Government Cameras Hidden on Private Property? Welcome to Open Fields

Seated at his kitchen table, finishing off the remains of a Saturday breakfast, Hunter Hollingsworth’s world was rocked by footsteps on his front porch and pounding at the door, punctuated by an aggressive order: “Open up or we’ll kick the door down.”

Surrounded on all sides of his house, and the driveway blocked, Hollingsworth was the target of approximately 10 federal and state wildlife officials packing pistols, shotguns and rifles. And what was Hollingsworth’s crime? Drugs, armed robbery, assault, money laundering? Not quite.

Months prior, in 2018, the Tennessee landowner removed a game camera secretly strapped to a tree on his private land by wildlife officials in order to monitor his activity without apparent sanction or probable cause. Repeat: Hollingsworth’s residence was searched by U.S. government and state officials, dressed to the nines in assault gear, seeking to regain possession of a trail camera—the precise camera they had surreptitiously placed on his private acreage after sneaking onto his property at night, loading the camera with active SD and SIM cards, and zip-tying the device roughly 10’ high up a tree—all without a warrant.

Can the government place cameras and monitoring equipment on a private citizen’s land at will, or conduct surveillance and stakeouts on private land, without probable cause or a search warrant? Indeed, according to the U.S. Supreme Court’s (SCOTUS) interpretation of the Fourth Amendment. Welcome to Open Fields.

The vast majority of Americans assume law enforcement needs a warrant to carry out surveillance, but for roughly a century, SCOTUS has ruled that private land—is not private. Fourth Amendment protections against “unreasonable searches and seizures” expressed in the Bill of Rights only apply to an individual’s immediate dwelling area, according to SCOTUS.

However, SCOTUS’ Open Fields doctrine has been bucked in Mississippi, Montana, New York, Oregon and Vermont through protections granted by state constitutions, and for many American landowners, the more they discover about Open Fields—the more questions they have regarding the bounds of government power.

In Tennessee, Hollingsworth and Terry Rainwaters, another landowner who discovered multiple trail cameras on his property placed by the state, are taking their cases to state court, claiming violations of the Tennessee State Constitution. The Rainwaters and Hollingsworth stories contain alarming claims regarding the behavior of wildlife officials and raise a bevy of questions over Open Fields, states’ rights, and the sanctity of private property.

Legal Stalking?

On bottomland squeezed in the rolling hills of northwest Tennessee’s Benton County, a short walk from the banks of the Big Sandy River, Terry Rainwaters, 53, owns 136 acres of land containing two homes, farmland and an equipment shed. Rainwaters and his son, Hunter Rainwaters, 20, live in one of the homes; a tenant occupies the other. The acreage is the physical center of Rainwaters’ life—a small place to farm, hunt and reside—with one way in, one way out, and a gate that stays locked, backed by “no trespassing” and “posted” signs.

On his way to hunt on his father’s land during the first week of December 2017, Hunter Rainwaters was driving a side-by-side through the property when he noticed an oddity positioned roughly 4’ off the ground. He popped the brakes, backed toward the object and looked in surprise at a trail camera belted to a tree.

“I didn’t see any words or stickers on it, but I knew right away it wasn’t ours,” Hunter Rainwaters recalls.

Following the hunt, he drove back onto the family property and spotted a second trail camera attached to a tree with several branches removed to allow for an unimpeded lens view. Rainwaters dialed his father’s cellphone, and described the two cameras: “I was shaken up when my son called and I knew immediately it had to be the TWRA (Tennessee Wildlife Resources Agency),” Rainwaters recalls.

Deeply disturbed, Rainwaters arrived home later in the afternoon and took a look at the two cameras, mulling over whether to remove the pair. Two days later, with Rainwaters in limbo on what action to take—both cameras disappeared.

“Ask TWRA how many cameras they have on people’s private land right now watching their every move,” Rainwaters says. “I’ll bet they won’t answer that question and we all know why. No warrants, no judge, and no crime necessary, just set up surveillance and do whatever they want to.”

(Farm Journal asked TWRA multiple questions related to the use of trail cameras in surveilling Tennessee residents, including, but not limited to: Does TWRA have a list of past camera locations and current, active cameras? Who in TWRA is allowed to view the footage? How long are the cameras allowed to operate in place? Does TWRA recommend prosecution for a landowner for breaking or removing a camera? TWRA declined comment: “The Agency cannot comment on matters in litigation, nor can we provide comment on issues that are currently being litigated.” TWRA directed all questions to the Tennessee Attorney General’s office. However, the Tennessee AG office declined comment.)

“The cameras were collecting pictures of us hunting, driving and just our lives,” he adds. “One of the cameras was even recording footage up to the back of my tenant’s house.”

Rainwaters contends he has encountered armed TWRA agents on his private property on multiple occasions, either crossing his land or hiding in undergrowth during hunting season. Rainwaters explains:  “TWRA officers sneak onto my land with no cause other than hoping to find somebody doing something wrong. I’ve got a clean hunting record and don’t look for trouble with nobody, but people just can’t believe what has happened on my land. It’s so wrong on so many levels and way past outrageous and dangerous. I don’t think people realize a ‘no trespassing’ sign or ‘private land’ sign mean nothing to the TWRA.”

The alleged surveillance may have origins partially related to 2016 hunting violations, Rainwaters says, when his son and a group of friends were ticketed for baiting doves: “I paid their fines myself in what amounted to $380 times eight people. Yeah, all this started over hunting tickets and now TWRA thinks it’s OK to set up surveillance on my land.”

“Before all of this, we never realized what they are able to do on private land,” Rainwaters adds. “We’ve gotten so much response from people fired up over the TWRA, and most of them are like me, they’d never even heard of this ridiculous doctrine called Open Fields.”

Open Fields

The vast majority of Americans assume law enforcement needs a warrant to carry out surveillance, but for roughly a century, the U.S. Supreme Court (SCOTUS) has ruled that private land—is not so private. Fourth Amendment protections against “unreasonable searches and seizures” expressed in the Bill of Rights only apply to an individual’s immediate dwelling and curtilage, according to SCOTUS. Curtilage is an arcane term loosely translated as the area directly around a home, or the yard.

In 1924, Hester v. United States set up the Open Fields framework and said the U.S. Constitution does not extend to most land: “the special protection accorded by the Fourth Amendment to the people in their ‘persons, houses, papers, and effects,’ is not extended to the open fields.” Significantly, Open Fields is translated beyond its literal sense, and basically is defined as general acreage: woods, fields, farmland, barren ground, and more.

Further, in 1984, SCOTUS gave additional strength to Open Fields in Oliver v. United States: “open fields do not provide the setting for those intimate activities that the Amendment is intended to shelter from government interference or surveillance. There is no societal interest in protecting the privacy of those activities, such as the cultivation of crops, that occur in open fields.”

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