Wednesday, January 06, 2010

People v. Maikho (Cal. Ct. App. - Jan. 5, 2010)

Here's an opinion that hits close to home.

It's a case about illegal lobster fishing on the Ocean Beach Pier. Which is less than a mile from my house, and which I visit regularly.

A Department of Fish and Game ("DFG") officer is staking out the place two summers ago when he sees a dude (Bounh Maikho) hand-lining. Which, for those of you unfamiliar with the practice, is basically when you use your hands (rather than the reel) to pull the fishing line. You do so to get a better feel for the line. You can use it for fishing, but what you really want to use it for is to catch lobster. The only problem being that (1) it's illegal (but productive) to take lobster that way, and (2) spiny lobster's out of season in the summer anyway.

But the DFG officer sees Maikho hand-lining through a spotter and then sees him pull something in and put it in a black bag. Maybe a lobster, maybe a fish. The officer doesn't immediately pull Maikho aside, and instead waits for him to drive his car away, at which point he pulls him over and asks (essentially) "You got any fish or lobsters in that bag?" Maikho says no, the officer searches, finds a lobster, and cites Maikho for a couple of misdemeanors. Maikho moves to suppress, claiming that the DFG regulations allow officers only to search bags and stuff like that, and don't allow automobile stops, and that there wasn't probable cause. The trial court grants the motion to suppress, and the case eventually finds its way up to the Court of Appeal.

Justice McDonald writes a really, really good opinion in this one. It's thoughtful, comprehensive and cogent. Justice Benke writes a (shorter) dissent, but I think that McDonald has the better of the argument, both stylistically as well as on the merits. Justice Benke's approach is fine if you already agree with her about the result, and have a strong preexisting view about the need for expansive seizure rules, but I think that Justice McDonald does a better job of writing an opinion that attempts to persuade.

Which is not to say that Justice Benke doesn't have a point -- she does, arguing that even though the statute doesn't expressly allow traffic stops, hunters and fishermen reasonably expect to be stopped all the time, since random inspections are sort of par for the course, so what's the big deal if the search is in a car rather than on foot. But, at least for me, Justice McDonald does a powerful job of explaining why this is different -- not only in terms of the statute, since one is allowed and the other isn't, but why this difference actually matters both practically as well as doctrinally. So I think he's got the better view. Or at least I was persuaded.

Personally, I thought that Part II of Justice McDonald's opinion was less persuasive than Part I. But I readily concede that might just be me. Part I says that the search was unauthorized, and I agree with that. Part II says that there was no probable cause, and that's a lot closer call. In the end, I'm persuaded that on this evidence, there wasn't probable cause, since everyone admits that hand lining can be used for either fishing or lobster, and the officer even admitted that he stopped the car not because he necessarily thought there was an actual crime, but rather merely to ask some questions. So given that evidence, I agree that there was no evidence that proved that there was a "substantial probability" that a crime had been committed.

But I did want to say that, in my mind, there was "in fact" unquestionably probable cause. Sure, you can hand-line to fish. But no one freaking does. If you're hand-lining on the OB Pier, you're getting lobster. Particularly at 11:00 p.m. Pull 100 people hand-lining on the Pier and I promise you that 99+ of 'em are going for lobster, not fish. Otherwise you use the reel. (And typically fish when the fish can see, I might add.)

But, again, the officer didn't say so. But if he had, I've have entirely bought that testimony and found probable cause.

One other random point. Justice Benke's focus in the dissent is all about why DFG officers should be able to inspect, search, etc. But no one disputes that. They can. The question is whether they can deliberately wait to search until after the dude gets in his car and drives away. So we're not really talking about manifest necessity here. Just pull the guy aside when you see him dump the unknown object into his bag. Not too tough. (And yeah, I hear the officer say "I didn't want to blow my 'undercover'." But come on. You were using a spotter. Grab the guy on the Pier, or in the parking lot. If other people see that you're enforcing the rules, so much the better.)

One final (I promise) -- and totally random -- point. I'm a big fan of enforcing the fishing rules, so I'm completely in favor of enforcement here. But I thought it was completely funny that they were doing so on the O.B. Pier. Not because people don't illegally fish there. Because they do. But rather because it is the place to score weed in San Diego, so I'm sure the DFG officer saw 500 or so misdemeanor drug infractions in his spotter for every one illegal lobster catcher. So I can just hear Maikho saying: "Dude, you're busting me for catching a lobster but totally not caring about those 500 guys who scored dope right in front of you?! Come on!"

Maybe Maikho should have said he needed to eat lobster for his migraines. If only there was a "medical lobster" law.