Much has been made of Fourth Amendment protections against warrantless searches in recent years, as digital devices and high-tech surveillance capabilities have irreversibly altered our concept of privacy, but there is a nearly 100-year-old caveat to the protections that one Virginia homeowner is now challenging in court: The protections do not apply to open fields, “even if they are surrounded by fences or no trespassing signs.”
Josh Highlander is suing state game wardens after he claims they trespassed on his almost 30 acres of New Kent County land and stole his trail camera without a warrant, Fox News Digital reports.
(Video: Fox News Digital)
“It’s almost like we’ve got a situation with where they think their power’s limitless,” Highlander said. “And I just don’t feel like that’s right.”
“No Trespassing” signs surround Highlander’s property.
On the first day of turkey hunting season — April 8 — Highlander’s wife and six-year-old son were outside playing basketball. While heading to the edge of the woods to retrieve the rolling ball, his wife was frightened to see someone clad in full camouflage wandering among the trees. She quickly rushed her child inside the house and alerted her husband.
“My wife has got, like, this panic in her eyes,” Highlander recalled.
Suspecting that it was a hunter, he went to investigate but found no one. Later, he discovered a trail camera positioned just 150 yards from his home was missing.
Highlander called to sheriff’s department to report the theft, and that’s when he was told that it wasn’t stolen, it was seized by the Virginia Department of Wildlife Resources (DWR), who would soon reach out to him, according to his attorney, Joseph Gay from Institute for Justice, a nonprofit, public interest law firm dedicated to ending “widespread abuses of government power.”
Highlander said he suspects that DWR may have been on the hunt for hunting violations, but more than two months went by without a word from DWR.
While a few states “have extended Fourth Amendment protections to privately owned land beyond the curtilage of a home,” Fox News Digital reports, Virginia “is not among them.”
“The basic principle here is that if we as ordinary people can’t sneak onto somebody’s land and steal their camera, then government agents shouldn’t be able to do that either,” Gay said. “Not without a warrant.”
That, the lawyer said, needs to change.
“Part of what this case wants to do is to establish the principle that no trespassing signs should apply to government agents, too,” Gay explained.
This isn’t the only case of this kind the Institute for Justice is tackling.
Reports Fox News Digital:
Two Pennsylvania hunting clubs are suing the state after they say a wildlife officer repeatedly entered their properties to spy on and harass club members. A Tennessee man says wildlife agents placed a surveillance camera on his property without his knowledge. And a Connecticut couple say the state’s energy department strapped a camera to a bear in order to surveil their 117-acre forested property.
Highlander’s case, however, is different in that DWR didn’t sneak onto his land and place a camera of their own, they took one that Highlander privately purchased, Gay noted.
“We see that as a completely separate violation of the Constitution and one that I think is clearly established as a violation of the Constitution under case law around the country,” he said.
Clearly, Highlander isn’t trying to get rich off this lawsuit.
He’s seeking just $1 in damages from the three conservation police officers who allegedly trespassed on his property.
He is also asking to be reimbursed for his “cost and expenses” and he’d like for DWR to be ordered to return his camera and destroy any images it recorded.
Finally, Highlander wants an injunction that permanently prohibits wildlife officials from searching his land in the future unless they have a warrant or his consent.
“I don’t care about money,” Highlander said. “I care about the principle and it not happening to someone else.”
Writers and editors can be contacted at [email protected] with feedback, tips, or corrections.
Melissa Fine is the former executive editor of Casino Player, Strictly Slots, and Poker
Digest magazines. She is a UCLA graduate, news junkie, and dedicated Stargate SG-
1 fan. Melissa currently lives with her dog and two cats in a tiny town in the Sierra
Nevada foothills.
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