On March 22, the Benton County Circuit Court ruled that parts of the Tennessee Code regarding the abilities of game wardens to be unconstitutional under the state’s constitution. This invalidates laws that previously authorized the Tennessee Wildlife Resource Agency (TWRA) to enter private lands 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 court-ordered warrant. While many view this as an affirmation of private property privileges guaranteed in the Bill of Rights, others are concerned it may hinder the enforcement of rules meant to protect public wildlife.
Private Landowners vs. TWRA This particular court case started when two landowners sued the TWRA for infringing on their rights under the Tennessee Constitution and the Fourth Amendment of the U.S. Constitution. Terry Rainwaters and Hunter Hollingsworth own 126- and 95-acre parcels of land, respectively. Each property is landlocked and only accessible through a private road marked with “No Trespassing” signage. Both landowners hunt their properties with family and friends.
TWRA Officer Kevin Hoofman first entered Rainwaters’ property in September 2016 to investigate a potential dove baiting offense. He took several photos and returned the next November to look into potential deer baiting. At this time, he installed a U.S. Fish and Wildlife (USFW) trail camera on the property and took images of Rainwaters and his family and friends on the property while they were hunting. While Rainwater was never found guilty of violating wildlife law, the same can’t be said of Hollingsworth.
Hoofman began investigating the Hollingsworth property in December 2016 and took images of deer bait. He returned in the fall of 2017 and documented Hollingsworth baiting waterfowl—a state and federal offense. At this point, Hoofman teamed up with USFW Special Agent Kyle Lock to investigate the potential federal crimes. After installing USFW trail cameras on the property and interviewing Hollingsworth, the law enforcement officers charged the landowner. Hollingsworth was tried and found guilty of baiting doves in 2018, a federal offense that came with a fine of $3,000 and suspension of his hunting privileges for three years.
Both Rainwaters and Hollingsworth claim a constant sense of anxiety deriving from a fear that TWRA officers or trail cameras are hiding somewhere observing them on their property at any time. Because Article 1, Section 7 of the Tennessee Constitution protects people from “unreasonable searches and seizures,” the landowners decided to take this issue to court. Despite TWRA arguing that their 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 great relief to have the court recognize that searching my property without permission and without a warrant was unconstitutional,” Rainwaters told the Institute for Justice. “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. I’m going to sleep a little better tonight knowing that state officials have to respect my property rights.”
Wardens Without Warrants In most states, game wardens have a unique power in law enforcement. Federally enabled by court precedent and established legal doctrines, they have a greater ability to conduct warrantless searches than either the police or administrative inspectors. However, many state laws also specifically establish that wildlife officers may enter private land without a warrant but with just cause.
The “open fields” and “plain view” doctrines grant conservation officers the authority to observe and enter private lands they can see into from a road or public area in order to stop or document crimes. The 1924 U.S. Supreme Court court case Hester vs. the United States determined that the Fourth Amendment did not protect “open fields.” In that case, the Supreme Court ruled that there is no reasonable expectation of privacy in open fields, defined as “all outdoor land beyond the curtilage of a home.”
The plain view doctrine applies when an officer “is able to detect something by utilization of one or more of his senses.” These observations can occur as pre-intrusive (outside looking into private land) or post-instrusive (already inside private land). For post-intrusive observations to be legal, the officer must have justifiably intruded and have probable cause to associate the property with criminal activity.
The article “Fishing for Evidence: the Expansive Warrantless Search Powers of Fish and Game Wardens” published by Hastings Constitutional Law Quarterly, elaborates on the intricacies of this power.
“While this combination gives wardens greater ability to conduct warrantless searches than either the police or administrative inspectors, it may also erode the constitutional protections of those subject to wardens’ searches,” author Michael O’Connor wrote. “The result is a constitutional dilemma—a tension between the individual’s right to privacy and the state’s interest in law enforcement and in protecting the environment.”
The two state code provisions, 70-1-305 (1) and (7), that the Tennessee court ruled unconstitutional authorize the search of constitutionally protected property by TWRA agents. The court found these provisions “unreasonable” and “dangerous to liberty, ” and therefore a direct violation of Article I, Section 7 of the Tennessee Constitution.
Who’s Looking Out for Your Wildlife?
This court case vividly depicts that tension between law enforcement and private property rights. One landowner violated federal wildlife law and likely 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 private, constitutionally protected lands without a warrant?
“We wouldn't need any of these laws if people acted within the regulations established through biological science,” MeatEater’s Director of Conservation and host of the Cal’s Week in Review Podcast Ryan Callaghan said. “Unfortunately, some people are more apt to behave if they believe that a conservation officer could be watching and won’t be hindered by a private property sign.”
Still, many hunters in Tennessee and elsewhere wonder what will be the functional consequences of this changing legal understanding. Richard Simms, a former employee of TWRA and current outdoors writer, detailed a few hypothetical situations of what could now happen in Tennessee to Chattanooga’s Channel 9 News:
“An officer receives an anonymous phone call that someone is illegally poaching deer,” Simms said. “It is 1 a.m. and judges are fast asleep, plus an anonymous phone call would never reach the threshold to obtain a search warrant, even if it could be requested in a timely manner. The officer goes to the remote area on a public road. In the distance he or she sees a spotlight sweeping across a green field, locking in on a large buck. A high-powered rifle shot splits the night and the buck goes down. However, the only way the officer can reach the area quickly is via a private farm road where the officer is now forbidden to go. He sits and watches through binoculars as tiny figures load the buck into the truck and disappear out of sight on the opposite end of the field.”
Simms demonstrates that this new ruling will affect fishing regulation enforcement as well.
“An officer is patrolling by boat on Nickajack Lake,” Simms suggested next. “The officer watches through binoculars as a man fishing on shore catches multiple largemouth bass, most of them smaller than the legal 15-inch size limit. Every fish goes into an ice chest. Yet, the officer is forbidden to set foot on the private land to enforce the law. Odds are, by the time he could obtain a search warrant, the illegal catch would be cleaned and eaten.”
While Simms wrote these situations hypothetically, he urged readers to understand that they aren’t entirely hypothetical—similar scenarios unfold in Tennessee every day.
“I don't think this will affect wildlife management per se, but I could see how this will affect the ability of conservation officers to gather time-sensitive evidence,” Callaghan added. “The legal system will have to adapt and issue warrants in a more timely manner.”
Because 86% of Tennessee's land is private, the state’s methods for granting warrants will undoubtedly need adjustment. How they will address this new means of managing is yet to be determined.
“This case is a great example of why wildlife management isn't easy,” Callaghan concluded. “The North American Model is extraordinary in the fact that the game is owned by the people and managed in trust by the state, but the game does not know about property boundaries. How do we equitably protect public ‘property’ that moves across public and private boundaries daily?”