Bill Description: Senate Bill 1326 would recognize and affirm private property rights while still allowing for a wide variety of exceptions.

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Does it violate the spirit or the letter of either the United States Constitution or the Idaho Constitution? Examples include restrictions on speech, public assembly, the press, privacy, private property, or firearms. Conversely, does it restore or uphold the protections guaranteed in the US Constitution or the Idaho Constitution?

Senate Bill 1326 would create Chapter 71, Title 18, Idaho Code, titled the “Property Rights Protection Act.”

The bill would recognize that “government agents shall not, in the course and scope of their lawful duty, enter private land not open to the public without a valid search warrant, exigent circumstances, or lawful consent of the owner or lessee.”

The bill would define “private land not open to the public” or “private land” as “any privately owned real property, not including any place of habitation or the associated curtilage, where a person knows or has reason to know that the person's presence is not permitted pursuant to the provisions of section 18-7008(2)(a), Idaho Code.”

With regard to a place of habitation, it would say “a government agent may approach a residence's front entrance using a driveway, walkway, or similar pathway in a manner consistent with that of a private citizen.” But the agent shall not “conduct an investigatory search, inspection, or surveillance beyond what is visible from a lawful public vantage point, nor shall the agent enter other areas of the property not open to the public; and shall promptly leave such private land upon the request of the owner or occupant, unless otherwise authorized by law to remain.”

The bill would create a civil penalty of $1,000 for a government agent who “knowingly violates the provisions of this chapter.” The penalty would be assessed per occurrence and would be payable to the property owner or lessee. 

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One subsection of the act says that “prior to executing a search warrant on private land,” a federal government agent “shall notify the county sheriff, unless exigent circumstances exist.”

Requiring notification of a duly elected county sheriff is an important protection, but it would be better to require that the sheriff affirmatively consent to the federal activity rather than requiring only that he be informed.

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The bill contains a number of exceptions.

The numerous “exigent circumstances” exceptions in the bill are unfortunate (and the standard is frequently abused), but it is an existing standard consistent with both law and court precedent, so its inclusion here does not necessarily detract from the bill. 

Other exceptions included in the bill, however, are more problematic.

One such exception says, “The penalties provided in this section shall not be applicable to any county sheriff or deputies, municipal police officers, or Idaho state police.” This exception removes the enforcement mechanism for nearly all law enforcement within the state. This significantly weakens the bill and undercuts the protections it might otherwise provide. 

Exceptions are also made for government agents “conducting lawful investigations from public vantage points” and entering private land “to the extent necessary to serve civil process or conduct welfare checks.” The bill also wouldn’t apply to “lawful aerial observation” conducted via drones.

The bill’s protections would not “interfere with the use or administration of water rights” including allowing “the department of water resources, or a designated watermaster, to make reasonable entry upon any lands to carry out duties imposed by law.” Additionally, “the owner or operator of any right-of-way or easement” would still have the right to enter private property to access “any ditch, canal, lateral, drain, or other conduit, as described by law.”

The bill would still allow entry onto private property “to control noxious weeds” and by “abatement district employees.” Such actions should require affirmative permission from the landowner. 

Given the many exceptions and the lack of enforcement against violations committed by most law enforcement, the bill’s protections may prove to be more performative than substantive.

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