On Oct. 31, 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
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 warrant.
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.”
