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Name: People v. Maikhio
Case #: D055068
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 01/05/2010
Subsequent History: review granted 4/28/10

The seizure of a lobster from a vehicle by a Department of Fish and Game warden was not reasonable absent a reasonable suspicion of criminal activity. A Department of Fish and Game (DFG) warden issued appellant a citation for possession of a California spiny lobster during closed season and for failure to show his catch on demand. Appellant moved to suppress the evidence, which was seized from his vehicle. The warden testified that he had seen appellant put something in his bag after fishing on the pier, and that at the time he stopped the car, he did not necessarily suspect that appellant had broken the law. He asked appellant if he had any fish or lobsters, and appellant said no. The warden then searched the car and found the lobster in a bag on the floor. Appellant’s motion to suppress the evidence was granted, and the prosecution appealed. The appellate court transferred the case from the appellate division of the superior court to the Court of Appeal and requested briefing on whether Fish and Game Code sections 1006 and 2012 authorize vehicle stops without reasonable suspicion of criminal conduct, and whether in this case there was reasonable suspicion of illegal lobster fishing which justified the car search. The appellate court found that the language of section 1006 does not provide for the inspection of vehicles by the DFG. Nor can the power be implied by the general powers granted under sections 1006 and 2012. The warden’s stop of appellant’s “vehicle was not a reasonable regulatory or other seizure under the Fourth Amendment and therefore required reasonable suspicion that [appellant] was involved in criminal activity.” Based on the totality of the circumstances here, the warden did not have reasonable suspicion to stop the vehicle, and therefore the trial court correctly granted the motion to suppress.