This story is from Tennessee/Lookout.
The longstanding practice of conducting warrantless searches on private property by officers with the Tennessee Wildlife Resources Agency is unconstitutional, a three judge panel hearing a case in Benton County Circuit Court ruled Tuesday.
The ruling invalidates Tennessee law that TWRA has relied on to conduct warrantless searches and surveillance on private land in order to fulfill its mission of enforcing the state’s hunting, fishing and wildlife laws.
It’s an authority that is not explicitly extended to any other state or local law enforcement. The law, the judges wrote, gives rise to an “intolerable risk of abusive searches” and violates the Tennessee Constitution’s property protections. It is “unconstitutional, unlawful and unenforceable,” their ruling said.
An attorney representing Hunter Hollingsworth and Terry Rainwaters, two Benton County men who filed suit against the TWRA over warrantless searches on their lands, called the ruling a “momentous thing.”
“This is a decision that’s going to have a really huge impact on private landowners in Tennessee,” said Joshua Windham, an attorney for the Institute for Justice, a libertarian leaning law firm.
Windham said the ruling may have implications beyond Tennessee. The Tennessee Constitution’s property protection language, cited by the judges, is echoed in the constitutions of 16 other states, potentially leading to legal challenges of similar wildlife agency enforcement practices elsewhere. TWRA’s practice of patrolling private property without an owner’s consent or a warrant is not uncommon.
A spokesperson for TWRA on Wednesday did not immediately respond to questions about the ruling, or whether state officials plan to appeal.
State wildlife officers patrol private lands across the state year-round without giving owners notice, obtaining consent or appearing before a judge to make a case for a warrant, court records said.
TWRA officers sometimes investigate turkey-, dove- and deer-hunting offenses by crouching in bushes and secretly taping hunters — hiding within the line of fire in some instances cited in the lawsuit. The agency keeps no records of when or how often officers enter private property. TWRA officers do not need a supervisors’ permission before entering private land. There are no agency rule limiting how long officers may spend searching private property.
TWRA attorneys have argued that state wildlife officers must have the flexibility to enter private lands to do their jobs. The agency’s mission is to protect wildlife and enforce hunting, fishing and boating laws. The vast majority of hunting in Tennessee takes place on private property and wildlife aren’t confined to public lands, they noted.
TWRA also cited a well-established U.S. Supreme Court precedent, known as the “open fields doctrine,” which says that property owners have no “reasonable expectation of privacy” on private property deemed to be an open field — property outside the immediate vicinity of an owner’s home or yard, such as a field of crops well beyond a farmer’s homestead.
But the three judge panel in Benton County concluded that the Tennessee Constitution gives property owners more protection. Article I, Section 7 of the Tennessee Constitution provides a “broader guarantee of security for an individual’s real property than its federal counterpart,” they wrote.
Tennessee’s Constitution protects all “property, real or person, actually possessed or occupied,” the court noted. Under Tennessee Supreme Court precedent, land possessed or occupied extends beyond a homestead. Only “wild or waste lands” that are not used, farmed, fenced or otherwise utilized are excluded from those protections, the state Supreme Court has found.
The judges also concluded that the statute giving TWRA the right to enter private land amounted to a “general warrant,” giving officials wide latitude to conduct searches. “General warrants are dangerous to liberty and ought not to be granted,” the court ruled.
Hollingsworth, a Benton County railroad worker, said Wednesday he felt vindicated after years of challenging multiple TWRA officers forays onto his property, where they secretly hid behind bushes to videotape Hollingsworth, his girlfriend and friends while they hunted and socialized. They patrolled his land and surveilled his movements.
“I think it’ll be a lot more relaxing to be on my property and you won’t have to be paranoid that they’re looking at you all the time,” Hollingsworth said. “I think it’s fantastic that other people will get to enjoy their property without worrying if they’re being watched.”
Rainwaters similarly expressed “great relief to have the court recognize that searching my property without permission and without a warrant was unconstitutional.”
“It’s even better to hear that the court doesn’t believe anyone else in Tennessee should have their rights violated in the same way,” he said. “I’m going to sleep a little better tonight knowing that state officials have to respect my property rights.”
The case was heard under a new state law requiring a panel of three judges, one from each division of the state, to hear challenges to state law. Judge Donald Parish, Chancellor Jerri Bryant and Judge Russel Parkes presided over the case.
Parish, who concurred with the majority of the decision, filed a dissenting opinion in which he argued the court should have gone further.
The Institute for Justice had requested an injunction barring TWRA from entering private property — which was rejected by the panel because they had already concluded Tennessee’s law was invalid.
But Parish noted that TWRA lawyers argued that their authority to conduct warrantless searches also rests in the Tennessee Constitution’s recognition of a personal right to hunt or fish, subject to reasonable regulation.
Parish also cited a TWRA officer’s conversation with Hollingsworth in the court’s record. Hollingsworth told an officer who showed up on his property that he wasn’t invited.
“When you bought your hunting license, you invited me,” the officer told Hollingsworth.
Absent an injunction, Parish wrote, “I believe an ‘intolerable risk’ of improper searches by the TWRA persists.”
_ Anita Wadhwani