Are dangers to liberty on display in unusual landowner case?

By Leisa Boley-Hellwarth

There is a case pending in Virginia that is worth watching. Josh Highlander, age 37, lives in a nice house on 30 acres of old-growth hardwood in eastern Virginia’s New Kent County. He has never had a hunting or fishing violation. The opening day of Virginia’s 2023 spring turkey season was April 8. That was the day his wife noticed unknown men camouflaged as trees walking through the property. Turns out the visitors were game wardens who seized four trail cameras that Josh had placed on his property. Apparently the cameras were taken so that the wardens could review all of the film footage to determine if Josh had broken the law. Josh was not happy about this intrusion so he filed a lawsuit against the Virginia Department of Wildlife Resources that poses the question, can government agents enter your land without a warrant to spy on you?

Josh is being represented by the Institute for Justice, a national public interest law firm and legal advocacy group.

Let’s take a brief trip through the history that brought us here. During the Revolutionary War, British offers used general warrants to enter private residences in the colonies to steal whatever they wanted. The founding fathers were weary of these violations so specific language in the Fourth Amendment protects American citizens from unreasonable searches and seizures by the government, which includes police officers. It sets the legal standard that police officers must have probable cause and acquire a warrant before conducting a search.

In 1924, the United States Supreme Court ruled in Hester v. United States. Hester was a bootlegger, convicted by a district court of concealing distilled spirits. Hester argued on appeal that the district court had erred in refusing to exclude a jug as well as the testimony of two witnesses and to direct a verdict for him. Hester further argued that the district court had violated his rights under the Fourth and Fifteenth Amendments.

The Court found that the witnesses were revenue officers who had picked up a jug of moonshine that Hester had discarded while running from them. Hester argued that this evidence was inadmissible because the officers did not have a warrant for search or arrest. In the decision, written by Judge Oliver Wendell Holmes, the Court stated, in affirming Hector’s conviction, that there was no seizure of the jug because the officers examined the contents of the jug after it had been abandoned. The fact that the examination of the jug took place on land belonging to Hester’s father did not violate the Fourth Amendment because the special protection accorded by the Fourth Amendment did not extend to the open fields.

The Hester decision is why game wardens have powers above and beyond what other law enforcement officers possess. A game warden can legally enter your property, without probable cause or a search warrant, so long as he or she has reason to believe the law is being broken. They can do this to regulate and manage the publicly owned resources, which are fish, game and wildlife.

Now back to the pending Virginia litigation involving Josh Hollingsworth. If the game wardens had the authority to enter the property without a warrant, why did they disguise themselves as trees and sneak around. And should they be permitted to seize cameras and use the owner’s film to spy on him?

To date, Josh has not received a ticket, been accused of a crime or any communication from the Virginia Department of Wildlife Resources. Nor have the cameras been returned.

Josh described what the search and seizure did to him. “The feeling of security on my private land is gone, like watching a piece of glass shutter.”

Not only did the game wardens enter private property without a warrant, they took private property without a warrant, effectively using Josh’s own cameras to spy on him.

I’ll leave you with an appropriate bit of wisdom from the late Supreme Court Justice Louis D. Brandeis. “The greatest dangers to liberty lurk in the insidious encroachment by men of zeal, well meaning, but without understanding.”

To be continued…

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