Lawsuit challenges cops’ ability to search private lands without warrant

By Bob Unruh

A new lawsuit has been filed in state court in Pennsylvania challenging the practice that law enforcement officers can search private lands and property – at will – without a warrant.

The case is being brought on behalf of the Punxsutawney Hunting Club and the Pitch Pine Hunting Club against the Pennsylvania Game Commission and commission officer Mark Gritzer by the Institute for Justice.

The legal team explained the problem:

Imagine spending July Fourth with family in the beautiful forests of the Allegheny Mountains. You’re sitting on the porch on private land, enjoying the peace and quiet and making memories. Then, a man storms up out of nowhere and says he’s been watching you for days with binoculars from a hidden spot on your property. Most people would call the cops. But in this story, the intruder was a cop—specifically, a Pennsylvania Game Commission officer surveilling Pitch Pine Hunting Club member Jon Mikesell without permission and without a warrant.

The IJ reported the situation “is one of countless examples of wildlife officers snooping around on private land. Pitch Pine Hunting Club and its neighbor, Punxsutawney Hunting Club, have experienced these intrusions for years. Wildlife officers think they can get away with it due to an arcane legal rule called the ‘open fields’ doctrine, under which private land gets no constitutional protection from warrantless searches.”

“These clubs are private places where generations of hunters have come to spend quality time with their sons, fathers and close friends,” said IJ Attorney Joshua Windham. “If Pennsylvania wildlife officers want to snoop around property that is so plainly private, they need to get a warrant.”

The clubs have been around for generations, and the filing explained their properties are marked with “no trespassing” notices. All members are required to follow all laws and regulations.

“Members of the public recognize that the club is private property and do not enter unless invited,” it explains.

Club president Frank Stockdale said, “People should feel secure on private property. They should feel like they have privacy and seclusion. But the Pennsylvania Game Commission is making us feel the opposite—we feel invaded.”

“There are certain things you think you have as a property owner. You have No Trespassing signs, you expect privacy, and yet this guy’s walking in camo on your property like he owns the place,” Jon Mikesell said. “Do we have any rights?”

It was a state court that ruled in 2007 that the state’s ban on warrantless searches does not apply to private land.

The IJ said, “This flatly misreads the Pennsylvania Constitution, which has unique text protecting ‘possessions’—including private land—from such intrusions.”

The court ruling “was wrong,” IJ Attorney James Knight said. “Pennsylvania’s constitutional text and history make clear that private land deserves strong protection from warrantless intrusions—and we intend to prove it.”

The clubs are suing under Article I, Section 8 of the Pennsylvania Constitution. They are seeking a declaratory judgment that the statutes authorizing wildlife officers to conduct warrantless searches of their land are unconstitutional, and an order enjoining the Pennsylvania Game Commission from conducting future warrantless searches.

“A victory here would have an impact far beyond the hunting context,” IJ Attorney Daniel Nelson said. “It would reestablish core constitutional protections for private landowners throughout Pennsylvania.”

State officers, however, regularly “enter private land without probable cause or any suspicion that a crime is being committed to search for evidence of potential state hunting offenses.”

Landowners are not notified of those searches, the lawsuit said.

“During these warrantless searches, the commission’s wildlife officers sometimes roam around private land for hours looking for evidence of potential state hunting offenses,” but that destroys the privacy of the property.

Gritzer, in fact, is accused of concealing himself on the property, using camo, and watching residents with binoculars for days at a time.

The clubs, therefore, “are not able to offer their members the full degree of privacy from unwanted intruders that members expect,” and, “many of the petitioners’ members have reported experiencing anxiety over the fact that wildlife officers can surveil them, follow them around, or stop them…”

The practice also is “dangerous,” the filing explains. “Petitioners do not want their members to accidentally shoot a wildlife officer while hunting simply because they were unaware of the officer’s presence.”

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