When law enforcement officers tell you they’re certain that everybody is a lawbreaker, they inadvertently summarize a good reason why we place restrictions on searches for evidence of legal infractions. If the authorities are convinced that they’ll find wrongdoing, they’ll make sure they find something that runs afoul of one the spider web of rules in which we’re entangled. But, like a lot of agencies with regulatory powers, the Ohio Department of Natural Resources (ODNR) claims the Fourth Amendment doesn’t apply to its officers. That has taxidermist and deer processor Jeremy Bennett fighting back in court against government goons who insist that they should have access to his property any time they please, and who press criminal charges if even mildly inconvenienced.
“About 10 years ago, we got a new officer for our area,” Jeremy Bennett explains in a video about his plight. “And things got progressively more tense, things got more intrusive. The requirements for us had not changed, but the way that they were going about the inspections had definitely changed. And when we questioned that, we were given the statement that ‘everybody does something illegal, we just have to find out what you did.'”
The sniffy attitude applies not just to the assumption that everybody is in violation of the law, but also in the insistence that officers have the right to access business establishments at will to look for evidence of violations. When ODNR officer Christopher Dodge came by to inspect Bennett’s venison-processing business and asked to see the rest of his premises, Bennett explained that he closed the taxidermy side of his business during hunting season so he could focus on deer.
“Jeremy asked him to return in a few weeks when he had resumed working on taxidermy and the officer left without objecting,” according to the Institute for Justice, which represents Bennett. “But a few months later, Jeremy was criminally prosecuted and threatened with jail time for ‘refusing’ the officer warrantless entry into his taxidermy shop.”
What makes the matter even stranger is that neither deer processing nor taxidermy are regulated in Ohio beyond a requirement for records of when animals are received and from whom. Inspections are just to ensure the paperwork is in order. But ODNR officers do have the legal authority to check those records.
“Any person authorized to enforce this part may enter such establishment or plants at all reasonable hours and inspect the records and premises where operations are being carried on,” says Ohio law.
The problem is that ODNR insists that “reasonable” means any time its officers please, without regard for the protections afforded by the Fourth Amendment to the U.S. Constitution or nearly identical language in Article I of the Ohio Constitution.
“In practice, ODNR wildlife officers unilaterally decide what counts as a ‘reasonable hour,'” Bennett objects in a complaint filed November 16 in the United States District Court for the Southern District of Ohio. “Beyond that self-defined limitation, ODNR does not limit the timing, frequency, duration, or scope of its officers’ inspections. Worse still, a shop owner who stands on his right to refuse a warrantless inspection—even if he just wants the officer to come back at a more convenient time—can be criminally prosecuted and thrown in jail.”
Bennett asks the court to declare warrantless inspections unconstitutional and to “enjoin Defendants from conducting these and any similar warrantless inspections in the future.” In response to questions, an ODNR representative says, “The Department is reviewing the allegations in the Complaint and will respond accordingly. Because this matter is in litigation, the Department has no further comment at this time.”
The complaint is worth reading just for the documentation of Officer Dodge’s conduct, which is the story of a petty functionary on a power trip. Unfortunately, Dodge isn’t the only bureaucrat to let power go to his head in ways that run afoul of search and seizure protections, often with the blessing of the courts. While the law is gray, judges have generally ruled that businesses don’t enjoy the same protections as homes, and that the more bound a commercial activity is by red tape, the less protected it is by the Fourth Amendment.
“An expectation of privacy in commercial premises, however, is different from, and indeed less than, a similar expectation in an individual’s home,” Justice Harry Blackmun wrote for the Supreme Court majority in New York v. Burger (1987). “This expectation is particularly attenuated in commercial property employed in ‘closely regulated’ industries.”
But, aside from the problem of out-of-the-ether exceptions to Fourth Amendment protections, what constitutes “closely regulated” is in the eye of the beholder. As Justice William Brennan pointed out in the dissent in that case, “the Court finds pervasive regulation in the barest of administrative schemes.” He went on to add that the decision “renders virtually meaningless the general rule that a warrant is required for administrative searches of commercial property.”
So, are taxidermy and deer processing “closely regulated” industries? In Los Angeles v. Patel (2015), the Supreme Court held that hotels are not closely regulated and that they enjoy the protections of the Fourth Amendment. In fact, as Justice Sonia Sotomayor pointed out, “Over the past 45 years, the Court has identified only four industries that ‘have such a history of government oversight that no reasonable expectation of privacy … could exist for a proprietor over the stock of such an enterprise.'” Those industries are liquor sales, firearms dealing, mining, and running an automobile junkyard.
That’s quite a grab bag of random commercial activities, and it’s difficult to predict whether the courts will see a taxidermist and deer processor as more akin to a hotel or a junkyard. Bennett’s perfectly reasonable characterization of his business as “harmless and largely unregulated” seems like a winning argument. But we’re talking about courts that manufactured administrative exceptions to the Fourth Amendment out of whole cloth. It’s anybody’s guess how this shakes out.
“If a recordkeeping requirement is all it takes to justify warrantless inspections of Jeremy’s business, then few if any businesses would be protected by the Fourth Amendment,” comments Institute for Justice attorney Joe Gay.
So, closely watch Jeremy Bennett’s lawsuit against the Ohio Department of Natural Resources. This case isn’t just about one small businessman’s battle with obnoxious bureaucrats. It’s about the ability of Americans to protect their property from warrantless searches by government officials who exempt themselves from constitutional limits just by making rules that say they can do whatever they want.
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