Washington Appeals Court Reverses Firearms Conviction Based on Search by Department of Fish and Wildlife

RCW 77.15.080 authorizes fish and wildlife officers to temporarily stop a person, based on articulable facts they are engaged in fishing, harvesting, or hunting activities. to ensure they are in compliance with Washington fish and wildlife laws. A defendant recently challenged his firearms conviction, arguing he was improperly stopped by Department of Fish and Wildlife (“DFW”) and the evidence obtained during the stop should not have been permitted.

According to the appeals court’s opinion, DFW officers saw the defendant’s SUV slowly driving on a green dot road during hunting season.  They also noticed he had on an orange sweatshirt.  They stopped him, believing he was engaged in hunting activities.  The officers found a loaded shotgun and a rifle in the vehicle.  The defendant was cited and charged with misdemeanor firearms violations.

The defendant moved for suppression of the gun evidence, arguing that the stop been illegal.  The trial court found the officers had reasonably believed the defendant was engaged in hunting activities and denied the motion.  The jury convicted the defendant.

The defendant appealed the conviction. His appeal was denied by the superior court, but the appeals court granted discretionary review.

The defendant argued the officers were not authorized to stop his vehicle under the statute.

The appeals court looked to the plain language of the statute, noting that the officers must have “articulable facts” that the person is engaged in one of the listed activities.  The appeals court pointed out that case law has interpreted this language as the same standard as required for a Terry stop.  To stop a person under RCW 77.15.080, then, there must be facts known to the officers that support a substantial possibility the defendant is engaged in “fishing, harvesting, or hunting activities.”

Additionally, the statute only allows officers to stop a person who “is” engaged in the listed activities.  The appeals court noted the language expressed an intent for the statute to only apply to current activities rather than previous activities or activities in which the person may engage in the future.

The appeals court then reviewed the statutory definition of “[t]o hunt” and the Black’s Law Dictionary definition of “activity.” The appeals court concluded that the statute permits stops only when officers are “aware of facts creating a substantial possibility that a person . . . is presently engaged in an effort to kill, injure, harass, harvest, or capture wild animals . . .”

The state argued that the defendant was observed in an orange sweatshirt driving slowly through a wildlife area during hunting season.  The state argued he may have been scouting a possible location for hunting.

The appeals court pointed to DFW materials that indicate it is best to perform scouting before going hunting.  The appeals court concluded the stop was still justified even if scouting did constitute hunting activities.  The officers did not have information indicating the defendant was likely engaged in hunting. The green dot road give access for people to engage in a number of recreational activities, not just hunting.  The officer said the road was “bumpy,” which could explain the defendant’s slow speed.  The orange sweatshirt did not necessarily indicate the defendant was hunting, because bright clothing is appropriate for anyone to wear in hunting seasons where hunting occurs.

The state cited Schlegel v. Department of Licensing, in which the appeals court’s majority held a stop pursuant to RCW 77.15.080 was justified under similar circumstances.  The appeals court noted it is not bound to follow its previous opinion if it was incorrect.  The appeals court also noted that there was not a unanimous decision in Schlegel.  The dissent took the position that RCW 77.15.080 does not authorize officers to stop a vehicle because traveling in a vehicle cannot constitute engaging in hunting activities.  Attempting to kill game from a moving vehicle is a crime. Additionally, there are other laws addressing vehicle searches and seizures by DFW officers.  The appeals court concluded that the existence of two other statutes that specifically address vehicle inspections by DFW indicated that the legislature did not intend for RCW 77.15.080 to ordinarily authorize a vehicle search.

The appeals court found persuasive the Schlegel dissent’s position that the stop of a moving vehicle is never authorized by RCW 77.15.080, but noted it did not have to go so far.  Even if the statute could sometimes authorize a vehicle stop, the facts in this case did not support a stop.  The defendant was driving when he was stopped.  The officers had no indication he was engaged in any “effort to kill, harvest, or capture a wild animal or bird.”

The appeals court concluded the stop was not proper pursuant to RCW 77.15.080 and that the suppression motion should have been granted, though it noted the lower courts had not erred in following the case law existing at the time.  The appeals court reversed the conviction and remanded the case, instructing the court to grant the defendant’s motion.

A court generally must exclude evidence obtained in an illegal search or seizure in a criminal trial.  If you are facing criminal charges arising from evidence obtained during a stop by law enforcement, a skilled Washington criminal defense attorney can fight to protect your rights.  Schedule a consultation with Blair & Kim, PLLC, to discuss your case.


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