                                 Cite as 2014 Ark. App. 726

                 ARKANSAS COURT OF APPEALS
                                    DIVISIONS I, II & IV
                                      No. CR-14-210


                                                   Opinion Delivered   December 17, 2014

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



                              LARRY D. VAUGHT, Judge

       Jimmy Paul Pickle appeals from the Craighead County Circuit Court’s denial of his

motion to suppress evidence obtained when two Arkansas Game and Fish officers (“game

wardens”) conducted a warrantless, suspicionless hunting-compliance check on Pickle’s duck-

hunting party. Pickle argues that the game wardens unlawfully detained and unlawfully searched

him. The State argues that (1) there was no seizure implicating the Fourth Amendment, (2)

Pickle had no reasonable expectation of privacy under the open-fields doctrine, and (3) Pickle

had no reasonable expectation of privacy as to his identity. Alternatively, the State argues that

reasonable suspicion is not required in order for game wardens to conduct routine hunting-

compliance checks. The Arkansas Game and Fish Commission has also filed an amicus curiae

brief arguing that warrantless, suspicionless hunting-compliance checks are necessary tools for

game wardens, who would not otherwise be able to enforce state and federal regulations.
                                  Cite as 2014 Ark. App. 726

       We disagree with the State’s first three arguments. This case involves a seizure implicating

the protections of the Fourth Amendment; the open-fields doctrine does not apply, and there

is no legal authority exempting identity from the protections of the Fourth Amendment. As for

whether reasonable suspicion is required for routine hunting-compliance checks, controlling

precedent mandates that, in the absence of reasonable suspicion, law-enforcement activity must

be governed by a plan of explicit, neutral limitations that prevent game wardens from exercising

unbridled discretion. Because the circuit court’s order is silent on this key element, we reverse

and remand.

                                             I. Facts

       At the suppression hearing, the facts revealed that on November 18, 2012, Pickle, a

friend, and the friend’s minor son were duck hunting on an oxbow lake along the Cache River

in Craighead County, Arkansas. There is no dispute that the party was hunting in an allowed

location, during duck season, and within permissible hunting hours. Two game wardens, Jeff

McMullin and Brian Aston, were assigned to the area, patrolling for potential hunting violations.

The game wardens testified that they observed Pickle’s hunting party for approximately two

hours, but saw nothing to indicate any violations of law. They then made contact with Pickle and

his fellow hunters in order to perform a routine hunting-compliance check, which involved

verification of hunting licenses and searches for and examination of firearms, ammunition, and

game. Pickle and his two companions were not actively hunting at the time; they were cooking

breakfast at a campsite, with their firearms resting against nearby trees. The game wardens

approached the group, identified themselves, and demanded to see the hunters’ licenses. Pickle



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identified himself and told the game wardens that he had a valid license but that he had left it

in his truck. The game wardens then picked up and examined each gun in turn, asking the group

to identify the owner of each firearm. Pickle identified one of the guns as belonging to him, and

it was found to be in compliance with all relevant regulations. As part of the routine hunting-

compliance check, the game wardens also searched the group for ammunition or game that

violated state of federal law. Pickle’s friend was issued a citation for a firearm violation. The

minor child was given a warning about an ammunition violation.

       Because Pickle indicated that he had a valid hunting license but did not have it on his

person, the game wardens then retreated a short distance and called dispatch in Little Rock to

verify his license. The game wardens first ran a 10-26 Hunting and Fishing License check, which

confirmed that Pickle did have a valid license. They then ran a 10-51 outstanding-warrants

check, which revealed that Pickle was a convicted felon. The game wardens returned to the

hunting party, arrested Pickle for being a felon in possession of a firearm, and conducted a

search incident to arrest, which revealed a small amount of methamphetamine and a glass pipe

used for smoking methamphetamine. Pickle was charged with felon in possession of a firearm,

possession of a controlled substance, and possession of drug paraphernalia.

       In a motion to suppress and subsequent hearing, Pickle argued that the game wardens

violated his rights under the Fourth Amendment to the United States Constitution and article

2, section 15, of the Arkansas Constitution by unlawfully detaining him and unlawfully searching

him without reasonable suspicion. The circuit court took the issue under advisement and issued

an order on September 9, 2013, denying the motion to suppress. Pickle then entered a



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conditional guilty plea, preserving his right to appeal the denial of the motion to suppress, and

the circuit court accepted the plea. The circuit court placed Pickle on sixty months’ probation

and ordered him to pay fines and costs. Pickle filed a timely notice of appeal.

                                        II. Standard of Review

          The proponent of a motion to suppress evidence bears the burden of demonstrating the

basis for suppression. Norman v. State, 326 Ark. 210, 214, 931 S.W.2d 96, 99 (1996). In reviewing

the denial of a motion to suppress evidence in a criminal proceeding, we make an independent

examination based on the totality of the circumstances, reviewing findings of historical fact for

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

cause. Yarbrough v. State, 370 Ark. 31, 36, 257 S.W.3d 50, 55 (2007). We give due weight to

inferences drawn by the circuit court and deference to the circuit court’s findings, and we will

reverse the circuit court only if the denial of the motion to suppress was clearly against a

preponderance of the evidence. Id., 257 S.W.3d at 55. Moreover, we defer to the circuit court

in assessing the credibility of witnesses. Bogard v. State, 88 Ark. App. 214, 219, 197 S.W.3d 1, 3

(2004).

                                            III. Discussion

          Pickle argues 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. Both constitutional provisions provide essentially identical

protection from unreasonable and arbitrary seizures and searches. Additionally, the Arkansas



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Rules of Criminal Procedure restrict law enforcement’s ability to detain or search members of

the public. See, e.g., Ark. R. Crim. P. 2.2 & 3.1 (2014). There is no dispute that Arkansas Game

and Fish officers are certified law enforcement officers. There is also no dispute that the game

wardens in this case lacked any reasonable suspicion that Pickle or his companions were engaged

in criminal conduct. The issue presented on appeal is whether game wardens are subject to the

same constitutional restrictions as traditional law-enforcement officers. However, before

reaching that question, we must first address three preliminary arguments presented by the State

as to why the protections of the Fourth Amendment are not implicated in this case.

       First, we hold that the game wardens’ initial contact with Pickle, during which he

identified himself and identified his gun, was a seizure implicating the protections of the Fourth

Amendment or article 2, section 15. “A ‘seizure’ occurs when the officer, by means of physical

force or show of authority, has in some way restrained the liberty of a citizen.” Thompson v. State,

303 Ark. 407, 409, 797 S.W.2d 450, 451 (1990). The State argues that this situation is more akin

to one in which “an officer merely approaches an individual on the street and asks if he is willing

to answer some questions.” Cockrell v. State, 2010 Ark. 258, at 17, 370 S.W.3d 197, 207 (citing

Thompson, 303 Ark. at 409, 797 S.W.2d at 451–52). Under Cockrell and Thompson, such an

encounter is not deemed to be a seizure “because it is in a public place and it is consensual.” Id.

However, in State v. Allen, 2013 Ark. 35, at 4, 425 S.W.3d 753, 757, the Arkansas Supreme Court

found that a game warden’s actions in stopping a watercraft on Lake Hamilton and boarding it

briefly to conduct a safety check constituted a seizure. The State attempts to distinguish Allen

by arguing that, although Allen would not have felt free to leave while a game warden was



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aboard his boat, Pickle was free to leave at all times prior to his arrest and was under no

obligation to comply with the game wardens’ requests. We disagree.

       Although Pickle was not physically restrained or threatened with arrest if he refused to

comply, the encounter went beyond that allowable under Rule 2.2, Cockrell, and Thompson. Rule

2.2 of the Arkansas Rules of Civil Procedure states:

          (a) A law enforcement officer may request any person to furnish information
          or otherwise cooperate in the investigation or prevention of crime. The
          officer may request the person to respond to questions, to appear at a police
          station, or to comply with any other reasonable request.


          (b) In making a request pursuant to this rule, no law enforcement officer shall
          indicate that a person is legally obligated to furnish information or to
          otherwise cooperate if no such legal obligation exists. Compliance with the
          request for information or other cooperation hereunder shall not be regarded
          as involuntary or coerced solely on the ground that such a request was made
          by a law enforcement officer.

Ark. R. Crim. P. 2.2 (2011). The circuit court admitted into evidence the Arkansas Hunting

Guidebook, a copy of which is available to everyone at local sporting goods stores and online,

which was presented by the prosecutor as evidence of Pickle’s reasonable expectation of privacy

in the hunting context. The Arkansas Hunting Guidebook clearly states that “it is not legal to”

“refuse an officer’s lawful request to inspect your wildlife, tackle, hunting equipment, devices,

license, or any item that can reasonably contain wildlife” or “interfere with an officer performing

their duties or flee from an officer.” Arkansas Game and Fish Commission Hunting Guidebook 18

(2012-13). Therefore, we cannot agree that Pickle would have felt free to leave at any time prior

to his arrest. As a result, the encounter at issue here, during which the game wardens obtained



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Pickle’s name and asked him to identify his firearm, was a “seizure” under the Fourth

Amendment and article 2, section 15.

       Second, we reject the State’s argument that Pickle did not have any reasonable

expectation of privacy because he was in an open field. While the State correctly articulates the

open-fields doctrine, which holds that a person has no reasonable expectation of privacy in open

lands or fields, the doctrine is inapplicable here. See, e.g., Hudspeth v. State, 349 Ark. 315, 322–23,

78 S.W.3d 99, 104 (2002). The open-fields doctrine applies to searches outside a property-

owner’s home or curtilage, on land visible to others, where the owner has no expectation of

privacy. Id., 78 S.W.3d at 104. It does not stand for the much broader proposition that an officer

may detain and search a person simply because he happens to be standing in an open field.

       Third, we reject the State’s argument that Pickle had no reasonable expectation of privacy

in his identity. Citing Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177, 185 (2004)

(stating that “in the ordinary course a police officer is free to ask a person for identification

without implicating the Fourth Amendment”) and Fowler v. State, 2010 Ark. 431, at 2–4, 371

S.W.3d 677, 680–81 (stating that officers may ask an individual to approach their vehicle and

give his name even absent reasonable suspicion), the State argues that because the game

wardens’ initial stop produced no prejudicial information or evidence against Pickle other than

his name, the Fourth Amendment and article 2, section 15 do not apply. However, the State’s

reliance on Hiibel and Fowler is misplaced because both cases involved reasonable suspicion of

a crime prior to law enforcement’s initial contact with the defendant. As discussed above, Rule

2.2 allows officers to request that a person voluntarily provide identification or answer questions.



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However, neither case establishes the broader rule that police officers may demand an individual’s

name or identification absent reasonable suspicion. As discussed above, a reasonable person in

Pickle’s circumstances would not have believed himself to be free to refuse the game warden’s

requests or terminate the encounter. Without reasonable suspicion, neither Hiibel nor Fowler

provide authority for the game wardens’ detention and search of Pickle.

       Having established that none of the State’s preliminary arguments provide a basis to

affirm, we turn to the key inquiry in this case: whether game wardens must have reasonable

suspicion in order to legally conduct routine hunting-compliance checks. The State urges the

Court to follow Louisiana, Minnesota, and Montana in holding that game wardens may routinely

conduct warrantless, suspicionless hunting-compliance checks without violating the Fourth

Amendment. See State v. McHughes, 630 So. 2d 1259 (La. 1994); State v. Colosimo, 669 N.W. 2d 1

(Minn. 2003); State v. Boyer, 308 Mont. 276 (2002). The circuit court adopted the rationale

presented in these cases and found that,

       Hunters and fishermen who elect to participate in those specialized activities do
       so with the understanding that everything from the guns they may use, the
       ammunition they may use, the amount and kind of waterfowl or fish they may kill
       or catch, the time when they may hunt or fish, and most everything else about
       their activity is regulated by the state.

Therefore, the circuit court reasoned, hunters like Pickle have no reasonable expectation of

privacy as to game wardens’ hunting-related inquiries. Alternatively, the circuit court stated that,

even if a reduced expectation of privacy existed, the game wardens’ actions did not violate

Pickle’s rights because the State’s interests in conducting routine hunting-compliance checks are




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sufficiently compelling, they cannot be achieved through less restrictive means, and the intrusion

on Pickle was slight.

        We cannot affirm the circuit court’s determination that reasonable suspicion is not

required for routine hunting-compliance checks because both Arkansas and federal law are

exceedingly clear that, in those rare instances in which reasonable suspicion is not required, a

different sort of safeguard must be in place: the stop or search must be conducted under a plan

of explicit, neutral limitations that prevent the officers from exercising unbridled discretion.

Allen, 2013 Ark. 35, at 4, 425 S.W.3d at 757; Delaware v. Prouse, 440 U.S. 648, 661 (1979) (holding

that “except in those situations in which there is at least articulable and reasonable suspicion .

. . stopping an automobile and detaining the driver in order to check his driver’s license and

registration . . . are unreasonable under the Fourth Amendment. This holding does not preclude

the State . . . from developing methods for spot checks that involve less intrusion or that do not

involve the unconstrained exercise of discretion”) (emphasis added). The explicit, neutral limitations-test

is a necessary second prong of analysis in cases where reasonable suspicion is not required. Allen,

2013 Ark. 35, at 4, 425 S.W.3d at 757; Prouse, 440 U.S. 648, 661 (1979).

        In Prouse, the United States Supreme Court struck down Delaware’s use of suspicionless

automobile “spot checks,” stating that “the ‘grave danger’ of abuse of discretion does not

disappear simply because the automobile is subject to state regulation resulting in numerous

instances of police-citizen contact.” Prouse, 440 U.S. at 662. The Court specifically stated that,

“given the alternative mechanisms available, both those in use and those that might be adopted,”

such as permissible roadblock-style stops, Delaware’s use of standardless, unconstrained



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individual vehicle stops unconstitutionally permitted officers to base such stops upon their own

“unbridled discretion.” Id. In Allen, the Arkansas Supreme Court applied the explicit, neutral

limitations-test to a suspicionless stop by a game warden, finding a Fourth Amendment violation

because the game warden relied solely upon his own discretion rather than the type of explicit,

neutral limitations required in Prouse. Allen, 2013 Ark. 35, at 4, 425 S.W.3d at 757.

       At the suppression hearing and on appeal, Pickle has repeatedly argued that exempting

game wardens from the reasonable-suspicion requirement would allow unfettered discretion to

make random stops based solely on the game warden’s will or discretion. Although the State

referred to both Prouse and Allen throughout its brief, it never attempted to articulate the explicit,

neutral limitations that apply to routine hunting-compliance checks. Despite the fact that the

Arkansas Hunter’s Guidebook and relevant federal regulations were introduced at the hearing

and both officers took the stand to testify, neither the State nor the circuit court specifically

addressed whether current hunting laws and regulations, or possibly internal AGFC policies and

procedures, provided the type of explicit, neutral limitations required by Prouse and Allen. The

record is simply silent on this issue.

       In fact, this case presents the same problems that required suppression in Allen. In Allen,

a game warden stopped a boat on Lake Hamilton in order to conduct a warrentless,

suspicionless safety-compliance check for items such as life jackets. Allen, 2013 Ark. 35, at 1, 425

S.W.3d at 755. Although no violations had been observed before the stop, the game warden

boarded the boat, conducted a search, determined that the operator had been drinking, and

charged him with boating while intoxicated. Id., 425 S.W.3d at 755. The Arkansas Supreme



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Court affirmed the circuit court’s decision to suppress the evidence because the game warden

lacked any legal basis for the stop and search, and the stop was not pursuant to a plan that placed

explicit, neutral limitations on the game warden’s conduct. 2013 Ark. 35, at 4, 425 S.W.3d at 757.

For example, the court noted that the game warden tried to stop as many vessels as he could

during each shift, but there were no explicit, neutral criteria for determining which boats to stop.

Id., 425 S.W.3d at 757.

       Here, the game wardens also testified that they attempted to conduct as many hunting-

compliance checks as possible, but there is no evidence to suggest that anything other than their

own unbridled discretion determined who would be stopped. Likewise, the game wardens in this

case appear to have gone beyond the scope of a routine hunting-compliance check when they

chose to run an outstanding-warrants check on Pickle and discovered that he was a convicted

felon. Officer Ashton testified that it was his own personal protocol to run such a check when

a hunter did not have his hunting license in his physical possession. The record is silent on

whether the warrants check was part of any explicit plan or policy governing the conduct of

AGFC officers, or whether the game wardens in this case were doing exactly what the Allen and

Prouse courts feared: exercising unbridled discretion.

       Because the circuit court’s order denying Pickle’s motion to suppress fails to address a

necessary prong of analysis, we hold that the decision was against the preponderance of the

evidence. Without a finding that the game wardens acted pursuant to a sufficient plan of explicit,

neutral limitations, we must hold that the stop and search violated Pickle’s rights under the




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Fourth Amendment and article 2, section 15. Accordingly, we reverse the circuit court’s denial

of Pickle’s motion to suppress.

       Reversed and remanded.

       PITTMAN, WYNNE, and WHITEAKER, JJ., agree.

       GRUBER and BROWN, JJ., concur.

       GLADWIN, C.J., and WALMSLEY and GLOVER, JJ., dissent.

       WAYMOND M. BROWN, Judge, concurring. I agree with the majority that this

case should be reversed and remanded. I write separately to express my belief that game

wardens may perform hunting-and-safety compliance checks without reasonable suspicion or

explicit, neutral limitations. However, I believe that after a compliance check has been

completed, any additional encounter must be based upon an explicit, neutral limitation as

required by State v. Allen,1 in order to prevent game wardens from relying on their own

unbridled discretion. Therefore, I concur.

       GRUBER, J., joins in this concurrence.

       ROBERT J. GLADWIN, Chief Judge, dissenting. In this case, the game and fish

officers used neutral limitations in their contact with the appellant. Therefore, the ultimate

search incident to arrest was constitutionally permissible. I would affirm, thus I respectfully

dissent.




       1
           2013 Ark. 35, 425 S.W.3d 753.

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       The primary authority cited by appellant in support of his argument is the Fourth

Amendment to the United States Constitution, the language of which is mirrored in article

2, section 15, of the Arkansas Constitution, stating:

       The right of the people to be secure in their persons, houses, papers, and effects,
       against unreasonable searches and seizures, shall not be violated, and no warrants shall
       issue, but upon probable cause, supported by oath or affirmation, and particularly
       describing the place to be searched, and the persons or things to be seized.

These constitutional guarantees provide fundamental protection to all citizens from

unreasonable and arbitrary searches. Furthermore, Arkansas law places restrictions on a law-

enforcement officer’s ability to lawfully stop and detain citizens. Ark. R. Crim. P. 3.1

(2014). These long-established and well-recognized legal principles also apply to Arkansas

Game and Fish officers. See State v. Allen, 2013 Ark. 35, 425 S.W.3d 753.

       The question presented is whether AGFC officers are subject to the same legal

standards that all other law-enforcement officers are bound to follow before detaining a

citizen while engaged in a hunting activity. If so, appellant claims that there is no legal or

factual justification for the AGFC officers’ actions in this case, which requires this case to be

reversed and appellant’s conditional plea set aside.

       The circuit court recognized that the United States Supreme Court has held that a

random investigative stop of a vehicle is impermissible. See Delaware v. Prouse, 440 U.S. 648

(1979) (holding that except in situations in which there is at least articulable and reasonable

suspicion that a motorist is unlicensed or that an automobile is not registered, or that either

the vehicle or an occupant is otherwise subject to seizure for violation of law, stopping an

automobile and detaining the driver in order to check his driver’s license and the registration

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of the automobile are unreasonable under the Fourth Amendment). The Court balanced the

permissibility of the law-enforcement intrusion on an individual’s Fourth Amendment

interest against its promotion of legitimate governmental interest, holding that because of the

alternative mechanisms available, including the foremost method of enforcing traffic and

vehicle-safety regulations through the observation of violations, the incremental contribution

to the governmental interest of highway safety gained from the random spot checks did not

justify the practice under the Fourth Amendment. Id.; see also United States v. Brignoni-Ponce,

422 U.S. 873 (1975). However, the circuit court held that a person who engages in hunting

is subject to random stops, checks, and searches by game wardens.

       The circuit court’s holding acknowledges Justice Blackmun’s concurrence in Prouse,

supra, in which he stated:

       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 example. I necessarily assume that the
       Court’s reservation also includes other not purely random stops (such as every 10th
       car to pass a given point) that equate with, but are less intrusive than, a 100%
       roadblock stop. And 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 663–64 (Blackmun, J., concurring specially).

       The majority holds that Prouse and Allen require the court to suppress the evidence

because the AGFC officers had no reasonable suspicion to detain and search appellant and

that the search was not pursuant to a plan embodying explicit neutral limitations. I agree that

the AGFC officers had no reasonable suspicion that a violation had occurred and

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acknowledge that appellant was not free to leave and was thus seized. However, the AGFC

officers did have neutral criteria that supports the search. Further, our balancing process

weighs in favor of the limited intrusion upon appellant.

       Prouse and Allen are distinguishable from this case, as both are stop-and-search cases

involving vehicles. Hunting is a highly-regulated activity that can be efficiently enforced

only with this type of enforcement, above and beyond the admittedly regulated activity of

driving an automobile or water craft. The majority holds that controlling precedent requires

AGFC officers’ actions to be either (1) based upon reasonable suspicion, or (2) pursuant to

a plan embodying explicit neutral limitations. If reasonable suspicion is not required, the

second prong must be met. In Allen, the Arkansas Supreme Court stated that,

       The Fourth Amendment requires that a seizure must be based on specific objective
       facts indicating society’s legitimate interests require the seizure of the particular
       individual, or that the seizure must be carried out pursuant to a plan embodying
       explicit neutral limitations on the conduct of the individual officer.

2013 Ark. 35, at 4, 425 S.W.3d at 757 (quoting Brown v. Texas, 443 U.S. 47, 50 (1979)).

Despite the contention that the State has failed to present any evidence or argument

demonstrating that the AGFC officers acted pursuant to such a plan or policy, I disagree that

this case poses the same concerns regarding unbridled discretion that mandated the outcome

in Allen. As aptly noted by the circuit court in its order denying appellant’s motion to

suppress:

       [Appellant] asserts that the outcome of this case is controlled by the Arkansas Supreme
       Court’s recent opinion in State v. Allen, which involved a suspicionless stop of a boat
       for the purpose of conducting a safety check. However, the facts of Allen are
       distinguishable from the facts of the case at bar. Factually, even though a game and
       fish officer was involved in the encounter with Mr. Allen, there is no indication in

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       the opinion that Mr. Allen was engaging in the type of fishing activity governed by
       Arkansas statutes and regulation or that the officer was attempting to conduct an
       inspection of a fisherman’s catch as was the instance in Colosimo. Rather, in Allen, the
       officer was attempting to conduct an inspection “for life jackets and other safety items
       that they [boat owners] are required to have on their vessel.” The court in Allen
       reached a conclusion based upon an expectation of privacy is involved. The analysis
       at issue in Allen has specifically been rejected in cases involving the highly regulated
       activities of hunting and fishing.

       In Prouse, supra, the United States Supreme Court held that, in those rare instances

where the Fourth Amendment allows intrusions absent individualized, articulable suspicion,

law enforcement activities must be undertaken pursuant to specified “neutral criteria” rather

than “standardless and unconstrained discretion.” Prouse, 440 U.S. at 661. The Court, in

Prouse, specifically stated that, “given the alternative mechanisms available, both those in use

and those that might be adopted,” such as permissible roadblock-style stops, Delaware’s use

of standardless, unconstrained individual vehicle stops unconstitutionally permitted officers

to base such stops upon their own “unbridled discretion.” Id. Likewise, in Allen, the

Arkansas Supreme Court applied the “explicit, neutral limitations” test to a suspicionless stop

by finding a Fourth Amendment violation because the game warden relied solely upon his

own discretion rather than the type of explicit, neutral limitations required in Prouse.

       The Arkansas Hunting Guidebook, a copy of which is available to everyone at local

sporting-goods stores and online, was presented by the State as evidence of appellant’s

reasonable expectation of privacy in the hunting context. The Arkansas Hunting Guidebook

clearly states that “it is not legal to” “refuse an officer’s lawful request to inspect your wildlife,

tackle, hunting equipment, devices, license, or any item that can reasonably contain wildlife”

or “interfere with an officer performing their duties or flee from an officer.” Arkansas Code

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Annotated section 15-43-104 (Repl. 2009) provides that “[a]ll game and fish except fish in

private ponds found in the limits of this state are declared to be the property of this state. The

hunting, killing, and catching of the game and fish are declared to be privileges.” Section

15-43-105(a) (Repl. 2009) covers related prima facie evidentiary matters and provides:

       (a) The possession of firearms in fields, forests, along streams, or in any location
       known to be game cover shall be considered prima facie evidence that the possessor
       is hunting.

       These statutes and current rules of the AGFC form the very framework for the

“explicit, neutral limitations” test in this case. Appellant’s hunting party was not merely a

group of individuals walking around on open public property. Appellant’s shotgun was in

plain view resting on a tree, along with two other guns, in a permissible hunting location,

during regular duck-hunting season, and within allowed hunting hours, consistent with

section 15-43-105(a). Based on that information, the AGFC officers approached appellant’s

hunting party and asked to check their identification, licenses, guns, and bags that might

contain game. From that minimal amount of information, Officer Aston checked with

NCIC to see if appellant had any outstanding warrants, and, at that point, discovered that he

was a convicted felon. The methamphetamine and drug paraphernalia were found by Officer

Aston in a search incident to appellant’s arrest, pursuant to Arkansas Rule of Criminal

Procedure 12.1 (2013), for being a felon in possession of a firearm. State v. Henry, 304 Ark.

339, 802 S.W.2d 448 (1991).

       Although the United States Supreme Court has not further elaborated on the

constitutionality of suspicionless hunting-compliance checks to date, other states that have


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considered the issue overwhelmingly have upheld these checks against constitutional

challenges. Several states, specifically Louisiana, Minnesota, and Montana, have concluded

that no reasonable expectation of privacy exists in the hunting and fishing context and have

given broad powers to game and fish officers to conduct such searches without the limitations

of the Fourth Amendment. See State v. Colosimo, 669 N.W.2d 1 (Minn. 2003); State v. Boyer,

308 Mont. 276 (2002); State v. McHugh, 630 So.2d 1259 (La. 1994). In Colosimo, the

Minnesota Supreme Court held that, because fishing is a largely recreational privilege that

anglers choose to engage in with knowledge of the regulations governing their conduct, an

expectation of privacy in all parts of an open boat or other conveyance, admittedly used to

transport fish, is not reasonable. See also Boyer, supra (holding that engaging in this highly

regulated activity requires anglers to assume the burdens of the sport as well as its benefits,

and 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 Arkansas, like in Minnesota,

see Colosimo, supra, and Montana, see Boyer, supra, hunters must assume the burdens of

hunting as well as the benefits.

       Compliance checks such as the one by the AGFC officers in the present case are

essential to the AGFC’s stated purpose:

       The control, management, restoration, conservation and regulation of birds, fish,
       game, and wildlife resources of the State, including hatcheries, sanctuaries, refuges,
       reservations and all property now owned or used for said purposes and the acquisition
       and establishment of same, [and] the administration of the laws now and/or hereafter
       pertaining thereto[.]


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Ark. Const., amend. 35, § 1. And, the authority to “regulate bag limits and the manner of

taking game and fish and furbearing animals” and “fix penalties for violations” has been

vested in the AGFC by amendment 35, § 8, and is codified at Arkansas Code Annotated

§ 15-41-203 (Repl. 2009). The highly dangerous and regulated nature of hunting and

fishing demands compliance checks, including questioning and checking of hunting and

fishing equipment and licenses, even though similar actions might not be reasonable outside

the hunting and fishing context.

       In the alternative, even if hunters enjoy any expectation of privacy at all, then that

expectation is greatly diminished. In People v. Maikhio, 253 P.3d 247, 259 (2011), the

California Supreme Court held hunting-compliance checks reasonable under balancing tests

modified from that used in non-hunting cases like Prouse, supra, and Brignoni-Ponce, supra.

The Maikhio court relied on the factors that the United States Supreme Court in New York

v. Burger, 482 U.S. 691, 702–03 (1987), used for special needs and administrative-inspection

cases, and applied them in the hunting context:

               Balancing the importance and strength of the state’s interest and the need for
       the suspicionless stop and demand procedure against the limited impingement upon
       privacy resulting from that procedure, we conclude that the Fourth Amendment does
       not preclude a state from authorizing a game warden to briefly stop a person the
       warden encounters on a pier, in a boat, or in the field, who the warden reasonably
       believes has recently been fishing or hunting, to demand that the person display all
       fish or game that he or she has caught or taken, even in the absence of reasonable
       suspicion that the person has violated a fish and game statute or regulation.

Maikhio, 253 P.3d at 262–63.

       Applying the factors considered in Maikhio to the hunting-compliance inspection in

this case, there is clearly a compelling interest beyond mere law enforcement—the State’s

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control, management, restoration, conservation and regulation of birds, fish, game and

wildlife resources—an interest entrusted to the AGFC by amendment 35 to the Arkansas

Constitution, property laws, and regulations that recognize the paramount importance of

these invaluable natural resources. The Arkansas Constitution perpetuates a public-trust

doctrine requiring AGFC to control, manage, restore, conserve, and regulate the wildlife

resources of the State. Ark. Code Ann. § 15-43-104; see also Lewis v. State, 110 Ark. 204,

161 S.W. 154 (1913) (holding that the fish and game of the state, ferae naturae, belong to the

whole people of the state collectively). Wildlife is owned by the State and not subject to

private appropriation except when done under regulations that protect the general interest.

See State v. Mallory, 73 Ark. 248, 83 S.W. 959 (1904).

       AGFC has a special governmental need outside the ordinary law-enforcement context

to have its wildlife officers stop hunters and fishers near game and fish habitat, check for

hunting and fishing licenses, inquire about game and fish taken, request to inspect game and

fish in field possession, and request to inspect killing devices and hunting and fishing tackle.

In this capacity, the AGFC officers act not only as law enforcers but also as public trustees

protecting, conserving, and promoting conservation of the wildlife of the State by (1)

protecting the State’s wildlife resources from those who violate regulations promulgated for

the sound management and conservation of the resource and (2) serving as front-line

gatherers of information necessary for the intelligent formation and revision of laws,

regulations, and policies affecting and regulating seasons, limits, management areas, food

chains, and other factors related to the management and conservation of the wildlife.


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       Such an inspection by an AGFC officer for compliance with AGFC’s regulations

involves only a few questions and a brief detention usually of no more than two or three

minutes, which is consistent with the AGFC officer’s constitutional and statutory duties and

falls far short of being analogous to an arrest. A check for a hunting license, coupled with

a question about game, is easily standardized and minimally invasive. The potential

interference with the activities of legitimate hunters and fishers is minimal, and the impact

on the larger non-hunting and non-fishing segment of the populace is almost nonexistent.

       The impact in this case consisted of a twenty-minute conversation and inspection of

licenses and weapons for compliance with state and federal hunting regulations. It occurred

during hunting season on known hunting land and did not involve the stop of a vehicle or

vessel. Rather, appellant’s hunting party was approached by foot in the area where they were

hunting only after it was confirmed that they were engaged in hunting. Thus, the scope of

the encounter was limited only to those practicing the highly-regulated sport of hunting.

Finally, as Officer Aston testified, state and federal hunting regulations could not be

adequately enforced if he was able to conduct inspections only after developing reasonable

suspicion that a violation had occurred. Accordingly, in balancing a hunter’s diminished

expectation of privacy with the State’s heightened interest in protecting Arkansas’s wildlife,

it is not unreasonable for an AGFC officer to perform a compliance check on someone who

is hunting in the absence of reasonable suspicion that the person has violated a game statute

or regulation.




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       The circuit court in this case correctly rejected appellant’s reliance on Allen because

the only commonality between that case and this one is the involvement of an AGFC officer.

The officer in Allen did not merely approach Allen to ask some questions, but stopped and

boarded his boat for a safety check. There was no indication that Allen was engaged in the

practice of hunting or fishing, in which situations state and federal regulations would apply

and the need to check for compliance with those regulations would arise. As the court in

Allen held, the random stopping and boarding of a boat in that context is analogous to

randomly stopping a vehicle without articulable suspicion of illegal activity. A check of

someone who is fishing or hunting to inquire about that person’s compliance with state and

federal hunting or fishing regulations is not so random. Consequently, Allen is inapposite to

this case. If this court looks to other cases, such as Maikhio, that have analyzed the

constitutionality of hunting-compliance checks, it is clear that, even assuming, arguendo, that

the Fourth Amendment and article 2, section 15, of the Arkansas Constitution are implicated

in the sport of hunting, a compliance check does not infringe upon those rights.

       WALMSLEY and GLOVER, JJ., join.

       Miller Law Firm, by: Randel Miller, for appellant.

       Dustin McDaniel, Att’y Gen., by: Kathryn Henry, Ass’t Att’y Gen., for appellee.

       James F. Goodhart, John P. Marks, Jennifer R. Jameson McKendree, and Christian N. Parks,

Arkansas Game and Fish Commission, amicus curiae in support of appellee.




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