Pickle v. State

Cite as 2015 Ark. 286

SUPREME COURT OF ARKANSAS
No. CR-15-3

Opinion Delivered June 25, 2015

JIMMY PAUL PICKLE APPEAL FROM THE CRAIGHEAD
APPELLANT COUNTY CIRCUIT COURT,
WESTERN DISTRICT
[NO. CR-2013-115]
V.
HONORABLE CINDY THYER,
JUDGE
STATE OF ARKANSAS
APPELLEE REVERSED AND REMANDED;
COURT OF APPEALS OPINION
VACATED.

JOSEPHINE LINKER HART, Associate Justice

Appellant, Jimmy Paul Pickle, entered a conditional guilty plea and appealed from the

circuit court’s denial of his motion to suppress, arguing that two Arkansas Game and Fish

Commission officers violated his right to be free from unreasonable searches and seizures as

provided under the Fourth Amendment to the Constitution of the United States and article

2, section 15, of the Arkansas Constitution. The Arkansas Court of Appeals reversed the circuit

court’s decision. Pickle v. State, 2014 Ark. App. 726, 453 S.W.3d 157. We granted the State’s

petition for review, and we treat the appeal as if it had been originally filed in this court. Fowler

v. State, 2010 Ark. 431, 1, 371 S.W.3d 677, 679. We reverse the circuit court’s decision.

In reviewing a circuit court’s denial of a motion to suppress evidence, we conduct a de

novo review based on the totality of the circumstances, reviewing findings of historical fact for
 Cite as 2015 Ark. 286

clear error and determining whether those facts give rise to reasonable suspicion or probable

cause, giving due weight to inferences drawn by the circuit court. See, e.g., Malone v. State, 364

Ark. 256, 262, 217 S.W.3d 810, 814 (2005). Pickle does not dispute the facts presented by the

State at the suppression hearing. At the hearing, Sergeant Brian Aston, a law-enforcement

officer with the Arkansas Game and Fish Commission, testified that on November 18, 2012,

he and another officer, Jeff McMullin, came into contact with Pickle and his duck-hunting

party while the officers were working a section of the Cache River.

According to Aston, the officers made their way to within fifty yards of Pickle’s duck-

hunting party and observed them for approximately two hours. Aston admitted that during the

two hours that he observed Pickle’s hunting party, he did not see any hunting violations. He

and McMullin decided to make contact with them and check for compliance with state and

federal regulations pertaining to the harvest of waterfowl. In order not to be observed, they

maneuvered to a point where the Cache River met an oxbow lake. McMullin used binoculars

to “maintain a visual” to ensure that the hunting party did not hide or discard any waterfowl

or other items while he attempted to approach. Aston recalled that the grass was waist high and

that he was able to “belly crawl” to a point where he was in thicker cover. When he got to

within sight of Pickle’s hunting party, he identified himself as a game warden and signaled for

McMullin to join him.

Pickle’s hunting party consisted of three individuals. At the time Aston made contact

with them, however, they were preparing to eat breakfast, and their guns were leaning against

trees. The parties’ guns were then inspected for compliance with federal hunting regulations,

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and Pickle’s gun was found to be in compliance. During the inspection, which lasted for

twenty to twenty-five minutes, Aston looked inside any bags, opening them up to inspect their

contents. According to Aston, after writing a citation for one member of the party, he stepped

away, telling the hunting party to “have a safe day.” McMullin told Aston that Pickle had said

that he had left his license in his truck. “For officer’s safety reasons,” they stepped back to a

point where they could not be observed by the hunting party and made a telephone call to

Little Rock dispatch. Aston ran a “10-26 Hunting and Fishing License check” and confirmed

that Pickle’s license was valid. He also ran a “10-51 check through NCIC” to find out if Pickle

had any outstanding warrants. According to Aston, it was his “personal protocol” to run a

hunting-license check and a warrant check when a hunter does not have a hunting license on

his person. He further stated that he would not have done so if Pickle had a hunting license

on his person. He was advised that Pickle was a convicted felon. The officers made their way

back to Pickle and arrested Pickle for being a felon in possession of a firearm. When he

searched Pickle, he found on Pickle’s person a small quantity of methamphetamine and a glass

pipe. He turned Pickle over to the custody of a deputy sheriff from Craighead County.

In denying Pickle’s motion to suppress, the circuit court found that Pickle did not have

a reasonable expectation of privacy because he was engaged in the “highly regulated activity

of hunting waterfowl.” The court also found that Arkansas’s “compelling interest in preserving

the wildlife of the State of Arkansas and regulating its exploitation for the benefit of all

citizens” weighed in favor of allowing the warrantless searches and seizures by game wardens

because “the State’s compelling and special objectives cannot be achieved through means

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significantly less restrictive of privacy freedoms and that the intrusion upon the defendant was

slight.” Relying chiefly on Delaware v. Prouse, 440 U.S. 648 (1979), our decision in State v.

Allen, 2013 Ark. 35, 425 S.W.3d 753, and Rule 3.1 of the Arkansas Rules of Criminal

Procedure, Pickle argues on appeal that he was unlawfully detained and unlawfully searched

in violation of his rights under the Fourth Amendment to the United States Constitution and

article 2, section 15, of the Arkansas Constitution because the game wardens had neither a

warrant nor a reasonable suspicion of any violation of law.

In Prouse, the United States Supreme Court held that the practice of police officers

making random stops of vehicles to check driver’s licenses and vehicle registrations was

unreasonable under the Fourth Amendment. The Court noted that the Fourth Amendment

imposes a standard of reasonableness upon the exercise of discretion by government officials

to safeguard the privacy and security of individuals against arbitrary invasions. Id. at 653–54.

The Court observed that “the permissibility of a particular law enforcement practice is judged

by balancing its intrusion on the individual’s Fourth Amendment interests against its promotion

of legitimate governmental interests.”Id. at 654. The Court concluded that in “those situations

in which the balance of interests precludes insistence upon some quantum of individualized

suspicion, other safeguards are generally relied upon to assure that the individual’s reasonable

expectation of privacy is not subject to the discretion of the official in the field.” Id. at 654–55

(citations omitted)(internal quotation marks omitted). While the Court noted that there are

certain “relatively unique circumstances in which consent to regulatory restrictions is

presumptively concurrent with participation in the regulated enterprise. . . . [R]egulatory

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inspections unaccompanied by any quantum of individualized, articulable suspicion must be

undertaken pursuant to previously specified neutral criteria. Id. at 662 (citations

omitted)(internal quotation marks omitted).

It was concluded in a short concurring opinion that

I would not regard the present case as a precedent that throws any constitutional
shadow upon the necessarily somewhat individualized and perhaps largely random
examinations by game wardens in the performance of their duties. In a situation of that
type, it seems to me, the Court’s balancing process, and the value factors under
consideration, would be quite different.

Prouse, 440 U.S. at 664 (Blackmun, J., concurring).

The record was not sufficiently developed to indicate whether there were previously

specified neutral criteria by which the officers’ conduct could be deemed to have been

conducted pursuant to a regulatory inspection that did not need to be accompanied by any

quantum of individualized, articulable suspicion. This case may rightly be compared to our

decision in Allen, where this court affirmed the circuit court’s decision to suppress the evidence

found after a game warden stopped, boarded, and searched a boat on Lake Hamilton, even

though no violations had been observed before the stop. We observed that “this means that

whether the stop is proper depends only on the law-enforcement officer’s subjective assertion

of his or her purpose when the Fourth Amendment requires objective facts supporting the stop

or a plan embodying explicit, neutral limitations.” Allen, 2013 Ark. 35, at 5, 425 S.W.3d at

757. In the present matter, the record was not developed.

Nevertheless, we need not decide whether the officer’s investigation of Pickle to check

for compliance with state and federal regulations pertaining to the harvest of waterfowl was

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unreasonable. Pickle cites to Arkansas Rule of Criminal Procedure. 3.1, which provides as

follows:

A law enforcement officer lawfully present in any place may, in the performance of his
duties, stop and detain any person who he reasonably suspects is committing, has
committed, or is about to commit (1) a felony, or (2) a misdemeanor involving danger
of forcible injury to persons or of appropriation of or damage to property, if such action
is reasonably necessary either to obtain or verify the identification of the person or to
determine the lawfulness of his conduct. An officer acting under this rule may require
the person to remain in or near such place in the officer’s presence for a period of not
more than fifteen (15) minutes or for such time as is reasonable under the
circumstances. At the end of such period the person detained shall be released without
further restraint, or arrested and charged with an offense.

Even assuming, but not deciding, that it was appropriate for the officers to conduct a search

absent a reasonable, articuable suspicion, the evidence used to charge Pickle of possession of

a firearm, possession of a controlled substance, and possession of drug paraphernalia, was

adduced by the officers after they had completed any inquiry into Pickle’s compliance with

state and federal regulations pertaining to the harvest of waterfowl. In fact, Aston admitted that

it was his “personal protocol” to conduct a warrant check. Thus, Aston’s exploration of

Pickle’s criminal past and the subsequent search of his person went far beyond the scope of any

administrative search conducted for the purpose of investigating Pickle’s compliance with

hunting laws. See State v. Baldwin, 475 A.2d 522 (N.H. 1984) (holding that even if fish and

game officers had requisite power to conduct road check to determine compliance with fish

and game laws, questioning driver about whether she had any weapons clearly exceeded scope

of any permissible road check to determine compliance with fish and game laws). In this sense,

the case is similar to those in which we have observed that an officer’s continued detention of

a motorist’s vehicle after the legitimate purpose for the initial traffic stop has terminated

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requires the officer to possess reasonable suspicion that the person is committing, has

committed, or is about to commit a felony or a misdemeanor involving danger to persons or

property, as the officer must develop reasonable suspicion to detain before the legitimate

purpose of the traffic stop has ended. Lilley v. State, 362 Ark. 436, 208 S.W.3d 785 (2005).

Pickle has argued on appeal that he was unlawfully detained and unlawfully searched

in violation of his rights under the Fourth Amendment to the United States Constitution and

article 2, section 15, of the Arkansas Constitution because the game wardens had neither a

warrant nor a reasonable suspicion of any violation of law. Here, even assuming that the

officers properly conducted an investigation into Pickle’s compliance with hunting laws, that

investigation had concluded. Nevertheless, the officers began a criminal investigation, seeking

information to determine whether Pickle was felon, a matter unrelated to Pickle’s compliance

with hunting laws, and on discovering that he was a felon, returned to the area and arrested

and searched Pickle. On these facts, we cannot say that, prior to the completion of their

investigation into Pickle’s compliance with hunting laws, the officers developed reasonable

suspicion that Pickle had committed a crime. Thus, we agree with Pickle’s argument and hold

that, on our de novo review based on the totality of the circumstances, the facts presented in

this case did not give rise to reasonable suspicion allowing officers to conduct a criminal

investigation.

Reversed and remanded; court of appeals opinion vacated.

HANNAH, C.J. concurs.

GOODSON, J., and Special Justice TERRY W. POOL concur in part and dissent in part.

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 Cite as 2015 Ark. 286

DANIELSON, J., dissents.

WYNNE, J., not participating.

COURTNEY HUDSON GOODSON, JUSTICE, concurring in part and dissenting

in part. I would affirm the decision of the Craighead County Circuit Court denying the

motion to suppress submitted by appellant Jimmy Paul Pickle.

The Fourth Amendment to the United States Constitution guarantees “[t]he right of

people to be secure in their persons, houses, papers, and effects, against unreasonable searches

and seizures[.]” The essential purpose of the proscriptions in the Fourth Amendment is to

impose a standard of “reasonableness” upon the exercise of discretion by government officials,

including law-enforcement agents, in order to safeguard the privacy and security of individuals

against arbitrary invasions. Delaware v. Prouse, 440 U.S. 648, 653–54 (1979). In most cases,

the police must possess probable cause for a seizure to be considered reasonable. Dunaway v.

New York, 442 U.S. 200 (1979). However, the reasonableness of seizures that are less intrusive

than traditional arrest can depend on a balance between the public interest and the individual’s

right to personal security free from arbitrary interference by law-enforcement officers. Brown

v. Texas, 443 U.S. 47 (1979).

I concur in the dissent’s analysis that the balancing test in this case tips in favor of

permitting wildlife officers to conduct brief compliance checks limited to those persons who

they reasonably suspect are hunting or fishing and those who they reasonably suspect have

recently been engaging in those endeavors. The State has great interest in protecting and

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conserving wildlife within our borders, and the nature of the intrusion occasioned by a brief

compliance check is slight in comparison. I also agree that hunting and fishing are highly

regulated activities that result in a diminished expectation of privacy. Without exception, each

state court that has confronted this issue has rejected Fourth Amendment challenges to the

authority of wildlife officers to briefly detain persons for the purpose of conducting compliance

checks. People v. Maikhio, 253 P.3d 247 (Cal. 2011); State v. McHugh, 630 So. 2d 1259 (La.

1994); State v. Colosimo, 669 N.W.2d 1 (Minn. 2003); State v. Boyer, 42 P.3d 771 (Mont.

2002); State v. Halverson, 277 N.W.2d 723 (S.D. 1979); Elzey v. State, 519 S.E.2d 751 (Ga. Ct.

App. 1999); People v. Layton, 552 N.E.2d 1280 (Ill. Ct. App. 1990). Justice Blackmun’s

concurring opinion in Prouse, supra, which was joined by Justice Powell, also supports the

conclusion that a compliance check conducted by a wildlife officer passes muster under the

balancing process.

Unlike the dissent, I understand the basis for the majority’s decision. In Arkansas, game

wardens are full-fledged law-enforcement officers. Therefore, I am in agreement with the

majority’s conclusion that the strictures of the Fourth Amendment apply when a game warden

sheds his role as a wildlife officer and commences to perform functions associated with being

a law-enforcement officer that have nothing to do with the enforcement of game and fish

regulations. However, I cannot agree with the majority’s holding that, in this instance, the

officers transgressed the Fourth Amendment by running an NCIC check. This is so for the

simple reason that such checks are not searches or seizures within the meaning of the Fourth

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Amendment. On this matter of law, I am persuaded by the opinion of the New Jersey

Supreme Court in State v. Sloan, 939 A.2d 796 (N.J. 2008). There, the court held that,

because the NCIC database is comprised of matters of public record, the defendant had no

reasonable expectation of privacy in the records maintained in the database. Consequently, the

Sloan court reasoned that the check was not a search and that the police officer did not need

reasonable and articulable suspicion of criminal activity to access the database. See also State v.

Soukharith, 570 N.W.2d 344 (Neb. 1997) (holding that an NCIC check is not a seizure within

the meaning of the Fourth Amendment and need not be supported by reasonable suspicion).

As applied here, the officers completed the compliance inspection, concluded their

conversation with the hunting party, and left the camp site. It was only after physically

removing themselves from the camp site and the presence of the hunting party that the officers

subsequently ran the NCIC check. Thus, it is clear that the officers were not detaining Pickle

at the time they conducted the check. Importantly, the mere act of running an NCIC check

was neither a search nor a seizure, and the information received afforded the officers reasonable

cause to believe that Pickle was violating the law by being a felon in possession of a firearm.

As a result, under Rule 4.1 of the Arkansas Rules of Criminal Procedure, the officers had the

authority to arrest Pickle, and they were also permitted by Rule 12.1 to conduct a search of

Pickle’s person as incident to the lawful arrest. Accordingly, I cannot agree with the majority’s

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reversal of the circuit court’s decision to deny the motion to suppress.1

I am authorized to state that Special Justice TERRY W. POOL joins this opinion.

1
I consider the propriety of the officers’ conduct in running the NCIC check as an
issue that is properly considered on appeal. Pickle raised and developed this issue below in
his argument that the officers illegally detained him for a second time after obtaining the
results of the NCIC check. This court can affirm the circuit court if it reached the right result
albeit for a different reason. Green v. State, 2015 Ark. 25, 453 S.W.3d 677.

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 SUPREME COURT OF ARI(ANSAS
No. CR-15-3

JIMMY PAUL PICKLE opinion Delivered June 25, 201,5
APPELLANT

STATE OF ARKANSAS
APPELLEE DISSENTING OPINION.

PAUL E. DANIELSON, Associate Justice

Because I believe the majoriry has erroneously reversed the circuit court's denial of

AppellantJimmy Paul Pickle's motion to suppress, I must dissent.

At the outset, I must note that the nrajoriry goes well beyond the scope of the actual

issue on appeal in order to reverse the circuit collrt. The sole point raised by Pickle on appeal

is whether "game wardens are subject to the sanre legal standards as all other law enforcement

ofEcers are bound to follow before detaining a citizen while engaged in a hunting activity."

Pickle argues that ganre wardens nlay not arbitrarily stop hunters in the absence of any

probable cause or reasonable suspicion that a crinrc h:rs been conrmitted or that crinrin;rl

activity is afoot and cites to the court's decision in Sfrr/r u. Allcn,2013 Ark. 35,425 S.W.3d

753, for support. In other words, according to Pickle, it was a violation of his constitutional

rights for the ofEcers to approach hinr and his hunting party to check their licenses, weapons,

or any game they may have killed. Alter reading the nrajoriry opinion, I have no idea
whether game wardens are allowed to conduct the routine compliance checks that I believe

are necessary in order for them to carry out their ofEcial duties. Thus, because I am not

entirely sure what the rnajority is actually holding, I will simply set forth what I believe is the

appropriate analysis of Pickle's argument on appeal.

I simply cannot accept Pickle's contention that Arkansas Game & Fish Commission

("AGFC") game wardens should not be allowed to approach hunters or perform safety or

compliance checks in the absence ofprobable cause or reasonable suspicion. Pickle asserts that

the State's claim that an intrusion is warranted because of the highly regulated nature of

hunting can by equally applied to the activiry of driving, which is also highly regulated, but

his claim is not well-founded.

It is tme that the Supreme Court held that a random investigative stop of a vehicle is

inrpernrissible. See Delatuare v. Prouse,440 U.S. 648 (1979) (holding that except in situations

in which there is at least articulable and reasonable suspiciorr that a nrotorist is unlicensed or

that an autonrobile is not registered, or that eithcr the vehicle or an occupant is otherwisc

subject to seizurc for violation of law, stopping iln autonrobile and detaining the driver in

order to check his drivcr's license and the registration of tl-re autonrobilc are unreasonable

rtndcr thc Fourth Anrendr-ner-rt). The Court balanced thc pcrnrissibiliry of the

law-enforcenlent intrttsion on an individtral's Fotrrth Anrendnrent intercst against its

pronrotion of legitinrate govcrnnrental interest, holding that because of the alternative

mechanisnrs available for enforcing traffic and vehicle-safbry regulations, the increnrental

cR-15-3
contribution to the governmental interest of highway safety gained from the random spot

checks did not justify the practice under the Fourth Amendment. Id.

When such a balance is considered in the instant scenario, the outcome is different.

Yes, driving is a highly regulated activiry. But, the nature of that activity lends itself to road

blocks or check points that allow officers to check for impaired or unlicensed drivers or to

check for insurance, as noted by the Court in Prouse. The activiry of hunting does not lend

itself to a streamlined rype of compliance or safety check. There is simply not one way into

the woods, and the game wardens can perform their job duties of regulating and managing

the wildlife resources of this State only through random compliance checks with hunters. As

Justice Blackmun noted in his concurrence in Prouse:

The Court, ante, this page, carefully protects from the reach of its decision
other less intrusive spot checks "that do not involve the unconstrained exercise of
discretion." The roadblock stop for all traffic is given as an exanrple. I necessarily
assume that the Court's reservation also includes other not purely random stops (such
as cvery 1Oth car to pass a given point) that equate with, bllt are less ir-rtmsive than, a
100% roadblock srop. And I would not regard the present case as a precedent that
throws any constitutional shadow upon the necessarily sonrewhat individualized and
perhaps largely random exanrinations by ganre wardens in the perfonlance of their
duties. Ir-r a situation o[that rype. it seenls to n1e, the Court's balancir-rg proccss, and
the valtre lactors under cor-rsideration, would be quite differcnt.

Prtruse,440 U.S. at 663-64 (Blacknrun, J., concurring specially).

I sinrply cannot ignore the duties of game wardens and the nr:ullcr in which those

duties nrust be carried out. Amendnrent 35 to the Arkansas Constitution provides in relevant

part as follows:

The control, management, restoration, conservation and regulation of birds,
fish, gar-ne and wildlife resources of the State, including hatcheries, sanctuaries, refuges,

cR- l5-3
I

reservations and all properry now owned, or used for said purposes and the acquisition
and establishment of same, the administration of the laws now andlor hereafter
pertaining thereto, shall be vested in a Commission to be known as the Arkansas State
Game and Fish Commission.

Ark. Const. amend.35, S 1. And, the authoriry to "regulate baglimits and the manner of

taking game and fish and fur-bearing animals" and to "fix penalties for violations" has been

vested in the AGFC by amendment 35, $ 8, and is codified at Arkansas Code Annotated S 15-

47-203 (Repl. 2009). There are numerous AGFC guidelines related to the regulation of

hunting and fishing, and the only way the AGFC can perform the duties related thereto is

through compliance checks such as the one that occurred in this case. Thus, when the State's

interests in regulating the activiry of hunting and maintaining its wildlife resources are

balanced against the mininlal intrusion occasioned by a compliance check, it cannot be said

that such checks violate hunters' constitutional rights.

A similar resuh was reached in Elzey u. Stata,519 S.E.2d 751 (Ga. 1999), wherein the

Georgia Court ofAppeals addressed the very issue of whether wildliG officers have a right to

approach hunters to check their htrnting licenscs and identification in the absence oI probable

calrse or reasonable suspicion. In dcternrinine that such of1icers could legitinrately approach

hunters, the court noted that the wildlife ofEccrs' ;rct of checking huntcrs was not analogous

to that of a police officer conductir-rg a roadblock. Id. The court reasoned rhat hunting in

Georgia is a highly regulated activiry that leads to a dinrinished expectation of privacy and

cired the following notable lar.rguage fronr a California appellate court decision:

[i]n analyzing the reasonableness of the search (inspection) and seizure (detention) of
hunters, the special nature ofhunting is significant. . . . [H]unting is a highly regulated

4 cR-15-3
 activity. The wild game within a state belongs to the people in their collective,
sovereign capaciry; it is not the subject of private ownership, except insofar as the
people may elect to make it so; and they may, if they see fit, absolutely prohibit the
taking of it, or any traffic or commerce in it, if,deemed necessary flor its protection or
preservation, or the public good. The high degree of regulation over the privilege of
hunting, in turn, reduces a hunter's reasonable expectation of privacy. . . . Given the
highly regulated nature o[ hunting and the corresponding reduced expectation of
privacy of hunters in their gear and their take from hunting, we find it is reasonable
to detain hunters briefly, near hunting areas during hunting season, to inspect their
licenses, tags, equipment, and any wildlife taken.

Id. ar 754 (quoting People u. Perez, 59 Cal. Rptr. 2d 596,601 (Cal. App. 3 Dist. 1996))

(citations and punctuarion omitted). After discussing the holdin gs in Perez and other cases,

the Georgia court announced that a wildlife ofEcer may approach a hunter in a state-operated

wildlife-managenlent area to determine whether the hunter has the necessary license and

permits and to ask him questions about his hunt, regardless of whether the ofEcer has reason

to suspect that the hunter has broken any laws. Id. In so ruling, the corlrt also rejected any

notion that the officers' actions were sonlchorv less valid becausc they did not stop every

htrntcr thcy saw. Id.

I bclicvc that the Georgia court's approach is rvcll rcasoncd and strikes a fair balar-rce

bctwecrt an ir-rdividual's rights undcr the Fourth Anrcndnrent and a state 's need to nranagc and

ovcrscc its natur;tl rcsourccs. I think a sinrilar approach shotrld be adopted by this court instead

oiadoptine a rttlc oflaw that rvill totally hartrstrins the sanrc rvardcns of tl-ris st:rrc. Therefore ,

I respectlully disscnt.

Miller Law Firm, by: Randel Miller, for appellant.
Leslie Rutledge, Att'y Gen., by: Kathryn Henry, Ass't Att'y Gen., for appellee.
James G. Goodhart, John P. Marks, Jennifer R. Jameson McKendree, and Christian N. Parks, Arkansas
Game and Fish Commission, amicus curiae for appellee.

cR-15-3