Joshua Highlander v. Virginia Department of Wildlife Resources

COURT OF APPEALS OF VIRGINIA

PUBLISHED

Present: Chief Judge Decker, Judge Chaney and Senior Judge Humphreys

Argued at Richmond, Virginia

JOSHUA HIGHLANDER

OPINION BY

v. Record No. 2110-23-2 JUDGE ROBERT J. HUMPHREYS

APRIL 8, 2025

VIRGINIA DEPARTMENT OF

WILDLIFE RESOURCES, ET AL.

FROM THE CIRCUIT COURT OF HENRICO COUNTY

L. A. Harris, Jr., Judge

Joseph Gay (Robert Frommer; Joshua Windham; Institute for Justice,

on briefs), for appellant.

Michael Dingman, Assistant Solicitor General (Jason S. Miyares,

Attorney General; Steven G. Popps, Deputy Attorney General;

R. Cooper Vaughan, Assistant Attorney General; Thomas J. Sanford,

Assistant Attorney General, on brief), for appellees.

Amicus Curiae: National Federation of Independent Business

Small Business Legal Center, Inc. (John S. Moran; Patrick A.

Wallace; McGuireWoods LLP, on brief), for appellant.

After three Department of Wildlife Resources conservation police officers entered Joshua

Highlander’s property, seized a camera, and searched it without a warrant, Highlander sought

declaratory and injunctive relief against the Department and the officers in their individual and

official capacities (collectively, the Department) under Article I, § 10 of the Constitution of

Virginia and Code § 19.2-60, and damages under Code § 19.2-59. The Department filed a plea

in bar of sovereign immunity. The Department also demurred, arguing that neither Article I,

§ 10 nor Code § 19.2-60 provides a private right of action and that the warrantless searches and

seizure complied with Virginia law. The circuit court sustained both the demurrer and plea in

bar and dismissed all of Highlander’s claims. Upon review, we vacate the circuit court’s

judgment in part, affirm in part, and reverse and remand for further proceedings in part.

BACKGROUND1

Highlander owns a 30-acre residential property in Providence Forge, where he lives with his

wife, six-year-old son, and five-year-old daughter. The property includes wooded areas and trails,

which Highlander and his family use. One hundred “no trespassing” signs are posted at regular

intervals (approximately every 20 feet) on the trees along the property line.

Highlander hunts deer and turkey on his property. About 150 yards behind his house, he

maintains a “food plot,” which contains crops planted to feed and attract deer. The food plot is

separated from Highlander’s backyard by a wooded area and is not visible from the back of his

house. A path runs from the backyard through the woods to the food plot. Until the events of this

case, Highlander kept a motion-activated camera mounted in the center of the food plot “to monitor

the land and wildlife.” The camera was manufactured by a company called Tactacam and included

a monthly subscription plan through which the camera’s photos were wirelessly uploaded and

stored online. The camera also had a storage card on which thousands of photos were saved.

Highlander’s father manages two private farms, one in Charles City County, and one in New

Kent County, and maintains food plots on those properties as well. On March 22 and 23, 2023,

Highlander’s father and brother mowed all three food plots and broadcast millet seed across the

food plots to replenish them for the warm season.

1

This appeal arises from a decision sustaining a demurrer and granting a plea in bar for

which no evidence was submitted. When reviewing a demurrer, “we accept as true all factual

allegations expressly pleaded in the complaint and interpret those allegations in the light most

favorable to the plaintiff.” Coward v. Wellmont Health Sys., 295 Va. 351, 358 (2018); see also

Massenburg v. City of Petersburg, 298 Va. 212, 216 (2019) (same standard applies to plea in bar

when no evidence is taken). “Our recitation of the facts, of course, restates only factual allegations

that, even if plausibly pleaded, are as yet wholly untested by the adversarial process.” A.H. v.

Church of God in Christ, Inc., 297 Va. 604, 614 (2019).

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On April 8, 2023, the first day of Virginia’s 2023 spring turkey hunting season, Highlander,

his father, and his brother each went hunting. Highlander was on his property; his father and

brother were on the other properties. Highlander shot and harvested a turkey on his property around

7:45 a.m., “hundreds of yards away from his food plot,” and then logged the kill on the

Department’s mobile app.

That same day, Krista Adams, Zach Howlett, and Bonnie Braziel, conservation police

officers with the Department, entered the properties on which Highlander’s brother and father were

hunting and seized at least three cameras.2 The officers then entered Highlander’s property, around

2:45 p.m., because they suspected Highlander of illegally hunting turkey over bait as well. To

access Highlander’s property, the officers drove to a nearby subdivision, parked a few hundred

yards from Highlander’s property line, and crossed a separate parcel of private property. Wearing

full camouflage outfits, the officers entered Highlander’s property and explored until they found

Highlander’s food plot. Seeing Highlander’s wildlife camera, the officers seized it and left the

property.

While the officers were exploring the property, Highlander’s wife, who was in the backyard

playing basketball with the couple’s son, noticed one of the officers walking in the woods. Not

knowing who it was, she took her son inside and told Highlander. The officers had left by the time

Highlander went outside to look.

Adams later searched the camera for pictures of illegal activity. Adams opened the camera,

removed the storage card, and downloaded thousands of photos. The officers did not seek or obtain

a warrant to search the property, seize the camera, or search the camera. Adams later obtained a

2

The officers cited Highlander’s brother for hunting turkey over bait, a charge which

Highlander’s brother is contesting.

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search warrant directed to Tactacam for any additional photos taken by Highlander’s camera that

had been wirelessly uploaded and stored by Tactacam.

Highlander sued the Department and the officers in their individual and official capacities,

alleging that the searches and seizure violated his rights under Article I, § 10 of the Constitution of

Virginia and Code §§ 19.2-60 and -59. Highlander further alleged that the Department has a policy

and practice of conducting warrantless searches and seizures like the ones the officers engaged in on

April 8, 2023.

Highlander’s complaint sought wide-ranging relief, including: a judgment declaring the

searches and seizures of his property violated the Constitution of Virginia; a judgment declaring that

the Department’s policy and practice of warrantless searches and seizures violates the Constitution

of Virginia; a permanent injunction barring the Department from conducting any warrantless

searches and seizures of his property; an injunction under Code § 19.2-60 or the circuit court’s

equitable power requiring the return of his camera3 and the return or destruction of any photos the

Department found on his camera and any notes they created based on those photos, and the

suppression of those materials; and nominal damages against the individual officers employed by

the Department for their search of the camera.

The Department filed a plea in bar, arguing that Highlander’s claims were barred by

sovereign immunity because Article I, § 10 is not self-executing and neither Code § 19.2-59 nor

Code § 19.2-60 waives the Commonwealth’s immunity. They also demurred, arguing that even if

sovereign immunity did not apply, Highlander had failed to state a cause of action upon which the

requested relief could be granted. The Department argued that neither Article I, § 10 nor Code

§ 19.2-60 creates a private right of action, so none of the claims for relief under them stated a cause

3

The Department returned Highlander’s camera while the proceedings were pending.

Highlander acknowledged that request for relief was satisfied but maintained his other requests

for relief.

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of action. In addition, the Department argued that none of the challenged actions was unlawful, so

Highlander had failed to state a claim even if Article I, § 10 or Code § 19.2-60 provides a right of

action. Finally, the Department argued that Code § 19.2-59 applies only to individual officers, not

the Department as a state agency, and, as alleged, Highlander’s claim applied only to Adams. The

Department also argued that Adams was entitled to sovereign immunity because even if her search

of the camera was unlawful, it did not amount to gross negligence.

After a hearing, the circuit court sustained the plea in bar and demurrer with prejudice. The

circuit court concluded that Article 1, § 10 is not self-executing and therefore does not create a

private right of action. The circuit court thus concluded that sovereign immunity barred

Highlander’s constitutional claims. The court also concluded that under the “open fields doctrine,”

the officers’ intrusion onto Highlander’s property was not an unreasonable search.4 Thus, the court

dismissed Highlander’s claims related to the initial entry onto his property on the alternative

ground that the search of the property was lawful. The court did not separately analyze the

permissibility of the seizure of the camera or the search of the camera or explain its dismissal of the

statutory claims relating to the seizure and search of the camera.

Highlander timely appealed. He argues that the circuit court erred by holding Article I,

§ 10 is not self-executing; concluding that the search of his land was permissible; and dismissing

each of his claims. Highlander’s arguments on appeal can be broadly characterized as

challenging the search of the property, the seizure of the camera, and the search of the camera. For

each category, Highlander asserts rights of action arising from multiple sources of law and requests

multiple forms of relief. For example, in challenging the search of the property, Highlander asserts

claims under both Article I, § 10 and Code § 19.2-60, and he seeks multiple injunctions and

4

At oral argument, the Department argued that, in addition to the “open fields” doctrine,

the “plain view” doctrine also applied to permit the agents warrantless seizure of the camera.

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declaratory judgments, as well as suppression of evidence in future criminal proceedings. Our

analysis considers the source of law for each claim and the relief requested under each source.

ANALYSIS

“Absent a statutory requirement to do so, ‘a trial court is not required to give findings of

fact and conclusions of law.’” Pilati v. Pilati, 59 Va. App. 176, 180 (2011) (quoting Fitzgerald

v. Commonwealth, 223 Va. 615, 627 (1982)). “[W]hen no specific explanation is given by a trial

court, we presume the court followed the governing legal principles . . . .” Id. at 181; see White

v. White, 56 Va. App. 214, 217 (2010) (“In Virginia, ‘we presume [trial] judges know the law

and correctly apply it.’” (alteration in original) (quoting de Haan v. de Haan, 54 Va. App. 428,

445 (2009))). Thus, we assume that the court sustained appellees’ demurrer to the statutory

claims on one or more of the grounds stated in the demurrer.5 See Pilati, 59 Va. App. at 181; see

also, e.g., Almy v. Grisham, 273 Va. 68, 76 (2007) (reviewing legal sufficiency of plaintiff’s

pleadings on appeal under the right-result-wrong-reason doctrine despite lower court having

erroneously decided a demurrer on the merits).

We review de novo the circuit court’s judgment sustaining a demurrer. Theologis v.

Weiler, 76 Va. App. 596, 603 (2023). “The purpose of a demurrer is to determine whether the

pleading and any proper attachments state a cause of action upon which relief can be given.”

Young-Allen v. Bank of Am., 298 Va. 462, 467 (2020) (quoting Steward v. Holland Fam. Props.,

LLC, 284 Va. 282, 286 (2012)). “A demurrer tests the legal sufficiency of facts alleged in

pleadings, not the strength of proof.” Seymour v. Roanoke Cnty. Bd. of Supervisors, 301 Va.

156, 164 (2022) (quoting Coutlakis v. CSX Transp., Inc., 293 Va. 212, 216 (2017)). Thus, “[a]

5

“No grounds other than those stated specifically in the demurrer shall be considered by

the court.” Code § 8.01-273(A). So, “we may affirm an order sustaining a demurrer only on a

ground that the defendant raised in the trial court.” Theologis v. Weiler, 76 Va. App. 596, 604

(2023).

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circuit court ‘is not permitted on demurrer to evaluate and decide the merits of the allegations set

forth in a . . . complaint.’” Id. (second alteration in original) (quoting Riverview Farm Assocs.

Va. Gen. P’ship v. Bd. of Supervisors, 259 Va. 419, 427 (2000)). “In deciding whether to sustain

a demurrer, the sole question before the trial court [and before this Court on appeal] is whether

the facts pleaded, implied, and fairly and justly inferred are legally sufficient to state a cause of

action against a defendant.” Pendleton v. Newsome, 290 Va. 162, 171 (2015). As previously

noted, “we accept as true all factual allegations expressly pleaded in the complaint and interpret

those allegations in the light most favorable to the plaintiff.” Coward v. Wellmont Health Sys., 295

Va. 351, 358 (2018). “But we are not bound by the pleader’s conclusions of law that are couched as

facts.” Theologis, 76 Va. App. at 600.

“A plea in bar asserts a single issue, which, if proved, creates a bar to a plaintiff’s

recovery.” Massenburg v. City of Petersburg, 298 Va. 212, 216 (2019) (quoting Hawthorne v.

VanMarter, 279 Va. 566, 577 (2010)). “‘[W]here no evidence is taken in support of a plea in

bar, the trial court, and the appellate court upon review, consider solely the pleadings in

resolving the issue presented. In doing so, the facts stated in the plaintiff’s [complaint] are

deemed true.’” Id. (second alteration in original) (quoting Lostrangio v. Laingford, 261 Va. 495,

497 (2001)). As with the demurrer, we presume the circuit court followed these principles. See

Pilati, 59 Va. App. at 181. Under this approach, our review of the circuit court’s judgment is

“functionally de novo.” Massenburg, 298 Va. at 216.

I. Article I, § 10 Claims

Highlander brought most of his claims for declaratory and injunctive relief under Article I,

§ 10 of the Constitution of Virginia. Highlander argues that the officers’ search of his property,

seizure of his camera, and subsequent search of the camera each violated that provision, which

states:

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That general warrants, whereby an officer or messenger may be

commanded to search suspected places without evidence of a fact

committed, or to seize any person or persons not named, or whose

offense is not particularly described and supported by evidence, are

grievous and oppressive, and ought not to be granted.

Va. Const. art. I, § 10. The Department argues that Article I, § 10 does not support a private right

of action, so sovereign immunity bars Highlander’s constitutional claims. These arguments raise

questions of constitutional interpretation, which we review de novo. Walker v. Commonwealth,

302 Va. 304, 314 (2023).

No Virginia appellate court has decided whether individuals may bring a right of action

under Article I, § 10.6 Ordinarily, when deciding whether an individual may assert a novel claim

to enforce a constitutional provision, “the dispositive issue . . . is whether the[] constitutional

provision[] [is] self-executing.” Gray v. Va. Secy. of Transp., 276 Va. 93, 102 (2008).

Recognizing this principle, the parties devote considerable energy debating whether Article I,

§ 10 is self-executing. We need not resolve the debate here, however, because even if Article I,

§ 10 provides a right of action and bars the actions Highlander challenges, he would not be entitled

to the declaratory and injunctive relief he seeks.

“[T]he doctrine of judicial restraint dictates that [the Court] decide cases ‘on the best and

narrowest grounds available.’” Commonwealth v. White, 293 Va. 411, 419 (2017) (quoting

Commonwealth v. Swann, 290 Va. 194, 196 (2015)). “The ‘best’ answer to a legal question is

the one with which the least number of jurists would disagree,” and “[t]he ‘narrowest’ answer to

a legal question is the one affecting the least number of cases.” Butcher v. Commonwealth, 298

Va. 392, 396 (2020). One “fundamental and longstanding precept of this doctrine is that

‘unnecessary adjudication of a constitutional issue’ should be avoided.” Swann, 290 Va. at 196

6

We have held that Article 1, § 11 of the Constitution of Virginia is self-executing. See

Ibanez v. Albemarle Cnty. Sch. Bd., 80 Va. App. 169 (2024).

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(quoting Bell v. Commonwealth, 264 Va. 172, 203 (2002)). “[I]f a case can be decided on either

of two grounds, one involving a constitutional question, the other a question of statutory

construction or general law, the Court will decide only the latter.” Taylor v. Commonwealth, 78

Va. App. 147, 157 (2023) (quoting Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 347 (1936)

(Brandeis, J., concurring)).

The doctrines of judicial restraint and constitutional avoidance dovetail with the

right-result-different-reason doctrine, under which this Court will “not hesitate, in a proper case,

where the correct conclusion has been reached but the wrong [or a different] reason given, to

sustain the result and assign the right ground.” Taylor v. Northam, 300 Va. 230, 251 (2021)

(alteration in original) (quoting Banks v. Commonwealth, 280 Va. 612, 617 (2010)). The

doctrine “does not apply where the development of additional facts is necessary.” Spinner v.

Commonwealth, 297 Va. 384, 391 (2019). But the Court is “entitled to affirm the [circuit]

court’s judgment on alternate grounds[] if such grounds are apparent from the record.” Taylor,

300 Va. at 251 (emphasis omitted) (quoting Perry v. Commonwealth, 280 Va. 572, 582 (2010)).

Thus, “this Court may affirm a [judgment] . . . without ‘express[ing a] view on the correctness of

the lower court’s rationale.’” Eberhardt v. Commonwealth, 74 Va. App. 23, 39 n.10 (2021)

(second alteration in original) (quoting Rickman v. Commonwealth, 294 Va. 531, 542 (2017)

(emphasis omitted)). When a lower court rules on a constitutional issue, but the

right-result-different-reason doctrine allows the Court to affirm the judgment without expressing

a view on the constitutional issue, the constitutional avoidance doctrine requires the Court to do

so. See, e.g., Haynes v. Haggerty, 291 Va. 301, 305 (2016) (considering the

right-result-wrong-reason argument first “to avoid reaching” the constitutionality of a statutory

provision).

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Still, where the appeal involves review of an order sustaining a demurrer, “Code

§ 8.01-273 prevents us from applying [the right-result-different-reason] doctrine to permit an

appellee to benefit from an argument that he did not include in his . . . demurrer.” Theologis, 76

Va. App. at 604. Thus, we may only affirm the court’s order sustaining the demurrer on

alternative non-constitutional grounds if the Department pleaded those grounds. Id.

For the search of his property, the seizure of his camera, and the search of his camera,

Highlander sought five forms of relief under Article I, § 10:

(A) a declaratory judgment that the search or seizure was illegal;

(B) a declaratory judgment that the Department’s policy and

practice of similar searches or seizures is illegal;

(C) a permanent injunction prohibiting the Department from

conducting a warrantless search or seizure of Highlander’s

property without consent;

(D) return or destruction of photographs seized from his camera

and related notes; and

(E) suppression of photographs seized from his camera and related

notes in future criminal proceedings.

We analyze each of Highlander’s requests for relief in turn.

A. Declaratory judgment against the searches and seizure of Highlander’s property

Highlander seeks a “judgment declaring that [appellees’] warrantless search of [his] land,

warrantless seizure of his camera, and warrantless search of his camera violated the Virginia

Constitution.” But a declaratory judgment is not available under the circumstances presented

here. As the Department noted in their demurrer, declaratory judgments are not available to

adjudicate rights retrospectively. Charlottesville Area Fitness Club Operators Ass’n v.

Albemarle Cnty. Bd. of Supervisors, 285 Va. 87, 98-99 (2013). “Preventive relief is the moving

purpose” of the Declaratory Judgment Act. Id. at 99 (quoting Williams v. Southern Bank of

Norfolk, 203 Va. 657, 662 (1962)).

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Courts are empowered only “to issue declaratory judgments to resolve disputes ‘before

the right is violated.’” Id. at 98 (emphasis added) (quoting Patterson v. Patterson, 144 Va. 113,

120 (1926)). “[W]here claims and rights asserted have fully matured, and the alleged wrongs

have already been suffered, a declaratory judgment proceeding . . . is not an available remedy.”

Id. at 99. Highlander’s claims and rights relating to the search of his land, the seizure of his

camera, and the search of his camera have fully matured. He has already suffered the alleged

wrongs. Therefore, declaratory judgments addressing the searches and seizure are unavailable.

See id. We affirm the circuit court’s judgment sustaining appellees’ demurrer to Highlander’s

claims for a declaratory judgment challenging conduct that has already occurred.

B. Declaratory judgment against the Department’s alleged policy and practice of

warrantless searches and seizures

Highlander also requests “[a] judgment declaring that [appellees’] policy and practice of

warrantless searches of posted private land, warrantless camera seizures, and warrantless camera

searches[] violates the Virginia Constitution.”

Courts have authority to issue declaratory judgments only when a case presents a

“justiciable controversy.” Daniels v. Mobley, 285 Va. 402, 407-09 (2013). “This requirement is

explicitly set forth in the statute authorizing declaratory judgment actions, empowering circuit

courts ‘to make binding adjudications of right’ in ‘cases of actual controversy’ where there is an

‘actual antagonistic assertion and denial of right.’” Lafferty v. Sch. Bd. of Fairfax Cnty., 293 Va.

354, 360 (2017) (quoting Code § 8.01-184). A justiciable controversy “involves an actual

adjudication of rights” resolving “‘specific adverse claims, based upon present, rather than future

or speculative facts.’” Daniels, 285 Va. at 408 (quoting City of Fairfax v. Shanklin, 205 Va. 227,

229 (1964)). “For a justiciable controversy to exist, it must be possible for the circuit court to

render a decree yielding specific relief, such that the plaintiff’s rights will be thereby affected.”

Id. “[T]he declaratory judgment statute was not intended to vest [courts] with authority[] to

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render advisory opinions, to decide moot questions or to answer inquiries which are merely

speculative.” Charlottesville Fitness, 285 Va. at 99 (quoting Shanklin, 205 Va. at 229-30).

The Department did not assert the lack of a justiciable controversy in their demurrer.

Even so, “[i]t is beyond question that this Court may consider, sua sponte, whether a requisite

justiciable controversy exists under the declaratory judgment statute.” Daniels, 285 Va. at 408.

Indeed, we are obligated to raise this question because “we do not have the power to render a

judgment that is only advisory.” Charlottesville Fitness, 285 Va. at 100.

Highlander fails to plausibly allege a justiciable controversy between himself and the

Department over their alleged policies and practices of warrantless searches and seizures. The

implied threat Highlander seeks to ameliorate through the requested judgment is a future

warrantless search or seizure of his property by the Department. Any such threat is fatally

speculative. Even assuming that the Department regularly employs the alleged policies and

practices, there is no “specific adverse claim[]” between Highlander and the Department “based

upon present, rather than future or speculative facts.” Daniels, 285 Va. at 408 (quoting Shanklin,

205 Va. at 229).

In Lafferty, our Supreme Court concluded that a public high school student had failed to

allege a justiciable controversy between himself and the school board arising from the school

board’s expansion of its anti-discrimination and anti-harassment policy to include the category of

“sexual orientation.” 293 Va. at 358, 360-62 (examining facts as pleaded in the complaint and

affirming circuit court’s judgment dismissing the complaint for lack of standing). The student

alleged, among other things, that he was “distressed” by the policy because he feared the

possible future applications of the policy and how that might affect him. Id. at 358-59. The

Supreme Court held that the student’s hypothesized harm rested on “a purely speculative fact”

not clearly supported by the record. Id. at 361-62. Similarly, the student had failed to “allege

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any present facts that would place him in violation of the policy, rendering any injury purely

speculative.” Id. at 361 (emphasis added). “[G]eneral distress over a general policy does not

alone allege injury sufficient for standing, even in a declaratory judgment action.” Id. at 362.

Here, Highlander’s complaint alleges that appellees’ “ongoing policy and practice of

warrantless searches have made it impossible for Mr. Highlander and his family to enjoy the full

degree of privacy from intruders that they expect on their land.” He alleges that he and his

family “experience anxiety over the fact that [Department] officers can sneak around their

property and spy on them whenever the officers please,” and he has refrained from placing

another wildlife camera given his fear that officers will take it, and has been prevented from

hunting on his land by fear that he will “accidentally shoot a [Department] officer” of whose

presence he is unaware.

Crediting these fears as genuine, none constitutes a “specific adverse claim[]” involving

“present rather than future or speculative facts.” Lafferty, 293 Va. at 361 (emphasis omitted).

Even assuming the Department’s alleged policies inevitably would lead to another search or

seizure of Highlander’s property,7 such an interaction between the Department and Highlander

could take any number of forms, with a multitude of possible predicate facts. But speculating

about possible future actions does not satisfy Highlander’s obligation to plead present facts upon

which a court can render a judgment. See Jones v. Commonwealth, 277 Va. 171, 177 (2009)

(noting the legality of a seizure is “a mixed question of law and fact” (quoting McCain v.

Commonwealth, 275 Va. 546, 551 (2008))); cf. Mosher Steel-Virginia v. Teig, 229 Va. 95 (1985)

(holding that plaintiff’s challenge to a general inspection warrant was justiciable because the

interest at stake was not “hypothetical or abstract”; rather the plaintiff’s rights were

7

As discussed below, the complaint’s allegations do not lead to the conclusion that a

future illegal search or seizure of Highlander’s property is inevitable, or even reasonably

probable.

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“‘immediately threatened’” (quoting Gooden v. Brooks, 251 S.E.2d 698, 701 (N.C. App. 1979))).

By the same token, a declaratory judgment relating to appellees’ alleged policies or practices of

warrantless searches and seizures would not “yield[] specific relief, such that [Highlander]’s

rights will be thereby affected.” Daniels, 285 Va. at 408. A declaration based only upon

speculation would amount to a purely advisory opinion, which we are without power to render.

Charlottesville Fitness, 285 Va. at 99-100.

Highlander’s request for a declaratory judgment against appellees’ alleged policies and

practices of warrantless searches and seizures, therefore, does not present a justiciable

controversy, and the circuit court “did not have authority under the declaratory judgment statute

to exercise jurisdiction concerning such claim.” Daniels, 285 Va. at 413. Thus, we vacate the

circuit court’s judgment addressing the policy and practice claims and dismiss them for lack of

jurisdiction. See id. at 412-13.

C. Permanent injunction against future warrantless searches and seizures without consent

Highlander also requests “[a] permanent injunction barring [appellees] from searching [his]

land, seizing his cameras, or searching his cameras without his consent or a warrant moving

forward.”

“[N]o prohibitory injunction against an anticipated wrong will issue unless ‘there is

reasonable cause to believe that the wrong is one that would cause irreparable injury and the wrong

is actually threatened or apprehended with reasonable probability . . . .’” Large v. Clinchfield Coal

Co., 239 Va. 144, 148 (1990) (second alteration in original) (quoting WTAR Radio-TV Corp. v. City

Council of Virginia Beach, 216 Va. 892, 895 (1976)). Additionally, “[t]o secure an injunction, a

party must show . . . the lack of an adequate remedy at law.” Preferred Sys. Sols., Inc. v. GP

Consulting, LLC, 284 Va. 382, 401 (2012) (first alteration in original) (quoting Black & White Cars

v. Groome Transp., Inc., 247 Va. 426, 431 (1994)).

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Highlander’s complaint alleges that appellees’ policies and practices of warrantless searches

and seizures simultaneously cause him a present, ongoing irreparable injury and create an imminent

threat of further irreparable injury. He alleges that unless the policies and practices are enjoined, the

Department “will continue to conduct warrantless searches and seizures of [his] land and cameras

(if not other property), and he and his family will continue to suffer” the injuries previously

described, including anxiety over the possibility of future searches and hesitation to place another

wildlife camera or hunt on his land.

Appellees’ demurrer argued that Highlander had failed to allege irreparable harm. We

agree. Highlander has not sufficiently alleged that he is presently suffering irreparable harm.

And the possibility of future harm alleged in the complaint is too speculative to provide a basis

for injunctive relief.

Neither party has cited a case in which a Virginia court has approved an injunction to

remedy a pattern or practice of allegedly unconstitutional conduct by law enforcement officers.

Still, injunctive relief is available in Virginia in limited circumstances to remedy a present

constitutional violation or prevent a future constitutional violation. See Gray, 276 Va. at 97-107

(holding plaintiffs could seek declaratory and injunctive relief to remedy allegedly unconstitutional

delegation of power by various entities and officials of the Commonwealth); Mosher Steel-Virginia,

229 Va. at 99-105 (granting declaratory and injunctive relief to prevent enforcement of

unconstitutional general inspection warrant); see also DiGiacinto v. Rector & Visitors of Geo.

Mason Univ., 281 Va. 127, 137-38 (2011) (noting “sovereign immunity does not preclude

declaratory and injunctive relief claims based on self-executing provisions of the Constitution of

Virginia”).

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Additionally, federal courts have long recognized that “[w]here . . . there is a persistent

pattern of police misconduct, injunctive relief is appropriate.”8 Allee v. Medrano, 416 U.S. 802, 815

(1974) (concluding injunction would be appropriate against police officers who engaged in a series

of unconstitutional acts against labor union organizers); see, e.g., Lankford v. Gelston, 364 F.2d 197

(4th Cir. 1966) (upholding injunctive relief barring future searches based on uncorroborated

anonymous tips after police searched more than 300 locations—mostly private residences owned

by black citizens—searching for a fugitive); Smith v. City of Chicago, 143 F. Supp. 3d 741,

751-52 (N.D. Ill. 2015) (concluding that plaintiffs plausibly alleged claims for injunctive relief

based on a pattern or practice of unconstitutional stops and frisks by police).

Assuming without deciding that injunctive relief is available in Virginia to remedy a pattern

or practice of unconstitutional police searches and seizures, we conclude that Highlander fails to

allege such a pattern or practice in this case. The deficiencies in Highlander’s allegations are

two-fold and compound one another. First, Highlander fails to plausibly allege a pattern or practice

of illegal searches and seizures in more than conclusory terms. Second, Highlander fails to allege

that he is imminently threatened by the pattern or practice, even if one exists.

Highlander alleges that the Department “has a longstanding policy and practice of

entering posted private land without the owner’s consent, a warrant, or even probable cause, to

search around for evidence of potential hunting violations.” He similarly alleges that the

Department has policies and practices of placing surveillance cameras on posted private land,

seizing privately owned cameras, and searching privately owned cameras—all without consent, a

warrant, or probable cause. But he fails to support these conclusory allegations with facts

showing that the Department has adopted such policies or practices. He points to no express

8

Generally, in “a case of first impression in Virginia, we look to the decisions of other

jurisdictions for aid and guidance.” Nationwide Mut. Ins. Co. v. Wenger, 222 Va. 263, 266

(1981).

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written policy, for example, nor any related oral instructions Department leaders have given to

conservation officers, or any pattern of instances in which Department leaders have implicitly

approved warrantless searches and seizures. See, e.g., Lytle v. Doyle, 326 F.3d 463, 471 (4th Cir.

2003) (discussing ways in which a 42 U.S.C. § 1983 plaintiff can prove a municipality has

adopted a policy or practice). In reviewing a complaint on demurrer, “we do not accept the

veracity of conclusions of law camouflaged as factual allegations or inferences.” Patterson v.

City of Danville, 301 Va. 181, 197 (2022) (quoting Doe ex rel. Doe v. Baker, 299 Va. 628, 641

(2021)). Rather, “factual allegations ‘must be made with “sufficient definiteness to enable the

court to find the existence of a legal basis for its judgment.”’” A.H. v. Church of God in Christ,

Inc., 297 Va. 604, 613 (2019) (quoting Squire v. Virginia Hous. Dev. Auth., 287 Va. 507, 514

(2014)).

Similarly, Highlander claims, without any factual support, that the Department’s “policy

and practice” of warrantless searches and seizures “is widespread” and “ongoing.” Of course, “a

policy or practice that is widespread is more likely to cause recurring injury than an isolated

practice.” Amadei v. Nielsen, 348 F. Supp. 3d 145, 160 (S.D.N.Y. 1999) (concluding plaintiffs had

standing to seek equitable relief because they plausibly alleged a sufficient likelihood of being

subjected to future illegal searches by defendants).9 But Highlander does not support his

conclusory assertion that the Department’s alleged policy is “widespread” with specific facts.

For example, he did not allege any instance of Department officers engaging in similar illegal

9

In federal cases, the issue of whether a plaintiff has sufficiently pleaded a likelihood of

future injury from an unconstitutional pattern or practice often arises through a challenge to the

plaintiff’s standing. The United States Supreme Court has noted, however, that considerations

relating to standing “obviously shade into those determining whether the complaint states a

sound basis for equitable relief” because both inquiries must assess whether the plaintiff has

alleged a sufficient injury. Los Angeles v. Lyons, 461 U.S. 95, 103 (1983) (quoting O’Shea v.

Littleton, 414 U.S. 488, 499 (1974)). Thus, determining a plaintiff’s standing substantially

overlaps with determining whether the plaintiff has alleged a threatened injury sufficient to

justify injunctive relief. See id. at 103-13.

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behavior beyond the searches and seizures the Department conducted on April 8, 2023. A single

instance is insufficient to establish a policy or custom, let alone one that is “widespread.” See,

e.g., McLennon v. City of New York, 171 F. Supp. 3d 69, 103-06 (E.D.N.Y. 2016) (concluding

plaintiffs lacked standing to seek injunctive relief from allegedly unconstitutional police

checkpoints along a highway because plaintiffs failed to plausibly allege that the practice was

“widespread” or that they had been unlawfully stopped repeatedly); see also Jordan by Jordan v.

Jackson, 15 F.3d 333, 341 (4th Cir. 1994) (noting that “a policy or custom of deficient training

. . . can[not] be shown by proof of a single incident of unconstitutional activity”); WTAR, 216 Va.

at 893-96 (holding that allegations that city council had previously violated the Virginia Freedom

of Information Act, without more, failed to support “with reasonable probability” the plaintiffs’

apprehension that the city council would violate the Act again in the future).

The conclusory nature of the allegations describing the policies similarly undermines

Highlander’s assertion that he is “actually threatened” by the possibility of future illegal searches

and seizures, or that such a threat is “apprehended with reasonable probability.” Large, 239 Va. at

148 (quoting WTAR, 216 Va. at 895). As Highlander’s complaint acknowledges, Department

officers “patrol the vast and diverse geographical expanses of the Commonwealth.” Highlander

does not, with a level of specificity that would render his likelihood of injury “reasonably probable,”

differentiate himself from other landowners across “the vast and diverse geographical expanses”

whom the Department might subject to future searches and seizures. Highlander does not allege

that the Department applies the policies on the basis of race, ethnicity, or nationality, or to a

specific, limited geographical area—circumstances that courts have recognized as sufficiently

demonstrating a likelihood that a plaintiff or plaintiffs will be subject to an unconstitutional pattern

or practice in the future. See, e.g., Melendres v. Arpaio, 784 F.3d 1254 (9th Cir. 2015) (affirming,

in part, injunction against sheriff’s office pattern and practice of searching plaintiffs based on

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immigration status); Johnson v. McCowan, 549 F. Supp. 3d 469, 476-79 (W.D. Va. 2021) (finding

standing to seek injunctive relief because plaintiff sufficiently pleaded likelihood of future harm

from correctional facility’s use of dogs to control prisoners because plaintiff remained incarcerated

and would inevitably encounter law enforcement officials again); Roe v. City of New York, 151 F.

Supp. 2d 495, 502-07 (S.D.N.Y. 2001) (concluding plaintiffs had standing to challenge police

“practice of targeting for unlawful arrest persons in ‘high drug areas’ such as neighborhoods around

needle exchange programs the plaintiffs frequent”). Nor does Highlander allege that he has been

subjected to repeated illegal searches. See WTAR, 216 Va. at 895 (“A previous course of conduct

may raise an inference that such conduct will be repeated.”); Ligon v. City of New York, 288

F.R.D. 72, 81 (S.D.N.Y. 2013) (“The possibility of recurring injury ceases to be speculative

when actual repeated incidents are documented.” (quoting Nicacio v. United States Immigr. &

Naturalization Serv., 768 F.2d 1133, 1136 (9th Cir. 1985))).

In sum, Highlander fails to assert supporting facts that the Department has policies or

common practices of illegal searches and seizures, and fails to plausibly allege that there is a

“reasonable probability” that he is threatened with a future injury by any such policy or practice.

Large, 239 Va. at 148 (quoting WTAR, 216 Va. at 895). We similarly conclude that Highlander

fails to sufficiently allege that he is presently suffering irreparable injury. Just as “general distress

over a general policy does not alone allege injury sufficient for standing,” Lafferty, 293 Va. at

362, “[t]he emotional consequences of a prior act simply are not a sufficient basis for an

injunction absent a real and immediate threat of future injury by the defendant,” Los Angeles v.

Lyons, 461 U.S. 95, 107 n.8 (1983) (“It is the reality of the threat of repeated injury that is

relevant to the standing inquiry, not the plaintiff’s subjective apprehensions.”). Therefore, we

affirm the circuit court’s judgment sustaining the demurrer to Highlander’s claims for a

permanent injunction against future searches and seizures by appellees.

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D. Injunction requiring the return or destruction of Highlander’s photographs and any

notes created by the Department based on the photographs

Highlander’s complaint sought “[a]n order enjoining [appellees] to return or destroy any

photos they have accessed, including any notes they have created based on those photos.” The same

fundamental principles apply to this request for injunctive relief as to Highlander’s request for a

permanent injunction against future searches and seizures: “a party must establish the ‘traditional

prerequisites, i.e., irreparable harm and lack of an adequate remedy at law’ before a request for

injunctive relief will be sustained.” Levisa Coal Co. v. Consolidation Coal Co., 276 Va. 44, 61

(2008) (quoting Virginia Beach S.P.C.A., Inc. v. South Hampton Rds. Veterinary Assoc., 229 Va.

349, 354 (1985)). An irreparable injury is one for which “fair and reasonable redress may not be

had in a court of law and [for which] to refuse the injunction would be a denial of justice.”

Thompson v. Smith, 155 Va. 367, 387 (1930).

The Supreme Court of Virginia has stated with respect to injunctions to enforce personal

property rights:

Unless the plaintiff can demonstrate that the property [he] seeks to

protect has some personal value of sentiment or other intangible

quality that cannot be restored to him at law or that monetary

damages would otherwise not make him whole, the court will deny

the injunction because the legal remedy is sufficient.

Levisa Coal Co., 276 Va. at 62 (citation omitted) (discussing injunctions to enforce contract

rights). Highlander does not allege that the photographs the Department seized have a personal

value or other intangible quality that cannot be restored to him at law. Cf. Malik v. United States

Dep’t of Homeland Sec., 78 F.4th 191, 198-99 (5th Cir. 2023) (concluding plaintiff had standing

to request injunction requiring destruction of data seized from his phone where “DHS’s ongoing

possession of [plaintiff]’s data plausibly constitute[d] an ongoing injury” because “[a]t

minimum, he . . . plausibly alleged that the phone contains work-product privileged materials”).

Code §§ 19.2-59 and -60 provide remedies at law through an action for damages, which

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Highlander has already brought, or a motion for the suppression and return of the photographs

and related notes in any future criminal proceeding. Highlander has not alleged any specific

concerns regarding the use of the photographs that would not be remedied by these provisions.

Because Highlander fails to demonstrate the lack of an adequate remedy at law for the

photographs and related notes, we affirm the circuit court’s judgment sustaining appellees’

demurrer to the statutory claims for injunctive relief.

E. Suppression of evidence in future cases

Finally, Highlander seeks suppression of “any photos [appellees] have accessed, including

any notes they have created based on those photos.” But “[t]o secure an injunction, a party must

show . . . the lack of an adequate remedy at law.” Preferred Sys. Sols., Inc., 284 Va. at 401

(quoting Black & White Cars, Inc., 247 Va. at 431). Code § 19.2-60 provides that “[a] person

aggrieved by an allegedly unlawful search or seizure may move the court to return any seized

property and to suppress it for use as evidence.” While Highlander is certainly entitled to recover

any of his property seized by the Department that is not to be used as evidence against him in a

criminal prosecution, the injunctive relief he seeks here is not the appropriate mechanism to do so.

The complaint does not allege any pending criminal proceeding against Highlander, nor does it

allege that he would be unable to invoke the statutory procedures to suppress the use of the

photographs or related notes in any future criminal proceeding. Thus, Highlander fails to plead that

he lacks an adequate remedy at law to address the potential future use of the photographs and

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related notes as evidence.10 Preferred Sys. Sols., Inc., 284 Va. at 401. On this basis, we affirm

the circuit court’s judgment sustaining the demurrer to Highlander’s statutory suppression

claims.

In sum, we affirm the circuit court’s judgment sustaining the demurrer to each of

Highlander’s claims under Article I, § 10, except for the request for a declaratory judgment

against appellees’ alleged policies and practices of warrantless searches and seizures. We vacate

the circuit court’s judgment on the policy and practice claims and dismiss them for lack of

jurisdiction.11

II. Code § 19.2-60 Claims

As an alternative to his constitutional claims, Highlander seeks relief under Code

§ 19.2-60 for the allegedly illegal searches and seizure. That statute provides, in relevant part, as

follows:

A person aggrieved by an allegedly unlawful search or seizure may

move the court to return any seized property and to suppress it for

use as evidence. The court shall receive evidence on any issue of

fact necessary to the decision of the motion. If the motion is

granted by a court of record, any seized property shall be restored

as soon as practicable unless otherwise subject to lawful detention,

and such property shall not be admissible in evidence at any

hearing or trial.

Code § 19.2-60.

No court has held that Code § 19.2-60 creates a cause of action. Rather, “Code § 19.2-60

is a procedural statute.” Troncoso v. Commonwealth, 12 Va. App. 942, 943 (1991). “It provides

10

Indeed, as noted below, Highlander sought relief under Code § 19.2-60 which provides

a procedure to be followed for the return of his property. “A person aggrieved by an allegedly

unlawful search or seizure may move the court to return any seized property and to suppress it

for use as evidence.” Code § 19.2-60.

We express no view on the circuit court’s judgment sustaining the plea in bar of

11

sovereign immunity.

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for the making of a motion to return property illegally seized and to suppress the introduction of

that property as evidence.” Id. In context, Code § 19.2-60 is simply a procedure available in

criminal cases that provides a statutory mechanism for both the suppression of illegally seized

evidence but also for its return if not contraband. “[W]e do not infer a private right of action

when the General Assembly expressly provides for a different method of judicial enforcement.”

Cherrie v. Va. Health Servs., Inc., 292 Va. 309, 316 (2016). Because we find no “palpable”

evidence that the General Assembly intended to create a right of action through Code § 19.2-60

or that the statutory scheme necessarily implies it, we decline to recognize one. NAACP

(Hanover Cnty. Chapter) v. Commonwealth, 74 Va. App. 702, 715 (2022) (quoting Michael

Fernandez, D.D.S., Ltd. v. Comm’r of Highways, 298 Va. 616, 618 (2020)). Thus, the circuit

court properly sustained appellees’ demurrer.

III. Code § 19.2-59 Claims

Highlander also seeks damages under Code § 19.2-59 for Adams’s search of the camera.

“Code § 19.2-59 prohibits warrantless searches of any place, thing, or person and provides that

any officer performing such a search shall be ‘liable to any person aggrieved thereby in both

compensatory and punitive damages.’” Cromartie v. Billings, 298 Va. 284, 296 (2020). The

statute thus “creates a cause of action against law enforcement officers and other government

agents.” Id. at 296-97.

As with other tort claims against the Commonwealth, “[s]overeign immunity . . . applies

to actions brought under section 19.2-59.” Id. at 297 (second alteration in original) (quoting

Burnham v. West, 681 F. Supp. 1169, 1172 (E.D. Va. 1988)). But “Virginia’s sovereign

immunity doctrine protects officers only for simple negligence.” Id. It “does not protect one

who ‘acts wantonly, or in a culpable or grossly negligent manner.’” Id. (quoting James v. Jane,

221 Va. 43, 53 (1980)). Under this standard, a law enforcement officer’s violation of an

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individual’s constitutional rights exceeds simple negligence if it violates “settled, indisputable

law.” Id. at 298 (quoting Burnham, 681 F. Supp. at 1173).

“Code § 19.2-59 ‘has been consistently held to provide only the same protection as that

afforded by the Fourth Amendment.’” Id. at 297 (quoting Burnham, 681 F. Supp. at 1173).

Thus, if an officer’s search violates well-established Fourth Amendment law, sovereign

immunity does not protect the officer from liability under Code § 19.2-59. Id. at 299. So, the

issues presented are whether the alleged search of the camera violated the law and, if so, whether

the law was “well-established” when the search occurred.12 Id. For the following reasons, we

conclude that Highlander pled sufficient facts alleging that its search was illegal and that

well-established law was clear that the Adams’s search of the camera was constitutionally infirm.

“[T]he Fourth Amendment protects the right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches and seizures.” Hurley v.

Commonwealth, 36 Va. App. 83, 88 (2001) (quoting United States v. Place, 462 U.S. 696,

700-01 (1983)). Personal property such as a package, a vehicle, or a cell phone is thus entitled to

Fourth Amendment protection against warrantless search and seizure. See id. (sealed package);

Riley v. California, 573 U.S. 373 (2014) (cell phone); United States v. Jones, 565 U.S. 400

(2012) (vehicles).

The Department argues that Highlander did not have a reasonable expectation of privacy

in his camera because it was located in an open field, so Adams’s search of the camera was not a

“search” under the Fourth Amendment. See Salahuddin v. Commonwealth, 67 Va. App. 190,

202-03 (2017) (“Since the Supreme Court’s decision in Katz v. United States, 389 U.S. 347

(1967), ‘the touchstone’ of Fourth Amendment analysis has been ‘the question whether a person

12

Highlander’s complaint seeks relief under Code § 19.2-59 only for the search of the

camera, therefore we do not address its seizure.

- 24 -

has a “constitutionally protected reasonable expectation of privacy.”’” (quoting Oliver v. United

States, 466 U.S. 170, 177 (1984))). We disagree because United States Supreme Court precedent

holds to the contrary.

“When ‘the Government obtains information by physically intruding’ on persons, houses,

papers, or effects, ‘a “search” within the original meaning of the Fourth Amendment has

‘undoubtedly occurred.’” Florida v. Jardines, 569 U.S. 1, 5 (2013) (quoting Jones, 565 U.S. at

406-07 n.3). Thus, the Supreme Court held in United States v. Jones that physically mounting a

Global Positioning System (GPS) tracker on the defendant’s car and tracking his movements was

a search under the Fourth Amendment. 565 U.S. at 404-11. The Court concluded that placing

the tracker on the car was a physical trespass on Jones’s vehicle, which was an “effect” under the

Fourth Amendment. Id.

The Supreme Court rejected an argument similar to the one the Department advances

here that “the defendant had ‘no “reasonable expectation of privacy”’ in his whereabouts on the

public roads.” Jardines, 569 U.S. at 10 (quoting Jones, 565 U.S. at 406). It held that “because

the GPS receiver had been physically mounted on the defendant’s automobile” tracking the

vehicle’s movements was a search; because the case involved a physical intrusion on the

defendant’s personal property, the Katz expectation of privacy analysis did not control. Id.

(quoting Jones, 565 U.S. at 406).

Highlander’s complaint alleges that “Adams physically opened the camera and removed

the storage card in order to access the photos on the card.” She “then downloaded copies of

thousands of photos from Mr. Highlander’s camera, stored them on her computer, and . . .

review[ed] the photos.” By opening Highlander’s camera, removing the storage card, and

downloading its contents, Adams physically intruded on Highlander’s property interest in the

camera, and she thus conducted a “search” under the Fourth Amendment and Code § 19.2-59.

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Jones, 565 U.S. at 404-11; see Cromartie, 298 Va. at 299 (“Physically intruding upon or

occupying the space of a vehicle for purposes of gathering information is a search.”).

“Warrantless searches of private property without proper consent are per se unreasonable

under the Fourth Amendment, subject only to a few specifically established and well-defined

exceptions.” Lugar v. Commonwealth, 214 Va. 609, 611 (1974); see Schneckloth v. Bustamonte,

412 U.S. 218, 219 (1973) (consent); Morris v. Commonwealth, 208 Va. 331, 334 (1967) (search

incident to lawful arrest); Jones v. Commonwealth, 279 Va. 665, 672 (2010) (plain view); Verez

v. Commonwealth, 230 Va. 405, 410 (1985) (exigent circumstances). Under the facts alleged, no

exception to the warrant requirement applied to Adams’s warrantless search of Highlander’s

camera. Highlander did not consent to the search, it was not made incident to an arrest, and there

were no exigent circumstances. Adams had ample time to obtain a warrant after seizing the

camera. Nor does the plain view doctrine advanced by the Commonwealth at oral argument

help. That doctrine allows warrantless seizure of an item in plain view if its incriminating

character is “immediately apparent” and the officer has a lawful right of access to both the place

from which the evidence is viewed and the location of the object. Harris v. Commonwealth, 241

Va. 146, 152 (1991) (quoting Horton v. California, 496 U.S. 128, 136 (1990)). Although we

need not decide whether the camera was immediately indicative of criminal activity or whether

the agents of the Department had a right to be where the camera was observed despite the many

“No Trespassing” signs, we note that the Supreme Court has never held that seizure of a

container under the plain view doctrine permits a warrantless search of its contents. To the

contrary, when the warrantless seizure of an item is justified by some exception, “the Court has

interpreted the Amendment to permit seizure of the property, pending issuance of a warrant to

examine its contents.” Hurley, 36 Va. App. at 89 (emphasis added) (quoting Place, 462 U.S. at

701); see United States v. Williams, 41 F.3d 192, 197 (4th Cir. 1994) (“[A]lthough the plain view

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doctrine may support the warrantless seizure of a container believed to contain contraband, any

subsequent search of its concealed contents must either be accompanied by a search warrant or

justified by one of the exceptions to the warrant requirement.”). As alleged in Highlander’s

complaint, Adams’s search of the camera was unreasonable and violated the Fourth Amendment,

so Highlander’s complaint properly stated a claim under Code § 19.2-59.

Finally, we must determine whether Adams’s alleged violation of Highlander’s rights

exceeded simple negligence, which would defeat her claim of sovereign immunity. See

Cromartie, 298 Va. at 296-99. An officer’s search in violation of an individual’s Fourth

Amendment rights exceeds simple negligence if the search “was performed contrary to

well-established law.” Id. at 299. To determine whether the law was well-established, we must

assess “‘whether the state of the law’” when the incident occurred provided “‘fair warning’” to

Adams that her alleged conduct was unconstitutional.13 Id. at 304 (quoting Tolan v. Cotton, 572

U.S. 650, 656 (2014)) (determining whether law was “clearly established” for § 1983 qualified

immunity). In this context, “‘[c]learly established’ means that, at the time of the officer’s

conduct, the law was ‘“sufficiently clear” that every “reasonable official would understand that

what he is doing”’ is unlawful.” District of Columbia v. Wesby, 583 U.S. 48, 63 (2018) (quoting

Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)). In other words, in the light of preexisting law,

the unlawfulness of the officer’s conduct “must be apparent.” Anderson v. Creighton, 483 U.S.

635, 640 (1987) (citation omitted). Immunity shields an officer who “makes a decision that,

even if constitutionally deficient, reasonably misapprehends the law governing the circumstances

she confronted.” Brosseau v. Haugen, 543 U.S. 194, 198 (2004).

13

We consider federal principles because the test for determining whether the law was

well-established for purposes of sovereign immunity under our state law is similar to the federal

test for qualified immunity under federal law.

- 27 -

Viewing the facts alleged in the complaint as true, as we must when reviewing the

sustaining of a demurrer, we conclude that Adams’s alleged search of the camera was contrary to

well-established law. Even assuming the Department officers could reasonably, though

mistakenly, believed that they were entitled to seize the camera, the law was clearly established

that opening the camera and downloading its contents without a warrant was an unlawful search.

Opening the camera was a physical intrusion of Highlander’s personal property constituting a

Fourth Amendment search, and no exception to the warrant requirement applied. See Jones, 565

U.S. at 404-11; Cromartie, 298 Va. at 299; Hurley, 36 Va. App. at 89. These constitutional

principles were firmly in place well before Adams searched the camera. Given that both

Virginia and United States Supreme Court precedent made the need for a search warrant clear

under the circumstances, a reasonable officer should have understood that searching the camera

and its contents without a warrant was unlawful. Therefore, under the facts alleged, the search

exceeded simple negligence. Under those circumstances, sovereign immunity does not protect

Adams,14 and Highlander stated a claim upon which relief can be granted. See Jones, 565 U.S. at

404-11; Cromartie, 298 Va. at 299; Hurley, 36 Va. App. at 89; Young-Allen, 298 Va. at 467.

Therefore, the circuit court erred by sustaining the plea in bar and demurrer against Adams for

the search of the camera.

14

The complaint alleges that only Adams searched the camera and its contents; thus, we

affirm the circuit court’s judgment sustaining the demurrer and plea in bar to Highlander’s

claims against Howlett and Braziel under Code § 19.2-59. Additionally, because only an

“officer or person violating” Code § 19.2-59 is liable under the statute and Highlander’s

complaint did not specifically seek damages from the Department, we affirm the circuit court’s

judgment sustaining the demurrer and plea in bar to the claim against the Department under

Code § 19.2-59. See Cromartie, 298 Va. at 296-97 (“The statute creates a cause of action against

law enforcement officers and other government agents.” (emphasis added)).

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CONCLUSION

In summary, we hold that the circuit court lacked jurisdiction to consider a claim for a

declaratory judgment concerning the Department’s alleged practice and policy of warrantless

searches and seizures, so we vacate that portion of the circuit court’s judgment and dismiss that

claim. In addition, the circuit court erred in sustaining Adams’s plea in bar and demurrer to

Highlander’s claim for damages under Code § 19.2-59 and we remand for further proceedings

regarding that claim. Finally, because the circuit court properly sustained the plea in bar and

demurrer to the remaining claims and defendants, we affirm that portion of the circuit court’s

judgment.

Affirmed in part, vacated in part, reversed in part, and remanded.

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