Technology

Winnie The Narc: Authorities Tie Camera On Bear, Property Owners Cry Illegal Search

This case seems bear-y bear-y stupid.

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Cool bear in sunglasses

‘Nothing to see here… just a normal bear, hanging out normally.’

Trouble in the Hundred Acre Woods — or more accurately a 117-acre property in Connecticut — where homeowners Mark and Carol Brault have filed suit (complaint included below) alleging Fourth Amendment violations stemming from a snooping bear.

The Connecticut Department of Energy and Environmental Protection placed a camera on a particular bear bouncing here and there and everywhere. The undercover ursine wandered onto the Brault property — and the Braults contend that authorities chose this bear expecting it to come on their property. According to the complaint, the bear got close to the Braults’ home and they believe the camera was “taking and transmitting pictures or video of the interior of the plaintiffs’ property to the defendant.” As the Institute for Justice put it, the state was “effectively turning the bear into an agent of the state to take pictures on their property without a warrant.”

Libertarian social media decried the government “deputizing” a bear. The IJ Senior Attorney Robert Frommer likened it to “Turning wild animals into roving surveillance tools.”

ACAB, man. All cops are bears.

As the couple’s attorney said:

“What they do have on some of the bears with collars is GPS devices, so that they can track where they are. I understand that that’s part of wildlife management,” he said. “But never, never, never were there cameras, and it’s a little difficult to understand the point of a camera. What would that do?”

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What a camera would do is capture what’s going on around the bear, opening the door to surreptitiously capturing private activity without a warrant. Which sounds bad… but the facts get more fuzzy wuzzy than that.

Now, the constitutional question doesn’t necessarily BEAR upon the nature of an underlying investigation, but as I kept seeing snippets of this case, I kept wondering what gave rise to all this. Are the Braults running a meth lab on the back 40 or something? It just seemed weird that a lot of the quick hit summaries of the story skipped over why state authorities would ever put a camera on a bear to enter someone’s property.

Then I found it:

It’s the latest salvo in a years-long dispute between Brault and the town of Hartland, which claims Brault had been illegally feeding bears.

They didn’t put a camera on the bear to spy on the Brault’s property, they put a camera on the bear to figure out “who the fuck is feeding this bear?” That seems like an altogether reasonable search. Because contrary to their lawyer’s statement “preventing humans from luring dangerous wild animals into areas they don’t belong with promises of free porridge” is absolutely wildlife management.

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By way of analogy, this is like tying a camera on Yogi to see where he’s getting all those pic-a-nic baskets. It’s not snooping on their property, it’s snooping on the behavior of a wild animal… who has decidedly fewer rights (yes, there’s a Second Amendment joke here for anyone who wants it).

Assuming “preventing random maulings” is a reasonable state objective, spying on the bear is also the least intrusive investigatory approach. The only conceivable alternative to this would be tracking the bear and then setting up hidden camera stings to peer on every property the animal ever frequents to see if authorities can luck into finding someone in the act of feeding the bear. That’s way a way worse search!

Not that there’s much basis for a constitutional violation in any event. As Jacob Sullum points out over at Reason, the Supreme Court tackled this issue years ago:

“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,” Justice Oliver Wendell Holmes Jr. wrote for the Court in the 1924 case Hester v. United States, which involved illegal whiskey production. “The distinction between the latter and the house is as old as the common law.”

The Court reaffirmed that principle in the 1984 case Oliver v. United States, which involved a marijuana farm discovered by Kentucky state police. “In the case of open fields, the general rights of property protected by the common law of trespass have little or no relevance to the applicability of the Fourth Amendment,” Justice Lewis F. Powell Jr. wrote in the majority opinion. Although the marijuana growers “erected fences and ‘No Trespassing’ signs around the property,” the Court rejected “the suggestion that steps taken to protect privacy establish that expectations of privacy in an open field are legitimate.”

This should give the plaintiffs PAWS. Given the state of the law, the case faces the uphill battle of proving the bear got into the still protected curtilage immediately surrounding their home. Though even if it did, the courts could cure it by excluding that material from the inevitable wildlife regulation violation matter. Hell, just exclude anything the camera catches beyond 3 feet of the bear’s snout.

Everything about this case is a joke. And not funny “ha-ha,” so much as funny “wocka wocka.”

Bear Case

CT couple alleges state is illegally filming their property by attaching camera to wandering bear [CT Insider]

HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

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