Manuel was shocked the first time he found a Louisiana Department of Wildlife and Fisheries official on his land without a warrant. The intruder had no consent, no complaint, no emergency, and no reasonable suspicion of wrongdoing. Yet he entered the private property anyway in December 2023, just to look for evidence of game and fish violations.
“If there is any technicality they can find, they will try to write you up,” Manuel says. “I was guilty until I could prove my innocence.”
Knight
| Courtesy photo
In the end the warden found nothing. Manuel, a forester and wildlife biologist, has never been cited for violating any laws on his property. Neither has anyone else since he bought the land in 2003.
He and wife Phyllis respect nature and cherish their wilderness retreat, which they use for forestry, hiking, birdwatching and family get-togethers. Other times, Manuel and his brother go hunting. This activity, which the brothers do legally, contributed to Manuel’s concern when he encountered the warden.
Safe hunting requires knowing the location of other people, particularly in the zone of fire. And unlike hunters, wardens are not required to wear high-visibility orange clothing. They can even dress in camouflage, raising the risk of an accident.
Manuel’s other concern was the U.S. Constitution.
During Prohibition in the 1920s, law enforcement agents started entering private land and hiding in bushes to catch moonshiners. The Supreme Court had a chance to end the warrantless surveillance in 1924. But instead of upholding the Fourth Amendment, which protects property owners from unreasonable searches and seizures, the court invented the Open Fields Doctrine.
As a result, the Fourth Amendment no longer applies on private land, except within buildings and “curtilage,” the space immediately surrounding a structure. Based on new research from our public interest law firm, the Institute for Justice, the Open Fields Doctrine leaves about 96% of all private land in the United States unprotected from police intrusions.
Manuel was stuck. His “no trespassing” signs could not stop the snooping. Neither could the U.S. Constitution. But when the Department of Wildlife and Fisheries returned to his land less than two weeks later for more surveillance, Manuel decided to fight back using a third document: The Louisiana Constitution.
Similar documents exist in every state, sometimes granting greater protection than the U.S. Constitution. Louisiana’s Constitution does this with property rights. It protects all property, including land, against “unreasonable searches, seizures, or invasions of privacy.”
Armed with this provision, Manuel sued Louisiana in state court on March 4 to stop the warrantless entries. The Institute for Justice represents him.
We are also challenging the Open Fields Doctrine in Tennessee, Pennsylvania, and Virginia. In those states wardens went further, placing their own security cameras on private land or stealing the property owners’ cameras.
All four cases highlight the importance of state constitutions and laws.
Kelo v. New London, a 2005 U.S. Supreme Court case, shows why extra protection is sometimes necessary. This decision, which some legal scholars rank among the worst ever, allows governments to take land using eminent domain for private development.
Unwilling to accept this injustice, a dozen states amended their constitutions over the next 10 years to stop eminent domain for private development. Other states passed legislation to counter the Supreme Court decision. Overall, 47 states have taken action against Kelo. The only holdouts are Arkansas, Massachusetts and New York.
It’s long past time for something similar to occur with the Open Fields Doctrine, which turns 100 on May 5. Mississippi, Montana, New York, Oregon, Vermont and Washington have taken the lead on the issue, and Tennessee joined the list in 2022 following a state circuit court decision.
Louisiana could be next. The state Constitution already lays out the provision. Manuel just needs law enforcement agencies to follow it. Anyone who can read has no excuse.
Knight is an attorney, and James is a writer at the Institute for Justice in Arlington, Va