Can Government Agents Swipe Your Camera And Spy On You?

Josh Highlander has a beautiful home on 30 acres of mostly wooded property in Virginia. His family loves the outdoors but now they have cause for concern. Two months ago, Josh’s wife was surprised to see a stranger in full camouflage through the trees. She ushered their son back inside and alerted Josh; by the time he got outside, the stranger was gone.

It turned out that the person in camo was a game warden with the Virginia Department of Wildlife Resources (DWR). They were not just snooping. Later that night Josh noticed that the game camera he had set up on one of his hunting spots was gone. When he reported that camera stolen to the sheriff’s department, they confirmed that DWR had seized the camera.

Two months later, Josh has yet to receive a warrant or any other contact from DWR saying it had his camera, let alone a hunting citation. Instead, it looks like the game wardens were hunting for potential violations after they ticketed his brother earlier in the day and are looking through Josh’s camera in hopes of finding something they can use to write a similar ticket.

Can government agents enter your land without a warrant to spy on you? While most Americans would think that’s a huge constitutional violation, it’s somewhat of an open question thanks to a century-old Supreme Court precedent. In Hester v. United States, the Court determined that “open fields” do not have the protection of the Fourth Amendment’s prohibition on warrantless searches.

As interpreted by most courts today, law enforcement only needs a warrant to investigate the area immediately around a home, known as the “curtilage.” All those “no trespassing” signs you might put up on your property line simply don’t apply to federal agents and law enforcers in many states.

The Fourth Amendment and the state constitutional provisions that mirror it seem to be clear: law enforcement needs a warrant to search Americans’ property and seize their possessions. The Founding Fathers limited the government in this way because they saw firsthand how British authorities abused their power through “general warrants” that let soldiers enter homes and businesses whenever they wished.

The warrant requirement makes sure that authorities need to present evidence of probable cause to a judge before they go bashing down doors. Unfortunately, the courts that should be holding law enforcement accountable often create new loopholes for officers to take advantage of.

While federal courts may give a long leash to government trespassers, a number of state courts recognize that their state constitutions protect property owners. Most recently, a Tennessee court declared that a law the state Wildlife Resources Agency relied on to snoop around private land without a warrant was unconstitutional.

That lawsuit, like Josh Highlander’s, was brought by the Institute for Justice. Property owners Terry Rainwaters and Hunter Hollingsworth had both discovered cameras on their land. For years, game wardens had been walking past “no trespassing” signs looking for violations.

Two hunting clubs in Pennsylvania, also fed up with trespassing wardens, sued in 2021. One of the clubs only found out several months into the suit that the wardens had placed a camera on its property without a warrant too.

Some in the hunting community worry that game wardens need the open fields doctrine to effectively enforce hunting laws. But state supreme courts in Montana, Mississippi, New York, Oregon, Vermont, and Washington have clearly held that their state constitutions protect land from warrantless searches. None of these states are known for their lack of hunting enforcement or decimation of wildlife.

DWR has added a new twist to the old dispute over the open fields doctrine: Not only did the game wardens enter private land without a warrant, they took private property without a warrant, effectively using Josh’s own camera to spy on him. It’s a perfect illustration of how law enforcement finds new ways to side-step the warrant requirement.

For now, Josh Highlander must live with the reality that wardens think they have free-range on his land and can take his stuff whenever they wish. He’s not sure if he’ll put another camera in the same place, since DWR could just take it again. Taking property without a warrant is wrong and nabbing someone’s camera to spy on them is both wrong and creepy. Virginia should join other states and recognize that its constitution requires warrants for intrusive searches.