Law for Backpackers - Q and A

[The Weasel]

Question: This is a take-off from the first thread.

What kind of situation would be the minimum "probable" cause for the search of a backpack, and who has the authority to conduct such a search? Is it any different on the AT than in an airport?

"Probable cause" is a very critical term in search and seizure law. I won't use one of the case decisions here, but try to provide one that I think is more appropriate for laypeople to live with. But first, one needs to understand something said repeatedly on the previous thread: There is no right to search a person (with or without a backpack) or their effects they are carrying (such as a purse, briefcase, shopping bag or backpack) unless (1) a warrant has been issued by a neutral magistrate or judge (either way, a part of the judicial branch) authorized to issue warrants after factual information presented to her that "probable cause" exists for the search and a finding by her that it does, in fact, exists, OR (2) an exception exists such as (a) "protective search" or patdown for protection of officers, (b) "plain view" items that are immediately observable (example: pot in a baggie clipped to pack), (c) "consent" searches or one of several others. (If you're really interested in 4th Amendment issues like that, tell me, but there are better resources online than I'll be.) If a search doesn't fit one of those exceptions, there is no right to search.

NO one has the authority to perform an illegal search. Warrant-based searches must be performed by a person authorized in the warrant (usually by category, i.e. "Damascus Police Department" or some such thing). Protective searches or stops may be performed by law enforcement officers acting within their jurisdiction.

"The rules" are the same on the trail, at airports, and anyplace else in the US with the EXCEPTION of border zones, where Customs/Border Patrol agents have the right to search w/o warrants due to the nature of the border. That includes Entry Points and Border Crossings, as to both non-citizens and citizens alike.

Who has the authority to arrest and detain suspects?

"Citizen arrests" are possible but so risky that I would rather not comment, and I'll dodge that by saying it's off-topic. Otherwise, only law enforcement agents acting within their jurisdiction. There is a significant post on that in the early part of the original thread. Due to frequent "cross-deputizations", many state and federal LEO's are deputized to act outside their specific city/county/state, and if someone performs an arrest, displaying law enforcement credentials, you should assume they have the authority to do so, and leave that issue for post-arrest consideration by your attorney or, if you don't have one, yourself.

Scenario: You are at a shelter and you find some of the stuff missing from your pack. Do you have any right to get people's names, look in their packs, or anything else in order to recover your belongings? What kind of information about your "suspects" would a LEO need in order to go into their packs and find your stuff for you? Can a park ranger help you, or do you have to find someone in the civilian police force? What kind of markings should you have on your belongings in order to ensure that you will be able to reclaim them if their ownership is in dispute?

In this scenario, briefly, you have no "authority" to demand names, and absolutely no right to go into other people's packs. LEOs would want as much identifying information as possible, including names, if possible, and descriptions. She would not, though, be able to "go into their packs" to get your things, absent a warrant. Unless you saw the theft or saw your gear, and were willing to sign an affidavit, it is doubtful a warrant would issue. The police may question people, however, if they can find them, and people accused of crimes do a lot of stupid things, like consent to searches. That is the best, frankly, you could hope for. As for markings, the more permanent and/or indelible, the better. Serial numbers help, too. [/quote]

What if you leave your sunglasses in the shelter, walk out, and then immediately come back in to retrieve them, only to find them on someone else's face? Is it "finder's keepers"? If not, what would it take to get them back if the person won't hand them over? What charges could be filed against the person if they are caught by the law? Will local law enforcement be able to prosecute a case if you, the victim, are hundreds of miles away on foot at the time of the trial?

(1) That's theft, not "finding. Depending on the value, it's either "simple" or "grand" theft, which are separate crimes with different penalties. (2) If not voluntarily returned, hitting someone would be an assault, and not justified. You can report the theft to the police. (3) Charges would be for theft. (4) No, without a complaining witness, police/prosecutors generally will not take a case further than a complaint.

[Brrrb Oregon]

"Probable cause" is a very critical term in search and seizure law. I won't use one of the case decisions here, but try to provide one that I think is more appropriate for laypeople to live with. But first, one needs to understand something said repeatedly on the previous thread: There is no right to search a person (with or without a backpack) or their effects they are carrying (such as a purse, briefcase, shopping bag or backpack) unless (1) a warrant has been issued by a neutral magistrate or judge (either way, a part of the judicial branch) authorized to issue warrants after factual information presented to her that "probable cause" exists for the search and a finding by her that it does, in fact, exists, OR (2) an exception exists such as (a) "protective search" or patdown for protection of officers, (b) "plain view" items that are immediately observable (example: pot in a baggie clipped to pack), (c) "consent" searches or one of several others. (If you're really interested in 4th Amendment issues like that, tell me, but there are better resources online than I'll be.) If a search doesn't fit one of those exceptions, there is no right to search.

NO one has the authority to perform an illegal search. Warrant-based searches must be performed by a person authorized in the warrant (usually by category, i.e. "Damascus Police Department" or some such thing). Protective searches or stops may be performed by law enforcement officers acting within their jurisdiction.

"The rules" are the same on the trail, at airports, and anyplace else in the US with the EXCEPTION of border zones, where Customs/Border Patrol agents have the right to search w/o warrants due to the nature of the border. That includes Entry Points and Border Crossings, as to both non-citizens and citizens alike.

"Citizen arrests" are possible but so risky that I would rather not comment, and I'll dodge that by saying it's off-topic. Otherwise, only law enforcement agents acting within their jurisdiction. There is a significant post on that in the early part of the original thread. Due to frequent "cross-deputizations", many state and federal LEO's are deputized to act outside their specific city/county/state, and if someone performs an arrest, displaying law enforcement credentials, you should assume they have the authority to do so, and leave that issue for post-arrest consideration by your attorney or, if you don't have one, yourself.

In this scenario, briefly, you have no "authority" to demand names, and absolutely no right to go into other people's packs. LEOs would want as much identifying information as possible, including names, if possible, and descriptions. She would not, though, be able to "go into their packs" to get your things, absent a warrant. Unless you saw the theft or saw your gear, and were willing to sign an affidavit, it is doubtful a warrant would issue. The police may question people, however, if they can find them, and people accused of crimes do a lot of stupid things, like consent to searches. That is the best, frankly, you could hope for. As for markings, the more permanent and/or indelible, the better. Serial numbers help, too.

(1) That's theft, not "finding. Depending on the value, it's either "simple" or "grand" theft, which are separate crimes with different penalties. (2) If not voluntarily returned, hitting someone would be an assault, and not justified. You can report the theft to the police. (3) Charges would be for theft. (4) No, without a complaining witness, police/prosecutors generally will not take a case further than a complaint.

So legally, if somebody in a shelter makes off with your stuff without being caught red-handed, you are essentially left with only diplomacy as a means to get it back, unless you are willing to commit burglary(?) or assault yourself? (What is the crime called, when you go through somebody else's pack without permission on the pretext that you believe your stuff is in there?)

Follow-up question, RE: state border searches: As you probably know, California does searches at its borders for produce that is not allowed into the state. I don't know if they're allowed to go into your car if they smell pears or see old apple cores, but they do make you leave banned produce at the check-point if they find that you've got it....or at least, they have in the past. (I haven't crossed the Oregon/California border in a car for some time.)

Are there any states on the AT that do similar searches for produce or the like at their border? If an AT state were to choose to enact something like California has, say if Georgia put out a quarantine to protect their peaches from some disease, what may the state do in terms of searches at their border and what are they barred from doing?

[The Weasel]

So legally, if somebody in a shelter makes off with your stuff without being caught red-handed, you are essentially left with only diplomacy as a means to get it back, unless you are willing to commit burglary(?) or assault yourself? (What is the crime called, when you go through somebody else's pack without permission on the pretext that you believe your stuff is in there?)

Yep, that's about it. (The "crime" of going through someone else's stuff to search for yours may have a lot of different names, including "disorderly person" or "disturbing the peace." Don't worry about the name; while a 'minor' offense, technically it's still an offense. Many here don't understand that 'minor' offenses aren't "legal" just because they are very minor; they're illegal, even if rarely prosecuted, though).

Follow-up question, RE: state border searches: As you probably know, California does searches at its borders for produce that is not allowed into the state. I don't know if they're allowed to go into your car if they smell pears or see old apple cores, but they do make you leave banned produce at the check-point if they find that you've got it....or at least, they have in the past. (I haven't crossed the Oregon/California border in a car for some time.)

Are there any states on the AT that do similar searches for produce or the like at their border? If an AT state were to choose to enact something like California has, say if Georgia put out a quarantine to protect their peaches from some disease, what may the state do in terms of searches at their border and what are they barred from doing?

I don't think any states along the AT do such searches, which are more of an agricultural/public health issue than a law enforcement issue. What they can do would be defined by the law that allows them to, but, beyond the agricultural search, no more (or less) than they could without it. That said, "plain view" from such a stop can result in other contraband being seized.

The Weasel

[Brrrb Oregon]

I don't think any states along the AT do such searches, which are more of an agricultural/public health issue than a law enforcement issue. What they can do would be defined by the law that allows them to, but, beyond the agricultural search, no more (or less) than they could without it. That said, "plain view" from such a stop can result in other contraband being seized.

The Weasel

To clarify: if you were to come into Georgia during an agricultural quarantine with an out-of-state peach showing out the top of your pack, you'd better not have any other contraband, agricultural or not, anywhere else in your pack? Or could they only nab the peaches?

[The Weasel]

To clarify: if you were to come into Georgia during an agricultural quarantine with an out-of-state peach showing out the top of your pack, you'd better not have any other contraband, agricultural or not, anywhere else in your pack? Or could they only nab the peaches?

Brrb --

I'm not trying to dodge (I'm dodging, I know, but not trying) but the more specific a question, the harder it is. But I'll try:

First, I'm not aware of any laws that Georgia, or other states, have aboutg non-commercial "importation" of agricultural products. And a particular quarantine will have its own rules, which I can't speak about.

But "the peach on the pack" doesn't change the ability of a law enforcement officer to do a search or seizure; the 4th Amendment is still the same, and a LEO can do as much - but no more - regardless of the peach.

Understand one thing: Generally "quarantines" do not permit searches or seizures in the constitutional sense: They are, I believe, a form of consent search, at most: If you want to enter a quarantined area, you must permit a search, if requested, or else not enter the area. The risk, though, is obvious: A consent isn't "partial" ("Sure, officer, you can search, but not for drugs") and if contraband is found (such as drugs) it may be the basis for a lawful search.

This is not a perfect answer; 4th Amendment issues get very tricky, so this is a guideline. But reasonably accurate, I think.

The Weasel

[The Weasel]

To clarify: if you were to come into Georgia during an agricultural quarantine with an out-of-state peach showing out the top of your pack, you'd better not have any other contraband, agricultural or not, anywhere else in your pack? Or could they only nab the peaches?

Took a closer look at California's program. As I suspected, it's not a 'law enforcement' stop, and the Border Inspections Stations are administered by the state Dept of Agriculture. I didn't find a similar program authorized in Georgia, but I only did brief research.

The Weasel

[RockyTrail]

The Weasel:

If you are asked by a LEO for consent to search, and decline the request(despite having no contraband and nothing to hide), this could possibly turn into an ugly standoff with the LEO as they would now be suspicious of you. At this point are you protected from the LEO "planting" evidence because you refused the search?

Please realize I'm coming at this as a law-abiding citizen that just doesn't want to make myself vulnerable by authorizing unnecessary searches. What does an honest person do?

[The Weasel]

The Weasel:

If you are asked by a LEO for consent to search, and decline the request(despite having no contraband and nothing to hide), this could possibly turn into an ugly standoff with the LEO as they would now be suspicious of you. At this point are you protected from the LEO "planting" evidence because you refused the search?

Please realize I'm coming at this as a law-abiding citizen that just doesn't want to make myself vulnerable by authorizing unnecessary searches. What does an honest person do?

Some of this depends on your location.

If you're at home, an office, or (thru hiking) perhaps a motel, you simply close the door until a warrant appears, if ever. In those situations, one may appear; if a LEO has felt the need to come to your door, they may be looking for something. Still, you close the door.

The same for a vehicle. You ask, "May I leave now," and once they say, "Yes," you leave.

Beyond that, if it's on the trail, you do the best to stand apart from them. "Planted" evidence happens far less often than people think.

But yes, then there may be a suspicion. This is one more good reason to be law-abiding, so that when they do - if it happens, which truly IS rare - that they do an illegal search, they find nothing.

The Weasel

[hopefulhiker]

I believe it was in NJ that I actually became angry at a bunch of cyclists that took over the AT for several miles. It was posted that there were to be no mountain bikes on the trail but these guys ignored the rules. The ruts and erosion gave evidence the cyclists ran this route a lot.. Is it just a rule or there any legal teeth to keeping cyclists and atvs off the foot path?

[The Weasel]

I believe it was in NJ that I actually became angry at a bunch of cyclists that took over the AT for several miles. It was posted that there were to be no mountain bikes on the trail but these guys ignored the rules. The ruts and erosion gave evidence the cyclists ran this route a lot.. Is it just a rule or there any legal teeth to keeping cyclists and atvs off the foot path?

If it is a "rule" of a government, it's sufficiently a "law" (whether a statute or an administrative regulation) that you can inform the police or rangers who will ticket or otherwise act.

The Weasel

[Brrrb Oregon]

Brrb --

I'm not trying to dodge (I'm dodging, I know, but not trying) but the more specific a question, the harder it is. But I'll try:

First, I'm not aware of any laws that Georgia, or other states, have aboutg non-commercial "importation" of agricultural products. And a particular quarantine will have its own rules, which I can't speak about.

But "the peach on the pack" doesn't change the ability of a law enforcement officer to do a search or seizure; the 4th Amendment is still the same, and a LEO can do as much - but no more - regardless of the peach.

Understand one thing: Generally "quarantines" do not permit searches or seizures in the constitutional sense: They are, I believe, a form of consent search, at most: If you want to enter a quarantined area, you must permit a search, if requested, or else not enter the area. The risk, though, is obvious: A consent isn't "partial" ("Sure, officer, you can search, but not for drugs") and if contraband is found (such as drugs) it may be the basis for a lawful search.

This is not a perfect answer; 4th Amendment issues get very tricky, so this is a guideline. But reasonably accurate, I think.

The Weasel

Sometimes, "it depends" is the best answer. That isn't a dodge. I'm also not aware of Georgia having any such law. I just know they're famous for peaches, so I used them as an example.

How about this: To the best of your knowledge, do interstate commerce laws allow a state to deny entry to people who won't consent to show that they don't have any produce that pose a real threat to the state's agriculture? In other words, if Georgia or any of the other states on the AT were to enact such a quarantine, could a refusal to demonstrate that you don't have any blinking peaches bring your AT thruhike to a screaching halt....well, at least until you have time to go back across the border and ditch the stuff that you don't want the law to run across?

[The Weasel]

Sometimes, "it depends" is the best answer. That isn't a dodge. I'm also not aware of Georgia having any such law. I just know they're famous for peaches, so I used them as an example.

How about this: To the best of your knowledge, do interstate commerce laws allow a state to deny entry to people who won't consent to show that they don't have any produce that pose a real threat to the state's agriculture? In other words, if Georgia or any of the other states on the AT were to enact such a quarantine, could a refusal to demonstrate that you don't have any blinking peaches bring your AT thruhike to a screaching halt....well, at least until you have time to go back across the border and ditch the stuff that you don't want the law to run across?

Brrrb....

We are careening wildly off topic, but this is such a totally space cadets question - sort of in the category of, "If Uganda invaded Guam, would a golfer be allowed to eat crawdads?" (Yes) - that I'm gonna go for it.

I think that reasonable restrictions on the right of a person to enter, or use the highways of, a sister state are permissible state acts under the Commerce Clause, if they do not create an unduly difficult burden on the right of people to enter the state generally. Quarantine laws are one example of that, as are truck inspections and, for that matter, drivers licenses (the lack of which will prevent you from lawfully driving a car into another state, even if your host jurisdiction doesn't require one, as is the case in some countries).

Thus, if Virginia were to set up inspection stations on its border to prevent the entry of agricultural products carrying for instance, the wooly aelgid (spelling?), I don't see a problem. And could they have one just south of Damascus, and insist on inspections? Yeah, probably. Gonna happen? Nah.

The Weasel

[Lone Wolf]

OK I'll play. Say me or whoever is hiking across Hump Mtn. in Tenn. where the Longhorn cattle are freely grazing and one decides to chase then gore us, unprovoked of course. Who is liable? The ATC, USFS, cattle owner or all of the above? This can pertain to any place where hikers have to cross a pasture with farm animals roaming about.

[emerald]

the wooly aelgid (spelling)

The Weasel

adelgid. Asked and answered, not by someone with a PhD in plant pathology or entomology, however. Here's a link to an authoritative source that shows the spelling. Much information can be Googled by those who have more interest in this issue.

[The Weasel]

OK I'll play. Say me or whoever is hiking across Hump Mtn. in Tenn. where the Longhorn cattle are freely grazing and one decides to chase then gore us, unprovoked of course. Who is liable? The ATC, USFS, cattle owner or all of the above? This can pertain to any place where hikers have to cross a pasture with farm animals roaming about.

Probably only the cattle owner, and then only if the cattle were not authorized to be grazing in that field, or if the bull was known for unprovoked charges or otherwise known to be more dangerous than typical bulls to nearby hikers. Distant chance of USFS being liable, probably only if it had knowingly permitted herd to be present without authorization.

Generally, when one is aware of a risk of potential injury, but engages in a particular activity, one is said to have "assumed the risk" or suit is barred by "assumption of the risk." This doctrine has been abandoned in some places or severely limited by what is known as "comparative negligence," in which the relative fault of each side is determined, and the fault level of the plaintiff reduces their recovery accordingly. Example: Hiker enters field and yells at bull, provoking it. Bull and other cattle were supposed to be moved from that field previous day. Hiker is injured and suffers $10,000 in damages according to jury, which also finds hiker 40% at fault. Hiker's verdict is reduced by $4,000.

The Weasel

[Old Grouse]

In many states there are also "recreational use" statutes which protect a landowner from liability. These laws are effective in encouraging landowners to make their property available to others. If he/she allows recreational use of the land without charge, you can't sue him/her for your injuries, provided that he/she doesn't intentionally create the hazard which injured you.

I'd say if the landowner's cattle have no known history of ill-will toward hikers, then in a state where a recreational use statute is in place, you couldn't hold him/her liable.

[The Weasel]

Is there any interest/need for information for international visitors to this site for a general description of what they need to know before landing in the US about customs/immigration? There is a useful thread on Canada and customs/immigration that seems essentially over (and complete) but there are differences for other countries, as well as some 'unknown' issues such as special rules for foreigners who have been arrested.

If not, I won't bother. If there is, I'll do a synopsis of some of the points.

The Weasel

[TIDE-HSV]

the recreational use statute in Alabama. It does require a song and dance for the land to qualify, but the liability umbrella is pretty broad, once in place. It's interesting that it goes out of its way to state that this statute is NOT to be construed as granting a general right of trespass for recreational use...

[The Weasel]

the recreational use statute in Alabama. It does require a song and dance for the land to qualify, but the liability umbrella is pretty broad, once in place. It's interesting that it goes out of its way to state that this statute is NOT to be construed as granting a general right of trespass for recreational use...

Tide: While I haven't seen the Alabama statute, I am going to take a WAG and say that the distinction is between the "permitted uses" that the statute allows a landowner to grant, and that everything else remains a trespass. In other words, "everything not specifically permitted is forbidden." People accessing such properties should view the signs posted with great care and limit their activities to only those expressly allowed.

The Weasel

[Nean]

A few years back a friend of mine was stopped and searched by a park ranger (if I recall) soon after we left the DWG church hostel feed. Seems someone joked that he had a gun. The woman made it sound as if he didn't have an option. Legal search?