The opinion of the court was delivered by: Banks, Justice
94-CA-00390-SCT, __ So. 2d __
ONE 1992 TOYOTA 4-RUNNER, VIN #JT3VN39W2N8034941; ONE 12-FOOT SEARS BOAT; ONE 7.5 H.P. HONDA MOTOR, SERIAL NO. 1705054; ONE BOAT TRAILER, SERIAL NO. BA 13L41-AA16051; ONE DIP NET; ONE ICE CHEST; ONE ELECTRICAL DEVICE v. STATE OF MISSISSIPPI, EX REL., MISSISSIPPI DEPARTMENT OF WILDLIFE FISHERIES AND PARKS
DATE OF JUDGMENT: 04/01/94
TRIAL JUDGE: HON. R. I. PRICHARD, III
COURT FROM WHICH APPEALED: LAWRENCE COUNTY CIRCUIT COURT
NATURE OF THE CASE: CIVIL - OTHER
DISPOSITION AFFIRMED IN PART; REVERSED AND VACATED IN PART - 8/27/98
MOTION FOR REHEARING FILED:
¶1. We are confronted in this case with a challenge to the forfeiture of several items of property pursuant to the criminal convictions of Jon and Linda Devine, who were convicted of illegally fishing with the aid of an electrical device and possession of the illegally acquired fish. Because we find that the forfeiture statute at issue here has been amended to exclude titled vehicles, we reverse the forfeiture of the appellant-vehicle.
¶2. At about 9:00 a.m. on August 29, 1993, Officer Randy Carr, a law enforcement officer of the Mississippi Department of Wildlife, observed Jon and Linda Devine on a boat in the Pearl River in Lawrence County. He was standing in plain clothes on the river bank, south of Monticello. He estimated that he was two- to three hundred yards away when he first saw them, but repositioned himself so as to be about thirty-five yards away. He believed them to be shocking up fish, a method of fishing in which a person drags an electrical wire over the edge of the boat. The weighted wire carries a current which shocks motley catfish on the bottom of the river, causing them to rise to the surface.
¶3. Officer Carr testified that he saw a wire hanging over the boat's edge, and saw the fish come to the water's surface, and saw Mrs. Devine dip one fish up. He did not observe any fishing reels or poles being utilized at that time to obtain fish, nor did he actually observe the shocking device.
¶4. After watching them for a while and obtaining the registration number of the boat, Officer Carr returned to the water park where he figured the people in the boat (later thought to be the Devines) had parked their car. At this time, he ran into Officer Kenneth Tanksley, another agent of the Department of Wildlife who was in uniform. After sitting with Officer Tanksley for a while, the two officers heard a boat coming upriver. Officer Carr then explained to Officer Tanksley that he had observed some people shocking fish in the river while he was on the bank. Officer Carr made no effort at this time to obtain an arrest or search warrant, testifying that he did not believe he needed one.
¶5. At around noon, Officers Carr and Tanksley observed Mrs. Devine, whom Officer Carr believed was one of the people he had seen shocking fish on the river, enter the parking lot of the Atwood Water Park from some woods that precede that river bank and get into the defendant Toyota 4-Runner. She proceeded to back the car down to the ramp on the river bank in order to load a boat. Officers Carr and Tanksley allowed them to load up their fishing equipment and get away from the river somewhat so they would not be able to throw the evidence back into the river.
¶6. The officers then stopped the Devines, after they had loaded up the boat and pulled away from the river's edge. Officer Carr saw the catfish in their boat, and asked Mr. Devine what he'd caught them on. Mr. Devine replied that he had caught them on shrimp. After remarking that he had never known flathead catfish to bite shrimp, and finding no hook marks in the fishes' mouths, he informed the Devines that he had observed them shocking up fish and they were consequently under arrest.
¶7. Officer Carr then testified that both Devines, after being read their Miranda rights, then gave the officers consent to search their vehicles and Mrs. Devine's purse. Carr stated during his testimony that after asking for and receiving consent to search the vehicle, he told Mrs. Devine "Ma'am, if you don't mind, first thing we do, if you'd empty your purse out here on the ground, we'll look at that first." Mrs. Devine testified at the suppression hearing that she emptied her purse because Officer Carr instructed her to.
¶8. During this search, Officer Carr found what he believed to be a shocking device in a leather case in Mrs. Devine's purse, and seven flathead catfish. Neither officer found any wires or batteries that Officer Carr conceded would be necessary to operate the device. They subsequently confiscated the dip net, the electronic device thought to be used to shock fish, a dip net, the boat and trailer, and the automobile. Neither officer tested the confiscated electronic device to see whether it in fact was a device that would shock fish to a water surface.
¶9. The Devines were charged with taking fish with an electrical device and possession of illegally obtained fish, two misdemeanors. Their Toyota 4-Runner, boat, trailer, ice chest (that had contained the fish) and dip net were seized at the time of their arrest and a petition for forfeiture was subsequently filed by the Department of Wildlife. Prior to the trial, the Devines moved to suppress all evidence obtained pursuant to their arrest and the search of their vehicles on the grounds that the statutes which enabled the warrantless searches and seizures by the gaming commission were unconstitutional insofar as they did not require an officer to first have probable cause. They also argued in the alternative that even if a probable cause requirement could be read into the enabling statutes, the statutes cannot constitutionally authorize a warrantless arrest several hours after the commission of the misdemeanors, such as was experienced by the Devines.
¶10. Following a hearing, the circuit court denied the suppression motion. In his ruling from the bench, he found that the operative statute, § 49-1-43, *fn1 enabled the Department Officers to search the Devines' vehicles with or without their consent, and furthermore without a warrant, as long as a trier of fact concluded that Officer Carr observed the Devines taking fish illegally in his presence. The court further held that the statute validated the search no matter how many hours elapsed between the observed behavior and the search.
¶11. The Devines were convicted of the criminal charges in the Justice Court of Lawrence County, and after an appeal and a trial de novo in the circuit court, were convicted again of all charges by a jury on March 30, 1994. On April 1, 1994, the circuit court sentenced Mr. and Mrs. Devine each to $1100 fines, $182 state assessments, court costs, and 15 day county jail sentences to be suspended upon payment of all fines, assessments, and costs. The Devines moved for a judgment notwithstanding the verdict, reiterating their contentions that the operating statutes were unconstitutional and ...