On September 2, 2018, Hunter Hollingsworth spent the day on his farm in Camden, Tennessee. Dove season began the day before, and he had some friends over to hunt. That evening, he looked up and saw a U.S. Fish and Wildlife Service (FWS) agent and a Tennessee Wildlife Resources Agency (TWRA) officer converging on his location, but Hollingsworth wasn't nervous. He was angry.
According to a report later filed by FWS Special Agent Jesse Fielder, Hollingsworth approached the officers "in a confrontational manner," with a shotgun still in one hand and a beer in the other. Hollingsworth "started cursing at SA Fielder about SA Fielder being on his dove field." Even after Fielder took Hollingsworth's gun and handcuffed him, Hollingsworth continued to curse at the officers for harassing him: "I hadn't done a damn thing wrong, y'all fuck with me every time I damn hunt."
Looking back, Hollingsworth tells Reason, "Some of the things I said, some of my actions, I'm not proud of." But he says he felt backed into a corner: At least seven or eight times, Hollingsworth says he had spotted wildlife officers on his land without a warrant. Usually they look around for violations, sometimes they take pictures or videos.
And then there was the time he found a camera installed on his property—one he hadn't been told about, much less given permission to set up.
Hollingsworth had been ensnared by a longstanding practice in which state and federal wildlife agencies intrude on clearly marked private property, and in some cases set up cameras, without permission from the property owner.
Thanks to a series of court rulings stemming from Prohibition, the practice is legal. But it means that agents of the state can not only enter private property at their whim but install warrantless surveillance systems that can be used to incriminate individuals for activities on their own property.
That's how Hollingsworth ended up not only being arrested, but fined, stripped of his hunting license, and sentenced to probation after his home was searched by armed state wildlife agents. Hollingsworth's case illustrates an overlooked limitation to Fourth Amendment protections, in which nominally private property quietly becomes a tool of state surveillance.
Reasonable Under the Fourth Amendment
A number of state wildlife agencies as well as FWS claim the right to not only enter private property, but in some cases to plant cameras as well, without either a warrant or the property owner's permission. For example, a chapter of the FWS policy manual denoting "circumstances where a Service officer may observe and obtain evidence without courts considering it a search" stipulates, "when Service officers enter onto open fields…their observations are reasonable under the Fourth Amendment."
The open fields doctrine dates back to the Prohibition-era Supreme Court decision Hester v. United States (1924). Revenue agents caught a bootlegger with jugs of moonshine. He was on his property but away from his home. He sued to overturn his arrest, as the officers were on the property without a warrant. Writing for the majority, Justice Oliver Wendell Holmes upheld the arrest, finding that "the special protection accorded by the Fourth Amendment to the people in their 'persons, houses, papers, and effects' is not extended to the open fields."
Decades later, the Court affirmed the decision in Oliver v. United States (1984): Justice Lewis F. Powell Jr. held that "in the case of open fields, the general rights of property protected by the common law of trespass have little or no relevance to the applicability of the Fourth Amendment." Further, "steps taken to protect privacy," like fences or "No Trespassing" signs, "do not establish that expectations of privacy in an open field are legitimate in the sense required by the Fourth Amendment."
Citing William Blackstone's Commentaries on the Laws of England, Holmes held that the home and the "curtilage," the area immediately around the home, are distinct from other physical property. On one hand, it may make sense that a purely open, undeveloped plot of land would not receive the same Fourth Amendment protections as a person's domicile. But in a case involving state and local law enforcement agents finding a field of marijuana plants after searching a suspect's property without a warrant, the Kansas Court of Appeals interpreted Hester and Oliver to mean that "an open field need be neither 'open' nor a 'field' as those terms are used in common speech."
Because the Court has given its imprimatur to warrantless intrusions on private land, landowners' only recourse is state law. But state laws and practices vary widely. For example, Charlanna Skaggs, general counsel for the Alabama Department of Conservation and Natural Resources (DCNR), says that "DCNR follows Alabama law and would not place cameras on private property unless authorized by law or with express permission."
Meanwhile, just one state over, Mark McKinnon of Georgia's Department of Natural Resources (DNR) says that its "game wardens are permitted to place cameras on private property without requesting permission from a supervisor or from the property owner." McKinnon cited DNR Law Enforcement Division policy that limits camera use to still photos only, and no shots of the curtilage. The Kentucky Department of Fish and Wildlife Resources (KDFWR) has a preprinted form that officers can fill out to request permission to place cameras on private property, though KDFWR records custodian Jeff Bardroff tells Reason that the form is a "recent implementation" and "has yet to be used."
It can also be difficult to parse exactly how common the practice is, depending on where you live. Reason has previously reported on a Pennsylvania Game Commission (PGC) wildlife officer placing a camera on private property without a warrant or permission. That incident was revealed as a result of a lawsuit filed against the state by the Institute for Justice (I.J.), a public interest law firm that has also represented Hollingsworth.
But as I.J. attorney Joshua Windham told Reason, "Neither [TWRA nor PGC] has any sort of record-keeping policy with regard to warrantless entries on private land….The agencies that oversee these officers don't engage in meaningful oversight of their day-to-day activities. They are given basically an infinite leash, to go out, patrol private land, and enter and leave people's properties whenever and however they please." Both TWRA and PGC gave Reason similar responses, that records of warrantless camera surveillance either did not exist or had not been retained, even though ongoing litigation demonstrates that such cases exist in each state.
No Trespassing?
Tennessee law states that the TWRA "has the power to…enforce all laws relating to wildlife, and to go upon any property, outside of buildings, posted or otherwise, in the performance of the executive director's duties."
Hollingsworth's farm sits on 93 acres, on which he does not live. The land is not easily accessed: Getting there requires driving down a private road, walking through a neighbor's pasture, and unlatching two separate gates. "No Trespassing" signs are posted around the entrance. And yet state and federal agents still routinely show up unannounced.
In December 2017, nine months before Hollingsworth ended up in handcuffs, he was confronted on his land by TWRA Officer Kevin Hoofman. Hollingsworth complained, "There ain't no sense in you coming down here every time I hunt, didn't nobody invite you," to which Hoofman replied, "When you bought your hunting license, you invited me."
Hoofman alleged that Hollingsworth had planted corn in violation of state laws against hunting over bait. Hollingsworth denies the allegation, and tells Reason he had planted corn around a duck blind for natural cover.
Hunting over bait means exactly that: spreading bait to attract animals, and hunting the ones that show up. The practice is controversial. Many states, including all Midwest states, have completely or partially banned it. Under the federal Migratory Bird Treaty Act, the practice is banned when hunting all migratory birds, including ducks. Violators can be assessed up to a $15,000 fine, six months in jail, or both.
What Hollingsworth did not know at the time was that the previous month, Hoofman reportedly found corn cobs and kernels in a pond on Hollingsworth's property, which could constitute improper baiting. He referred the case to FWS Special Agent Kyle Lock for potential federal prosecution.
Then on or before November 30, Lock installed a trail camera on Hollingsworth's property. Trail cameras are weatherproof photo or video cameras designed to be set up outdoors, typically so hunters can see which animals come through an area and when. The cameras are triggered by motion and heat to either take pictures or video.
The camera on Hollingsworth's property had an antenna so that all photos, once taken, would be transmitted wirelessly. It was fastened to a tree by zip ties, about eight feet off the ground, pointing to the main road leading in and out of the property. Notably, this angle would not capture any hunting activities; it would only serve to catalog who was coming and going.
One morning in late January, Hollingsworth was heading out to hunt when he spotted the camera lens reflected in his headlights. He knew by the antenna that it wasn't one of his, so he took it down and carried it back to his house to determine where it may have come from. The S.D. card contained nearly 1,200 photos taken between November 30 and January 21, including Hollingsworth and his friends coming and going.
Hollingsworth took the camera to Jack Leonard, his attorney and hunting buddy. Leonard tells Reason that the camera was not marked as property of law enforcement, but he also suspected that it might be.
"I anticipated legal action coming," he said, and so he advised Hollingsworth to "secure it, keep it safe." Hollingsworth put the camera in his gun safe, where it sat for eight months.
According to a search warrant application, as the FWS and TWRA tried to interview Hollingsworth's hunting companions during the September 2 encounter, agents overheard his girlfriend saying that they had found cameras on their property, and "we got them at the house."
At no point had FWS or TWRA agents felt it necessary to get a warrant to search or surveil Hollingsworth's property. But on the basis of the missing trail camera, Lock obtained a warrant on September 7, 2018. The following morning, five FWS agents and five TWRA agents showed up with guns drawn to search Hollingsworth's house. FWS Agent Brandon Ennis indicated in a report on the search that by taking the trail camera, both Hollingsworth and his girlfriend had violated 18 U.S. Code § 641, "theft and/or possession of government property, less than $1,000," a class A federal misdemeanor punishable by up to a year in prison and/or a $100,000 fine.
As one page of an FWS investigation report summarizes the events, "SA's served a search warrant on HOLLINGSWORTH's residence on September 7, 2018 in reference to the stolen government property (Covert game camera) that was stolen from HOLLINGSWORTH's farm." The report uses the word "stolen" twice. But there's no reckoning with how it applies to an item placed on Hollingsworth's property without his knowledge or permission.
In April 2019, Hollingsworth was charged with six federal counts in the Western District Court of Tennessee, including improper bait placement, hunting over bait, and "knowingly conceal[ing] and retain[ing] property of the United States Fish and Wildlife Service…with the intent to their own use and gain."
Whatever one's opinion about the ethics or legality of hunting over bait, the only clearly willful property violations occurred when agents of the state stepped on to Hollingsworth's land and placed a camera in order to document his movements, without his permission or a judge's approval. It wasn't until he removed an unfamiliar camera that he was arrested and threatened with jail time.
He ultimately agreed to a plea. In exchange for the other charges being dropped, Hollingsworth pleaded guilty to one count of violating the Migratory Bird Treaty Act. He was fined $3,000 and sentenced to three years of probation and suspension of his hunting privileges.
In 2019, Hollingsworth sued the TWRA, the FWS, and Hoofman and Lock, for violating his constitutional rights. The district court threw out the case, with Chief Judge S. Thomas Anderson writing that a camera in an "open field" did not constitute a Fourth Amendment violation, and that even if it had, "defendants would still be entitled to qualified immunity." According to 1982's Supreme Court decision Harlow v. Fitzgerald, government officials are immune from civil liability as long as the conduct at issue "does not violate clearly established statutory or constitutional rights." (What, precisely, that phrase means is still up for debate.)
But in a motion brought by I.J. earlier this year against the state agency, Hollingsworth and another Camden landowner, Terry Rainwaters, successfully challenged the practice. A three-judge panel from the Benton County Circuit Court affirmed that the state's Constitution is more protective than the U.S. Constitution, and the law governing TWRA "implicate[s] constitutionally protected property" and is "facially unconstitutional." The state appealed the ruling in April.
No Going Back to Normal
For Hollingsworth, things can't quite go back to normal. He got his hunting license back November 6, but he says that now whenever he goes out, "I'll be extremely paranoid, because I feel that they're gonna have a vendetta out against me now, and I think that they'll be watching my every move." He says that with court costs and attorney's fees, he spent over $10,000 to plead guilty to a charge that usually carries a much smaller penalty. Besides, "I've already lost my license for three years; you can't put a price on that."
Nonetheless, he's hopeful that the circuit court ruling will stand up on appeal. "It was a long three years, but the three years was worth it as long as the ruling holds that they can't come on private property without a warrant. There's enough people that will benefit from that, that it was worth losing my license for three years and it was worth the $10,000."
Windham, the I.J. attorney, is also optimistic not only that the TWRA case will survive, but that it signals a path forward. "The most promising frontier, in terms of how to curb the government's currently-unlimited power to invade private land, is to start with state constitutional litigation and state legislatures." The Tennessee case rests on the fact that the state's constitution is more protective of private property than the U.S. Constitution. "Barring that," he says, "the most promising avenue is for states to pass laws that specifically restrain government actors from doing this sort of thing, that explicitly requires them to seek consent, get a warrant, or show some other exception to the warrant requirement, before they search private land."
In fact, multiple states' constitutions also provide greater protection against warrantless surveillance, and those rights have been affirmed in the respective state supreme courts. In 2018's State v. Dupuis, the Vermont Supreme Court affirmed that "Vermont's Constitution establishes greater protection against search and seizure of 'open fields' than the U.S. Constitution, requiring that law enforcement officers secure warrants before searching open fields when the landowner demonstrates an expectation of privacy," such as "No Trespassing" signs. As far back as 1970, the Mississippi Supreme Court determined in Davidson v. State that a game warden's search of a suspect's land was illegal, even though it turned up stolen property. The ruling stated that the "right to be secure from invasions of privacy by government officials is a basic freedom in our Federal and State constitutional systems."
But state laws and state courts only constrain state actors: After all, federal agents placed a camera on Hollingsworth's property, with the blessing of prior federal case law. "To fully and finally eliminate the open fields doctrine's reach," Windham says, "we're going to have to find courage to find a federal remedy to this. Whether that means federal courts, and ultimately the U.S. Supreme Court, recognizing that the open fields doctrine is wrong as a matter of Fourth Amendment law, or whether that means Congress passes a statute that says federal officials have to comply with the same basic constraints that police would have to when entering a home," it will take a concerted effort to stake out a win for private property rights nationwide.
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