Game Wardens and your constitutional rights

[4thAmendmentLawyer]

Originally Posted by 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?

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]

Originally Posted by langenc

...."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=ZBLA...nel=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]

Originally Posted by FITASC

"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]

Originally Posted by zeke

"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]

Originally Posted by Aguila Blanca

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.

[4thAmendmentLawyer]

The victory in Tennesse is by the Institute for Justice, my organization

https://ij.org/press-release/in-vict...onstitutional/

Sent from my SM-G998U1 using Tapatalk

[Aguila Blanca]

Originally Posted by zeke

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.

I stipulated in both of my posts that I was commenting on how I would vote if I were on a jury. And that hasn't changed.

I know there's a presumption that juries decide on the facts and judges decide on the law, but there was a very early case in the history of the United States Supreme Court (Georgia v. Brailsford) in which the first Chief Justice, John Jay, made the statement, "It may not be amiss here, Gentlemen, to remind you of the good old rule, that on questions of fact, it is the province of the Jury; on questions of law, it is the province of the Court to decide. But it must be observed that by the same law, which recognizes this reasonable distribution of jurisdiction, you have nevertheless a right to take upon yourselves to judge of both, and to determine the law as well as the fact in controversy. On this, and on every other occasion, however, we have no doubt, you will pay that respect, which is due to the opinion of the Court: For, as on the one hand, it is presumed, that Juries are the best judges of facts; it is, on the other hand, presumeable that the Court are the best judges of law. But still both objects are lawfully, within your power of decision."

Consequently, if I were on a jury I would certainly listen to what the judge had to say but, if I disagreed with the judge as to what the law in question actually says in plain English, then I would honorably be constrained to vote the way I saw the law to be saying.

My house and lot are the property of me, not the property of the state in which I am located.

[NJgunowner]

Maybe I'm a little dense (probably), but I'm not sure how the current track of this conversation has to do with firearms laws or rights. I kept reading through this expecting it SOMEWHERE... nope. It doesn't even have anything to do with hunting really.

While it's kind of interesting, if I want to read up on land rights and trespass I'd be on a different forum. And I'm not saying you shouldn't have the conversation as you guys seem to be enjoying arguing about it, but is this the right forum for this discussion? I come here for issues pertaining to gun rights. Not clutter on trespassing, government or otherwise.

[Skans]

Originally Posted by 4thAmendmentLawyer

Game wardens enforce states’ wildlife and hunting laws. In many of those states, the law says those wardens may “go upon any property, outside of buildings, posted or otherwise.” Wardens rely on this authority to routinely enter, wander around, and install surveillance cameras on rural private land.

They can do this because the U.S. Supreme Court gutted crucial property and privacy protections with the “open fields” doctrine. That doctrine, first invented by the U.S. Supreme Court in 1924, says the Constitution does not protect any land beyond the home and its immediate surrounding area (known as the “curtilage”).

But states can provide greater protections under their constitutions. My organization, the Institute for Justice, is a pro bono non-profit law firm that does not charge its clients for legal services. IJ has brought one case challenging game wardens' use of the open fields doctrine under the Tennessee Constitution, which protects each individual’s “persons, houses, papers and possessions” from “unreasonable searches and seizures.”

We want to bring more such cases, particularly in the following states: Alabama, Connecticut, Massachusetts, Ohio, and Rhode Island. To that end, we are looking for hunters and private property owners who want to exercise their constitutional rights. For more information, check out IJ's lawsuit against the Tennessee Wildlife Resources Agency or go to Report Abuse at https://ij.org/report-abuse.

I believe your thread complies with all of the forum rules and you have a right to have your say on this forum. I am skeptical of your position, however and here's why:

1. The 4th Amendment clearly does not protect against search and seizure on raw, unimproved land. This can be discerned from the Amendment's clear wording, from the drafters' intent and from the Supreme Court Case law interpreting it.

2. Anti-poaching laws and hunting regulations that limit the method and quantity of harvesting animals have a long tradition in this country, going back to the time of the Revolutionary War. These laws are long established in state laws and consequently federal laws/regulations as well. The laws are based upon maintaining sustainable populations of animals and game, so they are necessary and proper.

3. Wild Game does not belong to anyone and freely roam among hundreds of miles of private and public land. So, from that perspective, it is more of a national and/or state resource, similar to water rights. Just because a stream runs through your property, doesn't mean that you have the absolute right to dump sewage into that stream, or damn it up and use the water to irrigate thousands of acres. If you are engaged in these types of activities on unimproved land, there is no warrant needed to investigate and pursue criminal charges.

4. As for entering and searching a residence for animals unlawfully harvested - I believe that 4th Amendment rights remain intact. However, taking a game warden along, who would be able to spot and identify evidence of unlawful hunting or meat processing outside of a residence may be helpful to gain access without a warrant. I see nothing wrong with that.

[NJgunowner]

1. The 4th Amendment clearly does not protect against search and seizure on raw, unimproved land. This can be discerned from the Amendment's clear wording, from the drafters' intent and from the Supreme Court Case law interpreting it.

I think the main argument here is that its ability to be abused needs to be checked. If they want to monitor game and make sure people aren't poaching or doing illegal dumping that's one thing, but if they decide to put up camera's faceing/monitoring their home and not game trails that seems like an overreach of their intended purpose. No government entity should be allowed to bypass legally attainting a search warrant to monitor someone's home. There's some argument for what happens outside the home is fair game, but I can't think of anywhere it would be legal to do it from their own property. When you're standing on your own front lawn and your neighbor comes out is one thing, when you walk up into their yard with a camera is another.

I think real answer isn't "no wardens on the property without permission", it's here's a clear set of rules and guidelines they need to follow to protect peoples privacy so as not violate their rights.

And who knows, maybe one of these wardens had a thing for someone living in that house. Peeping Tom's and stalkers can be anyone lol.

Bah, now you guys have me participating in this.

[zeke]

Originally Posted by Skans

I believe your thread complies with all of the forum rules and you have a right to have your say on this forum. I am skeptical of your position, however and here's why:

1. The 4th Amendment clearly does not protect against search and seizure on raw, unimproved land. This can be discerned from the Amendment's clear wording, from the drafters' intent and from the Supreme Court Case law interpreting it.

2. Anti-poaching laws and hunting regulations that limit the method and quantity of harvesting animals have a long tradition in this country, going back to the time of the Revolutionary War. These laws are long established in state laws and consequently federal laws/regulations as well. The laws are based upon maintaining sustainable populations of animals and game, so they are necessary and proper.

3. Wild Game does not belong to anyone and freely roam among hundreds of miles of private and public land. So, from that perspective, it is more of a national and/or state resource, similar to water rights. Just because a stream runs through your property, doesn't mean that you have the absolute right to dump sewage into that stream, or damn it up and use the water to irrigate thousands of acres. If you are engaged in these types of activities on unimproved land, there is no warrant needed to investigate and pursue criminal charges.

4. As for entering and searching a residence for animals unlawfully harvested - I believe that 4th Amendment rights remain intact. However, taking a game warden along, who would be able to spot and identify evidence of unlawful hunting or meat processing outside of a residence may be helpful to gain access without a warrant. I see nothing wrong with that.

Am guessing there are numerous laws still on the books based on English common law? In regards to your stream example, Public Trust Doctrine being one of em.

In Wisconsin numerous State or County positions had statute authority to enter private property without permission. Wi changed the trespass law to you didn't need signage. We were told to make numerous efforts to gain permission to access private property, or the State would not represent us in court if we got arrested for trespass. If we could not gain permission, we were instructed to get warden.

[Aguila Blanca]

Originally Posted by NJgunowner

Maybe I'm a little dense (probably), but I'm not sure how the current track of this conversation has to do with firearms laws or rights. I kept reading through this expecting it SOMEWHERE... nope. It doesn't even have anything to do with hunting really.

While it's kind of interesting, if I want to read up on land rights and trespass I'd be on a different forum. And I'm not saying you shouldn't have the conversation as you guys seem to be enjoying arguing about it, but is this the right forum for this discussion? I come here for issues pertaining to gun rights. Not clutter on trespassing, government or otherwise.

From the sticky post at the top of this discussion area:

Discussions in this forum will be centered upon legal issues as they relate to the 2nd Amendment and other Civil Rights. Constitutional law (which would encompass separation of powers, the impairment of contracts clause, the full faith and credit clause, etc., as well as the Bill of Rights) will also be on topic.

Discussion of the right (or lack of right) of game wardens to conduct warrantless entries and surveillance would seem to fall pretty squarely in the arena of civil rights and constitutional law. The topic is obviously of interest to some of our members. If you're not interested ... don't read it.

[Skans]

Originally Posted by NJgunowner

I think the main argument here is that its ability to be abused needs to be checked. If they want to monitor game and make sure people aren't poaching or doing illegal dumping that's one thing, but if they decide to put up camera's faceing/monitoring their home and not game trails that seems like an overreach of their intended purpose. No government entity should be allowed to bypass legally attainting a search warrant to monitor someone's home. There's some argument for what happens outside the home is fair game, but I can't think of anywhere it would be legal to do it from their own property. When you're standing on your own front lawn and your neighbor comes out is one thing, when you walk up into their yard with a camera is another.

I think real answer isn't "no wardens on the property without permission", it's here's a clear set of rules and guidelines they need to follow to protect peoples privacy so as not violate their rights.

And who knows, maybe one of these wardens had a thing for someone living in that house. Peeping Tom's and stalkers can be anyone lol.

Bah, now you guys have me participating in this.

I really can't disagree with anything you've said there. All quite reasonable.

[imp]

Congrats on the win, 4thAmendmentLawyer.

From a purely 4th Amendment, while I understand Skans point that the 4th doesn't necessarily cover raw, unimproved land, I think there is a case to be made that by aiming the camera at the residence, the game commission is making the homeowner less secure in his home and effects, or atleast dancing around that line.

There is also an imminent domain issue. By installing equipment, the state has, in effect, taken control of the property from the owner for state use. Not only that, but did it without providing notice or payment.

[Webleymkv]

Originally posted by Skans
I believe your thread complies with all of the forum rules and you have a right to have your say on this forum. I am skeptical of your position, however and here's why:

1. The 4th Amendment clearly does not protect against search and seizure on raw, unimproved land. This can be discerned from the Amendment's clear wording, from the drafters' intent and from the Supreme Court Case law interpreting it.

Is there not some implication that, in order to enter private property be it raw/unimproved or not, that the Game Warden would need to be carrying out his official duties? Taking this a bit further, while he may not necessarily need a warrant, would he not not need to demonstrate/articulate probable cause or, at the very least, reasonable suspicion to justify his uninvited presence on someone else's property?

2. Anti-poaching laws and hunting regulations that limit the method and quantity of harvesting animals have a long tradition in this country, going back to the time of the Revolutionary War. These laws are long established in state laws and consequently federal laws/regulations as well. The laws are based upon maintaining sustainable populations of animals and game, so they are necessary and proper.

Whether or not a law is "reasonable and proper" does not change the fact that it must be applied and enforced while maintaining the Constitutional rights of the accused. Laws against theft, assault, and murder are certainly "reasonable and proper" but that does not mean that the authorities may violate people's 4th Amendment rights in the pursuit of enforcing such laws.

3. Wild Game does not belong to anyone and freely roam among hundreds of miles of private and public land. So, from that perspective, it is more of a national and/or state resource, similar to water rights. Just because a stream runs through your property, doesn't mean that you have the absolute right to dump sewage into that stream, or damn it up and use the water to irrigate thousands of acres. If you are engaged in these types of activities on unimproved land, there is no warrant needed to investigate and pursue criminal charges.

But would the authorities not still have to articulate probable cause or reasonable suspicion that such illegal activity has taken place? The thought that Game Wardens or any other law enforcement personnel can simply wander about my property uninvited and unannounced just to see if I might be doing something illegal without any indication or evidence that such an act has taken place is disturbing to me. Such broad discretionary power on the part of law-enforcement seems to leave great opportunity, if not outright invitation, for abuse of power on the part of law enforcement.

4. As for entering and searching a residence for animals unlawfully harvested - I believe that 4th Amendment rights remain intact. However, taking a game warden along, who would be able to spot and identify evidence of unlawful hunting or meat processing outside of a residence may be helpful to gain access without a warrant. I see nothing wrong with that.

If "regular" law enforcement enlists the assistance of a Game Warden in the execution of an investigation where they already have a proper warrant, probable cause, and/or reasonable suspicion and thus would be within the law to enter and/or search the property anyway, I agree that I see no problem as the only purpose for the Game Warden's presence is to provide expertise and unique knowledge of hunting/fishing/conservation law that the "regular" law enforcement may not have. If, as some here have suggested however, the Game Warden is brought in because they have "special" authority for searches/seizures that the "regular" law enforcement does not have, well that is a very different kettle of fish. I find it troubling if game/conservation laws are indeed granted some "special" status that lowers the bar of 4th Amendment protections in their enforcement. The Constitution is supposed to be the supreme law of the land and, regardless of how "reasonable and proper" you or I might find a particular law, ordinance, or regulation to be, they still need to be enforced in accordance with the Constitution. The notion that certain laws or certain law enforcement personnel are held to different standards than others as it relates to 4th Amendment protections would seem to be inconsistent with the notion of "equal protection under the law."