A Virginia property owner is accusing a state fish and game warden of sneaking onto his private property and stealing one of his trail cameras. And now he’s suing.
Resident Josh Highlander owns a home that sits on a wooded, 30-acre spread east of Richmond, Virginia, and in April, while he and his family were enjoying the weather outside their home, his wife caught sight of a man wearing camouflage hiding in the trees near their house, according to Reason Magazine.
When the homeowner went out to search for this mysterious trespasser, he could not find anyone. However, he did discover that one of his game cameras was missing.
Like any law-abiding homeowner, Highlander called the police to report the incident and eventually found out that the intruder was an agent of Virginia’s Department of Wildlife Resources (DWR) and was told that the agency was in its rights for conducting a search and seizure.
An article by journalist Brian McGlinchey also notes that the agent who took Highland’s trail camera was one of three agents who had been creeping through his and his neighbors’ property but had no warrant to make such incursions, much less give them permission to confiscate the man’s trail camera.
These agents issued citations to Highland’s brother and father — who had land abutting his — for illegally hunting “over bait” at the start of turkey season. Highland, though, says that the “bait” the government cited was seed for his brother’s food plot, and the plot was in keeping with the DWR’s rules for managing the plot.
Highland added that the incursion perpetrated by the agents caused his son to become fearful in his own home.
“For weeks, my son wouldn’t play outside in his own back yard because he was afraid of who might be in the woods,” the homeowner said. “My camera was taken two months ago, and I’ve still never received a receipt, a warrant or a ticket.”
Highland has now filed a lawsuit against the state for violating private property rights, calling the state’s actions an “unconstitutional policy and practice of searching private land throughout the Commonwealth, without a warrant, and seizing private property from that land, also without a warrant.”
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Highland added that the state’s actions are frightening because homeowners are forced to sit by “knowing that at any second, the game wardens could roll up here and ticket you based on something that they took from you…retroactively using your property against you.”
The government incursion appears to be sanctioned, as it was based on a Supreme Court decision from way back in 1924, decided during Prohibition.
In 1924, revenue agents arrested two men after seeing them throw down bottles containing illegal moonshine and run off. Since they were in the woods on their own property, the Hesters said that the agents had no right to enter their property to arrest them for moonshining. But the U.S. Supreme Court disagreed.
In the decision, Justice Oliver Wendell Holmes wrote that “the special protection accorded by the Fourth Amendment to the people in their ‘persons, houses, papers, and effects,’ is not extended to the open fields.” Effectively, this allowed government agents to enter a person’s property without a warrant as long as they did not enter a building.
Another, more recent ruling, Oliver v United States, further cemented the Hester ruling by giving the Kentucky State Police the authority to enter a person’s property looking for illegal pot plants growing in the open, even though the property had “no trespassing” signs and could not be looked into from outside the property lines. As Reason notes, this ruling could also be read to allow government agents to use drones to observe a person’s private property and to do so without a warrant.
The Institute for Justice, which has filed the suit on behalf of the Highland family, notes that the “open fields doctrine” is based on the Fourth Amendment to the U.S. Constitution that protects “persons, houses, papers and effects,” and none of those things are “land,” which apparently does not require a warrant.
“This misguided open fields doctrine ignores a fundamental point of the Fourth Amendment: to ensure that Americans are secure on their properties. But Article I, Section 10 of the Virginia Constitution expressly prohibits unconstrained searches of “places,” a term that includes private land. But that constitutional guarantee is only as good as the courts willing to enforce it. Josh and IJ have brought this suit to ensure that Virginians receive meaningful constitutional protection in their land and the property on it,” the group said in a press release.
However, some states have stronger protections.
“State constitutions often have different texts…in Pennsylvania and Tennessee, the word ‘effects’ is replaced with the word ‘possessions,’ and we say that includes private land… In Virginia, there’s a textual provision that mentions ‘places’, and of course [Highlander’s] property is a place,” said attorney Joshua Windham, who’s representing Highlander.
This provision, the attorney says, makes the DWR agent’s theft of the trail camera illegal in Virginia.
“No person at all in this country should have limitless power, and it sure seems like they do,” Highlander exclaimed. “It just makes you feel vulnerable, it makes you feel anxious, it makes you feel like someone’s watching you on your own private property.”
Some states have already ruled that the “open fields” doctrine has less strength inside their borders, One such state, Vermont, noted in a case in 2018 that its constitution “establishes greater protection against search and seizure of ‘open fields’ than the U.S. Constitution, requiring that law enforcement officers secure warrants before searching open fields when the landowner demonstrates an expectation of privacy.”
“What happened to my family was wrong and I’m fighting for our privacy and to make sure this doesn’t happen to anyone else,” Highlander said.
The federal government and state and local authorities are becoming more and more proactive, invading people’s privacy and convicting them before even charging them. Fortunately, citizens have tools at their disposal to address these wrongs.
