When the government hides spy cameras on your land, fight back in court | Opinion

Nobody roams onto Terry Rainwaters’ land by accident. A locked gate blocks cars, and “no trespassing” signs warn uninvited guests to stay off the 136-acre parcel along the Big Sandy River in Camden west of Nashville.

So Rainwaters was surprised in December 2017 when he discovered two spy cameras mounted on trees within the boundaries of where he lives, farms and hunts. Whoever installed the devices even lopped off a branch on one of Rainwaters’ trees to get an unobstructed view of all his comings and goings.

Needless to say, Rainwaters was creeped out. He soon learned that the cameras belonged to the Tennessee Wildlife Resources Agency, which routinely sends officers onto private fields without search warrants to snoop for evidence of game and fish violations.

Rather than accept the abuse, Rainwaters fought back with a lawsuit against the trespassing agency. Our public-interest law firm, the Institute for Justice, represents him.

A nationwide problem

Although the case is proceeding in state court under the authority of the Tennessee Constitution, the central claims point to a nationwide problem. Starting about 100 years ago, federal courts began chipping away at the Fourth Amendment to the U.S. Constitution, which guarantees “the right of the people to be secure in their persons, houses, papers, and effects.”

Many local courts have followed along, gutting similar provisions in their state constitutions. Time and again, the U.S. Supreme Court has approved rather than checked these violations, leaving landowners like Rainwaters — along with just about everyone else — vulnerable.

One of the first setbacks came in 1924 during Prohibition, when the Supreme Court held that government agents could hide on private land to see if someone was brewing or selling alcohol. In one fell swoop, all constitutional protections for most private land in America vanished. The focus shifted to narcotics during the War on Drugs, but the “Open Fields Doctrine” has remained in effect.

Hear more Tennessee voices: Get the weekly opinion newsletter for insightful and thought-provoking columns.

The so-called “Third-Party Doctrine” represents another setback. This judge-made law, which the Supreme Court invented in 1976, strips away Fourth Amendment protections for any information that a person voluntarily turns over to third parties.

Examples include bank deposits, debit card transactions, telephone numbers and website addresses. Essentially, anyone who lives in the modern world must waive Fourth Amendment rights.

Many business owners also lose protections at work. Code enforcers typically need a warrant to inspect warehouses and backroom areas closed to the public, but the Supreme Court created an exception to the warrant requirement in 1970 for what it called “closely regulated” industries.

Your state. Your stories. Support more reporting like this.
A subscription gives you unlimited access to stories across Tennessee that make a difference in your life and the lives of those around you. Click here to become a subscriber.

Narrow exception expanded to breaking point

The high court has applied the exception to just four industries with long histories of rigorous government oversight: liquor, firearms, mining and junkyards. But lower courts have expanded the narrow exception to the breaking point.

Local and state regulators now use the “Closely Regulated Industry” excuse to look for civil code violations at all manner of ordinary businesses, including restaurants, daycares, construction sites, credit unions, pawnshops, banks, health care facilities, nursing homes, insurance offices, grain silos, truckyards, taxidermy shops and even rabbit breeding facilities.

Sign up for our newsletter: Read compelling columns by Black writers from across Tennessee.

The intrusions are bad, but the government goes further when people rent their homes. Inspectors in many cities and towns can show up at any time and demand warrantless access to bedrooms, bathrooms and other private living quarters.

If tenants or landlords refuse, then inspectors can fill out a court application and receive a rubber-stamp “administrative warrant.” Officials don’t need to show that anything is wrong with the property, just that they want to go inside.

Much of the problem traces back to the Supreme Court, which blessed administrative warrants for residences in a 1967 California case. Although the Fourth Amendment explicitly says that “no Warrant shall issue, but upon probable cause,” municipalities now regularly use these watered-down search warrants to violate civil rights.

Other abuses occur during traffic stops and police encounters at airports, border checkpoints, train stations and bus terminals. Anywhere members of the public interact with law enforcement, they face a rigged system that gives the government more power than the Fourth Amendment allows.

Rainwaters found out the hard way. Now the country needs a reset, so people in Tennessee and elsewhere can live like citizens, not subjects.

Robert Frommer is a senior attorney and Daryl James is a writer at the Institute for Justice in Arlington, Va.

This article originally appeared on Nashville Tennessean: When government hides spy cameras on your land, fight back in court