Wednesday, August 17, 2022

Victory In Tennessee! Court Strikes Down Law Allowing Warrantless Spying on Private Land

by Joshua Windham, Institute for Justice - One of Tennessee’s most intrusive surveillance practices has finally been hunted down. For decades, a state law empowered Tennessee Wildlife Resources Agency (TWRA) officers to enter private land and spy on its owners without a warrant. But in March, IJ clients Terry Rainwaters and Hunter Hollingsworth persuaded a state court to declare that law “unconstitutional, unlawful, and unenforceable.” 

The decision comes as a huge relief for Terry and Hunter, who own farms in rural Benton County. They sued TWRA after finding hidden cameras its officers had installed on their land. And that was just the tip of the iceberg. Discovery revealed that TWRA officers have long treated Terry’s and Hunter’s farms like public property—entering repeatedly without permission, sneaking around for hours dressed in camouflage, and taking hundreds of secret photos and videos, all without a warrant.  

TWRA had no shame about it. The agency invoked a statute that allows TWRA officers to “go upon any property, outside of buildings, posted or otherwise,” to look for evidence of hunting violations. And TWRA defended the statute under a longstanding U.S. Supreme Court rule—the “open fields doctrine”—that says private land gets no Fourth Amendment protection.  

Watch the case video here!

But IJ knew better. The Tennessee Constitution protects “possessions” from warrantless searches and forbids “general warrants.” When the Tennessee Constitution was adopted, it was widely held that a person could possess land. And general warrants—broad orders to search property without limiting the scope of the search—were among the causes of the American Revolution. 

Armed with Tennessee’s distinct constitutional text, IJ argued that TWRA’s warrantless searches, and the statute authorizing them, were unconstitutional. 

The Benton County Circuit Court agreed. The court, relying on the Tennessee Constitution, held that Terry’s and Hunter’s farms are the sort of properties that “quintessential[ly]” get protection from warrantless searches. The court found “compelling [the] comparison of the statute to a general warrant, which of course is also constitutionally prohibited.” And based on these holdings, the court struck down TWRA’s authorizing statute and declared it “unenforceable” statewide. 

The decision will have an immediate impact, both in Tennessee and beyond. The vast majority of land in Tennessee is privately owned. Now landowners across the state can confidently tell the government, “Come back with a warrant.” Not only that, but 16 other states have constitutions that similarly protect “possessions” from warrantless searches. (That includes Pennsylvania, where IJ is currently litigating this same issue.) Courts in these states can, and should, look to Tennessee as a model for how to interpret their constitutions in a way that honors landowners’ right to be free from warrantless searches. 

Like all IJ victories, this is the start of something far bigger. For one thing, TWRA may choose to appeal, which would provide an opportunity to enshrine these important constitutional protections in Tennessee’s appellate courts. But our victory in Tennessee also serves as a key building block in IJ’s broader national effort under our recently launched Project on the Fourth Amendment to ensure that landowners everywhere get the constitutional protections they deserve.

 Josh Windham is an IJ attorney. 

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