How Government Officials Set Up Cameras On Private Property And Get Away With It

The members of the Punxsutawney Hunting Club in Western Pennsylvania are fed up with local game wardens who insist that they have a right to come onto the club’s private property whenever they wish. Officers enter by foot, bicycle, and truck. They spend hours wandering the property secretly surveilling club members. Dangerously, officers sometimes hide in the woods and then interrupt members mid-hunt.

It is clear that the club’s property is not public game land. There are “No Trespassing signs” posted around the perimeter and all entrances are gated and locked. Yet officers never acquire warrants. All of this got to be too much for the club members and last year—represented by the Institute for Justice—they sued the Pennsylvania Game Commission.

That lawsuit recently revealed even more shocking behavior. Officers secretly placed a camera on the property and collected photos of the club members. Despite the history of trespassing, club members were still astonished and upset to see themselves in photos that were sitting in a government database. “It’s private property up there. I don’t see how anybody has the right to film me. It shouldn’t be happening,” said Mark Miller, one of several members captured in images the government was forced to hand over.

Most Americans would probably think that the officers’ actions are a clear violation of the 4^th Amendment’s protection against warrantless searches. Sadly, federal precedent going back 100 years actually supports this outrageous government trespassing.

In 1924, the U.S. Supreme Court upheld a warrantless search of rural land under the legal theory that the officers entered unprotected “open fields.” The Court then re-affirmed that doctrine in 1984 reasoning that property owners do not have a “reasonable expectation of privacy” except inside their homes and the immediate area around the home.

But times have changed in the decades since these rulings. Officers now have access to cheap and reliable cameras. For under $50, a game warden can purchase a trail camera that captures high-definition photos and video. More expensive cameras even upload images through the cell phone network and internet. Relying on the open fields doctrine, officers can leave a camera in place for weeks or months all without ever requesting a warrant.

Pennsylvania is not the only place in the nation where this is happening either. In Tennessee, Terry Rainwaters and Hunter Hollingsworth found cameras on their farms. The two sued the Tennessee Wildlife Resources Agency in 2020.

The Tennessee state constitution is more protective of private property than the Supreme Court’s interpretation of the U.S. Constitution. Earlier this year, a state court ruled that the law Tennessee game wardens rely on to conduct their warrantless searches was unconstitutional. Unless a higher court overturns the decision, Tennessee game wardens will need a warrant to conduct intrusive searches.

The members of the Punxsutawney Hunting Club are hopeful that the Pennsylvania Supreme Court will similarly recognize that the state’s constitution protects their property. The commonwealth’s constitution, unlike the federal constitution, protects “possessions” from warrantless searches.

Clearly the club’s property is a joint possession of its members, not government land. They should have just as much right to bar government officials as they do to bar non-members. If game wardens suspect that club members are violating hunting laws, they can present evidence to a judge and get a warrant.

When the Bill of Rights was drafted and ratified, no one thought that officers should be allowed to set up a tent on private land and make observations through a spyglass. But that is pretty much what is allowed with the open fields doctrine and modern technology. There is no limit on when federal officers can come onto rural property, how many cameras they can set up, and how long they can watch.

Hopefully the U.S. Supreme Court will one day get an opportunity to reconsider a doctrine that gives officers such unlimited power to prowl and protect rural property owners nationwide. But until then, let’s hope that state courts continue to recognize that, “No Trespassing” signs apply to the government too.