Our game warden charged a local sportsman with "hunting after dark" and seized the memory card from his game camera which contained photos documenting first, a really nice buck; second, the buck on the ground; and third, the defendant, in his pajamas, posing the animal for a photo.

The defendant has moved to suppress the photos due to the absence of a warrant. Our judge wants "a case" supporting our position that the photos are admissible. We've already argued exigent circumstances. Any other suggestions?

I need a bit more info. How did the game warden discover the pictures? If he found the camera on the person after arresting him, that could be a search incident to the arrest.

Consider it this way. If the defendant had been holding a film camera, indicating that several pictures were taken, would we be getting all upset if the camera had been seized and the film developed? Would we be wondering whether the officer should tell everyone there in the woods to hold on a second while he rushed off to get a warrant? Digital equipment didn't change the Fourth Amendment.

Here's some additional information: Parks and Wildlife Code section 12.102 provides in part:

(b) Except as provided by Subsection (d), a game warden or
other peace officer commissioned by the department who observes a
person engaged in an activity regulated by this code or under the
jurisdiction of the commission or reasonably believes that a person
is or has been engaged in an activity regulated by this code or
under the jurisdiction of the commission may inspect:
(1) any license, permit, tag, or other document issued
by the department and required by this code of a person hunting or
catching wildlife resources;
(2) any device that may be used to hunt or catch a
wildlife resource;
(3) any wildlife resource in the person's possession;
and
(4) the contents of any container or receptacle that
is commonly used to store or conceal a wildlife resource.

I'm arguing that the game camera is a "device used to hunt or catch a wildlife resource" which should be, then, subject to inspection. I don't see any exclusion under subsection (d).

In this instance, the officer received a report through operation game thief of shooting in the area from hunters on a neighboring lease. The officer entered the property and observed the defendant in the process of cleaning the deer. The animal was warm and rigormortis (sp?) had not set in. The officer also observed an extension cord running from a lamp post by the defendant's game feeder and through an open window of the defendant's trailer.

FYI, I am on an interstate wildlife attorney email list, and one of my counterparts in another state brought up this same issue a few months ago. Some of the attorneys had opinions, but no law on point.

The Defendant testified at the suppression hearing and admitted to hunting after dark. Thereafter, agreeing to plea guilty. He was sentenced to 2 yrs. probation, 4yr license suspension and a $3750 fine.

We have advised our game warden to just seize the camera next time, pursuant to the P&W code and then to get a warrant to avoid this problem in the future.

If the camera was within the wing-span of the arrestee couldn't they search the device, "incident to his arrest"? Take a look at U.S. v. Finley, 477 U.S. 250 (5th Cir. 2007). In that case, the defendant was arrested for selling drugs. He had a cell phone on him and the police searched the contents of the cell phone "incident to his arrest". The 5th Circuit upheld the introduction of those text messages in his trial. Officers can conduct a warrantless search, incident to arrest, of the person and within the wing-span of the person, for weapons, contraband, and evidence. If the camera was within his "wing span" at the time of his arrest, I would think that the same rule would apply and the search of the contents of the game camera, without a warrant, would be permissible.

BTW: The U.S. Supreme Court denied cert. on that case in April of 2007.

There is another "fall back" position that may apply in some circumstances. In Threadgill v. State, 146 S.W.3d 654 (Tex. Crim. App. 2004) and Oles v. State, 993 S.W.2d 103 (Tex. Crim. App. 1999) the Court of Criminal Appeals held that a person who is in custody has no expectation of privacy to include the property that is taken to the police station with him. So, even if the officers didn't inspect the contents of the camera until the next morning, if the defendant was still in jail, I don't think he can successfully object to the seizure of the evidence.