Montana evidence of sex law

[cowboy]

Absolutely not true...doesn't withstand the 5th amendment and IMO, the regulation shouldn't exist. Nobody is required to self incriminate under the law.

The Fifth Amendment protects individuals from being forced to incriminate themselves. Incriminating oneself is defined as exposing oneself (or another person) to "an accusation or charge of crime," or as involving oneself (or another person) "in a criminal prosecution or the danger thereof."[36] The privilege against compelled self-incrimination is defined as "the constitutional right of a person to refuse to answer questions or otherwise give testimony against himself".

I returned to a kill sight this year, after a request from a Warden (first time in 39 years of hunting) because it was easier for me to do so than to be a butt about it, but it will be the last time I ever do so.

Oh boy - very good point, never even gave that a thought. That'll open a can of worms.

 

[406LIFE]

Absolutely not true...doesn't withstand the 5th amendment and IMO, the regulation shouldn't exist. Nobody is required to self incriminate under the law.

The Fifth Amendment protects individuals from being forced to incriminate themselves. Incriminating oneself is defined as exposing oneself (or another person) to "an accusation or charge of crime," or as involving oneself (or another person) "in a criminal prosecution or the danger thereof."[36] The privilege against compelled self-incrimination is defined as "the constitutional right of a person to refuse to answer questions or otherwise give testimony against himself".

I returned to a kill sight this year, after a request from a Warden (first time in 39 years of hunting) because it was easier for me to do so than to be a butt about it, but it will be the last time I ever do so.

This has actually come up in conversations I''ve had with many hunters and wardens. It is in the regulations, but none of us could come up with a case study when it had been contested. Do you have one Buzz?

 

[whiskeydog]

They may not be able to force you to return to the kill site, but my guess is that it wouldn't go well for you if you refused. Hunting is a privilege and not a right...maybe they can't prosecute you due to 5th amendment, but I'll bet they could take away hunting privileges for awhile. Just like a game warden doesn't need a warrant to conduct a search, not everything in fish and game is the same as in law enforcement.

 

[BuzzH]

This has actually come up in conversations I''ve had with many hunters and wardens. It is in the regulations, but none of us could come up with a case study when it had been contested. Do you have one Buzz?

For starters, its not under MCA code (statute) but a commission rule:

Kill Site Verifcation (CR)
As a condition of hunting in Montana, if
requested to do so by an FWP warden,
you are required to return to the kill site.

Not really too sure how well a commission rule is going to stand in court versus the 5th amendment...but I would guess not well.

 

[BuzzH]

They may not be able to force you to return to the kill site, but my guess is that it wouldn't go well for you if you refused. Hunting is a privilege and not a right...maybe they can't prosecute you due to 5th amendment, but I'll bet they could take away hunting privileges for awhile. Just like a game warden doesn't need a warrant to conduct a search, not everything in fish and game is the same as in law enforcement.

Bull frickin' shit...a warden absolutely needs a warrant to search your home, camp, vehicle. They can openly look in the bed of your truck, etc. but they cant force you to open the trunk to your car, open your coolers, or just waltz into your house for a looksy. They can make a request to search whatever they want, but I can also request they go pound sand unless they have a warrant.

Its their job to prove your guilt, not your job to prove you did nothing wrong.

 

[Deleted member 20812]

Bull frickin' shit...a warden absolutely needs a warrant to search your home, camp, vehicle. They can openly look in the bed of your truck, etc. but they cant force you to open the trunk to your car, open your coolers, or just waltz into your house for a looksy. They can make a request to search whatever they want, but I can also request they go pound sand unless they have a warrant.

Its their job to prove your guilt, not your job to prove you did nothing wrong.

That depends on the state. Some states allow searches of coolers and vehicles with reasonable suspicion. This does not convey to campers, tents, RVs etc is they are used as a temporary domicile.

 

[Deleted member 20812]

For starters, its not under MCA code (statute) but a commission rule:

Kill Site Verifcation (CR)
As a condition of hunting in Montana, if
requested to do so by an FWP warden,
you are required to return to the kill site.

Not really too sure how well a commission rule is going to stand in court versus the 5th amendment...but I would guess not well.

This is a good question. This rule has been on the book forever,, but clearly is compelling someone to potentially incriminate themselves. To my knowledge, it has never been contested in court. Why I have no idea.

 

[BuzzH]

That depends on the state. Some states allow searches of coolers and vehicles with reasonable suspicion. This does not convey to campers, tents, RVs etc is they are used as a temporary domicile.

Totally agree with reasonable suspicion...the gray area in the law becomes what is "reasonable suspicion for $500 Alex"...

 

[Deleted member 20812]

Totally agree with reasonable suspicion...the gray area in the law becomes what is "reasonable suspicion for $500 Alex"...

I should have edited, but it’s reasonable suspicion the person was hunting or fishing. Generally, looking inside the vehicle becomes a higher bar and you’d have to explain the compelling reason (blood, hair, feathers) you looked under a seat, etc.

 

[BuzzH]

This is a good question. This rule has been on the book forever,, but clearly is compelling someone to potentially incriminate themselves. To my knowledge, it has never been contested in court. Why I have no idea.

I can venture a guess that the reason its not codified in MCA statute is because its not constitutional...and LSO probably knew that. So, lets fly it under CR...

 

[Deleted member 20812]

I can venture a guess that the reason its not codified in MCA statute is because its not constitutional...and LSO probably knew that. So, lets fly it under CR...

Right, but it’s still a misdemeanor to violate a commission rule.

 

[BuzzH]

Right, but it’s still a misdemeanor to violate a commission rule.

Unless the commission rule violates the United States Constitution, then the CR is unconstitutional and holds no merit.

Not sure, but usually CR's are less scrutinized and the commission many times doesn't understand the law, or constitution. State land boards are notorious for the same thing.

 

[Losing_Sanity]

That depends on the state. Some states allow searches of coolers and vehicles with reasonable suspicion. This does not convey to campers, tents, RVs etc is they are used as a temporary domicile.

All they need to do set up a mandatory hunter checkpoint anywhere they want. You have to stop. Then they do what they can to discover "Reasonable Suspicion" or "Probable Cause". I've seen them set up a checkpoint on back country roads when looking for someone specific.

 

[Scott85]

I feel that because the way the Kill Site Verification is written it is not an issue with self incrimination because the warden never asked a question about a crime or accused the hunter of committing a crime.

 

[406LIFE]

Spoke to a county prosecuting attorney and he thinks you may have a case for the 5A there, but that if you did you would probably open yourself to so much more scrutiny that it wouldnt be worth it. He also said that the commission rule carries same weight as the MCA, so doesnt really matter where it came from.

 

[genesis273]

After reading all of this, I believe I'll simply lop off nuts and tote them with me.

 

[Deleted member 20812]

All they need to do set up a mandatory hunter checkpoint anywhere they want. You have to stop. Then they do what they can to discover "Reasonable Suspicion" or "Probable Cause". I've seen them set up a checkpoint on back country roads when looking for someone specific.

The bolded, underlined portion is completely untrue.

 

[Losing_Sanity]

The bolded, underlined portion is completely untrue.

I'm not sure how it is "untrue", but you are certainly entitled to interpret that way. I guess it is subject to interpretation. I've seen and experienced it personally. I've had Fish and Game get in the bed of the pickup to look through the rear window in an effort to see something. When they are looking around and asking you questions, trying to get you to relax and talk more, that's what they are doing. Trying see something, or hear something they can use for reasonable suspicion and probable cause. But, you don't have to believe me or see it the same as I do. To me it is true.

 

[mtmuley]

I'm not sure how it is "untrue", but you are certainly entitled to interpret that way. I guess it is subject to interpretation. I've seen and experienced it personally. I've had Fish and Game get in the bed of the pickup to look through the rear window in an effort to see something. When they are looking around and asking you questions, trying to get you to relax and talk more, that's what they are doing. Trying see something, or hear something they can use for reasonable suspicion and probable cause. But, you don't have to believe me or see it the same as I do. To me it is true.

You ran into some shitty Wardens. Or, are maybe a little paranoid. mtmuley

 

[whiskeydog]

Like i said earlier...they don’t need a search warrant. Maybe I should have specified that it is not needed while you are in the field, camp, truck, etc...only needed for your home

Montana Code
87-1-506. Enforcement powers of wardens. (1) A warden may:

(b) search, without a warrant, any tent not used as a residence, any boat, vehicle, box, locker, basket, creel, crate, game bag, or package, or their contents upon probable cause to believe that any fish and game law or department rule for the protection, conservation, or propagation of game, fish, birds, or fur-bearing animals has been violated;
(c) search, with a search warrant, any dwelling house or other building;