May 10, 2024
Tennessee Court of Appeals rules that TWRA's warrantless searches are unconstitutional.
In a decision released on May 9, 2024, in the matter of Terry Rainwaters, et al. v. Tennessee Wildlife Resources Agency, et al.,
No: W2022-00514-COA-R3-CV, the Tennessee Court of Appeals has held that
the Tennessee statute (enacted by the Tennessee Legislature) is
unconstitutional as applied. That decision affirmed holding of the
trial court which had also concluded that the practice of the TWRA and
the statute on which it relied were unconstitutional.
The record is clear that TWRA knowingly and intentionally enters
private property without a search warrant. TWRA asserts that the
Tennessee Legislature (you know – the individuals who are sworn to
protect the rights of citizens) enacted a statute that allows TWRA to
make warrantless searches and to intentionally trespass on private
property. The following is from the Court of Appeals’ decision:
Tennessee Wildlife Resource Agency (TWRA) officers patrol private
lands across the State of Tennessee without either warrants or consent,
relying on statutory authority found in subsections (1) and (7) of
Tennessee Code Annotated section 70-1-305. The TWRA does not create
records of all of its agents’ entries onto private property and does not
provide notice to property owners. Officers enter private property,
sometimes conceal themselves thereupon, and look for violations of
wildlife laws. In determining which properties to enter to investigate
suspected violations of hunting laws, TWRA officers sometimes rely on
having previously seen hunters on the property, on word of mouth, or on
listening for shots. TWRA officers also enter upon and cross property
not under investigation to reach land they intend to investigate. The
TWRA indicates its officers investigate property for suspected hunting
violations when they have reason to believe that hunting activity is
occurring or has occurred. The TWRA does not impose constraints on how
often a parcel is entered, what time of day an entry may be made, or how
long an officer may remain on private property, and the TWRA does
not have written policies for officers to follow when deciding whether
to enter private property. The TWRA asserts that its officers have “the
statutory authority to go upon any property, outside of buildings,
posted or otherwise, in the performance of . . . their duties to enforce
wildlife laws.”
The TWRA has made multiple entries upon the
properties of Messrs. Terry Rainwaters and Hunter Hollingsworth to
investigate suspected violations of wildlife laws. The TWRA does not
know how many times its agents have entered upon their properties, nor
do Messrs. Rainwaters and Hollingsworth know how many times their
properties were entered upon by TWRA agents.
Id, p. 2.
In resolving the case, the Court of Appeals concluded that there is a
significant difference between the Fourth Amendment’s protections of
“effects” the Tennessee constitution goes further and also protections
“possessions”. The Court of Appeals noted:
Both the Fourth Amendment to the United States Constitution and
Article I, Section 7 of the Tennessee Constitution protect persons,
houses, and papers. U.S. Const. Amend IV; Tenn. Const. art I, § 17.
There is, however, a significant textual variance in terms of the scope
of protection between these two constitutional provisions. Whereas the
Fourth Amendment protects effects, the framers of all three versions
Tennessee Constitution, including the current version, rejected
protecting effects in favor of protecting possessions.
Though
both terms, “effects” and “possessions,” share a property focus, the
term “possessions” generates a more expansive shield of constitutional
protection than safeguarding “effects.” While James Madison initially
proposed a formulation that would have included “their other property,”
“effects” is what was ultimately included in what would become the
Fourth Amendment to the United States Constitution. The United States
Supreme Court has noted that “[t]he Framers would have understood the
term ‘effects’ to be limited to personal, rather than real, property.”
In
rejecting “effects” in favor of “possessions,” the Tennessee Supreme
Court observed that “the word ‘possessions’ was added for a purpose.”
Welch v. State, 289 S.W. 510, 510 (Tenn. 1926); see also Allison v.
State, 222 S.W.2d 366, 366 (Tenn. 1949). Drawing upon “the ordinary
meaning ascribed to it by lexicographers,” the Tennessee Supreme Court
indicated that “possessions” “refers to property, real or personal,
actually possessed or occupied.” Welch, 289 S.W. at 510. ***
Id, pp. 17-18
As the Court of Appeals moved forward with its analysis of the TWRA’s
implementation of the statutory powers purportedly created by the
Tennessee Legislature with a view towards the oppression of Tennessee’s
citizens under the “pretext” of crime control, the Court stated:
Considered in the relation to the circumstances of the present case,
what the TWRA is arguing is reasonable stands in opposition to the
restraint upon unreasonable searches and seizures that emerged from the
American colonial era in opposition to arbitrary British search
practices. Under what the TWRA purports to be a reasonable search, each
agent is empowered with the discretionary authority to determine for
himself or herself if there is a reasonable basis to suspect hunting
activities are occurring on the property. The TWRA does not notify the
property owners of its entries or keep records thereof. How often and
for long and whether their entry is concealed or not are matters of
discretion for the TWRA agents to decide for themselves. There is no
clear system of judicial review that allows consideration of the TWRA’s
entries upon private property or their agents’ comportment thereupon.
Even in the present case where these entries have been brought to the
attention of the court through the Plaintiffs’ suit, the TWRA has not
endeavored to support each of their entries with an individualized
showing of sufficient basis to justify each specific entry. Instead, the
TWRA asserts that their approach is systematically reasonable because
its officers only search if they conclude that they have a reasonable
belief that hunting is occurring or has occurred. The TWRA searches,
which it claims are reasonable, bear a marked resemblance to the
arbitrary discretionary entries of customs officials more than two
centuries ago in colonial Boston.
The TWRA’s contention is a
disturbing assertion of power on behalf of the government that stands
contrary to the foundations of the search protections against arbitrary
governmental intrusions in the American legal tradition, generally, and
in Tennessee, specifically. Simply stated, given the purpose of Article
I, Section 7 of preventing arbitrary intrusions upon privacy and
personal liberty, what the TWRA claims is reasonable is not.
For
the reasons discussed above in this section, we conclude that Tennessee
Code Annotated subsections 70-1-305(1) and (7) are unconstitutional as
applied.
Id, p. 27
The Court of Appeals decision in this TWRA matter is a clear victory
for the citizens of Tennessee. It is a victory of constitutional
significance and one that will hopefully send a strong message not only
to the TWRA but also to those individuals who have been serving and who
continue to serve in the Tennessee Legislature.
Indeed, the amended complaint in Rainwater was filed on September 10,
2020, almost 4 years ago. The original complaint was filed earlier in
2020. The trial court’s opinion that found that the Legislature’s
statute and its statutory scheme was unconstitutional was released on
March 22, 2022.
Why are these dates important?
These dates are
important because we have had 132 elected legislators in the state
serving now for 4 years who were on notice that the Legislature’s
statutory scheme and purported granted of warrantless search authority
to TWRA in the name of “crime prevention” was being and later was found
to be unconstitutional. The entire time the Legislature was under the
absolutely control and dominion of a Republican super majority – the
majority that claims to honor the constitutions.
Did those
legislators pass a law to stop this abuse? Well, they certainly had the
time to do so but they chose not to do so. Once again, it is evidence
that under the leadership of the current Republican leaders in the House
and the Senate (and let’s not forget Bill Lee), the Legislature is
proven to be willing to tolerate and even impose constitutional
violations on citizens in the name of “crime control”.
One must
ask and this election season is the time to ask it of those seeking
elected office in August and November 2024 (particularly those
candidates who are incumbents) the simple question –
Why
should the citizens of Tennessee believe that you will honor the oath
office to uphold the constitutions and protect our rights if we vote for
you?
And, if they are an incumbent,
ask further why they think they deserve your vote if there is no
evidence they they personally sponsored legislation to repeal all laws
in Tennessee that infringe any constitutionally protected rights.
If you ask those two questions, you will likely conclude that there
are few incumbents who can defend their oath. Certainly, there are some
but the burden is on them to prove that they have honored that oath –
not on the voter to prove that they have not.
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