Do you have a reasonable right to privacy while fishing in an ice shanty?

This may not be very techy, but it’s certainly bizarre and about the Fourth Amendment. Do you have a reasonable expectation of privacy in an ice fishing shanty -- not if you didn't bring along a sleeping bag or other "tech" like a TV or radio and intend to smoke weed.

If you were brave enough to venture into the freezing winter weather and then hunkered down on a frozen lake, inside an ice fishing hut, would you expect to have a reasonable expectation of privacy? The legal answer so far is "no" at least not in Spring Lake, Illinois, where a strange warrantless search case occurred such as, previously, I had not pondered. Granted, this may not be very techy but it's certainly bizarre -- about the Fourth Amendment and our civil liberties.

Fourth Amendment blogged that the "defendant did not have a complete reasonable expectation of privacy in a icy fishing shanty because it was not a place where people slept. A conservation officer approached the shanty and overhead the occupants talking about the quality of their 'weed,' and he entered."

Since I dislike using people's real names and further invading their privacy, I'll refer to a Spring Lake Conservation officer as 'Johnny Law' and the defendant who was busted for pot as 'Toking Tom.' If you insist upon knowing the real names, they can be read in the December case, People v. Slavin [PDF], which resulted in the motion to suppress being denied.

From the testimony, Johnny Law said he was checking that ice fishermen were complying to fishing regulations. It's purely speculation to think Johnny Law may have at one time been a Toking Tom, so here is part of the testimony.

[Johnny Law] "then stopped outside the ice shanty for a period of approximately three to five minutes. During this time, [Johnny Law] listened to the conversation occurring within the ice shanty. He heard the occupants talking about fish that they wished to catch and he heard one occupant comment on who was going to "pack the bowl" and remark about the quality of the "weed." In [Johnny Law]'s training and experience, the phrase "pack the bowl" is a reference to placing or packing cannabis inside a glass pipe or bowl, which is used to inhale the cannabis. [Johnny Law] also heard a cough, which he described, based on his experience, as a sound someone would make after inhaling cannabis through a pipe.

This ice shanty was made of canvas and appeared like an oversized tent, (perhaps like the one pictured), required a person to pull it out on ice and served as shelter from the elements. Fishermen sit inside and cut holes in the ice to try their luck fishing. Johnny Law said since the bottom was made of plastic, then it could "easily" be dragged from spot to spot so fisherman can "try different fishing holes." Once Johnny Law entered the ice fishing shack, he saw three fisherman, "fishing equipment, tackle boxes, bait, buckets, a bench, and, possibly, a miniature heater. He did not see any sleeping arrangements, cooking apparatus, radio, or television." He also "immediately detected an odor of burnt cannabis."

The State argued that a shanty is like a car, "easily collapsible and movable" and Johnny Law had the power to conduct a warrantless search without probable cause since he suspected the occupants were smoking dope and getting high. The Defense argued the shanty is more like a house, "clearly being used for shelter like a dwelling" where a person has a reasonable expectation of privacy. The Fourth Amendment grants people the "right to retreat into his or her home without unreasonable government interference;" therefore Johnny Law needed a warrant before entering to search. In fact, the attorney for Toking Tom pointed out that "the automobile exception is based on a vehicle being readily moveable and capable of eluding police." However the ice "shanty is not readily mobile, as it must be dragged along the ice on its plastic bottom; it has no wheels; and, although portable, its mobility is not such as to have made obtaining a warrant impracticable."

"The Fourth Amendment protects people, not places" but it "may depend upon where those people are." A previous court said that although "a tent may not provide the sturdy protection against the winds, the rains, the heat, and the cold, which a customary house provides, the tent-dweller is no less protected from unreasonable government intrusions merely because his dwelling has walls of canvas rather than walls of stone. A dwelling place, whether flimsy or firm, permanent or transient, is its inhabitant's unquestionable zone of privacy under the Fourth Amendment."

The State said Johnny Law saw no sleeping bags, therefore Toking Tom had no intent to stay the night. This ruled out the rights granted to "overnight guests" who apparently have a reasonable expectation of privacy.

Further down in the ruling, there was a distinction about hearing the "cough" and "packing the bowl" that "even if an ordinary person would not understand such terms, it is enough that an officer of his experience and training suspects the use of drugs." The State said Johnny Law "could not have called another officer to monitor the scene while he obtained a warrant, as the suspected cannabis likely would have been removed from the scene or destroyed by simply smoking it or dropping it through the hole into the water below." It was concluded that there was "no need to address the issue concerning a warrantless and suspicionless search."

Possible moral of the story? If you plan to freeze your hiney off by fishing in the winter and plan to smoke dope in an ice shanty, take a sleeping bag or some tech toys to appear like you are staying so you might have a reasonable expectation of privacy. Otherwise . . . toke the evidence early and often, or pitch it into the water? ;-) Clearly I am not an attorney.

Hopefully photographer 'JosephAdams' will forgive me for blurring the face in a photo of getting high near the water, that seemed to work for this article. It was an attempt to protect the person's privacy.

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