Game Wardens and your constitutional rights

[FITASC]

Quote:
Originally Posted by FITASC
...here in FL cops take them along for remote property busts so they may not need a warrant
Evidence?

Police officers and husband of a coworker who is a game warden

[Frank Ettin]

Originally Posted by FITASC

Police officers and husband of a coworker who is a game warden

Unreliable and not credible because --

1. It's pure hearsay.
   
   
2. It's a tiny sample.
   
   
3. "Anecdote" is not synonymous with "evidence."

[Aguila Blanca]

Originally Posted by Frank Ettin

Answering that would require a lot of research, which I'm not inclined to do. It would also be detail dependent.

It would also be state dependent, would it not?

[Aguila Blanca]

Originally Posted by 5Whiskey

After all, a court is not likely to make a ruling on state constitutional grounds of search and seizure unless you’ve already been charged with a violation by the rabbit sheriff (I mean game warden). Open fields doctrine also is rooted in some long standing tradition. It’s generally not unlawful, immoral, or ethically wrong to walk through a large block of woods owned by another, even without permission. Many portions of the Appalachian trail and the N.C. mountains to sea trail cross private lands, and both are well trod by people without specific permission to cross said lands. Maybe Tennessee holds different views, but I see that being more of an anomaly than a standard.

"Open fields" for law enforcement is not equal to freedom for the general public to trespass. I don't know of any place where it is not illegal to walk across someone else's property without permission. It's certainly illegal where I live. There's probably considerable debate as to whether or not it's immoral or ethically wrong to go traipsing around on other people's property. My grandparents taught me that it was wrong, that's my starting point.

The Appalachian Trail is a special case. Portions of it may exist through right of adverse possession -- I don't know that, but I'll concede that it's possible. Where the AT crosses through my state -- and where other, state trails run -- it requires permission of the landowners, and I know of sections that were re-routed when ownership changed and the new owners declined to allow people to continue crossing their property.

I know Wikipedia isn't exactly "authoritative," but it's a starting point, and the article has extensive external references for those who want to learn more:

https://en.wikipedia.org/wiki/Open-fields_doctrine

[4thAmendmentLawyer]

Originally Posted by Frank Ettin

Answering that would require a lot of research, which I'm not inclined to do. It would also be detail dependent.

Likely would not get tossed. Officer saw the items in plain view from a place where he had a right to be (pursuant to the open fields doctrine). If the illicit nature of the item was obvious, then it would come in under the plain view doctrine.

[Frank Ettin]

Originally Posted by 4thAmendmentLawyer

...Officer saw the items in plain view from a place where he had a right to be (pursuant to the open fields doctrine). If the illicit nature of the item was obvious, then it would come in under the plain view doctrine.

Sure, if the contraband/evidence is in plain sight. But as I read the hypothetical the question goes beyond the seizure of contraband/evidence in plain sight.

The premise implicit in a couple of posts is that regular police take a game warden along to get them onto property without a warrant. Once there, the police or game warden then conduct a thorough search for evidence or contraband without a warrant.

My off-the-cuff view is that seizing something in plain sight would be kosher, but anything not in plain sight (and not related to enforcement of fish and game laws) would not be legitimized by the presence of a game warden. But I don't like to opine on such questions without doing the research.

[dogtown tom]

Aguila Blanca .....I don't know of any place where it is not illegal to walk across someone else's property without permission.

"Not illegal" as in legal?
Unless the property is posted "No Trespassing", its perfectly legal to walk on private property without any need to ask the landowner. It happens literally millions of times per minute in every state in the country.

It's certainly illegal where I live.

Doubtful, unless posted per state law.

There's probably considerable debate as to whether or not it's immoral or ethically wrong to go traipsing around on other people's property. My grandparents taught me that it was wrong, that's my starting point.

There's nothing immoral or unethical about it. If the landowner does not want anyone on his property he posts it according to state law.

Kinda difficult to go trick or treating without walking on somone else's property. Ever been to the grocery store? Private property.

[Aguila Blanca]

Originally Posted by dogtown tom

"Not illegal" as in legal?
Unless the property is posted "No Trespassing", its perfectly legal to walk on private property without any need to ask the landowner. It happens literally millions of times per minute in every state in the country.

Doubtful, unless posted per state law.

I suppose I shouldn't generalize. My bad.

In MY state it's unlawful (i.e. "illegal") to enter on or cross someone else's property without their permission. That said, in this state there are three degrees of "criminal" trespass, and there is also "simple" trespass.

The three degrees of criminal trespass are crimes -- misdemeanors. Simple trespass is an infraction.

According to state law, one is guilty of simple trespass if one enters property knowing that one is not "licensed or privileged to do so," without intention of doing harm.

The bottom line is that just because it's not a criminal offense doesn't mean it's not unlawful.

[4thAmendmentLawyer]

Originally Posted by Frank Ettin

Sure, if the contraband/evidence is in plain sight. But as I read the hypothetical the question goes beyond the seizure of contraband/evidence in plain sight.

The premise implicit in a couple of posts is that regular police take a game warden along to get them onto property without a warrant. Once there, the police or game warden then conduct a thorough search for evidence or contraband without a warrant.

My off-the-cuff view is that seizing something in plain sight would be kosher, but anything not in plain sight (and not related to enforcement of fish and game laws) would not be legitimized by the presence of a game warden. But I don't like to opine on such questions without doing the research.

I think that's about right.

[5whiskey]

Legal question for Frank and the other lawyers: If hypothetically the sheriff did take a game warden along to search for drugs or something, (hear me out) he could legally enter the property without a warrant to search for poached game, etc, and snoop around while he's there. If he did find illegal drugs or something totally unrelated to to fish and game regulations, wouldn't that evidence be inadmissible in court? I don't think it could even be used as probable cause for the sheriff to get a warrant; "fruit of the poisoned tree"

I am not a lawyer, but I have a little insight into this question. I am pretty familiar with NC law, and in NC there is a process in which building inspectors can obtain a warrant to perform an inspection into dilapidated buildings or un-permitted construction. It's called an administrative search warrant, and is outlined in NCGS 15-27.2. That statute specifically states that facts discovered or evidence obtained during this administrative inspection warrant can not under any circumstance be used for criminal prosecution, or to apply for a search warrant that would be valid for criminal prosecution (NCGS 15-27.2(f)). So in my state, at least, government agents who are not law enforcement cannot use their specific authorities to gain entry and bring law enforcement in tow to look for illegal activity.

There is also SCOTUS case law that I believe would be applicable. This taken from Skinner v. Railway Labor Executives Assc. Skinner, 489 U.S. at 614

Although the Fourth Amendment does not apply to a search or seizure, even an arbitrary one, effected by a private party on his own initiative, the Amendment protects against such intrusions if the private party acted as an instrument or agent of the Government. See United States v. Jacobsen, 466 U.S. 109, 113 -114 (1984); Coolidge v. New Hampshire, 403 U.S. 443, 487 (1971). See also Burdeau v. McDowell, 256 U.S. 465, 475 (1921).

What this basically says is an Officer cannot direct a private citizen to violate someone's fourth amendment rights to make a search when the officer could not otherwise legally conduct the search themselves. If the private citizen does this of their own accord, without direction from law enforcement, then it changes things. I find it difficult to believe that a Game Warden being directed to violate someone's fourth amendment rights "fishing" for criminal evidence extraneous to fish and game laws, at the direction or request of Sheriff Deputies, will pass constitutional muster if challenged in light of Skinner, but I cede it's sort of an apples/oranges comparison and I'm not an attorney.


None of which deals with open fields. Open fields is another animal, and though I do see some states have challenged open fields I wouldn't want to base my freedom on a successful challenge of it.

[cjwils]

Aguila Blanca said, "In MY state it's unlawful (i.e. "illegal") to enter on or cross someone else's property without their permission."

That seems to mean that every time anyone walks up to anyone else's front door to knock, they have engaged in an illegal act, regardless of their reason for knocking. I find that hard to believe.

[Frank Ettin]

Originally Posted by cjwils

Aguila Blanca said, "In MY state it's unlawful (i.e. "illegal") to enter on or cross someone else's property without their permission."

That seems to mean that every time anyone walks up to anyone else's front door to knock, they have engaged in an illegal act, regardless of their reason for knocking. I find that hard to believe.

So what?

Trespass is:

Trespass is defined by the act of knowingly entering another person’s property without permission.

Trespass is a tort (a civil wrong for which the injured party may seek compensation for any damages caused by the actor). Under some circumstances, trespass can also be a crime.

However, entering onto unrestricted property to knock on the front door or to leave a package is generally legally innocuous By hypophysis there's been no damage, and a court could find some implied permission to enter onto private property for such limited purposes.

But if you approach my front door trampling my prize rose bushes (instead of sticking to the designated path), I can most likely successfully sue you for the damage you cause based on your trespass.

[imp]

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.

[zxcvbob]

Originally Posted by imp

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.

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.

[Ingramite]

Game Wardens have always been responsive to my family, as Texas land owners.
Poachers and destructive trespassers are not on my team.

Something has happened recently here in Texas and I'm not sure what.
For as long as I can remember their pick-up trucks have always had "State Police" on the tailgate. The last couple of their trucks that I noticed didn't have it on the tailgate.

I don't think anyone is seeking to de-fund them.

[4thAmendmentLawyer]

Originally Posted by imp

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]

Originally Posted by zxcvbob

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]

Originally Posted by 4thAmendmentLawyer

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]

Originally Posted by imp

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.

Originally Posted by zxcvbob

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]

Originally Posted by Frank Ettin

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/r...me-open-fields

In a related story
https://www.cnet.com/news/court-oks-...lance-cameras/

[Frank Ettin]

Originally Posted by 4thAmendmentLawyer

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.

Originally Posted by imp

20 seconds worth of google-fu and you could have found it.
https://www.thedailyscoop.com/news/r...me-open-fields

In a related story
https://www.cnet.com/news/court-oks-...lance-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]

Originally Posted by zxcvbob

...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?