“We’re challenging the Open Fields Doctrine altogether,” Gay said. “One of the things that’s surprising to people is that the Open Fields Doctrine applies to land you’re living on, that you’re using to spend time with your family, to have conversations with your wife, to play with your children. It’s the kinds of places where you expect privacy, and you’d expect that you’d have the power to keep out unwanted intruders, but the way that the government applies the doctrine is that it only extends to the small area around your house called the ‘curtilage,’ not all the space you’re using on a day-to-day basis.”
Gay and Highlander are challenging that in their court case, in part because the camera in this case was located on property that Highlander and his family live on.
“These game wardens and other officials can kind of go onto most land whenever they want, for whatever reason they want, and they don’t have to get a warrant, and there’s no neutral magistrate or judge providing any kind of check on their behavior,” Gay said. He added that he is challenging the Open Fields doctrine specifically under the Virginia Constitution, which establishes a narrower Open Fields doctrine than federal law does. “We think that the camera’s seizure here is an entirely separate and additional level of egregious. What we’ve found is that wardens in this country won’t just enter people’s land, they will sometimes put cameras there to spy on that land, and, as you saw here, they will actually take other people’s cameras and look through it for evidence.”
I think that it’s not unreasonable for game wardens, and other officials who are preventing or investigating poaching to enter privately owned non-curtilage land for that purpose. Otherwise, all privately owned land would be open to poaching with essential impunity, and hunting/fishing laws don’t only apply to public land.
A trail camera, however, is not in and of itself evidence of poaching, and officers should have zero rights to interfere with someone else’s trail camera in any way. Neither should officers be allowed to set up their own trail cameras on private land (without permission from the property owner). If officers find a trail camera, they should seek to speak with its owner, either by contacting the property owner, or by leaving a business card with the camera and waiting for the owner to contact them (if they so choose).
Taking the camera without probable cause was theft. There is almost always time for a warrant. And if there isn’t, you should still get the warrant BEFORE looking at the camera content. So many other issues to pursue…
Regardless of whether there is “time,” they should not be able to take private property from a person’s private land without a warrant (or probable cause), any more than if it were in their house or car.
Taking a computer out of somebody’s home office and then getting a warrant to try to look inside is still taking the computer without a warrant. The same should go for these cameras.
From the quoted text it sounded like they did get a warrant to view. I think making a copy so as not to alter or taint the original is standard procedure, if not required, for evidentiary purposes.
Yeah. Waiting on a warrant before officially viewing the pictures makes it all better. Surely no one looked before that.
It makes almost none of it better (we agree on that). But they actually followed some sort of evidentiary procedure. If we’re to be outraged at incompetence and exceeding authority we should know the rules and hammer where they are explicitly wrong and not make stuff up.
This sounds like a reasonable law to me. You should suggest it to your federal reps.
they basically rummaged through his camera looking at all the pictures looking for evidence of hunting violations. Game wardens do this thing all the time.”
In this case, the officers confiscated the camera, downloaded the images from it (without a warrant), and only later got a warrant to review them. Nothing illegal was found.
…“Open Fields Doctrine,” which was established in a Supreme Court case called Hester v. United States. That doctrine essentially establishes that Americans don’t have privacy in “open fields,” even if it is privately owned land with posted no trespassing signs
Good luck on challenging the government and case law about open fields. In my local area, a 10ft privacy fence around an entire property was just about the only thing that made a house’s curtilage extend to the property line. I was actually amazed when the court went in their favor.
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