On April 8, 2023, three Virginia game wardens walked past no-trespassing signs, entered Highlander’s private land, proceeded to his legal food plot, and stole his game camera—without a warrant.
On October 31, 2023, a Virginia judge ruled government officials do not need a warrant or probable cause to enter private land due to the Open Fields doctrine. The Henrico County circuit judge dismissed a lawsuit brought by Josh Highlander after state game wardens walked onto his posted acreage and removed a trail camera without his knowledge or consent.
The judge cited powers derived from the federal Open Fields doctrine, which states Fourth Amendment protections from warrantless searches to not apply to private land except for acreage immediately surrounding a residence. Highlander will appeal the decision, according to the Institute for Justice (IJ), a national public-interest law firm and legal advocacy group.
No Protection
According to Highlander’s suit, he has never been “cited, convicted, or even accused of committing a hunting offense.”
Federal and state agencies often claim the Open Fields doctrine allows government officials to secretly enter private land and spy on landowners. In a nutshell, the doctrine says private land (outside home and yard) is open to warrantless intrusion by government officials.
“We’re litigating cases right now in Pennsylvania and Tennessee about similar warrantless intrusions on private land. The problem is, 100 years ago, the U.S. Supreme Court held that private land isn’t protected from warrantless searches,” said IJ attorney Joshua Windham. “That’s wrong, our cases seek to convince state courts that whatever the U.S. Supreme Court believes about the federal Constitution, their own state constitutions can and should protect private land from these kinds of intrusions.”
EDITOR’S TAKE:
Defining the rights of private property owners has been at the center of many legal battles over the ages. Eminent Domain has often been the focus of such lawsuits where private landowners feel the government either has no right to seize their property or is paying them much less than market value. That said, the Highlander case is different. Mr. Highlander committed no crime and clearly posted his property. In addition, the government even took his game camera without a warrant. It would be very likely that this case could go all the way to the U.S. Supreme Court. Nevertheless, we are once again about to be witness to a historical decision that could have a large impact on agriculture. We will follow this and report back on any further news.
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