In a surprising – and to some puzzling - move late last month the New Hampshire House narrowly passed a bill a House committee recommended be killed.
Fish and Game officials say the legislation would make it far more difficult for them to enforce state laws designed to protect wildlife.
The bill’s supporters say it protects individual rights by requiring Fish and Game to meet the same standards as other law-enforcement agencies when it comes to searches.
But a law professor says Fish and Game already has to meet those standards.
And Fish and Game says a huge misunderstanding led to the bill’s passage.
NHPR’s Chris Jensen reports.
House bill 1332 says Fish and Game cannot make searches - such as a game bag - without “probable cause.”
But for decades conservation officers have only needed “reasonable cause,” which is far less demanding.
Fish and Game says the law is unnecessary, would make the agency’s job difficult if not impossible, and would hold conservation officers to a higher standard than other law enforcement officials.
The bill came out of committee on a 10-4 vote recommending it not pass.
Late in 2009 the bill’s main sponsor, Republican Kenneth Kreis of Merrimack, was charged by Fish and Game with killing two moose when he had a permit for one. He paid a fine and had his hunting license suspended for two years, according to records obtained under the state’s Right-To-Know provision.
Kreis didn’t return several telephone calls from NHPR.
But another committee member, Republican Marc Tremblay, of Berlin, championed the bill before the full House.
He argued Fish and Game officers have powers that other police don’t have.
“A lot of people have come to me and explained that Fish and Game has the authority to come into your house and search your freezers, they can come into the house without a search warrant and that is not in accordance to the Constitution of the United States.”
In short Tremblay argued that HB 1332 was needed to guarantee the 4th Amendment’s promise of protection from unreasonable search.
Major Kevin Jordan is with Fish and Games’ Law Enforcement Division.
He says Tremblay was given bad information.
“A police officer cannot go into someone’s home without a search warrant or into their car for instance without a search warrant and we can’t do that, either.”
But Tremblay pulled off an impressive legislative feat.
The House revived the bill – by a three-vote margin.
Then it passed it on a 181 – 165 vote.
Republican Clifford Newton of Strafford, who chairs the committee that originally recommended killing the bill, thinks the House was responding in a visceral way to the mere idea that Constitutional rights were being violated.
“You know the House didn’t seem to want to listen to any logic. It was simply this is a Fourth Amendment right.”
But one expert says Fish and Game already has to operate under the same legal restrictions as other law-enforcement agencies.
“I think conservation officers, specifically Fish and Game officers, are on the same exact level when it comes to searches and seizures under our Constitutional provision as are the police.”
That’s Charles Temple, a UNH law professor who oversees the Criminal Practice Clinic.
All this legislative commotion and concern revolves around the phrase “probable cause.”
Temple says under the Constitution all law enforcement officials – which includes Fish and Game - have to have a warrant based on probable cause before they can conduct a search.
However, he says over the years the Supreme Court has allowed some exceptions.
They provide a little flexibility and allow someone to be stopped and questioned if there is a “reasonable suspicion” of wrongdoing.
That’s why law enforcement officials can pull over a car that that is weaving and ask the driver a few questions.
But that stop and questioning still falls under the legal umbrella of probable cause.
Major Jordan says Fish and Game operates under the same rules when it stops someone.
“They can stop someone in the field, they can ask for their license, hunting license or fishing license, they can check the items that they are using being a firearm or fishing pole, their equipment that is being used, to make sure it complies with state statute and they can check for bag limits.”
But Jordan says they can’t search a house or the trunk of a car, for example, without having enough additional facts to justify “probable cause” and obtain a search warrant.
That’s the same rule under which other law enforcement officers must operate.
Temple says the problem with HB 1332 is that it says Fish and Game must strictly adhere to “probable cause.”
It doesn’t specifically reference the court decisions that allow stops based on reasonable suspicion.
So HB 1332 would hold Fish and Game to a higher standard than other law-enforcement agencies, he says.
Major Jordan says if the bill became law it would be much harder to protect the state’s wildlife including enforcing commercial fishing regulations.
John Tholl is a Republican from the North Country who represents Whitefield.
He spent 23 years as a state trooper and then 17 years as the police chief in Dalton.
He voted against the bill.
“You’d have to have the facts and circumstances sufficient for arrest before you could even talk to somebody and it would require warrants and everything else. It goes too far.”
Now the bill heads to the Senate.
For NHPR News this is Chris Jensen