[pct-l] Search and Seizure

[jeffreyn at sonic.net (Jeffrey Zimmerman)]

After posting this on the Backpacking Light listserver I was asked to post 
a copy here:

As a NOLS graduate I am well aware of the need for protecting bears from 
food rewards. Currently in certain parts of the Sierra the only legally 
legitimate means is a hard-sided container, generically called a "bear 
canister" or "bear can," but known by brand names as "The Garcia," "Bear 
Vault," "Bearikade," "Backpackers Cache" and the like. Typically, they 
weigh several pounds.

As a lawyer, I was curious about how rangers enforce such regulations in 
the Sierra. Again and again I heard stories of rangers demanding proof of 
possession of a canister then citing those who failed to produce. "Can 
they do that," I wondered. I don't practice criminal law, but the basics 
of course are drummed into us in typically the first or second year of law 
school, and involve concepts such as "exigent circumstances," "probable 
cause" and "warrants." Further, I mused, can one's access to federal 
property properly  be conditioned on waiver of search and seizure (e.g., 
privacy) rights?

I did four searches of a database of federal cases. One was for "park 
ranger & bear canister & search" (zero results), one was for "park ranger 
& food storage & search" (zero results), the third was for "park ranger & 
backpack & search" (two results), and the last was for "ranger & backpack 
& search" (seven results, including one from search three). No result was 
"on point," i.e., specifically defining the answer to the questions posed. 
I do not claim that this research was exhaustive, nor that it should 
provide specific guidance for any particular situation. Nonetheless it 
raises some interesting ideas. I specifically disclaim that the results of 
this research
should be considered either advice or legitimate legal opinion. What 
follows are musings, not legal advice.

One of the three cases is unpublished, meaning it has extremely limited 
precedential value. It is "U.S. v. Darulis," cited as 1 F.3d 1242, 1993 
(6th Cir.(Ohio)). This involved a tip to rangers that an individual had 
been seen with a shovel in the park, and had fled when approached. The 
rangers noted several rows of freshly spaded and enriched earth at the 
scene, and as the season progressed noted marijuana plants sprouting from 
the site. When the defendant was later approached he consented to a search 
of his backpack, which revealed fertilizer material. Subsequent events 
resulted in a search -- with warrant -- of the defendant's van and his 
ultimate arrest on drug charges. In Darulis there was a steady crescendo 
of events leading to probable cause, a search by consent and a search by 
warrant. The evidence of crime was admissible.

The second case is "U.S. v. Meier," cited as 602 F.2d 253, 1979 (10th Cir. 
(Wyoming)). It is so old, a quarter century, that it should not be deemed 
a reliable reflection of current search and seizure law. Nonetheless some 
ideas can be gleaned. Meier was arrested for driving under the influence 
when he was found near his car which had been driven into a ditch. As he 
emptied his pockets he attempted to throw some items into the bushes; the 
items were retrieved and found to be illegal drugs. A general search of 
his car was done and in a closed backpack in the trunk was found a 
substantial amount of marijuana. The backpack was not "locked" but the 
analogy of a locked suitcase was used. It was held that even assuming a 
warrantless search of the car might have been valid (no specific holding), 
a warrantless search of the backpack once the rangers had control of it 
was not valid, and the contents of the backpack were suppressed or held 
not available for trial.

The third case is "U.S. v. Moss," cited as 963 F.2d 673, 1992 (4th Cir. 
(No. Carolina)). There a ranger entered a rented backcountry cabin in 
search of a possible trespasser (he was mistaken, the cabin was 
legitimately in use). He found no one present but proceeded to search a 
backpack he found, and therein found a small quantity of marijuana. The 
warrantless entry of the cabin was excused under a "good faith" exception 
to the warrant requirement, but the search of the backpack was not.

These cases are illustrative of some principles: (1) consent validates 
almost any search; (2) if there is a risk of flight (as in the case of a 
car) sometimes a warrantless search may be justified; (3) there seems to 
be acceptance of the idea that backpacks are entitled to privacy 
protection.

Then there is the waiver issue. I did not research this, but the obvious 
analogy is airline security. One loses the right to object to a luggage 
search when one boards a commercial aircraft, but is this because you are 
notified in advance you will be searched or because there is in fact no 
right to secrecy in your luggage because of the special (e.g., "exigent") 
circumstances of airline travel. Similarly, upon entering a federal 
courthouse we are routinely subject to at least a magnetic search and 
often a visual search; we can be subjected to even a pat-down, or tactile 
search and our ID can be checked, all because of the special risks of harm 
resulting in large part because of the heightened emotional atmosphere 
court procedures create. Do we have a reduced xpectation of privacy on 
federal land? In the Sierra there is the special circumstance that harm to 
bears might result from illegal human activity, and as a result there 
could be harm to humans as well. Is that possibility of harm to humans too 
remote to justify a warrantless search? Is the general, non-specific, 
possibility of harm to wildlife sufficient alone to justify a warrantless 
search? Indeed, are there proper warnings about the loss of privacy rights 
when one enters the Sierra? Is it on the permit, or sufficiently implied 
by the process of obtaining a permit? I have seen no permit which recites 
any waiver or loss of constitutional search and seizure rights.

Interestingly, in the permit process you are required to declare you 
"have" a qualifying container. Is it a crime to misrepresent to a federal 
officer the contents of your pack? Remember that Martha Stewart was 
convicted not of violations of the investment equities laws but instead of 
misleading federal investigators. Can such a declaration be legally 
required as a condition of obtaining a permit? Is it legally possible to 
truthfully declare you have such a container then fail to use it once you 
actually get onto the trail?

So when you meet a ranger, can you decline to disclose the contents of 
your backpack? Can you assert the container is "over there," pointing 
vaguely to some vegetation and rocks, and require the ranger to prove it 
doesn't exist? Can the ranger detain you if you refuse to answer? Can you 
assert as a defense for non-compliance your intent to hike from 
pre-positioned "bear box" (a large, fixed, steel, locking, backcountry 
container designed to be "ursally-impenetrable") to "bear box" and satisfy 
the regulations, and if so how credible must be that assertion (remember 
the legendary hiking of Pete Starr and Bob Marshall)? Are you sufficiently 
mobile in the backcountry that the automobile exceptions to warrantless 
search apply? And if they do, what sort of exigent circumstances are 
required before such a search, i.e., must there be some suspicion of
wrongdoing (and how strong a suspicion?), or perhaps there must be an 
issue of law officer safety, or is mere regulatory enforcement sufficient? 
If your right to privacy prevents a warrantless search, can a regulation 
be valid which requires a cannister be "in possession" even when merely on 
the trail?

Is protecting wildlife a legitimate goal? Yes. Is it a time-critical event 
that also immediately affects public safety? No. Do there seem to be 
differences in exigent circumstances between auto and airline searches and 
back country backpack searches? Yes. Do I want to spend my time personally 
testing this theory in front of a federal magistrate? No. Still, there is 
at least a suggestion here that non-consensual searches of a backpack 
require a warrant, absent special circumstances such as plain sight, 
consent, or immediate life-threatening emergency. You can't lie to The 
Man, but you don't have to confess all, either. And remember, a fed bear 
is a dead bear.

-- 
Jeffrey Neil Zimmerman
Sonoma County, The Left Coast