Andrew Wimer
Andrew Wimer · October 31, 2023

ARLINGTON, Va.—Virginia game wardens trespassed on the land Josh Highlander calls home, scaring his family and taking a game camera he placed in his field. Even though there was no evidence he had done anything wrong, the wardens searched through that camera looking for hunting violations. Those wardens never asked for a warrant to trespass or root through the camera, so Josh teamed up with the Institute for Justice (IJ) and sued the Virginia Department of Wildlife Resources (DWR) for invading his privacy and taking his property.

But in a short decision, a Henrico County circuit court dismissed Josh’s lawsuit. Despite Josh suing under the Virginia Constitution, the judge concluded that the warden’s warrantless invasion of Josh’s land was fine due to the U.S. Supreme Court’s “open fields” doctrine. Under the federal open-fields doctrine, the Fourth Amendment’s prohibition on warrantless searches does not apply to most private land except for the area immediately surrounding a home, known as the “curtilage.” Even more shocking, the judge held that even if state officials are deliberately violating Josh’s constitutional rights, he and other Virginians cannot bring suit in court to vindicate those rights.

Undaunted by the circuit court’s incorrect and dangerous opinion, Josh will now appeal.

“The whole point of a written bill of rights is to create rights that the government cannot violate,” said IJ Attorney Joe Gay. “It doesn’t make sense to say that Virginians can’t enforce those rights until the government gives them permission to do so. After all, the Virginia Bill of Rights is that permission.”

The Virginia Constitution’s Bill of Rights pre-dates the U.S. Constitution’s first 10 amendments by over a decade. One of those cherished rights is the prohibition on “general warrants” contained in Article 1, Section 10. In the lead up to the American Revolution, British authorities were often granted wide-ranging warrants permitting them to search homes and businesses.

The judge in Josh’s case agreed with previous circuit court decisions that the Virginia Legislature has not explicitly permitted lawsuits to protect this right. In legal terms, the right against general warrants is not “self-executing” and so the state has sovereign immunity from such suits.

“Game wardens and other officers shouldn’t have absolute authority to snoop around people’s land and take their stuff,” said IJ Attorney Joshua Windham. “‘No-trespassing’ signs should apply to the government, too. If officers want to search your land and seize your property, Article I, Section 10 requires them to get a warrant first.”

This case is part of IJ’s Project on the Fourth Amendment, which seeks to protect the right for Americans to be secure from unreasonable searches and seizures. In Tennessee, a state court ordered the Wildlife Resources Agency to stop warrantless trespasses and placement of cameras after IJ sued on behalf of two property owners. IJ is also representing two hunting clubs in Pennsylvania that have been subject to warrantless searches.