A conservation officer approaching an open boat while it rests on the trailer of a parked portage truck and asking the occupants whether they had caught any fish is not a seizure for the purposes of the Fourth Amendment.
When the occupant of an open boat admits to having been fishing and transporting fish in the boat or other conveyance used to transport wild animals, but refuses to present the catch for inspection, a nonconsensual search of the areas of an open boat where fish are typically transported is constitutionally permissible. Refusing to allow such an inspection is a violation of Minn. Stat. § 97A.251, subd. 1(3) (2000).
Heard, considered, and decided by the court en banc.
The opinion of the court was delivered by: Gilbert, Justice.
Concurring in part, dissenting in part, Anderson, Paul H., J.
Respondent John M. Colosimo was convicted for refusal to allow inspection of a boat, Minn. Stat. § 97A.251, subd. 1(3) (2000). Colosimo challenged his conviction arguing he was unlawfully stopped by the conservation officer, the officer did not have probable cause to inspect the boat and the request to inspect the boat was an unlawful seizure. The court of appeals reversed the conviction concluding that the conservation officer was required to have probable cause to request inspection of Colosimo's boat and that because the officer did not have probable cause to request inspection, Colosimo could not be convicted for refusing inspection. We reverse.
Colosimo was on a fishing trip with four other men on Rainy Lake at Kettle Falls in the Voyageur's National Park. On the morning of September 18, 2000, the group stowed their personal belongings on Colosimo's open bow boat in order to make the trip back to the far shore of Lake Namakan where they had left their vehicles. To get from Rainy Lake, where they had been fishing, to Lake Namakan required portage. Colosimo's boat was being trailored by a truck driven by Shawn Obeson, who was employed portaging boats between the two lakes.
Obeson described the boat as a 19- or 20-foot Crestliner fishing boat, which contained the fishing party's luggage and a cooler or two. Obeson testified that he had loaded Colosimo's boat on to his trailer, and portaged the boat, while the entire fishing party rode in the boat. During the portage, as Obeson was about to put the boat in the Lake Namakan side of the portage, he saw Officer Lloyd Steen, a uniformed Department of Natural Resources (DNR) officer, walking towards the truck. Obeson stopped the truck at that point. When asked at Colosimo's trial the reason he stopped, Obeson testified, "Well I stopped to unhook John's [Colosimo's] boat there." When asked if Officer Steen did anything to cause Obeson to stop, Obeson testified, "No, he didn't. He didn't stop me."
Officer Steen testified that he knew where the portage truck operator would stop in order to unhook the boat and receive payment for the portage and he waited in that vicinity. Once the operator had stopped the truck to unhook the boat Officer Steen walked up to the boat and struck up a conversation with Colosimo, who was sitting at the steering wheel of the boat. Officer Steen asked if they had caught any fish. Colosimo responded that they had caught some. Officer Steen asked how many they had; Colosimo responded that they had not been fishing that day and had less than their limit. Officer Steen next asked how they had the fish packaged. Colosimo said they had gutted and gilled the fish in accordance with the regulations affecting Rainy Lake.
Officer Steen eventually asked if he could take a look at the fish; Colosimo refused that request. The refusal to allow the inspection of the fish started an argument between the officer and Colosimo, an attorney, over the officer's legal authority to board the boat to inspect the catch. Officer Steen told the portage truck driver not to put the boat in the water. Colosimo was equally adamant in telling the driver to put the boat into the water.
Realizing that he and Colosimo were at an impasse and fearing that the argument would escalate into a physical confrontation, Officer Steen issued Colosimo a ticket for failing to present wildlife for inspection, Minn. Stat. § 97A.251, subd. 2, and allowed the group to go along their way. Later, upon reviewing the relevant statutes, Officer Steen sent Colosimo a separate ticket citing him for obstructing an officer in violation of Minn. Stat. § 97A.251, subd. 1, and refusing to allow inspection of a boat being used to transport wild animals, Minn. Stat. § 97A.251, subd. 3.
The parties agreed to a bench trial. A bench trial was held and the court issued findings of fact, conclusions of law, a verdict and memorandum. The district court concluded that the case consisted of two legal issues: first, whether there was a stop, and second, did the officer have the authority to inspect Colosimo's boat once it had been established that Colosimo had been fishing and was transporting fish. The court held that approaching the boat did not amount to a stop, concluding that once the conservation officer determined the individual had engaged in fishing, the officer had the authority to inspect the boat pursuant to Minn. Stat. § 97A.251. The court then found Colosimo guilty of refusal to allow inspection of a boat, Minn. Stat. § 97A.251, subd. 1(3) and assessed a fine of $100, plus a $37 surcharge. Colosimo appealed the conviction to the Minnesota Court of Appeals. The court of appeals reversed the district court, concluding that in order to inspect Colosimo's boat the officer must have probable cause of a violation of a fish or game law. The court held that because the officer did not have authority to inspect the boat, Colosimo could not be convicted for refusal to allow inspection of the boat. State v. Colosimo, 648 N.W.2d 271, 276 (Minn. App. 2002)
Colosimo contends that Officer Steen stopped his fishing party and that the stop was prohibited by the Fourth Amendment. Colosimo testified that he initially objected to the conservation officer's attempts to converse by asking what the officer's reasonable articulable suspicion for this "stop" was. However, Officer Steen and members of Colosimo's fishing party testified that the conversation began with Officer Steen asking about fish and that Colosimo then stated that the group had been fishing the previous days, and was transporting gutted and gilled fish. The district court found that there "was no stop in the present case" and cited the testimony of the portage operator that he stopped on his own volition, not because of anything that Officer Steen said or did and that an officer's act of approaching a parked vehicle does not constitute a stop for Fourth Amendment purposes.
Colosimo, in his brief to this court, cites Delaware v. Prouse, 440 U.S. 648 (1979), where the United States Supreme Court concluded that random suspicionless stops of drivers violated the Fourth Amendment. However, as the district court properly concluded, the initial interaction between Officer Steen and Colosimo did not amount to a stop. Rather, Officer Steen merely began conversing with Colosimo after the portage truck driver had on his own volition stopped the truck pulling the trailer upon which Colosimo's boat rested. Thus, we are presented with a situation quite distinct from that facing the Court in Prouse. Here, Officer Steen walked up to the already stopped boat that rested on the trailer of a parked truck. As the district court found, there is no seizure for Fourth Amendment purposes when an officer merely walks up to a parked motor vehicle and converses with the driver. See State v. Vohnoutka, 292 N.W.2d 756 (Minn. 1980); see also Crawford v. Comm'r of Public Safety, 441 N.W.2d 837 (Minn. App. 1989). Likewise, we hold that Officer Steen walking up to Colosimo and conversing with him while Colosimo's boat rested on the trailer of a parked portage truck does not amount to a seizure for Fourth Amendment purposes. See Matter of Welfare of E.D.J., 502áN.W.2d 779, 782 (Minn. 1993) (generally an officer approaching and asking questions of a person standing on a public street or sitting in a parked car is not a seizure).
There may be little doubt that after Colosimo admitted to having been fishing and the fact that he was transporting fish, he was seized by Officer Steen. However, the seizure came after Colosimo's admission to transporting fish and subsequent refusal to allow inspection of the catch or boat where the catch was being transported. At that point the seizure was not suspicionless, but rather, was based on the fact that Colosimo admitted to transporting fish in his boat, but refused to allow inspection of the boat, a violation of Minnesota law. Minn. Stat. § 97A.251, subd. 1(3). Because the parties dispute the constitutionality of this statute, we now turn to that issue.
The remaining question before us is whether Officer Steen had the authority to search Colosimo's open boat for the purpose of inspecting fish that appellant admitted transporting. The fish that were admittedly in Colosimo's possession are subject to an array of rules designed to protect recreational fishing against depletion. These rules include licensing, daily and possession limits, size, species, season, location, bait, preparation and fishing method requirements and many other rules established in numerous statutes and regulations. See Minn. R. 6264.0300, subps. 1 & 56 (2001) and Minn. Stat. § 97C (2002).
In a typical Fourth Amendment case, an appellate court has the opportunity to review the specific facts of the challenged search to determine whether the search violated the defendant's Fourth Amendment rights. In this case, no search occurred. Rather, Officer Steen issued a ticket for refusing to allow an inspection of Colosimo's motorboat used to transport wild game fish. Thus, we must determine whether a nonconsensual search of the boat, being used to take or transport game fish in the field, could have occurred within the limits imposed by the Fourth Amendment.
The Fourth Amendment prohibits "unreasonable searches and seizures." U.S. Const. amend. IV. For a search to be held unconstitutional under the Fourth Amendment the one searched must have had an "actual expectation of privacy" in the area searched and that expectation of privacy must be "one that society is prepared to recognize as reasonable." Bond v. United States, 529 U.S. 334, 338 (2000). In this case, as the district court found, Colosimo refused to allow inspection of his boat out of principle because he "truly believes that the officer could not legally search his boat."
We must decide whether under these circumstances Colosimo had a reasonable expectation of privacy. We have stated the "existence of probable cause is relevant only when a person has demonstrated a legitimate or reasonable expectation of privacy." State v. Sorenson, 441 N.W.2d 455, 458, 460 (Minn. 1989) (concluding "the open-fields doctrine permits a conservation officer to enter almost any area in order to enforce the state's game and fish laws"). If Colosimo's expectation of privacy was not reasonable, the Fourth Amendment's prohibition on "unreasonable searches" is not implicated, and his conviction for refusing to allow the search should be upheld. In order for Colosimo's conviction for refusing to allow inspection of his boat to stand, we must determine whether there are any areas of the open boat where Colosimo's expectation of privacy was unreasonable. If there were areas of Colosimo's boat where an expectation of privacy was not reasonable, the conservation officer had the authority to search those areas, and Colosimo's conviction for preventing the officer from inspecting the open boat stands.
In determining whether Colosimo's expectation of privacy was reasonable, we must consider both the nature of recreational fishing and the characteristics of an open boat, as well as the fact that this request occurred in open season near a game fishing habitat. Recreational fishing is a highly regulated and licensed privilege. Those who choose to apply for this privilege accept the conditions imposed, unique to the sport of game fishing. See Minn. Stat. § 97A.015, subd. 25. Among those conditions is allowing conservation officers to inspect their catch and boat or other conveyance used to transport fish. Minn. Stat. § 97A.251, subd. 1(2) and (3). The Montana Supreme Court has also recognized this fact:
In engaging in this highly regulated activity, anglers must assume the burdens of the sport as well as its benefits. Thus, no objectively reasonable expectation of privacy exists when a wildlife enforcement officer checks for hunting and fishing licenses in open season near game habitat, inquires about game taken, and requests to inspect game in the field. In this capacity, game wardens are acting not only as law enforcement ...