There’s a old joke, based on the truth of a criminal burglary ring operated by Denver police officers decades ago, that a homeowner reporting a break-in and robbery was told, by an officer, “We know. We were there.”
That’s apparently coming true again, as a lawsuit charges law-enforcement officers in Virginia not only violated a “No trespassing” order on private land, but stole a camera from the property.
The battle has been brought by the Institute for Justice on behalf of Josh Highlander.
The case charges Virginia game wardens came on his property and stole a game-watching camera there. Without a warrant and without even asking.
“The whole point of having private property is so that you can say who comes on and who doesn’t,” said IJ Attorney Josh Windham. “By sneaking around Josh Highlander’s land and taking his camera without a warrant, Virginia game wardens turned that basic American concept on its head.”
The legal team reported Highlander found out about the trespassing and theft when, “On April 8, the first day of turkey season in Virginia, Josh’s wife and young son were playing outside when their basketball rolled toward the woods. When Josh’s wife went to retrieve it, she saw a figure in heavy camouflage in their woods. She ushered her son back into the house and alerted Josh, who came outside but couldn’t locate the stranger.”
Highlander explained, “For weeks my son wouldn’t play outside in his own backyard because he was afraid of who might be in the woods. My camera was taken two months ago, and I’ve still never received a receipt, a warrant or a ticket. In decades of hunting, I’ve never received a citation. DWR also says they promote safety, but they snuck around my land without telling me. What happened to my family was wrong and I’m fighting for our privacy and to make sure this doesn’t happen to anyone else.”
The camera had been on the part of his 30 acres where he grows a “food plot,” used to attract game, which are legal and in fact encouraged in the state.
The legal team said it was later learned that Josh’s brother had been cited for a hunting violation, and his father had been confronted, but not charged, by wardens.
“While most Americans would think law enforcement needs a warrant to conduct surveillance on private land, the U.S. Supreme Court held nearly a century ago that the Fourth Amendment does not apply to ‘open fields.’ But whether law enforcement can take a camera or other property without a warrant while searching an open field is legally questionable,” the legal team said.
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In fact, Article I, Section 10 of the Virginia Constitution expressly prohibits unconstrained searches of “places,” a term that includes private land.
“No trespassing signs also need to apply to the government,” said IJ Attorney Joe Gay. “If ordinary people can’t sneak onto your land and steal your property, then government agents shouldn’t be able to do that either without a warrant.”
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