Search by Conservation Officer?

[T.Lex]

Let's compare that to RKBA

Let's.

Presence in an area of prohibited activity (shooting people without justification) + admission to doing something similar (carrying for self-defense) + tool (firearm) + evidence of recent use of tool (it's being carried on person, dirty grips, whatever - although I don't think "evidence of recent use of tool" even applies in the OP's circumstance).

(I believe the OP said, or at least implied, the trowel was dirty from some gardening.)

And, for the record, analogies are always imperfect.

I think the RKBA formulation would be more like this:
Presence in area where illegal shootings happen regularly (the classic "high crime area") + admission to doing something similar (like target shooting in the area) + evidence of recent use of the tool = at least RAS for stop and minimal search of the car, as the container for the tool.

There is zero evidence of any illegal activity here.

I think a court would disagree. Agree to disagree.

 

[chipbennett]

Let's.



(I believe the OP said, or at least implied, the trowel was dirty from some gardening.)

How is a dirty trowel evidence of *recent* usage? How can you tell how recently a trowel was used, merely by observing that it is dirty?

And, for the record, analogies are always imperfect.

I think the RKBA formulation would be more like this:
Presence in area where illegal shootings happen regularly (the classic "high crime area") + admission to doing something similar (like target shooting in the area) + evidence of recent use of the tool = at least RAS for stop and minimal search of the car, as the container for the tool.

So, you think that police officers have RAS to stop and search the vehicle of every person leaving a shooting range in a "high crime area"?

I think a court would disagree. Agree to disagree.

On what basis would a court disagree?

 

[mdemetz]

It(Ginseng) is a major part of Appalachian Outlaws on History Channel.
[h=1][/h]

 

[foszoe]

How is a dirty trowel evidence of *recent* usage? How can you tell how recently a trowel was used, merely by observing that it is dirty?



So, you think that police officers have RAS to stop and search the vehicle of every person leaving a shooting range in a "high crime area"?



On what basis would a court disagree?

Is the dirt wet and clumpy or dried on the trowel. That would be my answer.

 

[T.Lex]

On what basis would a court disagree?

"Totality of the circumstances."

 

[chipbennett]

"Totality of the circumstances."

I'll just re-quote US v Black, then?

Here, the totality of the factors outlined by the district court—an individual’s presence at a gas station; prior arrest history of another individual; lawful possession and display of a firearm by another; Black’s submission of his ID showing an out-of-district address to Officer Zastrow, all of which occurred in a high crime area at night—fails to support the conclusion that Officer Zastrow had reasonable suspicion to detain Black.

"Totality of the circumstances" is a non-starter, when none of the circumstances included in the total is evidence of unlawful activity.

 

[chipbennett]

Is the dirt wet and clumpy or dried on the trowel. That would be my answer.

From the OP:

After going through it he asks to search my car. I ask, "what reason do you have to search my car, doesn't everything check out?" He replies, " well, what's with the little shovel in your car?"

No evidence that the trowel, er, "little shovel" is even dirty, much less soiled with wet and clumpy dirt. Plus, it was inside the OP's car, and the CO was observing it from outside the car.

(Nevermind the fact that a trowel locked inside the OP's car, by definition, was not being used to perform some unlawful act, because it was inside the car and not in the OP's immediate possession.)

 

[T.Lex]

No evidence that the trowel, er, "little shovel" is even dirty, much less soiled with wet and clumpy dirt. Plus, it was inside the OP's car, and the CO was observing it from outside the car.

I ask, "what reason do you have to search my car, doesn't everything check out?" He replies, " well, what's with the little shovel in your car?" " You mean hand trowel? Its from planting flowers at my GMA's yesterday. " I say.

C'mon, Chip, you kinda left that important bit out.

(Nevermind the fact that a trowel locked inside the OP's car, by definition, was not being used to perform some unlawful act, because it was inside the car and not in the OP's immediate possession.)

Plain view.

"Totality of the circumstances" is what the court will look at. You have your speculative opinion as to how the court would come down; I have a different speculative opinion. Reasonable people can differ on the matter, IMHO.

 

[chipbennett]

C'mon, Chip, you kinda left that important bit out.

Right, because it lessens RAS even further, since the CO has no evidence to refute the claim of lawful use of the trowel.

[quoe]Plain view.[/quote]

Unless the trowel had become animated and was digging up ginseng out of the seats in the OP's car, the fact that it was inside the car and not on his immediate person is yet more evidence that the trowel was not used for unlawful purposes.

"Totality of the circumstances" is what the court will look at. You have your speculative opinion as to how the court would come down; I have a different speculative opinion. Reasonable people can differ on the matter, IMHO.

Indeed. And I readily admit that I think like an engineer, and not like a lawyer. Often when lawyers talk about logic and reason, I just picture Inigo Montoya.

[video=youtube;G2y8Sx4B2Sk]https://www.youtube.com/watch?v=G2y8Sx4B2Sk[/video]

 

[churchmouse]

Right, because it lessens RAS even further, since the CO has no evidence to refute the claim of lawful use of the trowel.

[quoe]Plain view.

Unless the trowel had become animated and was digging up ginseng out of the seats in the OP's car, the fact that it was inside the car and not on his immediate person is yet more evidence that the trowel was not used for unlawful purposes.



Indeed. And I readily admit that I think like an engineer, and not like a lawyer. Often when lawyers talk about logic and reason, I just picture Inigo Montoya.

[video=youtube;G2y8Sx4B2Sk]https://www.youtube.com/watch?v=G2y8Sx4B2Sk[/video][/QUOTE]

Inigo was the best.

 

[T.Lex]

Someone should come up with INGO Montoya.

"Hello. My name is INGO Montoya. You stole my wallet. Prepare for the boner drone."

 

[1861navy]

Presence in area of prohibited activity (collecting ginseng) + admission to looking for similar stuff (chants) + tool (for collecting ginseng) + evidence of recent use of tool = at least RAS, and IMHO is probably right at PC.

And c'mon - nothing about the "familiar with morels" thing? Man, tough crowd....

ETA: Whew - at least a couple of you are paying attention.

ETA 2:
I actually agree that the whole hunting chants/rape analogy is bad. The good news is, it isn't my analogy. Blame IndyDave!

Area of prohibited activity? Seng can grow anywhere within the forestry, so that would make anyone visiting the forestry suspect to digging it? Nah.

Chants aren't similar in any way. Mushroom hunting/ hunting chants is completely legitimate on state forestry lands. Ginseng digging is illegal without a license, mushroom hunting and foraging are exempted from licensure in the state.

Is the dirt wet and clumpy or dried on the trowel. That would be my answer.

Dried, flowers were in dirt by 10:30 am the day before.

I think that analogies between malum in se and malum prohibitum actions are generally flawed on their face so I don't like the rape analogy from the start.

Looking for chants is a perfectly legal activity without malum in se implications. Looking for ginseng without following the rules is a malum prohibitum act.

I'm skeptical that an admission to looking for chants somehow constitute PC for illegal ginseng hunting without something more. Now if you were wandering around in a patch of freshly dug ginseng or something like that, I'm on board.

There was no upturned soil anywhere on that ridge.

 

[Fargo]

Area of prohibited activity? Seng can grow anywhere within the forestry, so that would make anyone visiting the forestry suspect to digging it? Nah.

Chants aren't similar in any way. Mushroom hunting/ hunting chants is completely legitimate on state forestry lands. Ginseng digging is illegal without a license, mushroom hunting and foraging are exempted from licensure in the state.




Dried, flowers were in dirt by 10:30 am the day before.



There was no upturned soil anywhere on that ridge.

From what you have said, I am skeptical he could have legally searched you or your vehicle without consent. Since you were not an occupant of the vehicle, I do not know how he could have searched you without a warrant even if he had PC unless he did it subsequent to an arrest. Since there was consent though, it is kind of a moot point.

 

[IndyDave1776]

Reductio ad absurdum - always a fun game.

To use your analogy, if a woman reports a rape in a certain area, a man with working plumbing is found in the area, and admits to looking for women in that area to rape - just not THAT woman - I'm confident a court would allow a search.

I think that analogies between malum in se and malum prohibitum actions are generally flawed on their face so I don't like the rape analogy from the start.

Looking for chants is a perfectly legal activity without malum in se implications. Looking for ginseng without following the rules is a malum prohibitum act.

I'm skeptical that an admission to looking for chants somehow constitute PC for illegal ginseng hunting without something more. Now if you were wandering around in a patch of freshly dug ginseng or something like that, I'm on board.

OK, I see your point, both of you. I didn't really think it through to this level. My point is that ownership/possession of a tool which *could* be used to commit a crime would appear to be very weak cause to suspect that a crime was being committed. Any number of examples could apply including (within the realm of malum prohibitum) possession of an automobile capable of exceeding the interstate speed limit yielding reasonable suspicion of speeding or possession of working air horns on my truck yielding reasonable suspicion of violating Carmel's infamous noise ordinance.

 

[AGarbers]

Last I checked, it was illegal to hunt ginseng on state property. This is due to over harvesting to the point where its almost extirpated on state grounds. Having talked to many ICOs ginseng theft is one of the hardest crimes to prosecute. It is regularly stolen off private property. I have had two patches that I planted on my property taken and I know others that have had their 'seng stolen. I know of at least one church-going ginseng hunter that doesn't see an issue with sneaking into "unused" woods to hunt ginseng in Kentucky. It is big money. One case here in Indiana, the guy was caught with $6,000 worth drying in his house, all of which came from his neighbors property, and that was just what he had at the time. Imagine what he had stolen over the years.
Imagine what it looked like to the ICO. You had a bag, in the woods, with a trowel. No criminal is going to be honest and say, yes I was digging 'seng. They are always going to say they are doing something else. I would fully expect the ICO to search you.

 

[chipbennett]

Imagine what it looked like to the ICO. You had a bag, in the woods, with a trowel. No criminal is going to be honest and say, yes I was digging 'seng. They are always going to say they are doing something else. I would fully expect the ICO to search you.

So: presumed innocence, unless ginseng is involved?

Ginseng doesn't trump the fourth amendment.

 

[JettaKnight]

I didn't even know ginseng grew in Indiana. I thought it was strictly Asian.

Huh, INGO schools me again.

 

[DWS]

.........or possession of working air horns on my truck yielding reasonable suspicion of violating Carmel's infamous noise ordinance.

So it WAS you then.....

 

[Dirtebiker]

How in the **** does ginseng grow in Indiana?

Very well! And you can make good money on it!

 

[Clay]

all you need to know about ginseng in Indiana: http://www.in.gov/dnr/naturepreserve/files/ginseng99.pdf