A lawsuit pitting private-property rights against game law enforcement in Pennsylvania wrapped up Tuesday when the State Supreme Court ruled that warrantless searches of rural properties are unconstitutional.
As we reported when oral arguments were heard last spring, two Pennsylvania hunting clubs sued the Pennsylvania Game Commission after game wardens repeatedly entered their posted private lands without warrants or probable cause. This is a common practice in many states that allow open field doctrine, which holds that Fourth Amendment protections against unlawful search and seizure do not extend to open fields and forests of rural properties.
“At a high level, I do think [this ruling] is a big victory for property rights,” says Joshua Windham, a senior attorney for the Institute for Justice who represented the two hunt clubs. “Coming into the lawsuit, none of the private land throughout Pennsylvania — unless it was basically the yard right next to your house — had any protection at all under the constitution from warrantless searches or any other kind of unreasonable surveillance.”
Tuesday’s decision is final, and cannot be appealed to the U.S. Supreme Court since it’s a matter of state law.
This decision, Windham says, brings law enforcement practices by PGC game wardens into line with the same standards regular police officers are held to on posted property. While the examples in this case hinged around hunters, hunting, and game law citations, the ruling has implications for all government officials and all rural properties in Pennsylvania.
“Prior to this case, government officials could throw on camouflage and wander around people’s fenced and posted properties whenever and however they wanted to do that,” Windham says. “They didn’t need probable cause, they didn’t need reasonable suspicion, they didn’t even need a good reason. They could just do it, and the courts would say that’s totally fine. They could stay as long as they wanted. They could put up cameras and spy on people, and there was just no oversight or limits on any of that.”
The two hunting clubs Windham represented reported that, between 2013 and 2021, officers with the Pennsylvania Game Commission routinely ignored posted and “No Trespassing” signs. They also bypassed locked gates in order to enter the sprawling properties and surveil their hunters without warrants. This happened on at least 22 occasions, according to Windham’s clients.
Officers traveled around the property, watched and trailed hunters, and also hung trail cameras to remotely monitor them. Although some citations were issued to hunters, Windham told OL last year that none amounted to more than a minor technical violation. One hunter, for instance, was confronted by a warden 100 yards from his truck and cited for leaving his hunting license in the vehicle rather than keeping it on his person.
“I spent most of my career in law enforcement,” said Jeff Fink, president of the Pitch Pine Hunting Club, one of the two plaintiffs in the case, in a statement Tuesday. “And one thing that every good police officer knows is that there is no law higher or more important than the Constitution. For years, the Pennsylvania Game Commission has acted as if it’s above the law, invading our land and spying on our members whenever it pleases. We now know the Pennsylvania Constitution forbids that, and thank goodness.”
Poaching on Private Property
Supporters of open field doctrine, including many state agencies and conservation law enforcement officers, argue that requiring warrants to enforce game law violations makes the already tough job of catching poachers and serious game law violaters even harder. And indeed, roughly 85 percent of Pennsylvania is private property. This is the norm across much of the Eastern U.S.
“While we are disappointed in the outcome of this case, the Pennsylvania Game Commission respects the court’s decision,” reads a short statement released by the agency Tuesday. “The Commission is fully confident our law enforcement officers will execute their mission of protecting Pennsylvania wildlife and enforcing hunting laws within these new constitutional standards.”
An estimated 95 percent of poaching violations go undetected and unreported nationwide, according to a years-long research project published by the Boone and Crockett Club last year. That costs Americans an estimated $302 million in lost revenue from unissued fines and some $1.13 billion in wildlife replacement costs.
Windham says he has not seen any evidence that warrantless searches actually help safeguard wildlife resources.
“What we’ve done in both Tennessee and in Pennsylvania was ask the government to identify any evidence that warrantless searches of private land were necessary to ensure that they could achieve their conservation goals. And in both of those situations, they came up with no evidence in response.”
PGC did not immediately respond to a request for additional comment on how this will practically change game law enforcement in the state. Several exceptions noted in Tuesday’s ruling, however, offer some insight. For instance, Pennsylvania game wardens are still able to legally enter and surveil rural unposted private property without consent or a warrant.
“Truly open fields — i.e., private land that is unposted and unbounded — is fundamentally different in kind than private land conspicuously posted with ‘no trespassing’ signs and purple paint and/or bounded by fences, gates, and other structures,” reads the decision.
There are also some exceptions to the warrant requirement on posted and fenced property. That includes in emergency situations, such as when there’s reason to believe evidence may be imminently destroyed.
Open Field Doctrine Across the U.S.
While open field doctrine tends to be the norm across the U.S. under federal law, Windham says several states have unequivocally rejected it in favor of private property rights over the years. This includes Mississippi, Montana, Vermont, New York, Oregon, and Washington State.
Most recently, Tennessee reaffirmed warrantless searches of private property were illegal, in a similar case where game wardens were surveilling hunters on private property. Windham successfully argued that case, too. He says the Institute for Justice is currently litigating similar cases against open field doctrine in Alabama, Louisiana, and Virginia.
Related: Can Game Wardens Hang Trail Cameras on Your Private Property?
“We’re on the lookout for more litigation about this issue,” Windham says. “We’re eager to help state courts see that their state constitutions actually do require greater protection for private land than the U.S. Supreme Court has said the Fourth Amendment does. And so I would expect this Pennsylvania decision to have a kind of shockwave effect throughout all of our other litigation. As well as to empower landowners who are not our clients to step into court and to defend their own rights.”
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