State v. Colosimo

OPINION

GILBERT, Justice.

Respondent John M. Colosimo was convicted for refusal to allow inspection of a boat, MinmStat. § 97A.251, subd. 1(3) (2000). Colosimo challenged his conviction arguing he was unlawfully stopped by the conservation officer, the officer did not have probable cause to inspect the boat and the request to inspect the boat was an unlawful seizure. The court of appeals reversed the conviction concluding that the conservation officer was required to have probable cause to request inspection of Colosimo’s boat and that because the officer did not have probable cause to request inspection, Colosimo could not be convicted for refusing inspection. We reverse.

Colosimo was on a fishing trip with four other men on Rainy Lake at Kettle Falls in the Voyageur’s National Park. On the morning of September 18, 2000, the group stowed their personal belongings on Colo-simo’s open bow boat in order to make the trip back to the far shore of Lake Nama-kan where they had left their vehicles. To get from Rainy Lake, where they had been fishing, to Lake Namakan required portage. Colosimo’s boat was being trailored by a truck driven by Shawn Obeson, who was employed portaging boats between the two lakes.

Obeson described the boat as a 19- or 20-foot Crestliner fishing boat, which contained the fishing party’s luggage and a cooler or two. Obeson testified that he had loaded Colosimo’s boat on to his trailer, and portaged the boat, while the entire fishing party rode in the boat. During the portage, as Obeson was about to put the boat in the Lake Namakan side of the portage, he saw Officer Lloyd Steen, a uniformed Department of Natural Resources (DNR) officer, walking towards the truck. Obeson stopped the truck at that point. When asked at Colosimo’s trial the reason he stopped, Obeson testified, ‘Well I stopped to unhook John’s [Colosi-mo’s] boat there.” When asked if Officer Steen did anything to cause Obeson to *3stop, Obeson testified, “No, he didn’t. He didn’t stop me.”

Officer Steen testified that he knew where the portage truck operator would stop in order to unhook the boat and receive payment for the portage and he waited in that vicinity. Once the operator had stopped the truck to unhook the boat Officer Steen walked up to the boat and struck up a conversation with Colosimo, who was sitting at the steering wheel of the boat. Officer Steen asked if they had caught any fish. Colosimo responded that they had caught some. Officer Steen asked how many they had; Colosimo responded that they had not been fishing that day and had less than their limit. Officer Steen next asked how they had the fish packaged. Colosimo said they had gutted and gilled the fish in accordance with the regulations affecting Rainy Lake.

Officer Steen eventually asked if he could take a look at the fish; Colosimo refused that request. The refusal to allow the inspection of the fish started an argument between the officer and Colosimo, an attorney, over the officer’s legal authority to board the boat to inspect the catch. Officer Steen told the portage truck driver not to put the boat in the water. Colosimo was equally adamant in telling the driver to put the boat into the water.

Realizing that he and Colosimo were at an impasse and fearing that the argument would escalate into a physical confrontation, Officer Steen issued Colosimo a ticket for failing to present wildlife for inspection, Minn.Stat. § 97A.251, subd. 2, and allowed the group to go along their way. Later, upon reviewing the relevant statutes, Officer Steen sent Colosimo a separate ticket citing him for obstructing an officer in violation of Minn.Stat. § 97A.251, subd. 1, and refusing to allow inspection of a boat being used to transport wild animals, Minn.Stat. § 97A.251, subd. 3.

The parties agreed to a bench trial. A bench trial was held and the court issued findings of fact, conclusions of law, a verdict and memorandum. The district court concluded that the case consisted of two legal issues: first, whether there was a stop, and second, did the officer have the authority to inspect Colosimo’s boat once it had been established that Colosimo had been fishing and was transporting fish. The court held that approaching the boat did not amount to a stop, concluding that once the conservation officer determined the individual had engaged in fishing, the officer had the authority to inspect the boat pursuant to Minn.Stat. § 97A.251. The court then found Colosimo guilty of refusal to allow inspection of a boat, Minn. Stat. § 97A.251, subd. 1(3) and assessed a fine of $100, plus a $37 surcharge. Colo-simo appealed the conviction to the Minnesota Court of Appeals. The court of appeals reversed the district court, concluding that in order to inspect Colosimo’s boat the officer must have probable cause of a violation of a fish or game law. The court held that because the officer did not have authority to inspect the boat, Colosi-mo could not be convicted for refusal to allow inspection of the boat. State v. Colosimo, 648 N.W.2d 271, 276 (Minn.App.2002)

I.

Colosimo contends that Officer Steen stopped his fishing party and that the stop was prohibited by the Fourth Amendment. Colosimo testified that he initially objected to the conservation officer’s attempts to converse by asking what the officer’s reasonable articulable suspicion for this “stop” was. However, Officer Steen and members of Colosimo’s fishing party testified that the conversation began with Officer Steen asking about fish and that Colosimo then stated that the group had been fish*4ing the previous days, and was transporting gutted and gilled fish. The district court found that there “was no stop in the present case” and'cited the testimony of the portage operator that he stopped on his own volition, not because of anything that Officer Steen said or did and that an officer’s act of approaching a parked vehicle does not constitute a stop for Fourth Amendment purposes.

Colosimo, in his brief to this court, cites Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979), where the United States Supreme Court concluded that random suspicionless stops of drivers violated the Fourth Amendment. However, as the district court properly concluded, the initial interaction between Officer Steen and Colosimo did not amount to a stop. Rather, Officer Steen merely began conversing with Colosimo after the portage truck driver had on his own volition stopped the truck pulling the trailer upon which Colosimo’s boat rested. Thus, we are presented with a situation quite distinct from that facing the Court in Prouse. Here, Officer Steen walked up to the already stopped boat that rested on the trailer of a parked truck. As the district court found, there is no seizure for Fourth Amendment purposes when an officer merely walks up to a parked motor vehicle and converses with the driver. See State v. Vohnoutka, 292 N.W.2d 756 (Minn.1980); see also Crawford v. Comm’r of Public Safety, 441 N.W.2d 837 (Minn.App.1989). Likewise, we hold that Officer Steen walking up to Colosimo and conversing with him while Colosimo’s boat rested on the trailer of a parked portage truck does not amount to a seizure for Fourth Amendment purposes. See Matter of Welfare of E.D.J., 502 N.W.2d 779, 782 (Minn.1993) (generally an officer approaching and asking questions of a person standing on a public street or sitting in a parked car is not a seizure).

There may be little doubt that after Colosimo admitted to having been fishing and the fact that he was transporting fish, he was seized by Officer Steen. However, the seizure came after Colosimo’s admission to transporting fish and subsequent refusal to allow inspection of the catch or boat where the catch was being transported. At that point the seizure was not suspicionless, but rather, was based on the fact that Colosimo admitted to transporting fish in his boat, but refused to allow inspection of the boat, a violation of Minnesota law. Minn.Stat. § 97A.251, subd. 1(3). Because the parties dispute the constitutionality of this statute, we now turn to that issue.

II.

The remaining question before us is whether Officer Steen had the authority to search Colosimo’s open boat for the purpose of inspecting fish that appellant admitted transporting. The fish that were admittedly in Colosimo’s possession are subject to an array of rules designed to protect recreational fishing against depletion. These rules include licensing, daily and possession limits, size, species, season, location, bait, preparation and fishing method requirements and many other rules established in numerous statutes and regulations. See Minn. R. 6264.0300, subps. 1 & 56 (2001) and Minn.Stat. § 97C (2002).

In a typical Fourth Amendment case, an appellate court has the opportunity to review the specific facts of the challenged search to determine whether the search violated the defendant’s Fourth Amendment rights. In this case, no search occurred. Rather, Officer Steen issued a ticket for refusing to allow an inspection of Colosimo’s motorboat used to transport *5wild game fish. Thus, we must determine whether a nonconsensual search of the boat, being used to take or transport game fish in the field, could have occurred within the limits imposed by the Fourth Amendment.

The Fourth Amendment prohibits “unreasonable searches and seizures.” U.S. Const, amend. IV. For a search to be held unconstitutional under the Fourth Amendment the one searched must have had an “actual expectation of privacy” in the area searched and that expectation of privacy must be “one that society is prepared to recognize as reasonable.” Bond v. United States, 529 U.S. 334, 338, 120 S.Ct. 1462, 146 L.Ed.2d 365 (2000). In this case, as the district court found, Colo-simo refused to allow inspection of his boat out of principle because he “truly believes that the officer could not legally search his boat.”

We must decide whether under these circumstances Colosimo had a reasonable expectation of privacy. We have stated the “existence of probable cause is relevant only when a person has demonstrated a legitimate or reasonable expectation of privacy.” State v. Sorenson, 441 N.W.2d 455, 458, 460 (Minn.1989) (concluding “the open-fields doctrine permits a conservation officer to enter almost any area in order to enforce the state’s game and fish laws”). If Colosimo’s expectation of privacy was not reasonable, the Fourth Amendment’s prohibition on “unreasonable searches” is not implicated, and his conviction for refusing to allow the search should be upheld. In order for Colosimo’s conviction for refusing to allow inspection of his boat to stand, we must determine whether there are any areas of the open boat where Colosimo’s expectation of privacy was unreasonable. If there were areas of Colosi-mo’s boat where an expectation of privacy was not reasonable, the conservation officer had the authority to search those areas, and Colosimo’s conviction for preventing the officer from inspecting the open boat stands.

In determining whether Colosimo’s expectation of privacy was reasonable, we must consider both the nature of recreational fishing and the characteristics of an open boat, as well as the fact that this request occurred in open season near a game fishing habitat. Recreational fishing is a highly regulated and licensed privilege. Those who choose to apply for this privilege accept the conditions imposed, unique to the sport of game fishing. See Minn.Stat. § 97A.015, subd. 25. Among those conditions is allowing conservation officers to inspect their catch and boat or other conveyance used to transport fish. Minn.Stat. § 97A.251, subd. 1(2) and (3). The Montana Supreme Court has also recognized this fact:

In engaging in this highly regulated activity, anglers must assume the burdens of the sport as well as its benefits. Thus, no objectively reasonable expectation of privacy exists when a wildlife enforcement officer checks for hunting and fishing licenses in open season near game habitat, inquires about game taken, and requests to inspect game in the field. In this capacity, game wardens are acting not only as law enforcement officers, but as public trustees protecting and conserving Montana’s wildlife and habitat for all of its citizens.

State v. Boyer, 308 Mont. 276, 42 P.3d 771, 776 (2002).

In Boyer, the Montana Supreme Court held that a fisherman had no reasonable expectation of privacy in the fish he possessed. Furthermore, a Montana Fish, Wildlife, and Parks warden was permitted to step on the transom of a fisherman’s boat to inspect the catch contained in the live well of the boat. The court held that *6the fisherman had no legitimate expectation of privacy that society was willing to recognize as objectively reasonable in the rear platform of the boat. The live well was open and was subject to plain view by the warden once he stepped on the boat. The Montana court held that the nature of the warden’s intrusion was so minimal as not to violate any alleged privacy interest of the fisherman. Id. at 779.

The important role fishing plays in the fives of many Minnesotans and the corresponding need for effective regulation to protect the viability of our state’s fish and game resources recently inspired an amendment to the Minnesota Constitution. The legislature proposed the amendment in the Spring of 1998. Act of April 20, 1998, ch. 392, § 1, 1998 Minn. Laws 1228. The proposed amendment was then submitted to the citizens of Minnesota, who adopted it in the 1998 general election. The amendment provides, “Hunting and fishing and the taking of game and fish are a valued part of our heritage that shall be forever preserved for the people and shall be managed by law and regulation for the public good.” Minn. Const, art. XIII, sec. 12. This provision of the Minnesota Constitution must be considered in our analysis along with the extensive laws and regulations passed to manage fishing for the public good.

This provision of the Minnesota Constitution recognizes the fink between enforcement of fishing regulations and the preservation of Minnesota’s game and fish resources. We have numerous statutes relating to the taking of game in this state, and numerous regulations implemented by the Department of Natural Resources. See MinmStat. §§ 97A.011-97A.552; Minn. R. 6262.0100 — 6262.3300 (2001) (fishing regulations). These laws work in tandem with the constitutional mandate of Minn. Const, art. XIII, sec. 12. When anglers purchase licenses they also routinely receive pamphlets relating to the limitations and regulations. The widespread knowledge of the restrictions accompanying the privilege of fishing casts doubt on the reasonableness of an expectation of privacy that would allow an angler to refuse inspection of his catch. Those who apply to the state for permission to harvest Minnesota’s natural game are on notice that they are subject to such regulations. Colosimo, who encountered the conservation officer at Kettle Falls, a known fishing destination near the Canadian border, acknowledged not only having been fishing on Rainy Lake, a border water extending into Canada, but also admitted to transporting his catch in his open boat. Accordingly, we hold that because Colosi-mo had no reasonable expectation of privacy, the areas of his open boat or other conveyance used to typically store or transport fish were subject to inspection pursuant to Minn.Stat. § 97A.251, subd. 1(3).

Courts around the country have come to similar conclusions when analyzing searches of those choosing to take game. People v. Perez, 51 Cal.App.4th 1168, 1177, 59 Cal.Rptr.2d 596 (Cal.Ct.App.1996) (“The high degree of regulation over the privilege of hunting, in turn, reduces a hunter’s reasonable expectation of privacy.”); Hamilton v. Myers, 281 F.3d 520, 532 (6th Cir.2002) (“Everyone who participates in the privilege of hunting has a duty to permit inspections to determine whether they are complying with applicable laws.”); State v. Halverson, 277 N.W.2d 723, 724-25 (S.D.1979) (“Since it is a privilege to hunt wild game a hunter tacitly consents to the inspection of any game animal in his possession when he makes application for and receives a hunting license.”).

Our decision is consistent with our recent ruling prohibiting the search of a fish *7house where the officer lacked probable cause. State v. Larsen, 650 N.W.2d 144 (Minn.2002). In Larsen, we held as follows:

We consider the nature of the premise here — a fish house, erected and equipped to protect its occupants from the elements and often providing eating, sleeping, and other facilities — as providing privacy for activities ‘recognized and permitted by society.’ While clearly not a substitute for one’s private dwelling, during the period of occupancy important activities of a personal nature take place. We therefore conclude appellant had a reasonable expectation of privacy in his fish house.

Id. at 149 (internal citation omitted).

The dissent would have us treat an open fishing boat the same as the “private fish house” from Larsen. We decline to do so. In stark contrast to Larsen, the minimal intrusion involved here is markedly less than that occurring when the privacy of the private, home-like dwelling of a fish house is invaded. Here, we are asked to conclude that an angler has a reasonable expectation of privacy in every area of his open boat, including those areas where fish are normally stored or transported. Under these facts, Colosimo did not have a legitimate expectation of privacy in certain areas of his already stopped open boat, where fish are typically stored or transported.

To conclude otherwise, that police officers require probable cause of any gaming law violation, would prevent the state from meeting its constitutional mandate that it manage and regulate fishing to preserve our natural resources. This is an undeniable fact given that the state would only be able to inspect boats when it observes or has information from a “confidential reliable informant” on the actual catching and keeping of fish in excess of the applicable limits, size, season or species. The idea that officers would be required to personally witness illegal catch activity, coupled with the reality that fishing can take hours or even days, illustrates how absurd it would be to recognize a privacy interest inherent in an angler’s take and only then have probable cause to inspect. Similarly, “informants” would need first-hand knowledge of the violations, as the dissent recognizes, as mere fishing would not constitute probable cause that allows inspection. The only other option would be continued surveillance of one particular angler until a conservation officer had a basis to believe that a law was violated.

The unreasonableness of this expectation can be easily illustrated. Minnesota has specific regulations for the taking of fish on the Minnesota-Canadian boundary waters. Minn. R. 6266.0700. This allows, for example, the taking and daily possession of thirty sunfish per angler. Minn. R. 6266.0200, subd. 2(c). There were five anglers in Colosimo’s fishing party. The dissent would force the game officer to have probable cause to believe that more than one hundred and fifty sunfish had been taken before an inspection can be allowed. Walleye fish have a daily possession limit of six fish in the aggregate, in general. Minn. R. 6266.0700, subd. 2(a). The dissent would restrict inspection until the officer had probable cause to believe the party had thirty-one walleye in their possession. We disagree, and again find persuasive the Montana Supreme Court’s reasoning in Boyer. The Montana court held that:

Montana’s vast geography, the angler’s somewhat uninhibited freedom of movement, and the remoteness from warrant issuing magistrates and law enforcement entities would severely impede game violation investigations. The inevitable result would be the unnecessary depletion of Montana’s wildlife and fish, which *8we are bound to protect and preserve. We decline to impose this burden.

Boel, 43 P.3d at 776.1

Minnesota’s 10,000 lakes, along with numerous streams and rivers rival Montana’s vast geography and provide anglers largely uninhibited freedom of movement in remote areas in pursuit of our abundant fish resources. In Prouse, Justice Black-mun wrote a concurrence joined by Justice Powell where they highlighted the clear difference between the situation in Prouse and that present in the sport fishing context:

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 659, 99 S.Ct. 1391.

III.

Having determined that the Fourth Amendment does not prohibit a limited inspection of Colosimo’s open boat, we must determine whether the statute under which Colosimo was convicted, Minn.Stat. § 97A.251, subd. 1(3), requires probable cause in order to undertake a search. The court of appeals read a probable cause requirement into Minn.Stat. § 97A.251, subd. 1(3). The statute provides:

A person may not:
(1) intentionally hinder, resist, or obstruct an enforcement officer, agent, or employee of the division in the performance of official duties;
(2) refuse to submit to inspection of firearms while in the field, licenses, or wild animals; or
(3) refuse to allow inspections of a motor vehicle, boat, or other conveyance used while taking or transporting wild animals.

Id.

We review questions of statutory interpretation de novo. Burkstrand v. Burkstrand, 632 N.W.2d 206, 209 (Minn.2001). The court of appeals interpreted this statute to require the state to prove, as a predicate to the crime of refusal to allow inspection, that the officer had probable cause of a violation. We disagree. The statute at issue provides a conservation officer the authority to inspect a boat or other conveyance2 used “while taking or transporting wild animals.” Minn.Stat. § 97A.215, subd. 1(3). This statute makes no mention of a requirement that the officer have probable cause in order to undertake the inspection. The court of appeals, operating under the belief that attributing meaning to the plain wording of the statute would result in the statute violating the constitution, implied a probable cause requirement in order to uphold the statute. *9State v. Colosimo, 648 N.W.2d 271, 274 (Minn.App.2002). The court of appeals supported their interpretation by referencing Minn.Stat. § 97A.215, subd. 1(b) (2002) which provides:

When an enforcement officer has probable cause to believe that wild animals taken or possessed in violation of game and fish laws are present, the officer may:
(1) enter and inspect any place or vehicle; and
(2) open and inspect any package or container.

We decline to interject a probable cause requirement into MinmStat. § 97A.251 merely because the legislature in Minn. Stat. § 97A.215, subd. 1(b)(1) granted conservation officers with probable cause the authority to “enter and inspect any place or vehicle.”

Our decision in this case does not grant conservation officers power beyond that of other law enforcement officers.3 Rather, the difference between the inspection permitted under the facts of this case and searches impermissible under the Fourth Amendment is that fishing is a largely recreational privilege that anglers choose to engage in with knowledge of the regulations governing their conduct. Our decision merely acknowledges that an expectation of privacy in all parts of an open boat or other conveyance, admittedly used to transport fish, is not reasonable. Therefore, a limited inspection of certain parts of the open boat would not be prohibited under the Fourth Amendment.4 As such, under the facts of this case, it was permissible for the conservation officer to conduct a lawful nonconsensual inspection of the areas of Colosimo’s open boat typically used to store or transport fish. By refusing to submit to the officer’s lawful request to inspect these areas of his open boat, Colosimo violated Minn.Stat. § 97A.251, subd. 1(3).

Reversed.

HANSON, J., took no part in the consideration or decision of this case.

. The intrusion here does not raise similar concerns of a "roadblock” that we addressed in Ascher, where a large number of motor vehicle drivers were stopped on the public highways in the hope of discovering evidence of alcohol impaired driving by some of them. Ascher v. Comm'r of Pub. Safety, 519 N.W.2d 183, 187 (Minn.1994). In contrast, Colosimo, whose boat was being portaged by a third party, had already come to a stop when the exchange with the conservation officer began. The conservation officer who requested to inspect Colosimo’s catch knew that Colosimo had been fishing and that he possessed game fish, and that those fish were being transported in the open boat.

. Conveyance: “A means of carrying or transporting something.” See Webster's International Dictionary 499 (3d ed.1993).

. Minnesota Statutes § 97A.205, which sets forth the powers of game and fish enforcement officers, provides, “Nothing in this section grants an enforcement officer any greater powers than other licensed peace officers.”

. Because Colosimo refused any search, we do not need to specifically delineate the limits of a legal search of an open boat.