Game Wardens and your constitutional rights

[4thAmendmentLawyer]

I remember reading about a couple of cases that I suspect inspired the OP's legal quest. If memory serves, state game wardens ( by whatever title ) had placed trail cams on private property that were facing the property owners domicile and driveway, not necessarily just game land. The property owners removed the equipment, and then faced criminal charges for the removal of the equipment.

I would guess that this matter is still working its way through the system, and the OP is searching for folks in similar circumstances, as the allegations made by the property owners against the state show an unsettling tendency for the state to set up surreptitious surveillance under the guise of conservation, or atleast the ability to do so.

As a property owner myself, I am used to occasional trespass and pretty understanding about giving state officials access for several reasons, but the idea that equipment would be secretly installed to monitor my personal activities is something that I would want to investigate and litigate.

Yes, I am the senior attorney on that case, and the head of the Institute for Justice's Fourth Amendment Project. We want to do similar cases in other states.

 

[4thAmendmentLawyer]

I know my legal opinions are not welcome on this forum, but here's one anyway. The approach I would take is the surveillance equipment was seized by the landowner because it was trespassing -- the state official who placed it there's authority or easement to be on the property is irrelevant. The legal precedent is civil forfeiture laws, where your property is arrested, and property has no rights so sucks to be you; the state keeps it with no due process. Goose, gander, etc.

Interesting that you mentioned civil forfeiture, as I am part of IJ's civil forfeiture team and just argued to the South Carolina Supreme Court that it should be eliminated.

 

[Aguila Blanca]

Interesting that you mentioned civil forfeiture, as I am part of IJ's civil forfeiture team and just argued to the South Carolina Supreme Court that it should be eliminated.

God speed on that one, Sir! Civil forfeiture = theft under color of law.

 

[Frank Ettin]

I remember reading about a couple of cases that I suspect inspired the OP's legal quest. If memory serves, state game wardens ( by whatever title ) had placed trail cams on private property that were facing the property owners domicile and driveway, not necessarily just game land. The property owners removed the equipment, and then faced criminal charges for the removal of the equipment.

I would guess that this matter is still working its way through the system,
....

Where did you read this? Can't you link to or at least cite a source?

When discussing legal matters, verifiability and details are important.

I know my legal opinions are not welcome on this forum, but here's one anyway. The approach I would take is the surveillance equipment was seized by the landowner because it was trespassing -- the state official who placed it there's authority or easement to be on the property is irrelevant. The legal precedent is civil forfeiture laws, where your property is arrested, and property has no rights so sucks to be you; the state keeps it with no due process. Goose, gander, etc.

To be a worthwhile, legal opinion the opinion must be based on solid facts and supported by legal authority.

Your opinion is, on the other hand, pulled out of thin air -- based on uncorroborated hearsay and supported by imaginary "precedent."

So cite legal authority (statute/case law) to support your assertion that civil forfeiture laws, which authorize governmental agencies to seize property used for criminal activity (and which are under attack) is precedent for the seizure of government property by a private citizen. Your "goose, gander" nonsense is not legal authority unless a court has so ruled.

 

[4thAmendmentLawyer]

Where did you read this? Can't you link to or at least cite a source?

When discussing legal matters, verifiability and details are important.



To be a worthwhile, legal opinion the opinion must be based on solid facts and supported by legal authority.

Your opinion is, on the other hand, pulled out of thin air -- based on uncorroborated hearsay and supported by imaginary "precedent."

So cite legal authority (statute/case law) to support your assertion that civil forfeiture laws, which authorize governmental agencies to seize property used for criminal activity (and which are under attack) is precedent for the seizure of government property by a private citizen. Your "goose, gander" nonsense is not legal authority unless a court has so ruled.

I literally said I'm the attorney on the case he's describing. Here's a link to the case page:

https://ij.org/case/tennessee-open-fields/

 

[imp]

20 seconds worth of google-fu and you could have found it.
https://www.thedailyscoop.com/news/...s-hidden-private-property-welcome-open-fields

In a related story
https://www.cnet.com/news/court-oks-warrantless-use-of-hidden-surveillance-cameras/

 

[Frank Ettin]

I literally said I'm the attorney on the case he's describing. Here's a link to the case page:...

Good enough. Thank you.

20 seconds worth of google-fu and you could have found it.
https://www.thedailyscoop.com/news/...s-hidden-private-property-welcome-open-fields

In a related story
https://www.cnet.com/news/court-oks-warrantless-use-of-hidden-surveillance-cameras/

Fine, but no one should have to go looking for it. If you post the claim, it's up to you to also post the supporting documentation.

 

[Frank Ettin]

...The approach I would take is the surveillance equipment was seized by the landowner because it was trespassing -- the state official who placed it there's authority or easement to be on the property is irrelevant. The legal precedent is civil forfeiture laws, where your property is arrested, and property has no rights so sucks to be you; the state keeps it with no due process. Goose, gander, etc.

And now that 4thAmendmentLawyer and imp were good enough to provide details on the surveillance equipment case it's clear that civil forfeiture law has nothing to do with it.

 

[ghbucky]

I can't imagine trying to claim public property under some guise of 'private' civil forfeiture is going to end up in any way like you would hope.

 

[imp]

I should have provided the story earlier, however, I admit to being a bit bothered by the suggestion that the original poster was trying to get people to break the law simply for the opportunity to bring a case. That ridiculous assertion needed to be challenged, and I chose to do so by providing an anecdote that I thought had been widely circulated within the hunting community.

Back on topic, I do wonder WHY the state would try to use open fields to justify long term surveillance. Is there a problem with the warrant process when it comes to game and wildlife infractions?

 

[4thAmendmentLawyer]

I should have provided the story earlier, however, I admit to being a bit bothered by the suggestion that the original poster was trying to get people to break the law simply for the opportunity to bring a case. That ridiculous assertion needed to be challenged, and I chose to do so by providing an anecdote that I thought had been widely circulated within the hunting community.

Back on topic, I do wonder WHY the state would try to use open fields to justify long term surveillance. Is there a problem with the warrant process when it comes to game and wildlife infractions?

They don't use warrants for the simple reason that they think they don't have to. They think that a state statute gives them unbridled authority to go upon any private lands in the course of their duties.

Of course, the Tenn Constitution (like the constitution of every state) prohibits general warrants like that statute.

Oh, and I'm not asking anyone to break the law --- far from it. I want to identify law-abiding folks who don't like the government traipsing across their property without their consent or a warrant.

 

[langenc]

My friend that I met in the USArmy who went to Alaska and is still there after his Army time and 30 or so years as AK CO.

He told me the story (real) that on a day, before sunup, he hooked up the state patrol boat to the state vehicle and hit the road. Soon he was pulled over by the state police. The officer walked up to his car, saw the door symbol and said "damn it, fish cop."
It seems that the state trailer lights were not functioning as our would be required..

 

[Spats McGee]

...."damn it, fish cop."....

Around here, the common term is "possum cop."

Arkansas Game and Fish is a constitutional agency in AR, so they've got very broad powers.

 

[zxcvbob]

A follow-up to this thread. The game wardens' actions were recently ruled unconstitutional and illegal. (Unconstitutional under the Tennessee Constitution, not necessarily the US Constitution) The Open Fields Doctrine does not apply. https://www.youtube.com/watch?v=ZBLAtkbbLgI&ab_channel=SteveLehto

 

[FITASC]

And a follow up about Florida - this is in regards to fishing:
The 2021 Florida Statutes

Title XXVIII
NATURAL RESOURCES; CONSERVATION, RECLAMATION, AND USE

Chapter 379
FISH AND WILDLIFE CONSERVATION

View Entire Chapter
379.3313 Powers of commission law enforcement officers.—
(1) Law enforcement officers of the commission are constituted law enforcement officers of this state with full power to investigate and arrest for any violation of the laws of this state and the rules of the commission, the department, the Board of Trustees of the Internal Improvement Trust Fund, and the Department of Agriculture and Consumer Services under their jurisdiction. The general laws applicable to arrests by peace officers of this state shall also be applicable to law enforcement officers of the commission. Such law enforcement officers may enter upon any land or waters of the state for performance of their lawful duties and may take with them any necessary equipment, and such entry will not constitute a trespass. It is lawful for any boat, motor vehicle, or aircraft owned or chartered by the commission or its agents or employees to land on and depart from any of the beaches or waters of the state. Such law enforcement officers have the authority, without warrant, to board, inspect, and search any boat, fishing appliance, storage or processing plant, fishhouse, spongehouse, oysterhouse, or other warehouse, building, or vehicle engaged in transporting or storing any fish or fishery products. Such authority to search and inspect without a search warrant is limited to those cases in which such law enforcement officers have reason to believe that fish or any saltwater products are taken or kept for sale, barter, transportation, or other purposes in violation of laws or rules adopted under this law. Such law enforcement officers may at any time seize or take possession of any saltwater products or contraband which have been unlawfully caught, taken, or processed or which are unlawfully possessed or transported in violation of any of the laws of this state or any rule of the commission. Such law enforcement officers may arrest any person in the act of violating this law, the rules of the commission, or any of the laws of this state. It is unlawful for a person to resist such arrest or in any manner interfere, either by abetting or assisting such resistance or otherwise interfering, with any such law enforcement officer while engaged in the performance of the duties imposed upon him or her by law or rule of the commission.
(2) The Legislature finds that the checking and inspection of saltwater products aboard vessels is critical to good fishery management and conservation and that, because almost all saltwater products are either iced or cooled in closed areas or containers, the enforcement of seasons, size limits, and bag limits can only be effective when inspection of saltwater products so stored is immediate and routine. Therefore, in addition to the authority granted in subsection (1), a law enforcement officer of the commission who has probable cause to believe that the vessel has been used for fishing prior to the inspection shall have full authority to open and inspect all containers or areas where saltwater products are normally kept aboard vessels while such vessels are on the water, such as refrigerated or iced locations, coolers, fish boxes, and bait wells, but specifically excluding such containers that are located in sleeping or living areas of the vessel.

 

[zeke]

Up here the wardens are the best trained/equipped law enforcement personnel available. Frequently they assist/lead local enforcement on emergency's and arresting the most violent offenders.

Like every other law enforcement profession, there are rare abuses of their authority/responsibility.

 

[Aguila Blanca]

"Such law enforcement officers may enter upon any land or waters of the state for performance of their lawful duties and may take with them any necessary equipment, and such entry will not constitute a trespass."

Two points -- as a semi-professional writer and one-time professional editor, not as an attorney (which I ain't):

1. If I were on a jury, I would abide by the general rule that laws are to be construed according to the common meaning of the words unless the words are specifically defined otherwise in the law itself. To me, "any land or waters of the state" means land or waters owned by the State of Florida, it does not mean any land or waters "in" the state.

2. Irrespective of the legality of their entry onto private land, the law clearly says that such entry without a warrant is not trespass (if you don't agree with me on point #1), but it also says "for performance of their lawful duties." They are allowed to bring "necessary" equipment with them, but the statute doesn't say they are allowed to leave equipment -- such as trail cameras -- to conduct around-the-clock warrantless surveillance.

Are you aware of any Florida case law that more clearly defines any limitations on this seemingly infinite authority?

 

[zeke]

"any land or waters of the state" in state statutes commonly refers to any land or water within the state boundaries. Game laws commonly apply to both public and private property. However the ability to enter any land or waters does not grant them unbridled authority to do anything but what the statute/codes specifically assigns them.

 

[Aguila Blanca]

"any land or waters of the state" in state statutes commonly refers to any land or water within the state boundaries.

I have no doubt that that's what the state of Florida thinks the statute means. I was stating how I as a writer and editor with more than 40 years experience throwing words around, would interpret that language if I were on a jury.

 

[zeke]

I have no doubt that that's what the state of Florida thinks the statute means. I was stating how I as a writer and editor with more than 40 years experience throwing words around, would interpret that language if I were on a jury.

Which is your right. However someone might point out how many states define it their way, how long they have been doing it and likely some existing court cases having used or establishing it.

In our state, some (including myself) went by a principal of "plain english", which am guessing is basically the same as the phrase "common meaning of words". IMO, this is an excellent principle, but ain't gonna work against an already well established meaning and practice.