BATON ROUGE, La.—A new lawsuit from a Louisiana forester asks a question with a seemingly obvious answer: Is land property? Tom Manuel owns land that he uses to grow timber commercially, as well as for recreation. In December, two separate times, game wardens with the Louisiana Department of Wildlife and Fisheries (LDWF) entered Tom’s land without permission in search of possible hunting violations. Both times they left without giving a citation.
The warrantless, permissionless searches by state law enforcers struck Tom as a violation of his rights. The Louisiana Constitution says in stark terms that “property” must be secured from “unreasonable searches . . . or invasions of privacy.” There is no exception for any government official. Now, Tom is suing the LDWF with the Institute for Justice (IJ), which protects property rights nationwide and has several similar suits in other states.
“The Louisiana Constitution protects all ‘property’ from warrantless searches—and that includes land,” said IJ Attorney James Knight. “That may seem obvious, but misguided U.S. Supreme Court precedent has convinced state officials that they can invade private land at will. This case seeks to put a stop to that and to restore the constitutional protections Louisiana landowners deserve.”
Many Americans assume the government needs a warrant or consent to come onto their private property. But a century-old rule from the U.S. Supreme Court says that the Fourth Amendment’s protection from unreasonable searches and seizures does not apply to most private land. This “open fields” doctrine is used by agents to enter property at any time and for any reason. In some states, game wardens have placed cameras without warrants and, in at least one instance, they took a privately owned camera from private land.
But—at least for state officials—the open fields doctrine does not apply when the state constitution protects private land from unreasonable searches. This includes Louisiana’s neighbor, Mississippi, where the state supreme court has held that state officials need a warrant to search private land for violations of any law. Other states that protect private land from unreasonable searches include Montana, New York, Oregon, South Dakota, Washington, Vermont, and—thanks to a recent Institute for Justice victory—Tennessee.
The problem is not limited to game wardens. Officials across the spectrum—from police officers, to environmental inspectors, to code enforcement officers, to immigration officials—use the open fields doctrine to invade private land across the country every day. That’s not how law enforcement is supposed to work. Both the state and federal constitutions are clear: to conduct a search, get a warrant.
Tom’s lawsuit advocates for a similar common-sense view of property rights in Louisiana: “I believe Louisiana’s constitution should mean what it says,” said Tom. “While it’s important that state hunting laws be maintained, constitutional limits on government power should be upheld too. Protecting wildlife can be accomplished without trampling on our privacy and property rights. From my experience managing land in both Louisiana and Mississippi, I’ve seen that wildlife can thrive where the government must respect property lines.”
Louisiana is now the fourth state where IJ is challenging the open fields doctrine. In Tennessee, a trial court held that the state law permitting warrantless searches was unconstitutional. The Pennsylvania Supreme Court will hear argument later this year in a challenge from several hunting clubs. And in Virginia, a homeowner sued last year after agents entered his property and seized a game camera without a warrant.
“Private land is not public property,” said IJ Attorney Josh Windham. “The typical rule when government officials want to invade your property is simple: Go get a warrant. Land—which has always been one of Americans’ most cherished possessions—deserves no less protection.”