In the early afternoon of April 8, 2023, three game wardens garbed in leafy camo snuck past no-trespassing signs, entered Josh Highlander’s private land, proceeded to his legal food plot, and stole his game camera, all without warrant or consent.
The camera, one of four taken from the Highlander that day, represents a shocking government assertion: the power to seize property from private land without consent, warrant, or probable cause to investigate a landowner. Highlander, who contends the government has stepped too far, is fighting back through a major constitutional lawsuit.
Highlander has never had a hunting violation in his life. “The feeling of security on my private land is gone, like watching a piece of glass shatter,” he says.
“This is happening all over the country,” says Joshua Windham, an attorney representing Highlander from the Institute for Justice (IJ), a national public-interest law firm and legal advocacy group. “The government is invading private land, spying on people, and seizing their property in an effort to gin up evidence that they’ve done something wrong, all without judicial oversight. And the scariest part of it all? Most of it happens in secret. We’re really just seeing the tip of the iceberg in this case.”
In the Name of the State
In eastern Virginia’s New Kent County, Highlander, 37, lives on 30 acres of old-growth hardwood. His property is heavily posted with eye-level, no-trespassing signs pinned to trees roughly every 20 feet.
On April 8, opening day of Virginia’s turkey hunting season, Highlander killed a turkey on his property at roughly 7:45 a.m. and logged the harvest location using the Department of Wildlife Resources’ (DWR) Go Outdoors Virginia mobile app. He soon learned that his father and brother, who were hunting turkey over legal food plots on separate private properties, had been confronted by DWR game wardens that morning. His brother was ticketed for allegedly hunting over bait and has hired an attorney to contest the ticket. Before the wardens left, they seized at least three privately owned cameras from the properties where Highlander’s brother and father were hunting.
(Virginia DWR did not respond to Farm Journal questions regarding Josh Highlander’s claims or complaint. Additionally, Virginia DWR did not respond to Farm Journal questions about its general policy regarding no-warrant seizure of private property.)
Next, the wardens targeted Josh Highlander. As the morning progressed, Highlander cleaned his kill and packaged the meat, took care of a few chores while his wife and 6-year-old son played basketball in the yard, and finished by early afternoon with a shower. He had no inkling that three game wardens—without warrant or consent—were already moving across his land, armed and intent on seizing his private property in the name of the state.
Anything Goes?
Chasing the basketball into the woods during play, Highlander’s wife spotted a stranger clad in leafy camouflage moving through the brush. “She got scared and came in the house with my son while I was showering and told me somebody was on our property,” Highlander recalls. “By the time I got out there, nobody was around—but my camera was gone from my food plot.”
The food plot is roughly an acre in size; Highlander’s Tactacam Reveal game camera was attached to a pole and elevated 4’ off the ground, perched roughly 150 yards from his house.
Unbeknownst to Highlander, three DWR game wardens had parked at the end of a nearby residential road, crossed an adjacent piece of private property on foot, and entered Highlander’s property at approximately 2 p.m. They marched to Highlander’s food plot, removed the camera from the pole, and reversed course to their vehicles.
The game wardens did not tell Highlander about the seizure before or after the intrusion onto his land, and they never presented a warrant. Significantly, Highlander’s turkey kill earlier in the morning was on the other side of the 30-acre property—away from the food plot, says IJ attorney Windham. “When the game wardens came that day, they went straight to Josh’ food plot, walked past his no-trespass signs, took his camera, and left. They didn’t go to the place where he killed the turkey and they didn’t come when he killed it—but instead came about seven hours later.”
“You can only kill one turkey a day and you can only hunt till noon for the first six weeks of the season,” Highlander echoes. “They came in the afternoon so they knew they weren’t gonna catch me hunting over bait. They came onto my land just to look around the food plot and steal my camera.”
No DWR officials—before or after—informed Highlander they had taken his camera. They haven’t accused him of a crime. They haven’t given the camera back.
“I don’t know if they took anything else,” Highlander adds. “I don’t know if they planted cameras that day to watch me or if they planted them in the past. I don’t know if they’d been on my land before. When it comes to the abuse of power by the government, I can believe anything now.”
Retroactively Spy
Highlander initially reported the trail camera theft to the New Kent County sheriff’s office, which later confirmed to Highlander that DWR had taken the device. As of June 2023, DWR has not informed Highlander of its possession of his camera.
What did DWR do with the camera? According to a complaint filed by Highlander:
After the DWR officers seized the camera from Mr. Highlander’s property, Defendant Adams (DWR game warden) physically opened the camera and removed the storage card in order to access photos on the card. On information and belief, Adams then downloaded copies of thousands of photos from Mr. Highlander’s camera, stored them on her computer, and has been reviewing the photos to see if she can find any evidence that Mr. Highlander has violated any hunting law or regulation.
In other words, Defendant Adams seized Mr. Highlander’s camera without a warrant and has been effectively using that camera to retroactively spy on Mr. Highlander.
After seizing Mr. Highlander’s camera, opening it, removing its storage card, and downloading photos from the card, Defendant Adams obtained a search warrant directed to Reveal by Tactacam—the company that made the camera and that hosts online photo storage for its customers—for any additional photos associated with Mr. Highlander’s camera.
Again, no DWR officer ever sought or obtained a warrant to enter Mr. Highlander’s property on April 8, 2023, to seize his camera, or to physically search his camera.
Tip of the Iceberg?
Presumably, DWR game wardens walked onto Highlander’s property using the U.S. Supreme Court’s Open Fields doctrine. Federal and state agencies often claim the 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) receives zero Fourth Amendment protections from warrantless intrusions.
What happened on Josh Highlander’s land is the tip of the iceberg, contends IJ attorney Windham. “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. 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.”
Highlander’s case takes things up a notch. Normally, government uses the Open Fields doctrine to search private land. But in Highlander’s case, government used the doctrine to seize property from private land. Windham says the government action is unconstitutional: “The Open Fields doctrine, even as the U.S. Supreme Court has described it, has never applied to warrantless seizures. But it’s hardly surprising that we’ve gotten to this point. When you give the government unlimited power to invade private spaces, they’re going to push that power to its limits.”
What happens next in the case? Highlander’s complaint will force the DWR to justify its conduct.
“Three game wardens put on full camo suits, parked in a residential cul-de-sac, walked onto Josh Highlander’s land past a row of no-trespass signs, went to his food plot, stole a game camera, and then left after scaring his wife and child, all without his consent or a warrant,” Windham concludes. “That violates the Virginia Constitution, and it’s time for DWR to answer for what it’s done to Josh Highlander and to so many others.”
For more from Chris Bennett (cbennett@farmjournal.com 662-592-1106) see:
Priceless Pistol Found After Decades Lost in Farmhouse Attic
Cottonmouth Farmer: The Insane Tale of a Buck-Wild Scheme to Corner the Snake Venom Market
Tractorcade: How an Epic Convoy and Legendary Farmer Army Shook Washington, D.C.
Bagging the Tomato King: The Insane Hunt for Agriculture’s Wildest Con Man
Young Farmer uses YouTube and Video Games to Buy $1.8M Land
While America Slept, China Stole the Farm
Bizarre Mystery of Mummified Coon Dog Solved After 40 Years
The Arrowhead whisperer: Stunning Indian Artifact Collection Found on Farmland
Fleecing the Farm: How a Fake Crop Fueled a Bizarre $25 Million Ag Scam
Skeleton In the Walls: Mysterious Arkansas Farmhouse Hides Civil War History
US Farming Loses the King of Combines
Ghost in the House: A Forgotten American Farming Tragedy
Rat Hunting with the Dogs of War, Farming’s Greatest Show on Legs
Evil Grain: The Wild Tale of History’s Biggest Crop Insurance Scam
