By: Teresa Mull
Picture this: you’re out hunting on private property, minding your own business, enjoying the silence and serenity of the great outdoors, but you feel something watching you. And it’s not a whitetail deer.
You look all around, and there you see it: an unknown camouflaged figure concealed in some foliage, stalking you.
It’s creepy. And it’s an all-too common occurrence in Tennessee, Pennsylvania, and other states with Warrantless Entry statutes. These laws say game wardens can enter private land without consent and without a warrant and roam around looking for evidence of violations. I’ve asked several friends I know who hunt if they’ve ever had a run-in with a game warden doing just that, and every hunter gave a light laugh and an eye roll and shared a story of a warden showing up unannounced to harass them about some perceived infraction.
These types of laws have been on the books for decades, but now, the Institute for Justice (IJ) is doing something about them. IJ has pending litigation challenging Tennessee’s Open Fields Doctrine and another lawsuit that’s active in Pennsylvania that, if successful, would protect private property owners from warrantless searches.
“Many states have variations of laws granting wildlife officers the authority to go on any property, posted or otherwise, outside of buildings, to enforce state hunting laws,” IJ Attorney Josh Windham told GPM. “They basically have a blank check to come and go as they please. There are no restrictions on when, where, or how they can enter, safety procedures, or if they have to make any record of it. They exercise that authority pretty regularly and without abandon.”
Windham gave the example of police hanging out in the bushes of a person’s fenced-in backyard, watching and waiting for the property owner to do something wrong and arrest him. This would be illegal in common law under “curtilage” provisions, but in the context of Open Fields Doctrine, it isn't, and that’s what IJ is challenging.
“The property involved is just bigger, that’s basically the only difference,” explained Windham. “Legislators aren’t thinking too much about whether it’s Constitutional; they’re thinking, ‘How do we make game wardens’ jobs as easy as possible?’”
According to Windham, when these laws were written into state Constitutions, “It’s crystal clear that the word ‘possessions’ encompassed real property, private land. The history and text are pretty clear. It was non-controversial.”
The implications of this case, Windham said, are “far broader than just hunting.”
Here are two stories that should scare you: Karen A. Anderson-Bagshaw, of Ohio, was employed by the U.S. Postal Service, but after an injury and being diagnosed with failed back syndrome, she stopped working and was on disability. Someone gave the government a tip that Anderson-Bagshaw was not actually injured, but was active in caring for alpacas with her husband on their private land.
So, police set up surveillance cameras with a pole around the property, pointing them into the backyard and pastures to try to catch Anderson-Bagshaw and get her in trouble. In so doing, they caught some pretty private and intrusive footage (a family member urinating on a tree, her naked husband, etc.).
Nonetheless, in U.S. v. Anderson-Bagshaw, the court found Anderson-Bagshaw “guilty of one count of mail fraud and 13 counts of worker’s compensation fraud” and sentenced her to a year in prison with two years supervised release.
IJ’s suit in Pennsylvania involves the Punxsutawney Hunting Club and Pitch Pine Hunting Club, which have experienced warrantless intrusions firsthand. In one instance, Windham shares, one of the Pitch Pine Club members, Jon Mikesell, had reserved the club house for his family’s annual vacation over the Fourth of July. From IJ’s website:
Jon and his family were at the club, sitting on the house’s front porch watching deer and birds eat some bird seed Jon had put out, when a wildlife officer came speeding down the trail leading into the property.
The officer parked his truck, got out, and accused Jon of putting out the seed to feed bears. Jon denied feeding any bears and asked the officer what he was doing on the club’s property. The officer explained that he had been spying on Jon and his guests for multiple days from a hidden spot in the woods, and that he would not have been visible because he was wearing camo and had used binoculars to watch them from a distance. Ultimately, the officer left without issuing any citation.
And in Tennessee:
There is reason to be optimistic in both these cases: IJ has amassed substantial historic evidence showing “possessions” included land when these statutes were written. What’s more, in 2018, the Vermont Supreme Court ruled in favor of the landowner in Vermont v. Dupuis, deciding, (from Justia):
There was no evidence that the game warden had a warrant or suspicion of criminal activity at the time he entered defendant's land. The trial court granted defendant's motion to suppress evidence obtained from the warden's warrantless search, ruling that it violated Chapter I, Article 11 of the Vermont Constitution. The court held that by posting his land to the extent that he had, defendant "took the steps necessary to clearly communicate to the reasonable person that the public was excluded from his Bloomfield property," thereby preserving his expectation of privacy.
Teresa Mull (email@example.com) is editor of Gunpowder Magazine.