Lawmakers consider changes to the “open fields doctrine” and its 4th Amendment exemption

CHARLESTON, W.Va. — A bill to extend the protections of the Constitution’s 4th Amendment to private land in West Virginia sparked a healthy discussion in the House Natural Resources Committee Wednesday.

House Bill 4825 is aimed at changing the current status which allows for a search on private land without a warrant. Under the current statue a large amount of the private land in West Virginia falls under an exception called the “open fields doctrine.”

Josh Windham, an attorney with the Institute for Justice, advocated for the measure which would put private land on the same scale in West Virginia as a private home when it comes to law enforcement. Unlike a private residence or the curtilage around a house, law enforcement does not need a warrant or even probable cause or reasonable suspicion to go onto private land in the Mountain State.

“Game wardens and other government officials can go onto private land and put cameras there to spy on you. They can watch you from behind bushes while you’re taking a walk with your grandchildren or your wife. This sort of stuff is extremely intrusive for land owners who use their land for all sorts of private purposes they don’t want others intruding on,” said Windham to members of the House Natural Resources Committee.

The change would make investigations of game law violations for the state’s Natural Resources Police far more difficult.

“Our officers go on patrol and do go through the woods. They protect hunting regulations. They do go through private property and see if there’s anything going on,” said Assistant Attorney General Katie Franklin who is assigned to the Division of Natural Resources.

Franklin told lawmakers West Virginia’s Natural Resources Police do not place cameras on private property unless they have been given permission by the landowner. However, under the legislation as presented, the DNR’s law enforcement would be prohibited from entering any property which is posted, fenced, or marked otherwise as private property.

“If you hear a gunshot in August, unless that deer dies in front of you you can’t investigate,” Franklin offered as an example of the complicated threshold officers would face under the new measure. “If you’re driving down the road at night and see somebody out there with a spotlight and you hear a gun go off, if that doesn’t reach probable cause then the officer has to keep on going.”

Lawmakers in their discussion brought up several scenarios including stake outs over suspected turkey baiting sites or follow-ups on private property after receiving tips from the public which would also be impacted.

The measure is not exclusive to the Natural Resources Police, it would prohibit all law enforcement from using the exemption of the open fields doctrine. The discussion centered on the DNR Wednesday since they are the ones who most commonly work in areas where open-fields applies.

Members of the committee indicated genuine support for law enforcement, but balked at the idea of letting the status quo continue.

“We are too fast as a nation today to give our rights up in the name of safety and I’ll be damned if I’m going to allow my rights to be given up for a deer or a turkey,” said Delegate Darren Thorne (89th) of Hampshire County.

Although Windham cited cases in other states where the law has been challenged and others where it has wound up being changed, he acknowledged there were no such cases in West Virginia.

“Landowners have had to deal with this for a century, the open fields doctrine was created in 1924 during Prohibition. Folks in the hunting community are just used to this. They’ve been dealing with it for most their entire lives and so it’s not something they think to bring up because it’s not something they believe can actually be fixed,” Windham added.

“We have no current litigation in West Virginia is a testament to the professionalism and discretion the DNR shows in exercising this power, but the power is still there,” said 68th District Delegate Chris Phillips of Barbour County. “Having that power for any law enforcement agency to encroach on the land of property owners is problematic.”

The bill was advanced to the House floor, but includes a second reference to the House Judiciary Committee.

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