for more information when he asked for the fishing license, so he considered it acceptable ID. I honestly do not know the answer to this one and until it gets to a court case, I am not sure it will be adequately answered.

The pistol would be considered on "or about" the person if it was easily accessible to the person. So, if it was sealed in a waterproof bag that could be packed in another container, I do not think it would be considered on or about. If it was just in a plastic bag that was loose enough to shoot through, and the bag was close to the person, it would be. The advice to consider the canoe like your car was good advice. If the gun were in the center console and easily grabbed, it is on or about the person. If it inside a locked glove box, it would not be so considered. this is a judgment call on the part of the officer at the time, the person carrying at the time, and the jury if the carrier and officer disagree. There is no clear defining line in the law.

Given all the haziness in the situation, I think a lawyer would have litte trouble getting the jury to have reasonable doubt on the guilt if it came to a trial. thanks for asking a good question that makes us think about the gray areas of the law.

Oh yeah, the other question posed was if the game warden is a peace officer. The answer to that is yes, game wardens are peace officers, as defined in the list of 36 (or more - I have lost count) types of peace officer contained in Code of Criminal Procedure Chapter 2.12.

[joe817]

Good information Steve. Thank you.

[Oldgringo]

I sorta' agree with srothstein above; however given the OP's scenario, a request for a fishing license is a request for a fishing license - no more, no less.

If the GW wants to see your stringer/bag, you'd better show it to him/her. If he/she asks for further ID, then would be the time to furnish further ID - DL first. If he/she asks if there are any guns about, that might be the time to introduce your CHL and any handguns you're carrying. By this time, you should have figured out who and what you're dealing with and play the scene accordingly.

BTW, IANAL but unless you've been observed breaking some DPW regulation vis-a-vis a season, bag limit, trespassing, etc., the GW is your friend...maybe. Prohibited carry on a COE impoundment is another question entirely.

One exception to the GW friend thinghy would be the North Carolina GW who blasted a deaf old guy on his own property (see earlier post).

[C-dub]

It's not worth anything, but I also think that you were not asked for identification. The fishing license you showed may or may not even have been yours and since you weren't asked for a photo I.D. the warden apparently didn't care that much either.

The problem I'm having is with the other question. You've already stated that you knew you legal carrying where you were. I don't understand what difference it makes whether or not your weapon was within reach, on or about your person, or in a bag out of your reach. You have a CHL. Doesn't that pretty much make it legal to carry however you like as long as it is concealed? Am I missing something here?

[srothstein]

C-dub,

The second half of the question about where the weapon is only really pertains if you consider the request for the fishing license to be a demand for ID. A person only has to show his CHL when he is carrying on or about his person. So, even if the license was an ID request, if the pistol was not considered on or about his person, he would not have been required to show his CHL. This is why I included the discussion on both haves.

Of course, with your conclusion (and I tend to agree) that the license request was not a demand for ID, the location of the pistol doesn't matter.

[casingpoint]

Given the highly regulated nature of hunting and the corresponding reduced expectation of privacy of hunters in their gear and their take from hunting, we find it is reasonable to detain hunters briefly, near hunting areas during hunting season, to inspect their licenses, tags, equipment, and any wildlife taken. Defendant contends such inspection may occur only “on site.” We disagree. The remote and expansive nature of hunting areas permits an inspection at a nearby, reasonable location. That standard was met here; the checkpoint was established at a safe location, chosen for the opportunity to inspect the most hunters at a single location. Our analysis is in accord with that of other state courts that have upheld the use of fish and game checkpoints against constitutional attack.

http://74.125.47.132/search?q=cache:IBX ... =firefox-a" onclick="window.open(this.href);return false;

[Sigfan]

I had originally asked the second question about the gun not being on my person, and in a sealed bag for the legality of having it with me.

I know that you can have a gun in your car anywhere if you have a CHL, and I think even without one now with the somewhat recent law. But if you are outside of your car with a CHL, does it need to be on your person at all times? Or just nearby? I feel very uncomfortable if mine is not with me at all times outside of my house. I do not want someone taking it or "playing" with it.

It would not have been legal for someone without a CHL to have a gun in their canoe, and if the GW had asked for my license or picture ID I would have produced my CHL. I think I would have been ok under the law, but am not 100% sure what kinda of "bubble" the CHL gives as far as being in possession of a handgun. At one point I was about 2 feet away from the canoe to give the GW my license. Being that it was on the river, and I wanted it to be in a water proof bag, I think they would understand and probably not make an issue of it. But I would prefer not to rely on the GW being understanding and just make sure I am within the letter of the law at all times. Still not sure if I was on that one.

I don't consider the fishing license as a form of ID, just like I wouldn't consider a Six Flags pass a form of ID and that one even has a picture on it. To me ID is either a state issued ID card, or drivers license. Both of which have a photo ID and address on them. I see a fishing license as having legally registered and paid to fish, and thats about it. I can understand if a GW generally asks for a drivers license or photo ID in conjunction with the fishing license since it could be anyone's license. And in that case a form of ID was requested and the CHL would be required. It was probably a fluke that he didn't ask for a form of ID as well.

The only reason I didn't produce my CHL is because I honestly didn't even think about it. Had my gun been on me, I most likely would have produced my license and CHL when asked for the fishing license. But since it was packed up in a water proof bag the thought never crossed my mind until the event was over. I am always more alert when carrying on my person. Epecially when the game warden is carrying a Glock with 3 spare magazines visable.

[Sigfan]

Given the highly regulated nature of hunting and the corresponding reduced expectation of privacy of hunters in their gear and their take from hunting, we find it is reasonable to detain hunters briefly, near hunting areas during hunting season, to inspect their licenses, tags, equipment, and any wildlife taken. Defendant contends such inspection may occur only “on site.” We disagree. The remote and expansive nature of hunting areas permits an inspection at a nearby, reasonable location. That standard was met here; the checkpoint was established at a safe location, chosen for the opportunity to inspect the most hunters at a single location. Our analysis is in accord with that of other state courts that have upheld the use of fish and game checkpoints against constitutional attack.

http://74.125.47.132/search?q=cache:IBX ... =firefox-a" onclick="window.open(this.href);return false;

I have no problem with the checkpoint. I support Game Wardens 100%. The provide a very valuable service to anyone that appreciates wildlife.

[casingpoint]

It would not have been legal for someone without a CHL to have a gun in their canoe

I worked through it once. A boat is the same as a vehicle, a method of conveyance over a medium. It should be legal to have a gun concealed in your boat in TX without the necessity of a CHL. Never been litigated in TX to my knowledge. Another case looking for a guinea pig.

[quoheleth]

FYI, in the State of Texas, the Game Wardens have more horsepower than even a Texas Ranger. A Warden can enter any property with only the suspicion of illegal hunting, processing, or holding of game animals - or, for that matter, any other part of the Code that deals with wildlife, hunting, fishing, or the public waterways - without a warrant of any sort. I don't know if it's still done, but it wasn't that long ago that various LEOs across the state would use Wardens to execute a fast search when a warrant couldn't be obtained. "Yes, your honor, we suspected the defandant was processing illegally killed White Wing Doves..." type of stuff.

While on the river, a Warden might not have access to his laptop and instant commo that way, but he's got his radio. I wouldn't sty to slip anything past a TPW Game Warden. They aren't the "bubba" some folks make them out to be.

I say a Warden has more horsepower...did you know a county Constable (the Chief Poobah, that is) is the only law officer who can arrest a sitting Governor or Lt. Governor in Texas? Yep...don't ask me why, but that's the fact.

Q

[srothstein]

Quoheleth,

Both of these two statements are common misconceptions. There is no privilege from arrest for the Governor or Lt. Gov. that I can find mention of in either the statutes or the State Constitution. It certainly would go against the Constitution to give the Constable a power that the Sheriff does not have since the Constitution specifies the Sheriff is the chief law enforcement officer for the county. The Constable was originally designed to assist the Sheriff and now is primarily designed to serve the orders of the Justice of the Peace court. This misconception might have started from the constitutional provision that state senators and representatives are privileged from arrest while in session or on the way to or from session. Of course, this privilege does not extend to treason, felonies, or breaches of the peace. The state clause is almost identical to the clause in the US Constitution for federal legislators.

The clause on where a Game Warden might go is actually a twist on their actual powers. They do have a broader search power than other officers, but it is not to enter into any property. They may legally enter into any land where "wild game or fish are known to range or stray" (section 12.103 Parks and Wildlife Code). They may do so to enforce the game laws or for scientific study. But they cannot, for example, use this clause to enter your house thinking you might be illegally processing your poached deer there. But, under the state laws, they do have more "horsepower" than some other peace officers. Of course, this is all academic since the Fourth Amendment has been incorporated and applies to all governmental employees in Texas. Under this, they do need a warrant, or a recognized exception such as probable cause with exigent circumstances. Our Court of Criminal Appeals has even limited law enforcement further than SCOTUS has by taking away the "open fields" exception. Based on that, I am not sure that this section of code will really help anyone with a search.

On a lighter side, I have never asked a Game Warden to assist that way, but I have been asked by them to help on other cases of theirs. In San Antonio, some of the city ordinances make it easier to get the original stop and arrest (such as lock blade knives being illegal) and they used to prefer the city officer to enforce the city ordinance and then call them for the rest.

[quoheleth]

Well...I guess I get to tell Dad that he was wrong. Respectfully, of course. Doesn't happen too often.

Sorry for perpetuating the urban legend.

Q