APPEALS COURT: TWRA WARRANTLESS SEARCHES OF PRIVATE PROPERTY ARE UNCONSTITUTIONAL

State game wardens cannot enter private property in Tennessee without a warrant, the state’s Court of Appeals ruled last week.

The decision puts in check a unique power wielded for decades by the Tennessee Wildlife Resources Agency to secretly patrol and surveil Tennesseans’ privately-owned lands for potential violations of hunting, fishing and wildlife laws.

TWRA officers don’t seek permission from a judge before entering private property, need no supervisor approval, keep no records of their searches and don’t inform property owners — sometimes donning camouflage or installing cameras to secretly monitor activities based on the suspicions of an individual officer.

The blistering and unanimous opinion by a three-judge panel compared TWRA’s tactics to British customs officials who were granted unlimited “writs” by the king of England to conduct arbitrary searches in the years leading to the Revolutionary War — abusive actions that would go on to inform the establishment of the U.S. Constitution’s 4th Amendment protecting Americans from illegal government searches and seizures.

“The TWRA searches, which it claims are reasonable, bear a marked resemblance to the arbitrary discretionary entries of customs officials more than two centuries ago in colonial Boston,” the judges wrote.

“The TWRA’s contention is a disturbing assertion of power on behalf of the government that stands contrary to the foundations of the search protections against arbitrary governmental intrusions in the American legal tradition, generally, and in Tennessee, specifically.”

The decision concluded TWRA’s warrantless forays onto private property violates Article 1, Section 7 of the Tennessee Constitution, which reads in part: “The people shall be secure in their persons, houses, papers and possessions, from unreasonable searches and seizures.”

It will require TWRA to seek judicial warrants based on probable cause a crime has been committed before entering private property — the same rules that bind every other law enforcement agency in the state.

TWRA officials are “carefully reviewing the Court’s Opinion and will consult with the Attorney General’s office in the coming days,” Emily Buck, an agency spokesperson said Friday.

An attorney for Hunter Hollingsworth and Terry Rainwaters, two Benton County men who challenged TWRA’s warrantless searches of their separate properties, called the decision “a massive win for property rights in Tennessee.”

“TWRA claimed unfettered power to put on full camouflage, invade people’s land, roam around as it pleases, take photos, record videos, sift through ponds, spy on people from behind bushes—all without consent, a warrant, or any meaningful limits on their power,” said Joshua Windham, an attorney for the Institute for Justice, a nonprofit libertarian-leaning law firm.

“This decision confirms that granting state officials unfettered power to invade private land is anathema to Tennesseans’ most basic constitutional rights,” he said.

State law allowing TWRA to “go upon any property, outside of buildings, posted or otherwise” in order to “enforce all laws relating to wildlife” is constitutional, but not as applied by TWRA officials, the appeals court ruled.

The court concluded that the state law does not apply to property that is in active use, such as for hunting, fishing, farming, camping and land that is posted and gated — a not-uncommon description of properties owned in rural areas of the state that are used entirely for farming or recreation even if unoccupied full-time.

“When considering uses of real property other than as a home, there is nothing in the Tennessee Constitution that suggests a lesser regard for uses of property more common in rural areas than those more typical of urban or suburban areas,” the court wrote.

The ruling does not apply to privately-owned acreages that are left wild and unused — land the U.S. Supreme Court has dubbed “wild or waste lands” and concluded in a so-called “open fields doctrine” are not subject to traditional search and seizure Constitutional protections. The open fields doctrine has long allowed law enforcement to enter such properties without a warrant.

Hollingsworth, on whose property TWRA officers secretly installed a camera that captured areas where he hunted with friends, camped and was intimate with his girlfriend, said last week he was thankful for the decision and the lawyers, including local attorney Jack Leonard, who had pursued his case since 2018

“TWRA’s abuse of power had to stop,” Hollingsworth said. “For as long as I can remember, these officers have acted like a law unto themselves. But nobody — not even a game warden — is above the Constitution, and yesterday’s decision makes that crystal clear.”

Buck, the TWRA spokesperson, noted that the agency at the outset of the legal challenge, “voluntarily implemented a landowner consent process to enter private property and officers have already received additional training on obtaining search warrants when appropriate.”

“The Agency will continue to serve the sportsmen and women of our state by fulfilling its statutory public trust responsibility of protecting wildlife populations. The Agency is also committed to preventing poaching and illegal activity on both public and private property.”

TWRA has 60 days to appeal the decision to the Tennessee Supreme Court.

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