Tennessee Statute Authorizing Wildlife Resource Agency Searches Facially Unconstitutional

Starting at Rainwaters v. Tenn. Wildlife Resources AgencyYesterday, Chancellor Jerri Bryant and Judge Russell Parkes ruled in favor of the 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 argue that the challenged statute authorizes the TWRA, according to which it can send its officers on “roving patrols in private land”, to enforce Tennessee hunting law without taking into account the property rights and personal property of the individuals. Plaintiffs assert that this system allows TWRA officers to enter private land without consent or warrant and search for wildlife violations, in violation 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….

The contested statute, as it stands, allows the TWRA’s Executive Director, TWRA employees designated TWRA employees, and any other “full time wildlife enforcement personnel” working for another state, federal, or both, to enter. Any Except for “buildings,” property is protected in the execution of executive director’s duties. However, the Article I Section 7 protections extend to any “property real or personal” actually owned or occupied. [but not including “wild or waste lands” -EV] …

According to defendants, Article I Section 7 does more than protect the home or its curtilage. [“curtilage” refers to the surroundings of the home that are sufficiently associated with it -EV]But they argue that the searches were conducted in areas not protected. This assertion is vigorously challenged by the plaintiffs in an argument for an as applied challenge. This case, however, is about the statutory language. Because we do not mention buildings in this context, it undoubtedly affects property. Is Constitutionally protected against unreasonable searches. Tennessee Code Annotated subsection70-1-305(1) covers “any property other than buildings.” It covers a wide range of property, 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 claim that Defendants have misunderstood the facial challenge test by saying that there are situations where some private land areas do not qualify for constitutional protection. They also argue that other unconstitutional searches can be authorized because of the inability to protect certain properties. Instead, the question is whether or not the challenged statute affects constitutionally protected property. Tennessee Code Annotated Sections 70-305(1) and 7 clearly accomplish this. Counsel for defendants acknowledged curtilage as a constitutionally-protected property at the hearing. Counsel for the defendants also confirmed that curtilage could be searched under the law. Protected by Article I Section 7. More There are more than two homes and a 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….

Let us now consider whether the statutorily-authorized searches of property constitutionally protected are reasonable. “Ordinarily officers searching occupied, fenced, private property must first obtain consent or a warrant ….” Garnishless searches, in fact, are presumptively unreasonable. While certain circumstances may exempt warrantless searches, the Defendants do not assert any such exceptions. However, the Court finds it compelling that Plaintiffs compare the statute with a general warrant which is, of course, also prohibited by law. These reasons render the searches unconstitutional.

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 could have gone even further, and held that Plaintiffs’ application of these provisions by Defendants was unconstitutional in light of the particular facts of the case.

From this state’s caselaw, I concluded that the Tennessee open field doctrine is applicable. [which allows warrantless searches of “open fields” -EV]Constitutionally, it is limited to waste and wild lands. I will not attempt to determine the types of [properties]That is what I see. However, I recognize it immediately when I see it. [properties]Involved in this case [are]But it’s not like that.” Jacobellis against 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 …. Today, it’s undisputed that most of the properties we care about are farms. Some properties are secured, others have chainsed gates that can only be accessed by gravel pathways. These lands do not have the same status as “wild and desolate” which could be used to evade search warrants.

TWRA officers and Defendant Hoofman have repeatedly entered those properties in an effort to collect evidence of violations of state wildlife laws, as well as the federal investigations that they claim are being conducted. Those entries constitute searches ….

Herzlichen Glückwunsch to the Institute for Justice for its win here.