State appeals ruling that warrantless searches by wildlife officers are unconstitutional

The Tennessee Wildlife Resources Agency will appeal a judicial panel’s ruling that warrantless searches on private lands to enforce hunting, fishing and wildlife laws are unconstitutional.

The ruling last month by the three-judge panel concluded that TWRA’s searches without permission or notice to property owners — and without appearing before a judge to show probable cause of a crime — gave rise to an “intolerable risk of abusive searches.” The practice was “unconstitutional, unlawful and unenforceable,” the March 22 order concluded.

In April 2020, two Benton County men file suit, claiming that TWRA entered their property and secretly surveilled them on a number of occasions. The surveillance and patrolling of their lands was an invasion of privacy and violation of their rights, they argued.

The men — Hunter Hollingsworth and Terry Rainwaters — said TWRA officers crouched in bushes and secretly recorded their activities. The agency keeps no records of when or how often officers enter private property. TWRA officers do not need a supervisor’s permission before entering private property, and there are no rules limiting how long officers may spend patrolling private land. Hollingsworth and Rainwaters are represented by the Institute for Justice, which has challenged similar laws in other states.

TWRA officials have argued that they must have the flexibility to patrol private property in order to do their jobs. The agency’s mission is to protect wildlife and to enforce Tennessee’s hunting, fishing and boating rules.  The vast majority of hunting in Tennessee takes place on private property and wildlife aren’t confided to public lands, attorneys for TWRA noted.

TWRA attorneys also cited a long-established U.S. Supreme Court precedent, known as the “open fields doctrine,” which says that private property owners have “no reasonable expectation of privacy” on property deemed to be an open field — land outside the immediate vicinity of a homeowners house and yard.

The three-judge panel — convened under a 2021 state law requiring a judge from each of Tennessee’s three grand divisions to hear challenges to state law — concluded that the Tennessee Constitution goes further than the U.S. Constitution. Article 1, Section 7 of the state constitution provides a “broader guarantee of security for an individual’s real property than its federal counterpart,” they wrote.  The judge’s cited Tennessee Supreme Court precedent that found only “wild or waste lands” that is not farmed, fenced, or inhabited are excluded from those protections.

The panel also concluded that the Tennessee law giving TWRA the right to enter private land amounted to a “general warrant.” “General warrants are dangerous to liberty and ought not to be granted,” the court ruled.

Attorneys for TWRA filed notice of their intent to appeal the ruling with the Tennessee Court of Appeals on Wednesday.