Re: Wildlife agents need warrants to place cameras on private property (was: Fourteenth and a half amendment: Warrantless searches of two PA hunt clubs by game wardens upheld at trial court)

In article <v2061t$9ndt$1@dont-email.me>,
 "Adam H. Kerman" <ahk@chinet.com> wrote:

Another Steve Lehto video also touching on the open fields doctrine.
This federal doctrine goes back to the 1920s (Lehto incorrectly says 1930)
that police may enter upon private land to conduct a warrantless search in
specific circumstances in which the land is an open field. Typically, to
search the interior of a building or structure, a warrant is required,
and there is lesser protection against warrantless search on the
curtilage, the portion of the land used to approach and enter the
building. I cannot follow this doctrine at all. One is allowed to walk
up to the front door of a building to knock, seeking entry, without
committing trespass. If the area is fenced and restricted, then I
suppose curtilage is the approach to the gate. There might be evidence
of a crime that requires no warrant to obtain, but just because it's
curtilage doesn't allow police to seek evidence that's not in plain
sight.
 
What's I've never understood is, wherever the curtilage boundary is, how
can the rest of the land be open field if it's the front yard of a
building and it's not a field of any kind?

I've always wondered how far this 'authority' to go on private property
extends. It's one thing for a wildlife cop to hop a fence and plant a
camera while you're not there, but what if you're out and about on your
land and come across one of these guys in the act? Do you have the
authority as the property owner to say get the hell out of here? I mean,
you would if it was any other trespasser, but do these guys have the
legal right to remain on your land even if confronted by the property
owner who tells them to leave?

And what about the cameras? If I'm out in the woods on my land and I
find some spy camera stuck to a tree that I didn't put there and that I
don't want there, am I legally obligated to leave it there? Can I take
it down? If not, can I turn it so that it points at the ground? Can I
put a sock over it? What does the law say about that and how can it
possibly be consistent with the 4th Amendment?

In any event, the state constitution overrides portions of the open
fields doctrine.
 
https://www.youtube.com/watch?v=3Z1DQtQ-ALY
 
This case was decided under the Tennessee constitution which has greater
protection against warantless searches than the federal constitution.
 
Landowners sued because state game wardens entered private property to
place wildlife camera hoping to catch violations of state hunting laws.
They have the power to do so under state law (whether or not the
landowner posted no trespassing signs) but the landowners have
privacy protection in the state constitution if they taken steps to
assert control with no trespassing signs or fencing.
 
Lehto was skeptical that game wardens had no time to obtain a warrant to
place the cameras. I suggest it's because they couldn't articulate
reasonable suspicion.

That's the not the standard for a warrant. You have to be able to
articulate probable cause, which is a higher bar to clear than
reasonable suspicion.

Lehto loved the appellate judge's question to the state. The state claimed
they had an interest in protecting wildlife from illegal hunting. The state
asserted that the people who wanted to keep game wardens off their land
should desist from hunting. Lehto didn't understand how the state would
make that determination without entering the land. The judge said even
if protecting wildlife was a worthwhile goal if the state had a stronger
duty to protect persons than wildlife. The judge asked if a warrant were
needed to look for criminal violations, shouldn't it also need a warrant
to look for civil violations of hunting laws?
 
The landowners won. However, the law wasn't found to be unconstitutional
(as there were circumstances in which a warrantless search could be
conducted) but applied inappropriately in these circumstances.