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December 20, 2022
TWRA argues to Court of Appeals that it can search private land at any time without a warrant
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. |
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