[pct-l] Search and Seizure

[eyakel at earthlink.net (Eric Yakel)]

Hey Jeff, I have written to this list several times in the past.  I work
in Law Enforcement and have talked to several lawyers and judges
on this subject.  It is the opinion of each of them, that a Park Ranger
can not demand to see inside your pack without a warrant.  I got
upset with a ranger in Yosemite because of his rotten attitude.  He
demanded to see the cannister.  I told him to show me his warrant.
He did not have one of course and demanded to see the cannister
9 I did have one).  I said no again and asked him how many illegal
searches he had already committed.  The light bulb went off and he
asked if I was in law enforcement.  I told him "yes", and I walked
away.  End of story.  If you agree to a "consentual search", then
all bets are off.  Also, don't lay your pack down, but keep it on your
person.  This keeps it in your direct possession.  If they want to
get nasty, tell them your a lawyer, and that the Gov has deep
pockets.  Great research on this, enjoyed reading it immensely.
                                                             Eric Yakel
----- Original Message -----
From: "Jeffrey Zimmerman" <jeffreyn@sonic.net>
To: "PCT-L" <pct-l@mailman.backcountry.net>
Sent: Saturday, October 09, 2004 2:51 PM
Subject: [pct-l] Search and Seizure


> 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
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