Fourteenth and a half amendment: Warrantless searches of two PA hunt clubs by game wardens upheld at trial court

[Adam H. Kerman]

Institute for Justice for the plaintiffs; summarized by Steve Lehto.

I never heard read this opinion: There is an open fields doctrine from
a US Supreme Court opinion in Hester v United States (1924) written by
Oliver Wendell Holmes in which a landowner does not have protection from
a warrantless search in an open field.

To the extent that there is protection relies upon civil rights in state
constitutions.

In the cases of the two Pennsylvania hunt clubs, game wardens entered
both properties without permission and installed game cameras. They
reentered both clubs to retrieve cartridges from the cameras to see what
video they captures as they were surveilling hunt club members.

The enabling legislation in state law allows game wardens to enter
private property without warrant and without even a suspicion that
unlawful activity is taking place. This makes fences, gates, and no
trespass notices irrelevant from government agents, even though they do
apply to other private citizens.

A previous Pennsylvania Supreme Court case has ruled that "possession"
language in the state constitution for privacy rights does not include
land.

Lehto says that just six states have constitutions that provide
protection against warrantless searches on private lands.

[Adam H. Kerman]

Another Steve Lehto video also touching on the open fields doctrine.
This federal doctrine goes back to the 1920s (Lehto incorrectly says 1930)
that police may enter upon private land to conduct a warrantless search in
specific circumstances in which the land is an open field. Typically, to
search the interior of a building or structure, a warrant is required,
and there is lesser protection against warrantless search on the
curtilage, the portion of the land used to approach and enter the
building. I cannot follow this doctrine at all. One is allowed to walk
up to the front door of a building to knock, seeking entry, without
committing trespass. If the area is fenced and restricted, then I
suppose curtilage is the approach to the gate. There might be evidence
of a crime that requires no warrant to obtain, but just because it's
curtilage doesn't allow police to seek evidence that's not in plain
sight.

What's I've never understood is, wherever the curtilage boundary is, how
can the rest of the land be open field if it's the front yard of a
building and it's not a field of any kind?

In any event, the state constitution overrides portions of the open
fields doctrine.

This case was decided under the Tennessee constitution which has greater
protection against warantless searches than the federal constitution.

Landowners sued because state game wardens entered private property to
place wildlife camera hoping to catch violations of state hunting laws.
They have the power to do so under state law (whether or not the
landowner posted no trespassing signs) but the landowners have
privacy protection in the state constitution if they taken steps to
assert control with no trespassing signs or fencing.

Lehto was skeptical that game wardens had no time to obtain a warrant to
place the cameras. I suggest it's because they couldn't articulate
reasonable suspicion.

Lehto loved the appellate judge's question to the state. The state claimed
they had an interest in protecting wildlife from illegal hunting. The state
asserted that the people who wanted to keep game wardens off their land
should desist from hunting. Lehto didn't understand how the state would
make that determination without entering the land. The judge said even
if protecting wildlife was a worthwhile goal if the state had a stronger
duty to protect persons than wildlife. The judge asked if a warrant were
needed to look for criminal violations, shouldn't it also need a warrant
to look for civil violations of hunting laws?

The landowners won. However, the law wasn't found to be unconstitutional
(as there were circumstances in which a warrantless search could be
conducted) but applied inappropriately in these circumstances.

[BTR1701]

Post by Adam H. Kerman
Another Steve Lehto video also touching on the open fields doctrine.
This federal doctrine goes back to the 1920s (Lehto incorrectly says 1930)
that police may enter upon private land to conduct a warrantless search in
specific circumstances in which the land is an open field. Typically, to
search the interior of a building or structure, a warrant is required,
and there is lesser protection against warrantless search on the
curtilage, the portion of the land used to approach and enter the
building. I cannot follow this doctrine at all. One is allowed to walk
up to the front door of a building to knock, seeking entry, without
committing trespass. If the area is fenced and restricted, then I
suppose curtilage is the approach to the gate. There might be evidence
of a crime that requires no warrant to obtain, but just because it's
curtilage doesn't allow police to seek evidence that's not in plain
sight.
What's I've never understood is, wherever the curtilage boundary is, how
can the rest of the land be open field if it's the front yard of a
building and it's not a field of any kind?

I've always wondered how far this 'authority' to go on private property
extends. It's one thing for a wildlife cop to hop a fence and plant a
camera while you're not there, but what if you're out and about on your
land and come across one of these guys in the act? Do you have the
authority as the property owner to say get the hell out of here? I mean,
you would if it was any other trespasser, but do these guys have the
legal right to remain on your land even if confronted by the property
owner who tells them to leave?

And what about the cameras? If I'm out in the woods on my land and I
find some spy camera stuck to a tree that I didn't put there and that I
don't want there, am I legally obligated to leave it there? Can I take
it down? If not, can I turn it so that it points at the ground? Can I
put a sock over it? What does the law say about that and how can it
possibly be consistent with the 4th Amendment?

Post by Adam H. Kerman
In any event, the state constitution overrides portions of the open
fields doctrine.
http://youtu.be/3Z1DQtQ-ALY
This case was decided under the Tennessee constitution which has greater
protection against warantless searches than the federal constitution.
Landowners sued because state game wardens entered private property to
place wildlife camera hoping to catch violations of state hunting laws.
They have the power to do so under state law (whether or not the
landowner posted no trespassing signs) but the landowners have
privacy protection in the state constitution if they taken steps to
assert control with no trespassing signs or fencing.
Lehto was skeptical that game wardens had no time to obtain a warrant to
place the cameras. I suggest it's because they couldn't articulate
reasonable suspicion.

That's the not the standard for a warrant. You have to be able to
articulate probable cause, which is a higher bar to clear than
reasonable suspicion.

Post by Adam H. Kerman
Lehto loved the appellate judge's question to the state. The state claimed
they had an interest in protecting wildlife from illegal hunting. The state
asserted that the people who wanted to keep game wardens off their land
should desist from hunting. Lehto didn't understand how the state would
make that determination without entering the land. The judge said even
if protecting wildlife was a worthwhile goal if the state had a stronger
duty to protect persons than wildlife. The judge asked if a warrant were
needed to look for criminal violations, shouldn't it also need a warrant
to look for civil violations of hunting laws?
The landowners won. However, the law wasn't found to be unconstitutional
(as there were circumstances in which a warrantless search could be
conducted) but applied inappropriately in these circumstances.

[Adam H. Kerman]

Post by BTR1701

Post by Adam H. Kerman
Another Steve Lehto video also touching on the open fields doctrine.
This federal doctrine goes back to the 1920s (Lehto incorrectly says 1930)
that police may enter upon private land to conduct a warrantless search in
specific circumstances in which the land is an open field. Typically, to
search the interior of a building or structure, a warrant is required,
and there is lesser protection against warrantless search on the
curtilage, the portion of the land used to approach and enter the
building. I cannot follow this doctrine at all. One is allowed to walk
up to the front door of a building to knock, seeking entry, without
committing trespass. If the area is fenced and restricted, then I
suppose curtilage is the approach to the gate. There might be evidence
of a crime that requires no warrant to obtain, but just because it's
curtilage doesn't allow police to seek evidence that's not in plain
sight.
What's I've never understood is, wherever the curtilage boundary is, how
can the rest of the land be open field if it's the front yard of a
building and it's not a field of any kind?

I've always wondered how far this 'authority' to go on private property
extends. It's one thing for a wildlife cop to hop a fence and plant a
camera while you're not there, but what if you're out and about on your
land and come across one of these guys in the act? Do you have the
authority as the property owner to say get the hell out of here? I mean,
you would if it was any other trespasser, but do these guys have the
legal right to remain on your land even if confronted by the property
owner who tells them to leave?

It sure doesn't sound like it.

Post by BTR1701
And what about the cameras? If I'm out in the woods on my land and I
find some spy camera stuck to a tree that I didn't put there and that I
don't want there, am I legally obligated to leave it there? Can I take
it down? If not, can I turn it so that it points at the ground? Can I
put a sock over it? What does the law say about that and how can it
possibly be consistent with the 4th Amendment?

How about law of abandoned property? One of the comments said to place a
No Trespassing sign on the ground and point the camera lens toward it.

Post by BTR1701

Post by Adam H. Kerman
. . .

That's the not the standard for a warrant. You have to be able to
articulate probable cause, which is a higher bar to clear than
reasonable suspicion.

Sorry. I confused the two concepts.

Post by BTR1701

Post by Adam H. Kerman
. . .

[BTR1701]

Post by Adam H. Kerman

Post by BTR1701

Post by Adam H. Kerman
Another Steve Lehto video also touching on the open fields doctrine.
This federal doctrine goes back to the 1920s (Lehto incorrectly says 1930)
that police may enter upon private land to conduct a warrantless search in
specific circumstances in which the land is an open field. Typically, to
search the interior of a building or structure, a warrant is required,
and there is lesser protection against warrantless search on the
curtilage, the portion of the land used to approach and enter the
building. I cannot follow this doctrine at all. One is allowed to walk
up to the front door of a building to knock, seeking entry, without
committing trespass. If the area is fenced and restricted, then I
suppose curtilage is the approach to the gate. There might be evidence
of a crime that requires no warrant to obtain, but just because it's
curtilage doesn't allow police to seek evidence that's not in plain
sight.
What's I've never understood is, wherever the curtilage boundary is, how
can the rest of the land be open field if it's the front yard of a
building and it's not a field of any kind?

I've always wondered how far this 'authority' to go on private property
extends. It's one thing for a wildlife cop to hop a fence and plant a
camera while you're not there, but what if you're out and about on your
land and come across one of these guys in the act? Do you have the
authority as the property owner to say get the hell out of here? I mean,
you would if it was any other trespasser, but do these guys have the
legal right to remain on your land even if confronted by the property
owner who tells them to leave?

It sure doesn't sound like it.

Post by BTR1701
And what about the cameras? If I'm out in the woods on my land and I
find some spy camera stuck to a tree that I didn't put there and that I
don't want there, am I legally obligated to leave it there? Can I take
it down? If not, can I turn it so that it points at the ground? Can I
put a sock over it? What does the law say about that and how can it
possibly be consistent with the 4th Amendment?

How about law of abandoned property? One of the comments said to place a
No Trespassing sign on the ground and point the camera lens toward it.

That's awesome.

[shawn]

Post by BTR1701

Post by Adam H. Kerman
Another Steve Lehto video also touching on the open fields doctrine.
This federal doctrine goes back to the 1920s (Lehto incorrectly says 1930)
that police may enter upon private land to conduct a warrantless search in
specific circumstances in which the land is an open field. Typically, to
search the interior of a building or structure, a warrant is required,
and there is lesser protection against warrantless search on the
curtilage, the portion of the land used to approach and enter the
building. I cannot follow this doctrine at all. One is allowed to walk
up to the front door of a building to knock, seeking entry, without
committing trespass. If the area is fenced and restricted, then I
suppose curtilage is the approach to the gate. There might be evidence
of a crime that requires no warrant to obtain, but just because it's
curtilage doesn't allow police to seek evidence that's not in plain
sight.
What's I've never understood is, wherever the curtilage boundary is, how
can the rest of the land be open field if it's the front yard of a
building and it's not a field of any kind?

I've always wondered how far this 'authority' to go on private property
extends. It's one thing for a wildlife cop to hop a fence and plant a
camera while you're not there, but what if you're out and about on your
land and come across one of these guys in the act? Do you have the
authority as the property owner to say get the hell out of here? I mean,
you would if it was any other trespasser, but do these guys have the
legal right to remain on your land even if confronted by the property
owner who tells them to leave?
And what about the cameras? If I'm out in the woods on my land and I
find some spy camera stuck to a tree that I didn't put there and that I
don't want there, am I legally obligated to leave it there? Can I take
it down? If not, can I turn it so that it points at the ground? Can I
put a sock over it? What does the law say about that and how can it
possibly be consistent with the 4th Amendment?

Wasn't that an issue that got raised with someone finding a tracking
device on their vehicle that had been placed by some police or federal
officer. I can't recall if what the person was allowed to do with it.
Certainly they should be allowed to remove it. Can they junk it or
sell it? If not, then why not. It's not like there is going to be a
"Return to the offices of the FBI" sign on the device.

Post by BTR1701

Post by Adam H. Kerman
In any event, the state constitution overrides portions of the open
fields doctrine.
http://youtu.be/3Z1DQtQ-ALY
This case was decided under the Tennessee constitution which has greater
protection against warantless searches than the federal constitution.
Landowners sued because state game wardens entered private property to
place wildlife camera hoping to catch violations of state hunting laws.
They have the power to do so under state law (whether or not the
landowner posted no trespassing signs) but the landowners have
privacy protection in the state constitution if they taken steps to
assert control with no trespassing signs or fencing.
Lehto was skeptical that game wardens had no time to obtain a warrant to
place the cameras. I suggest it's because they couldn't articulate
reasonable suspicion.

That's the not the standard for a warrant. You have to be able to
articulate probable cause, which is a higher bar to clear than
reasonable suspicion.

One would think they aren't just going out and placing these cameras
randomly. So they've either heard or been told of people shooting (and
presumably hunting) on the land. As that's the only reason I can see
them deciding to place the cameras on that land. Which would suggest
that , at least in the case of someone reporting the shooting/hunting,
that there was time to get a warrant.

Post by BTR1701

Post by Adam H. Kerman
Lehto loved the appellate judge's question to the state. The state claimed
they had an interest in protecting wildlife from illegal hunting. The state
asserted that the people who wanted to keep game wardens off their land
should desist from hunting. Lehto didn't understand how the state would
make that determination without entering the land. The judge said even
if protecting wildlife was a worthwhile goal if the state had a stronger
duty to protect persons than wildlife. The judge asked if a warrant were
needed to look for criminal violations, shouldn't it also need a warrant
to look for civil violations of hunting laws?
The landowners won. However, the law wasn't found to be unconstitutional
(as there were circumstances in which a warrantless search could be
conducted) but applied inappropriately in these circumstances.

[Adam H. Kerman]

Post by shawn

. . .

One would think they aren't just going out and placing these cameras
randomly. So they've either heard or been told of people shooting (and
presumably hunting) on the land. As that's the only reason I can see
them deciding to place the cameras on that land. Which would suggest
that , at least in the case of someone reporting the shooting/hunting,
that there was time to get a warrant.

Randomly or not, there's no concern with immediate loss of evidence as
these cameras are placed for a month at a time. Lehto's point is that
there's clearly time to obtain a warrant.

Post by shawn

. . .

[BTR1701]

Post by shawn

Post by BTR1701

Post by Adam H. Kerman
Another Steve Lehto video also touching on the open fields doctrine.
This federal doctrine goes back to the 1920s (Lehto incorrectly says 1930)
that police may enter upon private land to conduct a warrantless search in
specific circumstances in which the land is an open field. Typically, to
search the interior of a building or structure, a warrant is required,
and there is lesser protection against warrantless search on the
curtilage, the portion of the land used to approach and enter the
building. I cannot follow this doctrine at all. One is allowed to walk
up to the front door of a building to knock, seeking entry, without
committing trespass. If the area is fenced and restricted, then I
suppose curtilage is the approach to the gate. There might be evidence
of a crime that requires no warrant to obtain, but just because it's
curtilage doesn't allow police to seek evidence that's not in plain
sight.
What's I've never understood is, wherever the curtilage boundary is, how
can the rest of the land be open field if it's the front yard of a
building and it's not a field of any kind?

I've always wondered how far this 'authority' to go on private property
extends. It's one thing for a wildlife cop to hop a fence and plant a
camera while you're not there, but what if you're out and about on your
land and come across one of these guys in the act? Do you have the
authority as the property owner to say get the hell out of here? I mean,
you would if it was any other trespasser, but do these guys have the
legal right to remain on your land even if confronted by the property
owner who tells them to leave?
And what about the cameras? If I'm out in the woods on my land and I
find some spy camera stuck to a tree that I didn't put there and that I
don't want there, am I legally obligated to leave it there? Can I take
it down? If not, can I turn it so that it points at the ground? Can I
put a sock over it? What does the law say about that and how can it
possibly be consistent with the 4th Amendment?

Wasn't that an issue that got raised with someone finding a tracking
device on their vehicle that had been placed by some police or federal
officer. I can't recall if what the person was allowed to do with it.

It was a guy in Indiana that found a sheriff's tracker on his car. He
didn't know what it was and removed it and just put it on a shelf in his
garage. When the sheriff's department realized that the tracker wasn't
reporting any movement for days on end, they deduced what must have
happened and got a warrant to search the guy's house to retrieve the
tracker, at which point they charged him with theft of government
property.

They seemed to be arguing that they have a right to track you and if you
do anything to impede their tracking, you've committed a crime. So if
you discover the GPS tracker on your car and you leave it in place but
just start using other vehicles to get around-- have your friend come
pick you up, borrow your girlfriend's car, etc.-- they can charge you
with a crime for thwarting their surveillance of you. Using that logic,
if you became aware of the tracker and left it in place and just stopped
going places that are incriminating, they could charge you with a crime
for depriving them of evidence to use against you.

Seems like the best move if you find something like this and want to
take it off is drive your car to the local cop station, then take it off
in the presence of an officer and hand it to him.

Let's see them make a theft case on that. (Unless they're not claiming
the guy stole the *device*; maybe they're claiming he stole the car's
future movement data from them.)

Post by shawn
Certainly they should be allowed to remove it. Can they junk it or
sell it? If not, then why not. It's not like there is going to be a
"Return to the offices of the FBI" sign on the device.

They really did seem to be bootstrapping the equivalent of an
obstruction charge in the Indiana case by implying that if you become
aware the government is surveilling you, anything you do to thwart it is
a crime.

If they were physically following you around, like we used to do before
all this GPS stuff came along, and you noticed the tail, I wonder, would
it be a crime to alter your route and destination accordingly? You see
the tail and instead of going to your drug deal as planned, you text
your supplier "We're burned" and just go to the movies instead. Crime or
no crime?

I'm also curious how they planned to meet the intent element of the
crime.

To obtain a conviction for theft of government property under these
circumstances, the state would have to prove that:

(1) He knew what it was. An unmarked little black box stuck to the
underside of a vehicle could be anything; and

(2) He knew that it didn't belong to him. A person could reasonably
claim that he didn't know what it was and he just assumed it was
something that came with the car and therefore thought it belonged to
him as the owner of the car; and

(3) That he knew it was the government that put it there pursuant to a
valid warrant. As the government's lawyer admitted, it would not be
theft if he'd removed a tracker that had been put there by another
citizen. So a person could reasonably claim that they thought it was put
there by a rival 'businessman', or a private detective, or a jealous
girlfriend. Unless it's labeled "Property of Warrick County Sheriff's
Office"-- which it almost certainly would not be-- then it seems like
the state would have a bitch of a time proving the elements of the crime.

The same would be true of a property owner finding cameras mounted on
trees on his property. How would he know who put them there and why? For
all he knows it's some weirdo trying to spy on him or something.

Post by shawn

Post by BTR1701

Post by Adam H. Kerman
In any event, the state constitution overrides portions of the open
fields doctrine.
http://youtu.be/3Z1DQtQ-ALY
This case was decided under the Tennessee constitution which has greater
protection against warantless searches than the federal constitution.
Landowners sued because state game wardens entered private property to
place wildlife camera hoping to catch violations of state hunting laws.
They have the power to do so under state law (whether or not the
landowner posted no trespassing signs) but the landowners have
privacy protection in the state constitution if they taken steps to
assert control with no trespassing signs or fencing.
Lehto was skeptical that game wardens had no time to obtain a warrant to
place the cameras. I suggest it's because they couldn't articulate
reasonable suspicion.

That's the not the standard for a warrant. You have to be able to
articulate probable cause, which is a higher bar to clear than
reasonable suspicion.

One would think they aren't just going out and placing these cameras
randomly. So they've either heard or been told of people shooting (and
presumably hunting) on the land. As that's the only reason I can see
them deciding to place the cameras on that land. Which would suggest
that , at least in the case of someone reporting the shooting/hunting,
that there was time to get a warrant.

Except they need more than just, "Your honor, hunting has been reported
to be occurring on the property" to get a warrant.

Hunting is legal. To get a warrant you need probable cause that a crime
is being committed.

[Adam H. Kerman]

Post by BTR1701

Post by shawn

. . .

Wasn't that an issue that got raised with someone finding a tracking
device on their vehicle that had been placed by some police or federal
officer. I can't recall if what the person was allowed to do with it.

It was a guy in Indiana that found a sheriff's tracker on his car. He
didn't know what it was and removed it and just put it on a shelf in his
garage. When the sheriff's department realized that the tracker wasn't
reporting any movement for days on end, they deduced what must have
happened and got a warrant to search the guy's house to retrieve the
tracker, at which point they charged him with theft of government
property.
They seemed to be arguing that they have a right to track you and if you
do anything to impede their tracking, you've committed a crime. So if
you discover the GPS tracker on your car and you leave it in place but
just start using other vehicles to get around-- have your friend come
pick you up, borrow your girlfriend's car, etc.-- they can charge you
with a crime for thwarting their surveillance of you. Using that logic,
if you became aware of the tracker and left it in place and just stopped
going places that are incriminating, they could charge you with a crime
for depriving them of evidence to use against you.
Seems like the best move if you find something like this and want to
take it off is drive your car to the local cop station, then take it off
in the presence of an officer and hand it to him.

I'd prefer to find the personal vehicle of the district attorney and
slap it on that so that cops will try to make an arrest when he's with
his mistress.

Post by BTR1701
Let's see them make a theft case on that. (Unless they're not claiming
the guy stole the *device*; maybe they're claiming he stole the car's
future movement data from them.)

Post by shawn
Certainly they should be allowed to remove it. Can they junk it or
sell it? If not, then why not. It's not like there is going to be a
"Return to the offices of the FBI" sign on the device.

They really did seem to be bootstrapping the equivalent of an
obstruction charge in the Indiana case by implying that if you become
aware the government is surveilling you, anything you do to thwart it is
a crime.

But I'm not under judicial sentence like pretrial home confinement,
probation, or parole, in which my movements are monitored and
restricted. I'm not under judicial order at all. I've had no notice. I
just don't see why I have a duty of care with respect to government
surveillance devices.

Drones have fallen in people's backyards and those people have been
reluctant to return them to police who simply won't explain exactly why
they were being surveilled.

It's abandoned property.

Post by BTR1701
If they were physically following you around, like we used to do before
all this GPS stuff came along, and you noticed the tail, I wonder, would
it be a crime to alter your route and destination accordingly? You see
the tail and instead of going to your drug deal as planned, you text
your supplier "We're burned" and just go to the movies instead. Crime or
no crime?

Congratulations to the cops for preventing crime.

Post by BTR1701
I'm also curious how they planned to meet the intent element of the
crime.
To obtain a conviction for theft of government property under these
(1) He knew what it was. An unmarked little black box stuck to the
underside of a vehicle could be anything; and
(2) He knew that it didn't belong to him.

How can the police claim they retain ownership of property they
themselves put on the vehicle of somebody else with intent? If anything,
the defense to that charge is that evidence of a crime was planted on
the suspect's person. How is it any different than the cops planting a
gun on someone then charging him with possession?

Post by BTR1701
A person could reasonably
claim that he didn't know what it was and he just assumed it was
something that came with the car and therefore thought it belonged to
him as the owner of the car; and
(3) That he knew it was the government that put it there pursuant to a
valid warrant.

I've never heard of notice being given to the target of a warrant.

Post by BTR1701
As the government's lawyer admitted, it would not be
theft if he'd removed a tracker that had been put there by another
citizen. So a person could reasonably claim that they thought it was put
there by a rival 'businessman', or a private detective, or a jealous
girlfriend. Unless it's labeled "Property of Warrick County Sheriff's
Office"-- which it almost certainly would not be-- then it seems like
the state would have a bitch of a time proving the elements of the crime.
The same would be true of a property owner finding cameras mounted on
trees on his property. How would he know who put them there and why? For
all he knows it's some weirdo trying to spy on him or something.

Post by shawn

. . .