Wyoming Law Journal Wyoming Law Journal
Volume 13 Number 1 Article 4
December 2019
Authority of Game Wardens to Search Automobiles without a Authority of Game Wardens to Search Automobiles without a
Warrant Warrant
Thomas S. Smith
Follow this and additional works at: https://scholarship.law.uwyo.edu/wlj
Recommended Citation Recommended Citation
Thomas S. Smith,
Authority of Game Wardens to Search Automobiles without a Warrant
, 13 WYO. L.J. 56
(1958)
Available at: https://scholarship.law.uwyo.edu/wlj/vol13/iss1/4
This Comment is brought to you for free and open access by Law Archive of Wyoming Scholarship. It has been
accepted for inclusion in Wyoming Law Journal by an authorized editor of Law Archive of Wyoming Scholarship.
WYOMING
LAW
JOURNAL
who has
received
a
forest
permit
to
go
upon
public
lands
to
cut
timber.
A
lessee
may
be
an
oilman
who
has
acquired an
oil
and
gas lease
to
explore
for
oil
and
gas
upon
public
lands.
And the
public
in general
has
a
right
to
use
public
land
for
hunting,
2
6
fishing,
camping,
27
and
prospecting.
28
A
Missouri
court
answered
the
question
of
when
the
easement
arises.
2 9
It
stated
that,
where
the
United
States
Government
sells
a
section
of
land
surrounded
by
other
Government
land,
the
grantee
acquires
a
right
of
way
to
the
land
he
has
purchased
over
land
retained
by
the
Government;
and
if
this
land
is
afterwards
sold
to
other
individuals,
they
take
it
subject
to
the
burden
imposed
upon it
while
it
belonged
to
the
Government.
The
scope
of
an
easement
by necessity
must
be
such
as
to
enable
those
who
possess
a
right
to
use
the
easement
full
enjoyment
of
their
land
for
all
lawful
purposes,
so
long
as
the
necessity
exists.
30
In
addition,
the
scope
of
a
way
of
necessity
enlarges
to
meet
the
uses
made
of
the
lands.
3
'
Finally,
members
of
the
public
in
general,
or
the
other
lawful
users
as
the
case
may
be,
who
desire
to
exercise
their
rights
should
consult with
the
owner
of
land
which
must
be
crossed
in
order
that
they can
mutually
arrive
at
a
designated
way
which
would
least
interfere with
the
land-
owner's
use
of
the
land.
If
the
landowner
fails
to
designate
a
way,
the
members
of
the
public
in
general
may
make
a
selection
with
the
restriction
that
they
cannot
lawfully
encroach
upon
the
land
further
than
circum-
stances
require.
3
2
It
should
be clearly
noted
that
most
courts
will only
recognize
a
strict
necessity
as
reason
to
allow
the
right
to
be
exercised,
while
some
consider
a
practical
necessity
sufficient.
Under
either
view,
if
there are
other
means
of
access,
although
less
convenient,
there
is
no
way
of
necessity.
JERRY
M.
MURRAY
AUTHORITY
OF
GAME
WARDENS
TO
SEARCH
AUTOMOBILES
WITHOUT
A
WARRANT
The
extent
to
which a game
warden
or
his
deputy
may
search
an
auto-
mobile
is
governed
in
part
by
the
Wyoming
Constitution,
which
protects
the people
from
unreasonable
searches
and
seizures;'
and
in
part
by
the
Wyoming Compiled
Statutes,
which
designate the State
of
Wyoming
as
26.
Supra
note
20.
See
also
Act
of
June
28,
1934,
c.
865,
§ 1,
48
Stat.
1269,
as
amended
June
26,
1936,
c.
842,
Title
I,
§ 1, 49
Stat.
1976;
May
28,
1954,
c.
243
§
2, 68
Stat.
151,
43
U.S.C.
§
315
(1940
ed.).
27.
Diana
Shooting
Club
v.
Husting,
156
Wis.
261, 145
N.W.
816
(1914).
28.
Act
of
May
10,
1872, c.
152,
§ 1,
17
Stat.
91,
30 U.S.C.
22
(1940
ed.).
29.
Snyder
v.
Warford and
Thomas,
11
Mo.
513
(1848).
30.
Jones,
Easements
(1898)
§
323;
Simonton,
Ways
By
Necessity,
33
W.Va.
L.Q.
64
(1926).
31.
Myers
v.
Dunn,
49
Conn.
71
(1881);
Whittier
v.
Winkley,
62
N.H.
338
(1882);
Erie
R.R.
v.
S.
H.
Kleinman
Realty
Co.,
92
Ohio
St.
96,
110
N.E.
527
(1915);
Uhl
v.
Ohio
River
R.R.,
47
W.Va.
59,
34
S.E.
934
(1899).
32.
Mackay
v.
Uinta
Development
Co.,
219
Fed.
116
(8th Cir.
1914).
1.
Wyo.
Const.,
Art.
1, §
4.
NOTES
owner
of
all
wild
life
and
authorize
the state
to
control,
propagate,
manage
and
protect
all
wild
life.
2
In
protecting
the
wild
life,
game
wardens,
fish
wardens,
each
deputy
warden,
and
each
law
enforcement
officer
of
the
State
of
Wyoming
are
by
statute
given
a
right
of
search.
This
right
includes
the searching
of
automobiles
for
wild
life
which
the
warden
or
officer
shall
have
reason
to
believe
was
taken
or
is
possessed
in
violation
of
the
laws
of
Wyoming-and
the
search
may
be
made
without
a
warrant.
3
Generally
speaking,
no
search
is
reasonable
or
lawful
unless
made
under
a
search
warrant
in
due
conformity
with
the
constitution.
4
This
raises
the
question
whether
a
Wyoming
statute
authorizing
a
game
warden
to
make
a
search
without
a
warrant
would
be
constitutional.
In
inter-
preting
the
constitution
the
Wyoming
court
has,
in
effect,
worked
out
several
exceptions
to
the
constitutional
requirement.
For
example,
in
Wiggen
v.
State
5
the
court
indicated
that
the
law
was
well
settled
that
an
officer
has
the
right
to
search
without
a
warrant
any
party
lawfully
arrested,
and
to
take
from
his
person
and
from
his
possession
property
reasonably
believed
to
be
connected
with
the
crime.
But
the
search
would
not
be
lawful,
at
least
without
a
legal
warrant,
if
made
in
order
to
discover
whether
a
defendant
has
violated
the
law.
6
The
court
held
in
State
v.
Bonolo
7
that
any
person
who
has
control
of
the
property
in
question
may
consent
to
a
search
thereof,
and
when
such
consent
is
given,
the
officers
are
at
liberty
to
make
such
search
as
they
may
deem
proper.
However,
a
waiver
of
the
citizen's
fundamental
constitutional
rights
must
appear
by
clear
and
positive
testimony,
and
if
the
search
is
based
on the
consent
given
to
the
officer,
there
should
be
no
question
about
it.
Finally
in
State
v.
KelleyS
the
court
was
faced
with
the
interpre-
tation
of
a
Wyoming
law
of
1921,
which
made
it
the
duty
of any
officer
of
the
law
to
seize,
upon
discovery,
intoxicating
liquors
transported
in
an
automobile
in
violation
of
law.
9
The
court
followed
Carroll
v.
United
States'
o
in
which
it
was
pointed
out,
first
of
all,
that
there
has
always
been
a
distinction
in
the
laws
of
the
United
States
between searching
homes
and
searching
vehicles.
The
opinion
continued
to
the
effect
that
although
a
home
cannot
be
searched
without
a
warrant,
the
search
of
an automobile
without
a
warrant
cannot
be
said
to
be
unreasonable
under
all
circum-
stances;
that
a
competent
official may
be
by
statute
authorized
to
search
if
he
has
"probable
cause"
for
believing
that
a
vehicle
is
carrying
contraband
or illegal
goods.
In
view
of
the
above
exceptions
and
particularly
in
view
of
State
v.
2.
Wyo.
Comp.
Stat.
§
47-101
(1945).
3.
Wyo.
Comp.
Stat.
§
47-125
(1945).
4.
State
v.
George,
32
Wyo.
223,
231
Pac.
683
(1924).
5.
28
Wyo.
480,
206
Pac.
373
(1922).
6.
Supra note
4.
7.
39
Wyo.
299,
270
Pac.
1065
(1928).
8.
38
Wyo.
455,
268
Pac.
571
(1928).
9.
Wyo. Rev.
Stat.
§
59-126
(1921).
10.
267
U.S.
132,
45
S.Ct.
280,
69
L.Ed.
543,
39
A.L.R.
790
(1925).
WYOMING LAW
JOURNAL
Kelley,
1
it
is
evident
that
the
constitutionality
of
the
statute
would
be
upheld.
The
question
then,
that
arises
in
the
application
of
the
statute,
con-
cerns
the
interpretation
of
the
term
"reason
to
believe."
The
constitution
of
Wyoming
only
protects
people against
unreasonable
searches;
12
there-
fore,
a
thorough
understanding
of the
term
"reason
to
believe" becomes
very
important
in
determining
when an
unreasonable
search
exists,
for
it
has been
held
that
an
officer, seeking
to
justify
a
search
without
a
warrant
acts
unlawfully,
unreasonably,
and at
his
peril
unless
he
can
show
the
court
"probable
cause"
for
believing
that
a
violation
has
taken
place.
13
Various
states
and courts have
preferred
to
use
other
terms
than
"reason
to
believe."
They
have
employed
such
phrases
as
"probable
cause,"
"cause
to
believe,"
"reasonable
cause,"
"reasonable
belief,"
"probable
cause
to
believe,"
"reason
to
suspect,"
and
other
terms
in
describing
the cir-
•
cumstances
under.which
a
game
warden
may
search
without
a
warrant.
Indeed,
some
courts
have
used
two
or more terms interchangeably
in the
same
case.
14
Research
has
revealed
no
significant
distinction
between the
different
terms for
the
purposes
of
this
note.
It
appears
that
they
are
all
based
upon
the
fundamental principle
that
facts
and
circumstances
must
exist
that
would
lead
a
man
of
prudence
and
caution
to
believe
that
the
offense
has
been
committed.
1 5
For
purposes
of
uniformity
the
term
"probable
cause,"
will
be
used
in
this
article.
The
Wyoming
Supreme
Court
has
apparently
never
decided
a
case
involving
the
authority
of
a
game
warden
to
search
an
automobile.
New
York,
16
Wisconsin,'
7
Oregon,'
8
and
Texas
19
have
constitutional
provi-
sions
on
unreasonable
searches
which
are
similar to
those
in the Wyoming
Constitution,
and
similar
statutory
provisions
which
purport
to give
game
wardens
the
right
to
search
without
a
warrant
if
they
have
"probable
cause."
In
most
cases
these
states have
interpreted
"probable
cause"
as
a
very
definite
restriction
on the
authority
of
game wardens
to
search
auto-
mobiles
without
a
warrant.
A
resident
of
New
York
was
driving
his
automobile
along
the
high-
way,
and
was
signaled
and
commanded
to
stop
by
the
game
protectors
and
state
police.
This
was
done
in
order
that
they
might
examine
the
con-
tents
of
the
automobile
and
ascertain
whether
the
conservation
law
had
been violated,
or
was
being
violated.
He
did
not
stop.
There
was
no
allegation
that
the
officers
had
any
cause
or
reason
to
believe
that
he
had
been
violating
the
conservation
law
and there
was
no
allegation
that
he
11.
Supra note
8.
12.
Wyo.
Const.,
Art.
1, §
4;
State
v.
George,
32
Wyo.
223,
231
Pac.
683
(1924).
13.
Supra
note
10.
14.
People
v.
Hill,
131
Misc.
521,
227
N.Y.Supp.
285
(1928).
15.
Stacey
v.
Emery,
97
U.S.
642,
69
S.Ct.
1311,
24
L.Ed.
1035 (1878).
16.
N.Y.
Const.
Art
1, §
12;
N.Y.
Conservation
Law
§
164 (1950).
17.
Wis.
Const.,
Art.
1, §
11;
Wis.
Stat.
§
29.05
(6) (1931).
18.
Ore.
Const.,
Art.
1, §
9;
Ore. Comp.
Laws
Ann.,
§
82-114
(1939).
19.
Tex.
Const.,
Art
1, §
9;
Vernon's
Tex.
Stat.
Art.
923
d
(1948).
NOTES
knew
for
what
reason
the
officers
sought
to
stop
him.
The
court
held
that
the
officers
had
no
right
to
stop
the
car
and
search
it,
unless
they
had
"probable
cause"
to
believe
that
it
contained
evidence
of
a
violation
of
the
conservation
law.
It
was
apparent
from
the
indictment
that
they
had
no
such
"probable
cause."
2
0
In
a
clearer
case
arising
in
Wisconsin,
men
dressed
as
hunters
were
returning
from
the
vicnity
of
a
hunting
camp
on
a
narrow
and
deeply
rutted
road.
The
game
warden
looked
through
the
window
of
the
car
and
noticed
a
rifle
and
a
sack.
He
also
observed
a
Christmas
tree
lying
in
the
back
seat
in
such
a
manner
that
he
suspected
something
was
hidden
underneath
the
tree.
He
stopped
the
car
and
searched
it
and
found
nothing.
It
appeared
that
the
game
warden
knew
that
a
member
of
the
party
had
been
convicted
of
violating
game
laws
in the
past.
The
trial
court
held
that
the
game
warden
had
no
"probable
cause"
to
search
the
automobile.
On
appeal
to
the
supreme
court,
the
court
said
that
facts
which
warrant
nothing
but
a
suspicion
are
not
sufficient
to
justify
an
officer
in
believing
that
an
offense
is
probably
being
com-
mitted.
2
1
"Probable
cause"
has
been
held
to
exist
in
Oregon
where
a
game
warden
was
informed
by
a
forest
ranger
of
an
entry
into
a
reserve
by
hunters.
When
he
later
met
the
hunters,
he
noticed
blood
on
their
cloth-
ing.
The
jury
took
into
consideration
the
season
of
the
year
along
with
other
circumstances
in
finding
the
existence
of
"probable
cause."
22
"Probable
cause"
was
also
found
to
exist
in
Texas
where
game
wardens
followed
hunters
in
a
car
until
they
stopped.
While
the
game
warden
was
less
than
100
yards
from
the
hunters
they
shined
their
spot-
light
on
a
deer,
and
fired
a
rifle.
The
hunters
fled
but
were
pursued
by
the
game
warden,
who
overtook
them.
Upon
search
of
the
automobile
he
found
in
the
trunk
a
dead
deer
which
had
been
killed
approximately
two
hours
earlier.
2
3
In
each
of
the
above
cases
the
court
took
a
very
careful
look
at
the
evidence
in
considering
whether,
beyond
all
reasonable
doubt,
the
sports-
man
had
in
fact
violated
the
law,
before
holding
that
"probable
cause"
existed.
It
is
likely
that
the
Wyoming
court
would
apply
the
same
thinking
to
our
statute
which
contains
the
same
"probable
cause"
provision.
Although
there
are
no
cases
directly
in
point
on
the
authority
of
game
wardens
or
their
deputies
to
search
either
with
or
without
a
warrant
in
Wyoming,
the
court
has
given
much
consideration
to
the
interpretation
of
"probable
cause"
in
the
issuance
of
a
warrant
to
search.
2
4
It
has
been
held
that
an
affidavit
for
search
and
seizure
based
on
mere
belief
of
the
20.
People
v.
Hill,
131
Misc.
521,
227
N.Y.Supp.
285
(1928).
21.
State
v.
Johnson,
210
Wis.
334,
246
N.W.
446
(1933).
22.
State
v.
Evans,
143
Ore.
603,
22
P.2d
496
(1933).
23.
Phillips
v.
State,
159
Tex.Cr.
286,
263
S.W.2d
159
(1953).
24.
State
v.
George,
32
Wyo.
223,
231
Pac.
683
(1924);
Wiggen
v.
State,
28
Wyo.
480,
206
Pac.
373
(1922);
State
v.
Peterson,
27
Wyo.
185,
194
Pac.
342,
13
A.L.R.
1284
(1920).
WYOMING
LAW
JOURNAL
affiant
did
not
show
"probable
cause."
2
1 Such
deliberation
would
indicate
the
willingness
of
the Wyoming
court
to
go
so
far
as
to
limit
the
authority
to
search
to
offenses
committed
in
the
game
warden's
presence;
or
at
least
to
require
a
showing
of
facts
which
would lead
a
prudent
man
to
believe,
beyond
all
reasonable
doubt,
that
the
sportsman
was
violating
the
game
laws
of
the State
of
Wyoming.
A
few
states
have
discarded the
test of
"probable
cause"
in
attempting
to
clothe
their
conservation
officers
with
additional authority
to
make
searches.
Tennessee
has
adopted
a
statute making it
the
duty
of
every
person
participating
in
the
privilege
of
taking
or
possessing
wild
life,
to
permit
the
game
and
fish
director
or
his
conservation
officers,
to
ascertain
whether
the
game
laws
are
being
violated.
26
This
statute
conforms
to
the
theory
that constitutional
immunity
from
unreasonable
searches,
being
a
personal
privilege,
may
be
waived.
27
The
Tennessee
court
construed
the
purchase
of
a
license
to
be
a
consent
to
searches
and
a
waiver of
the
constitutional
right
to
be
protected
from
unreasonable
searches;
thus
no
search
could
be
considered
"unreasonable."
28
Pennsylvania,
in
the
face
of
a
constitutional
provision
protecting
people
from
unreasonable
searches, has
gone
so
far
as
to
enact
a
statute
empowering
a
representative
of
the
game commission
to
stop
and
search
a
vehicle
without
a
warrant,
at
any
time
or
place
within
the
commonwealth.
The
statute
requires
no
showing
of
"probable
cause";
however,
it
does
contain
an
additional
provision
that
such
officer
shall display
his
badge
or
other
insignia
and
shall
state
the
purpose
of
the
-search
to
the
person
in
charge
of
the
vehicle
or
conveyance.
29
Pursuant
to
this
statute
a
series
of
road
blocks
was
set
up
for
the
purpose
of
inspecting
vehicles
and
their
occupants
to
determine
if
there
was
any
legally
or
illegally
killed
game
in
their
possession.
An
occupant
who
was
driving
an
automobile
was
re-
quested
to
stop,
to
identify
himself,
and
to
submit
to the
usual
and
ordinary
inspection.
The
occupant
allowed
his
gun
and
license
to
be
examined,
but
refused
to
allow
the
inspection
of
the
trunk
of
the
automo-
bile.
The
occupant
was
aware
that
the
road
check
was
being made
by
duly
authorized
officers
of
the
Pennsylvania
Game Commission.
The
automobile
was
stopped
by a
deputy
game
protector
who
was
in
uniform.
The
officer
who
first
spoke
to
him
displayed
his
badge
and
other
insignia
and
repeatedly
advised
the
purpose
of
the
inspection.
A
conviction
of
violating
the
game
laws
was
affirmed
on
the
grounds
that
the
statute
directly
covered
the
situation.
30
25.
Wiggen
v.
State,
28
Wyo.
480, 206
Pac.
373
(1922).
26.
Tenn.
Pub.
Acts,
c.
115,
§
5
(1951).
27.
Tobin
v.
State,
36
Wyo.
368,
255
Pac.
788
(1927).
28.
State
v.
Hall,
164
Tenn.
548,
51
S.W.2d
851
(1932).
29.
Pa.
Stat.
Ann.,
§
1311.214(h)
(1953).
30.
Commonwealth
v.
Rhone,
174
Pa.Super.
166,
100
A.2d
147
(1953),
cert.
denied,
348
U.S.
841.
NOTES
Because
of
the
uncertainty
in
meaning
of
the term
"probable
cause,"
the
phrasing
of
the
Wyoming
statute
could
be
improved.
The
aim
of
any
legislation
in
this
area
must
be
to
provide
game
wardens
with
sufficient
authority
to
preseve
wild
life
on
one
hand,
and
to
protect
sportsmen
from
unreasonable
searches
on
the
other.
The
local
situation
could
be
remedied
in
part
by
the
adoption
of
legislation
similar
to
that
of
Tennessee,
whereby
a
sportsman
upon
the
purchase
of
a
license
waives
his
constitutional
priv-
ilege
against
searches
without
a
warrant.
Perhaps
no
additional
legislation
is
necessary,
since
the
Supreme
Court
of
Wyoming
has
held
that
a
person
in control
of
the
property
in
question
may
give
consent
to
a
search,
the
only
requirement
being
a
positive
and
clear
consent
given
freely
and
not
under
stealth,
force
or
coercion.
3
'
However,
a
statute
specifically
authoriz-
ing
the
incorporation
of
such
a
consent
in the
license,
to
become
valid
by
the sportsman's
signature
on
the
license,
would
be
desirable.
If
a
sportsman
is
unwilling
to avail
himself
of
the
privilege
accorded
him,
upon
the
terms
and
provisions
prescribed,
he
may
decline
the
invitation,
but
he
should
not
enjoy
the
benefits
without
submitting
to the
burdens.
Such
a
pro-
vision
would
put
a
sportsman
on
notice,
and
he
would
not
be
in
a
position
to
claim
surprise,
embarrassment,
or
deprivation
of
constitutional
rights
when
asked
to
submit
to
the
routine
search
of
a
game
warden.
By
pre-
venting
misunderstandings
and
arguments,
the
statute
would
promote
good
public
relations
between
sportsmen
and
the
State
Game
and
Fish
Commission.
With
this
legislation
it
would
be
unnecessary
for
the
courts
to
strain
at
the
interpretation
of
"probable
cause"
as
is
now
required
by
statute,
and
what
is
more
important,
it would
enable
a
game
warden
to
carry
out
his
duties
without
the
burden
of
determining
whether
he
has
"probable
cause"
at
the
commencement
of
every
search.
A
further
recommendation
would
be
to
add
to
the
statute
that
portion
of
the
Pennsylvania
law
which
requires
all
representatives
of
the game
commission
engaged
in
the
inspection
of
automobiles
to
be
in
full
uniform,
to
display
their
badges
or
other
insignia,
and
to
state
the purpose
of
the
search
to
the
person
in
charge
of
a
vehicle
or
conveyance.
Such
a
provision
would lend
dignity
to
the
members
of
the
commission
inspecting
auto-
mobiles
and
reassurance
to
sportsmen
who
may
be
asked
to
submit
to
searches.
As
a
psychological
matter,
any
person will
respond
to
the
laws
and
to
the
law
enforcer more
willingly
if
such
officers
handle
themselves
in
a
courteous
and
dignified
manner, and
appear
clothed
with
the
authority
they
are
about
to
exercise.
THOMAS
S.
SMITH
31.
Wiggen
v.
State,
28
Wyo.
480, 206
Pac.
373
(1922).
