Pennsylvania Supreme Court Unanimously Rules Warrantless Searches of Private Land Unconstitutional

On Tuesday, the Pennsylvania Supreme Court unanimously ruled that warrantless searches of land marked as private violate that state's constitution. The seven justices agreed that the "open fields" doctrine—a sweeping exception to the Fourth Amendment that the U.S. Supreme Court first announced in 1924—does not apply to the Pennsylvania Constitution's privacy protections.

"The Pennsylvania Supreme Court affirmed that private land is not public property," said Joshua Windham, a senior attorney at the Institute for Justice, which represented two hunting clubs that objected to warrantless surveillance of their land by the Pennsylvania Game Commission (PGC). "It's yours, and that means you get to decide who enters it."

Background of the Case

The Punxsutawney Hunting Club and the Pitch Pine Hunting Club own land in Clearfield County: 4,400 acres and 1,100 acres, respectively. The properties include houses where members can stay overnight or longer. Although both clubs value their members' privacy and have marked their land with signs, fences, purple paint, and locked entrance gates, PGC officers have never treated those indicators as legally significant.

Since 2013, Warden Mark Gritzer and other PGC officers "have entered the Hunting Clubs' land without consent, a warrant, or probable cause at least 15 to 22 times to look for evidence of hunting offenses," Justice Kevin Brobson noted in Punxsutawney Hunting Club v. Pennsylvania Game Commission. "Warden Gritzer even placed a trail camera on Punxsutawney's property in an attempt to develop probable cause for charges of illegal elk feeding. That camera remained on Punxsutawney's property for 78 days."

The Legal Challenge

Those intrusions were authorized by two provisions of the Pennsylvania Game and Wildlife Code:

• Section 303(c) allows PGC employees to "go upon or enter any property, posted or otherwise, outside of buildings" without consent, probable cause, or a warrant.
• Section 901(a)(2) similarly says a PGC officer has the power to "go upon any land or water outside of buildings, except curtilage, posted or otherwise, in the performance of [his] duty."

The hunting clubs argued that these provisions violate Article I, Section 8 of the Pennsylvania Constitution, which is similar to the Fourth Amendment but had previously been read as providing more protection for privacy. Like the Fourth Amendment, Article I, Section 8 prohibits "unreasonable searches and seizures." However, it differs from the Fourth Amendment in explicitly protecting "possessions" (as opposed to "effects"), and the Pennsylvania Supreme Court deemed that detail significant, concluding that the original understanding of "possessions" included land.

Overturning Precedent

In reaching that conclusion, the court overturned its 2007 ruling in Commonwealth v. Russo, which held that the "open fields" doctrine limits the scope of Article I, Section 8. The U.S. Supreme Court established that doctrine in the 1924 case Hester v. United States, which involved a warrantless search that had resulted in a South Carolina moonshiner's arrest and conviction.

"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 a unanimous Court. "The distinction between the latter and the house is as old as the common law."

Holmes was wrong about that. As Institute for Justice attorneys Robert Frommer and Anthony Sanders noted in a 2017 Supreme Court brief, Holmes misconstrued a discussion of burglary in William Blackstone's Commentaries on the Laws of England, erroneously thinking it justified the supposedly longstanding distinction he perceived.