Dozens of states accommodate a massive exception to the Fourth Amendment guarantees in the Bill of Rights. A recent case in Pennsylvania highlights the injustice and should provide impetus for legislative reform in Carson City and other state capitols.
The Bill of Rights protects American citizens from “unreasonable searches and seizures” and demands that government agents secure a warrant “based upon probable cause” before embarking on such intrusions. Yet in 1924, the Supreme Court blew a gaping hole in that safeguard, ruling that the protection did not extend outside of homes and their immediate areas to privately held “open fields.”
That decision has been used by game wardens and other law enforcement personnel across the country as carte blanche to enter private land without a warrant.
The Pennsylvania case involved two private hunting clubs that comprise 5,500 acres in the central part of the state. The property was posted and fenced. Yet officers with the state’s Game Commission repeatedly entered the sanctuary without permission in search of hunting offenses, the clubs alleged in a lawsuit. One warden placed a camera on the property for 78 days.
The hunting clubs argued that Pennsylvania’s constitution provided stronger protections than its federal counterpart and that such unauthorized searches were illegal. The state’s highest court unanimously agreed this week, holding that game wardens “must obtain a warrant based upon probable cause or satisfy one of the recognized exceptions to the warrant requirement before entering” properties to search for hunting violations.
“The Pennsylvania Supreme Court affirmed that private land is not public property,” said Joshua Windham of the Institute for Justice, which represented the hunting clubs. He added, “If government officials want to invade your posted land without your consent and spy on you, they need to get a warrant. By restoring that foundational protection, the court bolstered the property and privacy rights of millions of Pennsylvanians.”
Courts in Vermont and Tennessee have also rejected the notion that game wardens are free to enter private property without a warrant in search of illegal activity. Four other states — Washington, Oregon, Montana and New York — have constitutional provisions that reject the “open fields” interpretation of the Fourth Amendment. Nevada, however, still allows law enforcement agents to conduct warrantless searches of “open fields.”
When the opportunity presents itself, the U.S. Supreme Court should revisit its 1924 decision establishing this flawed doctrine. Meanwhile, Nevada lawmakers should make clear that game wardens don’t enjoy special dispensation when it comes to violating the vital Fourth Amendment protections accorded Silver State property owners.
