May 18, 2020

Americans expect their private property to be off limits to wandering feet and prying eyes—especially when those feet and eyes belong to government officers. Indeed, the Constitution’s protection from unwanted intrusions dates to the Founding, and it’s just as crucial in the era of modern surveillance technology. But in the Volunteer State, officers from the Tennessee Wildlife Resources Agency (TWRA) are turning that principle on its head: They trespass on private land without a warrant, snoop around, record video footage, and even install cameras in people’s trees to watch them 24/7.

TWRA’s activities are incredibly invasive. Just ask Terry Rainwaters and Hunter Hollingsworth, landowners in Camden, Tennessee, who have experienced these abuses firsthand.

See more about this case in our video Can the Government Spy on You on Your Property?

Terry’s land is his sanctuary. It’s where he lives with his son, rents to a long-term tenant, farms, and hunts. Hunter’s attachment to his land, which has been in his family for decades, is similar. It’s where he grew up fishing, hunting, and cooking over campfires with his dad—traditions he carries forward today with his friends.

Like everyone else, Terry and Hunter expect privacy on their land. So naturally, both have clear “No Trespassing” signs posted on the gates at the entrances to their properties. But that hasn’t stopped TWRA from treating their lands like public property.

For years, TWRA officers have been entering Terry’s and Hunter’s properties—without warrants or probable cause—to snoop for potential hunting violations. Worse, TWRA officers have installed cameras in trees on both properties to conduct 24/7 surveillance of the men’s private activities and guests. This is an egregious invasion of property and privacy rights—one that, understandably, has left both Terry and Hunter feeling anxious that the government is constantly watching them on their own land.

TWRA’s only justification? Both Terry and Hunter had licenses to hunt in so-called open fields on their properties. Starting with Prohibition and accelerating with the War on Drugs, the U.S. Supreme Court has held that open fields—private lands beyond a house and its immediately surrounding area—are not covered by the Fourth Amendment’s protection against warrantless searches. As a result, TWRA’s warrantless searches would receive zero scrutiny in federal courts.

What TWRA ignores, though, is that Tennessee courts are not bound by the U.S. Supreme Court’s misguided open fields doctrine. In fact, the Tennessee Supreme Court has rejected that doctrine when interpreting the Tennessee Constitution. And rightly so: Under the federal rule, much of the private land in Tennessee would be a constitution-free zone that officers could enter and search as they please. But under the Tennessee Constitution, warrantless intrusions like TWRA’s receive genuine scrutiny and have even been struck down.

Terry and Hunter are fed up with TWRA’s intrusions, so they teamed up with IJ to put a stop to them. In April, IJ filed a lawsuit in Tennessee state court to defend Terry’s and Hunter’s right to be free from warrantless searches and surveillance on their private land—and to establish, once and for all, that “No Trespassing” signs apply to the government, too.

Jaba Tsitsuashvili and Joshua Windham are IJ attorneys.

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