The Volokh Conspiracy

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Tennessee Statute Authorizing Wildlife Resource Agency Searches Facially Unconstitutional

So holds a Tennessee court.


From Rainwaters v. Tenn. Wildlife Resources Agency, decided yesterday by Chancellor Jerri Bryant, Judge Russell Parkes, and Chief Judge Donald Parish (Tenn. Cir. Ct.):

This matter concerns the constitutional challenge of Plaintiffs Terry Rainwaters and Hunter Hollingsworth to subsections 70-1-305(1) and (7) of the Tennessee Code Annotated and to the actions of Defendants Tennessee Wildlife Resources Agency ("TWRA") … taken pursuant to those statutory provisions.

Plaintiffs claim the challenged statute authorized the TWRA to establish a system whereby it sends its officers in unconstitutional, "roving patrols of private land" to enforce Tennessee hunting laws without regard for the property rights of individuals. Plaintiffs claim that under this system TWRA officers, as a matter of course, enter privately owned land to search for wildlife violations without a warrant or consent in violation of Article I, Section 7 of the Tennessee Constitution.

Plaintiffs claim TWRA officers hide and observe Plaintiffs and their guests on their own land, take pictures, and set up cameras to monitor Plaintiffs when the officers themselves are not present…. Defendants do not dispute the vast majority of these factual allegations, at least for purposes of these motions, but maintain their actions and the statutory provisions authorizing them are constitutional….

As written, the contested statute allows for the TWRA's executive director, a designated TWRA employee, or any "full-time wildlife enforcement personnel" employed by another state or the federal government to enter any property, except "buildings," in the performance of the executive director's duties. The protections of the Article I, Section 7, however, extend to all "property, real or personal, actually possessed or occupied" [but not including "wild or waste lands" -EV] …

Defendants concede that Article I, Section 7 protects more than the home and its curtilage ["curtilage" refers to the surroundings of the home that are sufficiently associated with it -EV] but argue that these searches occurred in unprotected areas. Plaintiffs contest this assertion vigorously in their argument for an as-applied challenge. Here, however, we are concerned with the statutory language, and by eschewing only buildings, that language undoubtedly reaches property that is constitutionally protected from unreasonable searches. Tennessee Code Annotated subsection 70-1-305(1) reaches "any property, outside of buildings." This encompasses a broad spectrum of property outside of "wild or waste lands," including curtilage.

Defendants nevertheless argue that Tennessee Code Annotated subsections 70-1-305(1) and (7) cannot facially violate the Tennessee Constitution because there are situations where areas of private land are not constitutionally protected…. Plaintiffs say Defendants misstate the test for facial challenges by arguing that the lack of protections for some properties justifies the authorization of other unconstitutional searches. The question is instead whether the challenged statute implicates constitutionally protected property. Tennessee Code Annotated subsections 70-1-305(1) and (7) plainly do just that. At the hearing on these motions, counsel for Defendants acknowledged that curtilage is a constitutionally protected property. Defendants' counsel also acknowledged that the statute on its face authorized searches of the curtilage. Article I, Section 7 protects more than just the home and the curtilage. The fact that Defendants might permissibly search other privately-owned properties under the same statute such as "wild or waste lands" cannot provide access to search other properties that are protected by the Tennessee Constitution….

The final question is whether these statutorily authorized searches of constitutionally protected property are unreasonable. "Ordinarily officers searching occupied, fenced, private property must first obtain consent or a warrant …." Indeed, warrantless searches are presumptively unreasonable. While there are circumstances that excuse the requirement for a warrant, Defendants assert no such circumstance. The Court also, however, finds compelling Plaintiffs' comparison of the statute to a general warrant, which of course is also constitutionally prohibited. For these reasons, we hold the searches unreasonable.

Having now concluded that Tennessee Code Annotated subsections 70-1-305(1) and (7) authorize unreasonable warrantless searches in violation of Article I, Section 7 of the Tennessee Constitution, we must further hold that those statutory provisions are facially unconstitutional….

Judge Parish would have gone further and also held "that Defendants' application of those provisions to Plaintiffs are unconstitutional under the specific, undisputed facts of this case:

I have concluded from this state's case law that in Tennessee the open fields doctrine [which allows warrantless searches of "open fields" -EV] is constitutionally limited to wilds and waste lands. "I shall not today attempt further to define the kinds of [properties] I understand to be embraced within that shorthand description; and perhaps I could never succeed intelligibly doing so. But I know it when I see it, and the [properties] involved in this case [are] not that." Jacobellis v. Ohio (1964) (Stewart, J., concurring).

Tennessee law has recognized the protected nature of a fenced hog lot …, a wood lot fenced for pasture …, gardens and fields near a barn …, a hog pen on fenced land posted with No Trespassing signs …, and a campsite on land posted with No Trespassing signs …. Indeed, today it is undisputed that the properties we are concerned with consist primarily of farms. Some of these properties are fenced, and those that are not have chained gates marked with No Trespassing signs accessible only by private, gravel paths. These lands are not the same as a "'wild and wasteland' which might be 'roamed at will without a search warrant.'"

TWRA officers, particularly Defendant Hoofman, have entered onto those properties on numerous occasions in order to obtain evidence of state wildlife violations, not just the ones Defendants claim were part of a federal investigation. Those entries constitute searches ….

Congratulations to the Institute for Justice (and to its lawyers, Josh Windham, Jaba Tsitsuashvili, and Robert Frommer) on the victory here.