One for the legal eagles on here

[Bigjay73]

Hunters Sue Game Wardens for Installing Game Cameras On Private Land without a Warrant

Two landowners and hunters from Tennessee are suing the Tennessee Wildlife Resources Agency (TWRA) for installing trial cameras on their property without their

thehuntingnews.com

Seems like load of crap to me, but I'm no lawyer

 

[Western Traveler1]

Huh, 00 buck...just sayin’

 

[Jape]

Not my area of expertise and am not terribly familiar with the open field doctrine, but a quick search on Westlaw shows that the plaintiffs brought their claims in federal district court first and it was dismissed because (1) the open field doctrine applied precluding the unlawful search claims, and (2) the agents were entitled to qualified immunity as government employees. That decision came out late last year, so I would be surprised if the agents didn't bring a similar motion in state court. Not sure what the statutory scheme is in Tennessee and if that will make a difference.

More substantively, it appears the open field doctrine relies on distinguishing between zones of privacy. There are certain zones in which citizens should expect privacy under the fourth amendment (home, car, etc...), while that expectation should not run to other areas (barn, woods, and even a driveway). Somewhat nuanced but relatively clear that the expectation of privacy doesn't extend much further than one's own home. The USSC affirmed that line of reasoning in a 1986 case in which Dow Chemical brought suit against the EPA for aerial photography of its industrial complex. USSC held that wasn't a "search" for fourth amendment purposes. This should be an interesting case.

As an aside, it appears a large portion of the case law on the open field doctrine is from land owners getting caught growing illicit drugs.

 

[belshawelk]

Dont know all states, but usually if your land is registered as hunting property, or you get LOP tags, Wardens can come anytime. They should ask as they always have on mine, but you dont own the wildlife, they are responsible for it.

 

[Bluffgruff]

In Tennessee, state employees performing official duties have "sovereign immunity," so I suspect the COs aren't personally liable for any damages, but perhaps there could be some rule change to disallow this activity.

 

[Deleted member 38069]

Nice title!

 

[Deleted member 28227]

Another question do you have a right to remove a camera if you find it?

 

[rwc101]

Very little context given in the story. It will be interesting to follow.

 

[VikingsGuy]

Three different angles:

The federal 4th amendment prohibition on unreasonable search & seizure of "persons, houses, papers, and effects". At first blush, the open fields doctrine pretty much sinks this argument for them under traditional evaluations (here is a good 1 page synopsis in a 1983 SCOTUS case applying that principle: https://supreme.justia.com/cases/federal/us/466/170/). There is a wrinkle that could be interesting here - the 24h/7d nature of video cameras left on the property. In some recent cases, some of the justices have become concerned about modern technology shifting the balance of 4th amendment considerations -- for example, while tailing a criminal's car is clearly ok as it is done in public, using a GPS tracker on the car is a 4th amendment violation as is accessing a wireless carrier's data about your cell phone location over time. So this argument may not be entirely dead if appealed.

What ever parallel search limitations in the TN constitution - I have no idea about TN law so who knows. I do know that at least Maine rejected the open fields doctrine for its state search & seizure law.

Simple trespass - Absent either some form of land owner consent or a specific TN allowance for govt trespass, the state officials would logically be "guilty" of common law trespass - however any such personally liability for this is quashed by qualified immunity so they can not be personally convicted or fined. However, if there was damage done while on the property, depending on TN state claims laws (laws that reduce the scope of sovereign immunity to allow for some claims against the state) the state could be liable for money damages for actual property damage. Also, if the court granted an injunction against re-entry in the future, it is possible that qualified immunity could be stripped for future violations.

So, given the facts of the article, their only real shots are a TN rejection of open fields doctrine or a the SCOTUS feeling uncomfortable enough with setting up the 24/7 video camera surveillance that they modify the open fields doctrine accordingly.

 

[VikingsGuy]

Another question do you have a right to remove a camera if you find it?

A whole 'nother can of fish. It is not fully vetted, but in Indiana, its supreme court found it was not illegal to remove a police GPS tracking device that was present without a proper warrant. But of course that makes it an illegal gps device so may not apply if a court believes the open field doctrine protects the web cams.

In general, the taking/damaging of something that is not yours is usually punishable. I suppose if you took them down without doing damage and then set them somewhere where the owner could later find them you are probably safe. But taking them down and busting them or selling them on ebay would not be advisable.

 

[Wildabeest]

Another question do you have a right to remove a camera if you find it?

Park City employee faces felony charges for allegedly stealing hunter’s equipment

PARK CITY, Utah — A an employee for Park City faces felony charges after she and her husband were allegedly caught stealing a hunter’s equipment, which was posted in the Wasatch Mountains. “There’s no excuse, that I can think of, for what they did,” said hunting enthusiast Bronko Phillips. “That’s a

fox13now.com

 

[Deleted member 28227]

Park City employee faces felony charges for allegedly stealing hunter’s equipment

PARK CITY, Utah — A an employee for Park City faces felony charges after she and her husband were allegedly caught stealing a hunter’s equipment, which was posted in the Wasatch Mountains. “There’s no excuse, that I can think of, for what they did,” said hunting enthusiast Bronko Phillips. “That’s a

fox13now.com

Public land, we’re talking about removing a camera that someone else set up on your property.

 

[BuzzH]

Public land, we’re talking about removing a camera that someone else set up on your property.

I'd argue is was simply litter on my private land...

 

[marshman]

Are these cameras ID'd as state property? If not removal is easy. If so, remove and deliver them back to the game agency intact. With a comment somebodys GPS is off.

 

[utah400elk]

I would say if they are going with open field doctrine then the same would apply to the cameras. I personally would not take them...simply turn them to take pictures a dog crap, cow crap, deer crap, human crap..etc. Not sure they would get much from them if they were on my property (nothing to hide) but really don’t like the idea of warrantless searches.

 

[Dakotakid]

It looks like State v. Wert from Tennessee rejected the open fields doctrine but that was nearly 40 years ago and I am sure Tennessee has other cases on the subject.
It would take a Tennessee lawyer to parse the topic and ultimately a Tennessee judge will decide.
For what it is worth, I do not think trespass to monitor a property would be allowed in MT.

 

[Losing_Sanity]

Interesting subject. Learn something new everyday...

I always believed that no one could be on your property without your permission or a warrant. So, can you in fact tell the government or law enforcement to get off your property? Understanding they have no reason to be there like a warrant or probable cause.

 

[Dsnow9]

Interesting subject. Learn something new everyday...

I always believed that no one could be on your property without your permission or a warrant. So, can you in fact tell the government or law enforcement to get off your property? Understanding they have no reason to be there like a warrant or probable cause.

At least in Colorado game wardens have more power than local law enforcement. If they think there is a game violation occurring that is reasonable cause to access your property. A single shot out of season, a wounded animal running off the property, a neighbor reporting poaching could all be reasonable cause and allow them to access your property to assess the situation.

 

[utah400elk]

Law Enforcement can be on you property without a warrant.

Losing_Sanity, there are way too many instances wherein LE can be on your property without you permission to list. The issue, to me, is that the cameras would constitute a search which would be governed be a 4th amendment issue.

Many people believe game wardens have additional powers. They don’t. They are LE and have the same limitations as other LE. The 4th and 5th amendments govern most of the interactions. Now before anybody attacks me...there are bad game wardens who have gone way too far. Just because they did something (search) does not mean their actions were legal or appropriate. A warrantless search of a vehicle (mobile conveyance) is well established given proper probable cause. They can conduct traffic stops with reasonable suspicion. With reasonable suspicion they can go onto property.

Sorry, probably too much information information and as I said, I don’t think the cameras were a legal search.

Good luck to everybody in the pending draws.

 

[diamond hitch]

Seems that the further you go east the more heavy handed the enforcement people get. I'm glad I live where there are still freedoms and old enough to not likely see it change in my remaining years.