Request By:
Vic Hellard, Jr., Director
Legislative Research Commission
Capitol
Frankfort, Kentucky 40601
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Martin Glazer, Assistant Attorney General
You seek advice as to the constitutionality of KRS 150.090(4) authorizing persons charged with the enforcement of KRS Chapter 150 and the regulation promulgated thereunder to go upon the lands of others, without a warrant, for investigation and enforcement purposes.
KRS 150.090(4) provides:
All persons charged with the enforcement of this chapter and the administrative regulations issued thereunder shall have the right to go upon the land of any person or persons whether private or public for the purpose of conducting research or investigation of game or fish or their habitat conditions or engage in restocking game or fish or in any type of work involved in or incident to game and fish restoration projects or their enforcement or in the enforcement of laws or orders of the department relating to game or fish, while in the normal, lawful and peaceful pursuit of such investigation or work or enforcement, may enter upon, cross over, be upon, and remain upon privately owned lands for such purposes, and shall not be subject to arrest for trespass while so engaged or for such cause thereafter. They may arrest on sight, without warrant, any person detected by them in the act of violating any of the provisions of this chapter. They shall have the same rights as sheriffs to require aid in arresting with or without process any person found by them violating any of the provisions of this chapter and may seize without process anything declared by this chapter to be contraband. No liability shall be incurred by any person charged or directed in the enforcement of this chapter.
While we have written opinions on this statute, we have not addressed the exact issue. In OAG 83-287, we advised that an officer can arrest without a warrant for misdemeanors committed in his presence and have generally advised that a conservation officer can arrest or issue citations in OAG 63-516.
In a 1950 Kentucky case, styled
Commonwealth v. Carr, 312 Ky. 393, 227 S.W.2d 904, the Court held that conservation officers have the right to enter private property to enforce game and fish laws when the entry is necessary in the performance of their official duties. But, KRS 150.090 "does not clothe them with blanket authority to enter upon or pass over private property without the consent of the owner" -- unless it was reasonably necessary to pass over private land in the performance of their duties. (Id. at 905.)
The federal courts have dealt with federal officers under similar federal statutes as that set out in KRS 150.090(4).
The case of
United States v. Wylder, 590 F.Supp. 926 (U.S.D.C. Oregon, 1984) cited
Oliver v. United States 104 S. Ct. 1735, 80 L. Ed. 2d 214 (1984) and held that the government's intrusion upon the open fields is not one of those unreasonable searches proscribed by the Fourth Amendment, that the open fields doctrine permitted a conservation officer to go upon private property not within the curtilage of such property, and that a private owner does not have an expectation of privacy in the open fields of his property.
Another United States District Court case,
United States v. Swann, 377 F.Supp. 1305 (U.S.D.C. Md. 1974) held that federal game wardens may make warrantless searches on probable cause where a warrant is not required by the Fourth Amendment.
In
Betchart v. California State Department of Fish and Game, 158 Cal.App. 3rd 1106, 205 Cal.Rptr. 135 (1984), the Court determined that the state has the duty to preserve and protect wildlife and that California fish and game agents may, without warrants, reasonably enter and patrol private open lands, where game is present and hunting occurs, to enforce California's game laws.
The Court reasoned that wildlife is publicly owned and is not held by owners of private land where wildlife is present. The Court also cited
Hester v. United States, 265 U.S. 57, 44 S. Ct. 445, 68 L.Ed 898 (1924), the open fields doctrine, and
Oliver v. United States, supra.
The Court stated that a plaintiff is protected against unreasonable governmental intrusion, that "California's pervasive scheme of regulating wild game hunting would be a futile pursuit without frequent and unannounced patrols, " that certain types of illegal hunting must be viewed on the scene, and that a requirement of warrants under such circumstances would be impractical and cannot be applied to on-the-field checks by game wardens.
Therefore, depending upon the facts, the presence of probable cause, and in the open fields of private property, game wardens may enter private property without a warrant in order to enforce state game laws without being in violation of the Fourth Amendment of the Constitution of the United States.