Landmark PA Supreme Court Opinion Rules Open Fields Doctrine Unconstitutional

The “Open Fields Doctrine” is a judicially created exception to the U.S. Constitution’s 4th Amendment which protects against unreasonable searches and seizures (or at least it should). Under the open fields exception, law enforcement could enter and search the “open fields” of private property without a warrant, consent, exigent circumstance, or other warrant exception.

Unsurprisingly, the authority to enter open fields on private property without a warrant to conduct searches and investigations is an extremely powerful tool for game wardens in enforcement of the Game Code. It should come as no surprise then that PA law specifically authorized “every officer, employee, or representative” of the Game Commission to “go upon or enter any property, posted or otherwise, outside of buildings” (34 Pa.C.S. § 303(c)); and “go upon any land or water outside of buildings, except curtilage, posted or otherwise, in the performance of the officer’s duty.” 34 Pa.C.S. § 901(a)(2).

In a landmark decision by the Pennsylvania Supreme Court yesterday in Punxsutawney Hunting Club, Inc. and Pitch Pine Hunting Club, Inc. v. Pa. Game Commission, the PA Supreme Court overruled one of its prior decisions finding the open fields doctrine to be consistent with the PA constitution, and consistent with its more recent precedent, held that “Article I, Section 8 [of the Pennsylvania Constitution] [ ] is broader than the Fourth Amendment with respect to the expectation of privacy that Pennsylvania citizens enjoy relative to their open fields.”

In evaluating the particular statutes above, the Court then needed to evaluate whether the challengers had “1) exhibited a subjective expectation of privacy and 2) [had] demonstrated that the expectation is one society is prepared to recognize as reasonable and legitimate.” As both of the challenging clubs were open private and limited access and had posted their properties, installed locked gates at entry points, fenced the property borders in some locations, and at least one had planted evergreen trees on the property along a public road to obscure line of sight into the property, the Court found they did show a subjective expectation of privacy, and that society was prepared to accept it.

While the Court declared the two statutes above to be facially unconstitutional, it did cabin this decision to “open fields” where the landowner has taken steps to notify the public that the land is private and they should not intrude; but it may not apply to “truly open fields” which are private, but not posted, purple-painted, fenced, gated, etc. Thus it would be prudent for private property owners to take steps to post, paint, fence, or otherwise make clear that public access is not permitted, lest the General Assembly take steps to implement a new version of the unconstitutional sections that takes advantage of this limitation of the opinion.

While an excellent decision for private property rights in Pennsylvania, the Court did refuse to hold unconstitutional 34 Pa.C.S. § 901(a)(8), which authorized Game Commission employees to conduct other administrative searches:

Conduct administrative inspections of persons, licenses and permits, firearms, ammunition and other implements of taking, game bags, game, meat poles, tags, clothing, waterfowl blinds, decoys, tree stands, immediate hunting locations, or any means of transportation or its attachments used as blinds or as hunting locations, and any coolers or containers possessed at a hunting location when prima facie evidence of hunting exists. Any officer conducting an administrative inspection shall, if any person is present, present a badge or other means of official identification and state the purpose of the inspection

If you or someone you know are presently being prosecuted or were recently convicted for an offense where a game warden accessed private property without a warrant pursuant to the open fields doctrine, contact FICG today to discuss your options.

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