According to Pennsylvania law, your land is not your possession and affords no expectation of privacy.
That was the argument Deputy Attorney General Anthony Kovalchick made to the Pennsylvania Supreme Court this week.
The case in question was an appeal of a case brought by two hunting clubs against the Pennsylvania Game Commission and wildlife Officer Mark Gritzer, according to the Pennsylvania Capital-Star. The Pitch Pine Hunting Club in Clearfield County and the Punxsutawney Hunting Club want warrantless searches of private land to be deemed unconstitutional.
For many, this might be a head scratcher. Aren’t warrantless searches already unconstitutional? Isn’t that in the Fourth Amendment?
That’s true. But Pennsylvania’s constitution is a bit different. It doesn’t have amendments or a Bill of Rights, but its articles do set out some similar protections.
“The people shall be secure in their persons, houses, papers and possessions from unreasonable searches and seizures, and no warrant to search any place or to seize any person or things shall issue without describing them as nearly as may be, nor without probable cause, supported by oath or affirmation subscribed to by the affiant,” says Article 1, Section 8.
A reasonable person might assume that means your whole property, from your house to your yard to the woods you own behind it. But for 101 years, a U.S. Supreme Court ruling known as Open Fields Doctrine has said otherwise. It holds that those farther reaches aren’t protected and authorities are free to enter without the hurdles of a warrant.
This is largely how wildlife officers work. They can cross onto land, posted or not, to enforce the state’s hunting laws. They can even, as Gritzer did, put up cameras on private property to catch violators. Gritzer did so attempting to prove the Pitch Pine members were illegally feeding bears.
But why should the size of the property change the rules? Why should a wildlife officer be free to walk onto private property to do his job when a state trooper’s case could be thrown out if he didn’t prove he had probable cause to obtain a warrant?
Courts in seven other states have deemed Open Fields Doctrine as contrary to their state constitutions. Pennsylvania’s Supreme Court could do the same.
“All men are born equally free and independent, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting property and reputation, and of pursuing their own happiness,” the state constitution says in Article 1, Section 1.
Our founders placed our ability to hold and protect property on a level with lives and freedom. It seems unlikely they didn’t mean the entire property.
