December 20, 2022
TWRA argues to Court of Appeals that it can search private land at any time without a warrant
In a case working its way through the Tennessee Court of Appeals, the issue is whether and to what extent the Tennessee Wildlife Resources Agency can enter a person's real property at any time without a warrant if it suspects that any hunting activities are taking or have taken place in the past. A state trial court previously ruled that the state statutes that TWRA relies upon for these clandestine invasions and surveillance (including placement of cameras) of private property are unconstitutional. (
April 2022 trial court opinion is included on the TFA's news post).
On December 14, 2022, TWRA, being defended by the state's new Attorney General, Jonathan Skrmetti, filed a
brief with the Tennessee Court of Appeals seeking to have that court reverse the trial court and restore to the TWRA the ability to enter your private property, to monitor your activities and to install almost any kind of surveillance equipment that it wants – all without demonstrating probable cause to believe a crime is being committed and obtaining a search warrant.
In this litigation, there is no dispute that the individual plaintiffs either owned or leased the properties in question. There is no dispute that these were large tracts involving hundreds of acres. There is no dispute that the properties were gated and included "no trespassing" signs. Nor is there any dispute that TWRA officials had entered the properties to search for possible evidence of hunting activities and to determine if there was evidence of illegal hunting occurring on the privately owned lands.
The trial court had ruled that Tennessee Code Annotated §§ 70-1-305(1) and (7), which are the provisions that TWRA was relying upon, are facially unconstitutional because these provisions "authorize unreasonable warrantless searches in violation of Article I, Section 7 of the Tennessee Constitution."
In response, TWRA argues to the Court of Appeals that "(1) Sections 70-1-305(1) and (7) are not facially unconstitutional; (2) the properties at issue are not constitutionally protected; and (3) any "search" by the TWRA officers was not unreasonable and therefore did not violate Tenn. Const. art. I, § 7." On the first issue, TWRA lays out an argument that the statutes are not
facially unconstitutional because there may be circumstances under which the statutes could apply that would not be a constitutional violation.
On the 2nd issue, the argument that owners/lessors of the private properties have no constitutional protections, TWRA argues that "the entries on Plaintiffs' properties were not "searches" at all, because the properties on which the officers entered are not constitutionally protected." TWRA, while admitting that the lands were used for farming, recreational activities, camping and hunting, argues that the lands are however unprotected constitutionally because the lands are "unoccupied, unenclosed, and not used in the daily operation of the premises." It also asserts that the lands are unprotected from warrantless searches because the "property consists of a mix of fields, woods, and waters that Mr. Hollingsworth uses for recreational activities such as hunting, fishing, camping, and farming" and that "no one resides on the property, and although there was a gate with a single "No Trespassing" sign, there is no evidence that the property was fenced in any manner or that Mr. Hollingsworth had made any other efforts to occupy the property."
TWRA also argues that even if the property owners/lessors might be entitled to some constitutional protections, the TWRA searches were not "unreasonable." TWRA circulate argument here is that since the individuals were required to have a state license to hunt on the properties that they had consented, by law, to any search at any time that was undertaken for the purposes of enforcing the hunting laws or regulations. TWRA asserts "any "search" of Plaintiffs' properties by a TWRA officer was reasonable; [because] Plaintiffs had a statutory duty to submit to inspection when participating in hunting and fishing activities in the State." TWRA claims that "the properties in question are the properties of individuals who have voluntarily subjected themselves to regulation and inspection by the TWRA. And TWRA officers enter private property under their statutory authority to do so only when and if they believe hunting activities are currently taking place or have taken place on the property in the past."
The property owners are expected to file their appellate briefs in January 2023. Certainly, the Court of Appeals could agree with the trial court and hold that the TWRA's actions and these statutes are unconstitutional. And, if it does, one or both parties could appeal to the Tennessee Supreme Court. But, it raises the question – is the duty of the state attorney general to defend the rights, particularly the constitutional rights of Tennesseans or does that duty yield to the conflicting interests of state officials to violate property rights of private citizens? Which duty of the attorney general takes priority?
Or, more to the point, does the attorney general have any duty to the people of Tennessee vis-a-vis the protection of the constitutional protected rights? Here the issue is property rights. But, what if the issue becomes those rights covered by the 2nd Amendment? Will the attorney general zealously protect the rights recognized by the 2nd Amendment or will the priority be to protect the efforts by state and local officials to infringe those rights too?
Obviously, the Tennessee Legislature could step in and address the issue by requiring TWRA to show to a judicial officer sufficient probable cause to believe that a crime is being or has recently been committed such that a search warrant can be issued. But, even then are those judicial officers going to defend and safeguard the rights of citizens or will they merely "rubber stamp" what the state wants to do and issue the warrant as nothing more than a "free pass to violate the rights of the citizens".
The Legislature can and should act to zealously defend private property interests and the right to be free from unreasonable (that is, lacking probable cause) searches. It should put a stop to TWRA's mindset that it can go anywhere at any time to investigate past, present or even potential future hunting violations – all without a search warrant. But, in the same light, the Legislature also can and should repeal the laws that have existed for more than 2 centuries in Tennessee which impair and infringe the rights protected by the 2nd Amendment – but it has not done that either.
