On March 22, the Benton County Circuit Court ruled that portions of the Tennessee Code related to ranger skills are unconstitutional under the state constitution. This invalidates laws that previously authorized the Tennessee Wildlife Resources Agency (TWRA) to enter private land without a warrant to enforce wildlife regulations.
This ruling means that if wildlife officers want to investigate a potential game violation on private property, they first need a warrant. While many see this as an affirmation of the private property privileges guaranteed in the Bill of Rights, others are concerned that it may hinder enforcement of rules intended to protect public wildlife.
Private owners vs. TWRA
This particular court case began when two landowners sued the TWRA for infringing on their rights under the Tennessee Constitution and the Fourth Amendment to the U.S. Constitution. Terry Rainwaters and Hunter Hollingsworth own 126-acre and 95-acre parcels of land, respectively. Each property is landlocked and can only be accessed via a private driveway marked with a “No Trespassing” sign. Both owners search for their properties with family and friends.
TWRA Officer Kevin Hoofman first entered the Rainwaters property in September 2016 to investigate possible pigeon baiting. He took several photos and returned the next November to investigate possible deer baits. At the time, he set up a US Fish and Wildlife (USFW) trail camera on the property and took footage of Rainwaters and his family and friends on the property as they hunted. While Rainwater was never found guilty of violating the wildlife law, the same cannot be said for Hollingsworth.
Hoofman began investigating the Hollingsworth property in December 2016 and took images of the deer bait. He returned in the fall of 2017 and documented Hollingsworth harassing waterfowl, a state and federal crime. At the time, Hoofman teamed up with USFW Special Agent Kyle Lock to investigate possible federal crimes. After installing USFW tracking cameras on the property and interviewing Hollingsworth, law enforcement officers charged the owner. Hollingsworth was tried and convicted of baiting pigeons in 2018, a federal felony that carried a $3,000 fine and suspension of his hunting privileges for three years.
Both Rainwaters and Hollingsworth say they have a constant sense of anxiety stemming from the fear that TWRA officers or rear cameras are lurking somewhere watching them on their property at any moment. Because Article 1, Section 7 of the Tennessee Constitution protects people from “unreasonable searches and seizures,” the landowners decided to take this matter to court. Although TWRA argued that its actions were justified and lawful, the court ruled in favor of the plaintiffs. They were also awarded the $1 they requested as restitution.
“It’s a huge relief that the court recognized that searching my property without permission and without a warrant was unconstitutional,” Rainwaters told the Justice Institute. “It’s even better to hear that the court doesn’t think anyone else in Tennessee should have their rights violated in the same way. I’m going to sleep a little better tonight knowing that state officials have to respect my property rights.”
In most states, rangers have a unique power in law enforcement. Federally empowered by court precedent and established legal doctrines, they have a greater ability to conduct warrantless searches than police or administrative inspectors. However, many state laws also specifically state that wildlife officers may enter private land without a warrant but with just cause.
The “open ranges” and “naked eyes” doctrines give conservation officers the authority to observe and enter private land that they can see from a highway or public area to stop or document crime. The 1924 US Supreme Court case, Hester v. United States, found that the Fourth Amendment did not protect “open ranges.” In that case, the Supreme Court ruled that there is no reasonable expectation of privacy in open fields, defined as “all open land beyond the boundaries of a house.”
The plain sight doctrine applies when an officer “can detect something by using one or more of his senses.” These observations can occur as pre-intrusive (outside looking onto private land) or post-intrusive (already inside private land). For post-intrusion observations to be lawful, the officer must have justifiably intruded and have probable cause to associate the property with criminal activity.
The article “Fishing for Evidence: The Broad Warrantless Search Powers of Game and Fish Wardens” published by Hastings Quarterly Review of Constitutional Law, delves into the complexities of this power.
“While this combination gives wardens greater ability to conduct warrantless searches than police or administrative inspectors, it may also erode constitutional protections for individuals subject to warden searches,” wrote author Michael O’ Connor. “The result is a constitutional dilemma: a tension between the individual’s right to privacy and the state’s interest in enforcing the law and protecting the environment.”
The two state code provisions, 70-1-305(1) and (7), which the Tennessee court found unconstitutional authorize the search of constitutionally protected property by TWRA agents. The court found these provisions to be “unreasonable” and “dangerous to liberty” and therefore in direct violation of Article I, Section 7 of the Tennessee Constitution.
Who is looking after your wildlife?
This court case vividly depicts that tension between law enforcement and private property rights. A landowner violated federal wildlife law and probably wouldn’t have been caught if the officer hadn’t placed a trail camera on his property. So do our state and federal governments need laws that allow officers to enter constitutionally protected private land without a warrant?
“We wouldn’t need any of these laws if people acted within the regulations established through biological science,” said Ryan Callaghan, director of conservation for MeatEater and host of the Cal’s Week in Review podcast. “Unfortunately, some people are more likely to behave if they think a conservation officer might be watching and won’t be hampered by a private property sign.”
Still, many hunters in Tennessee and elsewhere wonder what the functional consequences of this changing legal understanding will be. Richard Simms, a former TWRA employee and current outdoor writer, detailed some what-if scenarios of what could now happen in Tennessee at Chattanooga’s. Channel 9 News:
“An officer receives an anonymous phone call that someone is illegally hunting deer,” Simms said. “It’s 1am and the judges are fast asleep, plus an anonymous phone call would never reach the threshold for a search warrant, even if it could be applied for in a timely manner. The officer is heading to the remote area on a public road. In the distance, he or she sees a spotlight streak across a green field and focus on a large deer. A high-powered rifle shot splits the night and money falls. However, the only way the officer can get to the area quickly is through a private farm road where the officer is now prohibited from going. She sits and watches through binoculars as tiny figures load the dollar onto the truck and disappear from view at the opposite end of the field.”
Simms shows that this new ruling will also affect the application of fishing regulations.
“An officer is out on boat patrol on Lake Nickajack,” Simms suggested next. “The officer watches through binoculars as a man fishing off shore catches multiple largemouth bass, most of them smaller than the legal limit of 15 inches. Each fish goes into a cooler. However, the officer is prohibited from setting foot on private land to enforce the law. Most likely, by the time he was able to get a search warrant, the illegal catch would be cleaned and eaten.”
While Simms wrote these scenarios hypothetically, he urged readers to understand that they are not entirely hypothetical: Similar scenarios play out in Tennessee every day.
“I don’t think this will affect wildlife management per se, but I can see how this will affect conservation officers’ ability to collect urgent evidence,” Callaghan added. “The legal system will have to adapt and issue court orders in a more timely manner.”
Because 86% of Tennessee’s land is private, the state’s methods of granting guarantees will undoubtedly need adjustment. It has not yet been determined how they will approach this new form of management.
“This case is a great example of why wildlife management is not easy,” Callaghan concluded. “The American model is extraordinary in that the game is owned by the people and the state manages it in trust, but the game knows no boundaries of ownership. How do we equitably protect the public ‘property’ that moves daily across public and private borders?”