UPDATE: Rep. LaFave fights to end DNR’s warrantless searches of people’s personal property, DNR responds

House Bill 5540 would require DNR officers follow the same standards as other law enforcement officers and acquire a warrant prior to entering private property.
Published: Sep. 22, 2020 at 3:40 PM EDT
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LANSING, Mich. (Press Release/WLUC) - State Rep. Beau LaFave Tuesday testified before the House Judiciary Committee in support of his plan to clarify Michigan’s state laws to protect the private property rights of Michigan residents.

LaFave (R-Iron Mountain) said the Michigan Department of Natural Resources (DNR) currently uses the Natural Resources and Environmental Protection Act (NREPA) as an excuse to broadly enter people’s private property without a warrant.

“Michiganders deserve to be free from undue government intrusions on their privacy, including warrantless searches by law enforcement,” LaFave said. “The Fourth Amendment guarantees freedom from unreasonable search and seizures – and that should apply not only to traditional law enforcement agencies, but all government authorities with the power to infringe upon an individual’s life, liberty, or property.”

LaFave’s legislation, House Bill 5540, would require DNR officers follow the same standards as other law enforcement officers and acquire a warrant prior to any such intrusion upon private property. This would apply unless the owner or lessee of the property authorizes entry or the DNR officer is in hot pursuit of a criminal suspect or the officer reasonably believes evidence of a crime will be destroyed or concealed or an individual will be endangered if they wait to seek a warrant.

“Every hunting season I get complaint after complaint from hunters in the Upper Peninsula about DNR officers entering their land without permission,” LaFave said. “If the DNR has evidence of an illicit bait pile or poaching, it certainly shouldn’t do them any harm to go get a warrant. If they don’t have enough evidence for a warrant, they have no business infringing on people’s property.”

The plan remains under consideration by the House Judiciary Committee.

A statement from the Michigan DNR in reference to Rep. LaFave’s comments follows:

The Department of Natural Resources (DNR), Law Enforcement Division’s (LED) conservation officers are skilled investigators and are highly trained in interpreting private land issues involving their ability to conduct criminal investigations and patrol on these private lands.

The DNR law enforcement practices are consistent with and based on law enforcement best practices that take into consideration the statutory and relevant case law.  We are committed to following all state and federal laws and court rulings that guide our authorities and actions.

Rep. LaFave is incorrect in his assertion that conservation officers conduct warrantless searches that are not in compliance with the Fourth Amendment. The United States Supreme Court, 6th Circuit Court and local courts within the state continue to rule that Fourth Amendment protection “…accorded persons, papers, and effects' did not extend to the open fields” Hester v. United States, 265 U.S. 57, 59 (1924). The U.S. Supreme Court explored this “Open Fields Doctrine” in Oliver v U.S, 466 U.S. 170 (1984) and U.S. v Dunn, 480 U.S. 294 (1987), and determined that property that does not constitute “curtilage” of a home may be entered and searched without a warrant with cause.

Rep. LaFave is also mistaken that only conservation officers have this authority. Any law enforcement officer or agency that falls within the court’s jurisdiction can conduct investigations under the state’s Natural Resources and Environmental Protection Act or any other governing criminal statute. Additional court rulings supporting this “open fields doctrine” include Katz v United States, 389 U.S. 347 (1967) and Rakas v. Illinois, 439 U.S. 128 (1978).

Recently the Association of Fish and Wildlife Agencies (AFWA), composed of fish and game directors of all 50 states, signed a resolution supporting the court’s rulings and supporting the “Open Fields Doctrine.” The directors have determined the doctrine is a useful tool for their state law enforcement agencies to conduct investigations on private lands that affect the public’s game and fish populations.

View a post-testimony interview with Rep. LaFave by the Michigan House of Representatives in the video above.

Press releases, 2020. Copyright 2020 WLUC. All rights reserved.

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