Comment by tablespoon | Hacker News Reader

Comment by tablespoon | Hacker News Reader

Parent Full thread

> This article turns into a rant after the first few paragraphs, leaving me confused about the actual facts behind the story. Is it legal for the government to setup surveillance cameras on someone's land, to monitor their land? From the article, it sounds like this is exactly what was done.

Yeah, the linked article is garbage. You have to follow one of the links to even find the most basic facts about the case from the headline (like what agency put up the cameras and why):

https://ij.org/case/tennessee-open-fields/:

> Officers from the Tennessee Wildlife Resources Agency (TWRA) routinely enter private land on a whim to search for potential hunting violations. They don’t have probable cause to believe a crime is being committed, and they don’t ask permission from either property owners or a court. Instead, they trespass, wander around as they please, and take photos and videos. They even install cameras so they can keep watching the properties 24 hours a day, seven days a week.

Game wardens have shockingly broad authority. It goes back to the English common law. You don’t actually own land you just hold it fee simple and the Crown, or the State in America, actually has the right to all game. They can even enter your house without a warrant to, for example, check freezers. And if they find anything you’d have best tagged it properly.

However all the game wardens I know aren’t looking to just randomly harass people. There is usually a good reason when they go after someone, like shooting from a motor vehicle on the road.

Can you cite the legal authority that exempts game wardens from the restrictions imposed on the executive by the constitution? For example, the fourth amendment protects US citizens from warrentless searches. Does this not apply to searches of your property by game wardens?

I understand that English common law may have this notion of “lease holding” (if you buy property in the UK you’re technically renting it for 999 years from the queen). However, America is not England and in this country you actually own your property (and in many states can defend it with lethal force). So where is this authority coming from?

So, the text of the Fourth Amendment is as follows:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The crux of the 4th Am. is reasonableness. A warrantless search of your home is presumptively unreasonable and can only be performed in very certain exigent circumstances. Most of these are emergencies. Say your house is on fire, the firepeople can enter to put it out, without a warrant, and if they see your mountain of cocaine while they are in there, you're fucked.

A game warden wanting to check your freezer is not an exigent circumstance that would bypass the warrant requirement. A game warden could easily go to a judge and get a warrant by showing the judge probable cause to believe you are doing something naughty.

So, I call bullshit.

There's a book called Who Owns the World? by Kevin Cahill. I haven't read it (I read his earlier Who Owns Britain?) though I did hear him talking about it on the radio a while back, and he said that the only place in the world he'd found where you really could own your own land, was America. The Queen, technically, owns all of the UK, Canada, and Australia. She is or was also the largest or one of the largest landowners in Manhattan.

I could be wrong in my recollections, I really should read the book. The one about Britain certainly was fascinating.

Still, on the law in question, I wouldn't be surprised if the (common) law upholds the right simply because it's never been challenged or re-legislated.

Somewhat of a nit but it's important. The Queen does not own all of the UK. She owns specific estates, such as Balmoral Castle.

Then there is the land that is in the direct possession of the "Crown". The "Crown" is just a technical legal word which means the British State, stemming from times of absolute monarchy when the State and the Monarch were one and the same. But that has been abolished over the centuries and only this vestige remains. An example of land owned by the Crown/State would be Buckingham Palace or the White House.

Lastly there is private land. This is not owned by the Queen nor is it owned by the State. Yes the law provides that the State can take back land into its possession but this right exists in both the US and UK. In the UK it is called compulsory purchase and in the US it is called eminent domain.

The main practical difference is that the US has a constitutional right of privacy whereas the UK does not. The British Parliament is unrestricted in what it can take from you but the Queen cannot simply saunter onto your land and start playing croquet.

> The Queen does not own all of the UK.

That depends on what you mean by “own”, and “the Queen”. The Crown, that is, the monarch in official capacity, holds ultimate title to most land in the UK (IIRC, the exceptions are some parts of the Orkney and Shetland Islands), but exercises the rights associated with that title, like many other rights and powers, on the advice of the government ministers (and in practice through government officers), rather than unilaterally, at risk of Constitutional crisis.

The monarch, as a corporation sole, owns the Crown Estate, in something more like private ownership, but for quite some time the rights of ownership of the Crown Estate have been exercised by a government-appointed body, with the monarch personally receiving a share of the proceeds and being relieved of the burden of funding government operations, for which they were previously responsible.

The monarch also has private estates, which are owned so what like typical private holdings, except the usual expectation of neutrality on legislation does not apply where legislation impacts the private estates, and so the monarch has an effective and quietly exercised veto on legislation to the extent that it impacts those estates.

The trend throughout history, starting with the Magna Carta and most recently the Supreme Court case on prorogation, has been the slow but sure loss of the monarch's personal powers and the transfer of those powers to democratic bodies either parliament or the executive.

One of the arguments in Miller II was that the monarch cannot be allocated any discretion to refuse a minister's order, because if she possessed that discretion then it would jeopardise her position as a politically neutral head of state. It is not that the monarch chooses to exercise powers on the advice of her ministers in fear of causing a constitutional crisis, but that her powers can only be lawfully exercised at ministers' direction.

As far as the monarch's veto on legislation affecting her (Queen's consent), this is not a legal power of the monarch but rather a privilege granted to the monarch by parliament. If parliament decided to rescind that privilege it could do so.

It's important to distinguish between language which describes the monarch from a symbolic point of view, and the actual constitutional reality. Symbolically the monarch is the personal manifestation of the state, but legally she is not much more than a rubber stamp for our democratic institutions.

You actually rent it from the state for a fraction of its nominal value each year. Don't pay your rent (property taxes) long enough and the state will absolutely put a lien on "your property" or confiscate it - by force if necessary.

Leaseholding and freeholding are different in the UK. Although there are some freeholds on feudal estates where the local lord can veto new developments. The Duchy of Cornwall is one example of this.

> Can you cite the legal authority that exempts game wardens from the restrictions imposed on the executive by the constitution?

This thread is teaching me a lot too, so I can’t directly answer your question as it pertains to State game wardens, but something to keep in mind with the framing of your question is that the States are not covered by Article II of the US Constitution. Article II speaks to the authority of the Executive power of the United States, which is the President, but the States are not subordinate to the President and neither are their officers and employees.

This is not exactly true. The restriction in question is the Fourth Amendment, which generally protects citizens from unreasonable searches and seizures --- agents of the state have to obtain a search warrant from a judge before they can search private property.

In general in the last century the Supreme Court has interpreted the Fourteenth Amendment as "incorporating" the Bill of Rights. Although the Bill of Rights was originally written to apply specifically to the federal government, the Due Process clause of the 14th Amendment has been read as applying these protections to state governments as well.

In particular, in Mapp v. Ohio in 1961 the Supreme Court held that under the Due Process clause the Fourth Amendment's prohibition of arbitrary search and seizure applies to state governments as well.

Game Wardens do have more authority than typical police forces, although I don't have any specifics.

Here you go[1]. The rights it refers to are the old Common Law rights.

And no, poached game isn’t “papers and effects.”

Also land patents and allodial title[2] are virtually extinct in the USA. We all are renting our property. Stop paying your “property tax” if you’d like confirmation.

[1] https://en.wikipedia.org/wiki/Tenth_Amendment_to_the_United_...

[2] https://en.wikipedia.org/wiki/Allodial_title

Allodial title is one specific kind of title structure. It’s not the only form of ownership, as the phrase structure “X title” implies.

Having to pay taxes on your property invalidates the nature of property no more than paying income tax invalidates the nature of income.

Wrong. Legally speaking the State is your superior landlord. “Property tax” is legally a rent you pay to the state. The federal income tax is an entirely different creature, created by the 16th amendment. It’s completely incomparable legally.

Title held in allod is subject to no superior landlord. That means it can’t be taxed or liened or otherwise legally encumbered.

Edit:

> And the fact that the state has a superior title in extremely limited circumstances doesn't make it a landlord.

Nah[1].

[1] https://www.cga.ct.gov/2005/rpt/2005-r-0560.htm

The problem with these tortured uses of "landlord," "taxes as rent," etc. is that they go both ways: I can observe that a superior title is still subject to the whims of The Man With The Big Stick, and that any funds you spend preparing your land for defense against The Main With The Big Stick's changing whims is a de facto tax on you.

But that's silly, because it isn't really a tax. And the fact that the state has a superior title in extremely limited circumstances doesn't make it a landlord.

I would think the difference between a tax and a rent is that taxes only apply to the same piece of property once and rent applies over and over. If I'm paid a hundred thousand dollars I pay income tax on that once and after that I can keep it in a trunk until the end of time without anyone worrying about it. Whereas if I spend a hundred thousand dollars on a parcel of land the only thing stopping me from paying an infinite amount of "rent" (taxes) on it is the fact one day I'll drop dead and then someone else will start paying the infinite amount of rent on it. That property tax on a square foot of grass totals much less than rent on a square foot of apartment seems like a difference only in amount, not in fundamental nature.

> I would think the difference between a tax and a rent is that taxes only apply to the same piece of property once and rent applies over and over.

I think that one might say that income tax taxes not money per se but income—it's, as it were, a tax on velocity (though this seems not to be quite the classic sense of "velocity of money"), on moving money rather than money at rest. Property taxes, in turn, may be viewed as taxes not on hectares (or whatever), but on hectare-years—because a hectare can't easily be valued, but a hectare-year can (comparatively). (Of course ha-yrs are not fungible, but neither are $/yr, as evidenced by different marginal tax rates at different income levels.)

Could you elaborate on 1? The phrase "common law" does not appear in that page and I do not seen how the 10th ammendement says anything that overrules protections from the 4th when game wardens are involved.

The US constitution was an agreement among the states to delegate power to a federal government. State governments had absolute power. Any powers not specifically delegated to the newly created federal government through the constitution were obviously retained by the states.

Incorporation doctrine after the 14th amendment is just an extension of the federal government saying "well if states agreed to the 14th amendment and the 14th amendment says privileges and immunities of us citizens can't be infringed, then the states are logically giving up whatever extra powers they held previously to not respect rights enumerated in the constitution". It's a bit dubious but it helped clean up the mess of slavery.

The point being that prior to Incorporation, the bill of rights was irrelevant to states. State governments didn't have to respect your right to free speech or guns or jury trials or anything (unless the constitution of that state required it to). So game wardens had plenty of power. Incorporation doctrine has had a long, messy history and it's possible that no one has specifically challenged game wardens power in the right way to trigger a review of it constitutionally.

I don't think this is true. Game wardens cannot enter your house to search it without a warrant, and you certainly don't always have to have meat tagged.

I’m afraid it is[1]. It’s straight up medieval Sheriff of Nottingham authority. Feel free to check with an attorney in your state.

[1] https://www.quora.com/Can-a-game-warden-come-into-your-house...

Trying to find an authoritative source for this claim leads to a mountain of right-wing sites asserting it to be correct, along with some sites saying it is bunk. Lacking is an actual, reputable source that addresses the question. Seems like this question is more conspiracy theory than anything.

For Texas: https://statutes.capitol.texas.gov/docs/PW/htm/PW.12.htm

See section 12.102

It shows the truth is mostly "no, they can't", at least for Texas. "Residence" and "Temporary Residence" are specifically excluded. There's some room for maybe a freezer in plain view on your porch or similar.

It's standard SovCit garbage. Don't wear yourself out reading the nonsense.

As I said, call an attorney in your state and ask. I’m not offering legal advice, I’m just telling you what everyone with a hunting license knows. Poor Google search results don’t change the law.

Edit: Imagine thinking that acknowledging an odious but legal government power is “SovCit garbage.” By all means, mess with a game warden and see what happens. It’s about as stupid as sassing customs.

Can you provide a documented example of this actually happening--of a game warden coming into someone's house and looking in their fridge without a warrant and without the owner's consent?

This might vary by state. I looked up for my state, Louisiana, and the law[1] is worded fairly broadly and it doesn't specifically list homes but it seems to me it could easily be interpreted that way.

I found one case of searching on private property without a warrant where initial trial court said it was a Fourth Amendment + Louisiana Constitution violation but the appeal court reversed the decision[2] and the state supreme court denied the review request[3].

I think it's probably nuanced? Like if a game warden sees you unload game from your truck them maybe they can go into your home without a warrant? But they probably couldn't legally pick a random house and search it for no reason without a warrant? I am not a lawyer, not legal advice, etc etc.

[1] http://legis.la.gov/legis/Law.aspx?d=105379

[2] https://caselaw.findlaw.com/la-court-of-appeal/1491867.html

[3] https://calculators.law/caselaw/decisions/x5yN6QjJe3Z0/cason...

>I think it's probably nuanced? Like if a game warden sees you unload game from your truck them maybe they can go into your home without a warrant?

so just like if a cop sees you unloading dead people from your truck they can go into your home without a warrant.

The cop needs probable cause, which seeing you transporting corpses clearly is.

However, the game warden only needs suspicion. That’s a considerably lower bar to clear. He definitely doesn’t need to see the poached animals.

This isn't true though. Police can search with reasonable suspicion in all kinds of circumstances, Terry v Ohio for instance allows for the police to stop and frisk someone on reasonable suspicion of them being involved in a crime and armed. I haven't seen any citation that a game warden can enter your home and search your freezer on reasonable suspicion and all you've linked in a Quora answer by some guy who's qualification is "published author" not a lawyer or a legal opinion. If a game warden has reasonable suspicion that you are committing a crime they can pretty clearly search say a cooler you have with you when fishing, trying to say this means they can enter your house and search it is an unfounded leap.

I get that you don’t like it. I don’t like it either, but it’s still the law in most if not all states.

I assume you don’t hunt. As I’ve said already, you don’t have to believe me. Talk to a game warden or an attorney who is familiar with conservation law and they will confirm that game wardens have expansive warrantless search powers.

We're on the internet, if this is such a simple thing to certify by asking a lawyer or a game warden then it should be reasonably easy to provide an authoritative link.

The closest I can find is this https://www.findlaw.com/legalblogs/california-case-law/scotu...

To Quote: "The California Supreme Court ruled that a game warden who reasonably believes that a person has recently been fishing or hunting, but lacks reasonable suspicion that the person has violated an applicable fish or game statute or regulation, may stop the suspect's vehicle to demand the person display all fish or game the person has caught or taken."

This is obviously more power in some ways than a police officer has , but in some ways also very limited. If you can provide something more authoritative, extensive and to the point than that I think you should.

Here's the best I can find[1]. It very much depends on the state, but that constitutional analysis says that it's possible the relaxed search rules could even apply to individual hunters or fishers. I can't find any definitive court rulings either way on specifically searching a freezer inside a house, but in other cases the courts have generally been deferential to the state's interest in protecting its wildlife. Plenty of hunters have experienced such searches, so it's a real problem.

Why then have these interior searches never been challenged? One reason might be that these abuses virtually exclusively affect low income suburban and rural white men. They don't have the resources to take a case to the SCOTUS. The prestige media is uninterested in advocating for them and the ACLU and other pro bono law firms don't prioritize that demographic either. Given the choice of paying hundreds of thousands of dollars out of pocket to litigate or pleading to a misdemeanor and paying a $1,000 fine, so far everyone has chosen the latter.

[1] https://repository.uchastings.edu/cgi/viewcontent.cgi?articl....

Reply on news.ycombinator.com