Montana evidence of sex law

[Deleted member 20812]

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;

Yes and no. Any law enforcement officer can search a vehicle, without warrant, if they have probable cause to believe it holds evidence of a crime. However, they must show the evidence was at risk of being destroyed due to the mobility of the vehicle. In other words, if the driver is in jail and the vehicle impounded, the courts would very likely hold a warrantless search as unconstitutional.

The same holds true for any game warden. The level of probable cause they must show to conduct a warrantless search of the vehicle, or any of the other items listed above, is the same threshold they would need to achieve in order to obtain a search warrant in the first place. So, warrantless, yes, but clearly not as ominous as that may appear on the surface. Any evidentiary items seized and used in prosecution would be subject to suppression by the defense if the prosecution failed to show a sufficient level of probable cause.

It is worth noting the courts continue to scrutinize warrantless searches, and are not allowing them simply because they were in the past. Every time a warrantless search is done, the officer must show the exigency present that compelled them to conduct the search without taking the time to apply for and receive a search warrant.

Putting this all into context, say you get checked by a game warden in the field. He asks you (required by law in most states to submit to a field inspection and present all game and/or fish) to see your game, to which you reply you have none. Acting on a hunch, he tosses your truck and finds an illegal bobcat under the rear passenger seat. You get charged for the crime.

Any defense attorney worth his/her salt will immediately attack the warrantless search. If the warden cannot articulate the elements of probable cause that compelled him to search your truck (acting on a hunch or your gut is not probable cause), the entire case is tossed. Now, if he/she can say they saw blood on your pants, noticed bobcat hair on the edge of the door, your vehicle matched the description of someone shooting a closed season bobcat, etc., you might be in deep shit.

Lastly, tents are more likely than not to fall under the definition of a domicile, and as such any officer would be required to apply for and receive a search warrant to enter into them and look for evidence. If I'm spending 10 days in the field in my wall tent, you can darned well bet I consider that my temporary domicile. The appellate courts have viewed a tent similar to a hotel room, in that both carry an enhanced expectation of privacy.

 

[BuzzH]

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;

Did you forget to pay attention to the probable cause part? Also read JLS's post...

 

[Losing_Sanity]

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

Well mtmuley, thanks for at least considering that I'm not paranoid!

You know, I really think we got a little side tracked with my innocent effort to comment on this topic. Agree with me or not, my intent wasn't to side track the post. You (mtmuley) and JLS are more than welcome at my campfire anytime for a good debate, shoot the crap and hangout. I'm sure you two guys know more about these things than I do. I apperciate your input. We should get back to the original topic for this thread. I have really enjoyed reading all the discussion thus far.

In my opinion:
No matter if a hunter cooperates and take them to the kill site or not and end up in court, it seems the law is subject to interpretation. The law officer (don't have to be fish and game) interprets the law, the prosecuting attorney will, and also your lawyer. Then everyone goes in front of a judge and the Judge will interpret the law for themselves and based on the arguments, the judge will decide. You can count on one thing, IMO, the prosecuting attorney is not in it just to seek punishment, they will be in it to win. And they will try to win short of "at any cost". It could end up being very costly for the individual and be a real pain in the butt.

 

[Gustovich]

I'm not against leaving proof of sex attached but I dont understand why...the animals arent regulated by sex they are by antlers or antlerless. I know its rare but what if you shoot a doe or cow with antlers on a bull tag?

 

[Jcs271]

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;

Well this entire argument is a moot point since the legislature passed and the governor just signed a bill clearly articulating the necessity of a warrant for all FWP searches of any closed area, box, cooler, bag, tent etc. 87-1-506 MCA is done!

HB348 An act revising Search Powers of Game Wardens, eliminates language in MCA 87-1-506. Signed by the Governor on 4-3-19, effective date 10-01-19.

 

[BWALKER77]

I was told today that the proof of sex law is no longer in effect as of 1-1-20. Can anyone confirm?

 

[NV_ARCH3R]

Don't know for sure but I'm assuming that by purchasing a licence, and tag you are basically entering into an agreement to abide by the Game commissions regulations. If you don't agree with the regulations to return to the site of the kill, or other regulations you don't have to buy the licence and tag.

 

[scubohuntr]

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.

If this were true, you would never have to produce your license either, on the chance that it may not be valid. Of course, the easy remedy here is to know the law and follow it. You can't incriminate yourself for a crime you did not commit. Yes, I know, the wardens are all out to get you and will frame you for poaching black footed ferrets given half a chance. Do you seriously think they can't frame you if you refuse to cooperate? Or that it will make the officer more disposed to cut you some slack?
If you READ the Fifth Amendment, the portion that deals with self-incrimination reads, "nor shall be compelled in any criminal case to be a witness against himself". Unless and until you are charged, there is no criminal case against you. Most fish and game violations are civil, not criminal, infractions in any case.

 

[BWALKER77]

I actually look atbthe new statute. No more proof of sex for tags where either sex is allowed.

 

[Jcs271]

Most fish and game violations are civil, not criminal, infractions in any case.

Not true, here in Montana ALL violations are criminal offenses. Most are misdemeanors (6months in jail and/or $1,000 fine) but a few are felonies.

Montana Code Annotated 2019

TITLE 87. FISH AND WILDLIFE
CHAPTER 6. FISH AND WILDLIFE CRIMINAL PROVISIONS
Part 1. General Provisions
Designation Of Violations

87-6-102. Designation of violations. A person who purposely, knowingly, or negligently violates a provision of this title or any other state law pertaining to fish and game is guilty of a misdemeanor unless a felony is expressly provided by law.

 

[Carnage2011]

We have 3 pages of debating whether or not one must leave the ball bag on an elk attached? Wow!

 

[Jcs271]

Well to be fair, it has kind of morphed into a legal discussion of various sections of F&G law. Oh well, what could be more fun than arguing with strangers over the internet?

 

[Straight Arrow]

Not 100% sure but I do not believe it has to be attached to the animal, just accompanying the animal until processed.

That is correct. The rule previously required attachment to the carcass, but was revised due to many of us complaining about having to expose the meat to nasty parts during removal from the field. Now the genitalia may be sealed in a plastic bag and accompany the carcass / meat.

"Evidence Required of Game Animal’s Sex (MCA 87-6-406) • It is unlawful to destroy evidence of the sex of a game animal so as to make the determination of the sex of the game animal uncertain. • FWP recommends proof of sex accompany the carcass from the field to the point of processing."