Since
Oliver, the highest courts of
Montana,
New York,
Oregon and
Vermont, as well as a
Washington state appeals court, have held that the open-fields doctrine does not apply in those states due to their state constitutions granting greater protections to citizens (under
dual sovereignty a state may grant its citizens more rights than those guaranteed in the federal constitution). Since
Katz grounded privacy in persons rather than places, they argue, landowners who have taken affirmative steps to exclude the public such as fencing or posting the
bounds assert a privacy interest sufficient to prevail over any warrantless search of the property where common exceptions such as
hot pursuit and plain view do not apply. Some of those opinions have been critical of not only
Oliver but
Hester. In a 2017
concurring opinion where the doctrine did not come into play in overturning a
Wisconsin farmer's convictions for threatening two state game wardens he believed had been illegal hunters trespassing on his land, Justice
Rebecca Bradley of
that state's Supreme Court was highly critical of it.
State v. Dixson Within a year of
Oliver, deputy sheriffs in
Coos County, Oregon, followed up on a tip that marijuana was being grown on a local lumber company's land. After flying over the property in question and observing possible groves of the plant, then seeing a truck carrying water onto the property via a private access road, the deputies followed the road, past a cable stretched across it, signs prohibiting hunting on the property, and a felled tree, past which they had to proceed on foot to a dwelling at the center of the of forest. From the dwelling they were able to see cannabis planted away, outside the curtilage of the house. The couple who were in the process of buying the property, and a friend who was helping them grow the plants, were arrested and later convicted of manufacturing and possessing a controlled substance.
Oregon Court of Appeals The
appeals court reversed the conviction after hearing the appeal
en banc in 1987. "The decisive issue is not, as the trial court apparently thought, one of federal law", Judge Thomas Young wrote for the
plurality. "Whether defendant's land is constitutionally protected depends, in the first instance, not on United States Supreme Court cases interpreting the Fourth Amendment, but on the basic principles underlying the Oregon Constitution ... we need not join the federal retreat from the constitutional requirements." "[D]oes the constitution protect property as property, or is its protection of property a means to a greater end?" Young asked. The majority believed the answer was the latter, to which Young cited writings of
William Pitt, 1st Earl of Chatham, who strongly supported the colonists in the years before the
American Revolution, in support of their understanding of this concept of privacy: "The poorest man may, in his cottage, bid defiance to all the forces of the Crown." The U.S. Supreme Court had also recognized "the indefeasible right of personal security" as what is most breached by a search in its 1886
Boyd case.
Oregon's Supreme Court had, since 1931, recognized this as a privacy interest, Young wrote, and as he found little guidance in federal privacy cases beyond the instant issues of those cases, the majority looked to Oregon
case law as it had interpreted
Article I, Section 9, of the
state constitution, the counterpart to the Fourth Amendment. Young found
Katzs two-part test unhelpful and flawed: "The proper question, thus, is not what the defendant expects or whether that expectation is reasonable but
whether the constitution protects the defendant." In this case, Young concluded, the deputies had trespassed on the Dixsons' land and violated their privacy. Judge John Buttler wrote a special
concurrence for himself and two colleagues, reaching the same conclusion as the plurality but basing it on different logic which he felt was more in compliance with state Supreme Court precedent: "I would hold that, if it is necessary for the officers to trespass on property not within the curtilage in order to observe the activity or contraband in question, there is an unreasonable search and, therefore, any ensuing seizure would be unlawful." In the instant case, Buttler said that it had, as one of the deputies had testified that he and his partner had at all times believed they were on the lumber company's property and would not have entered without a warrant or permission had they known they were not. Judge
George Van Hoomissen wrote one of two
dissents, taking issue with every aspect of the plurality opinion—arguing that there was no evidence that the framers of the state constitution had intended it be read more than literally, that the appeals court was ignoring earlier precedents that had explicitly adopted the open-fields doctrine, that the defendants had not raised a trespass claim against the deputies at trial, and that courts in other states with similar constitutional language had found it compatible with the doctrine. "[T]he plurality has hopelessly confused constitutional law with the civil and criminal law of trespass [and] ... substitutes its own social theories for the plain meaning of the specific constitutional text", he wrote. Van Hoomissen also noted that if the plurality needed guidance as to whether the citizens of Oregon had embraced an expectation of privacy around growing marijuana, the
failure of a 1986 ballot measure that would have decriminalized the drug suggested otherwise. A shorter dissent was written by Judge Kurt Rossman, joined by
Mary Deits. While he agreed with the plurality that the state constitution was not meant to be read in a narrowly literal manner, and with the special concurrence's criticism of the plurality's disregard of precedent, he believed that the defendants had not established that they had a reasonable expectation of privacy, since the signage that the deputies passed simply said "No hunting" rather than "No trespassing" and the felled tree merely signaled an intent to deter vehicles, not foot traffic; thus the deputies could reasonably have believed they were still on lumber company land. "It is unnecessary to sail into uncharted waters by formulating a new, untested constitutional analysis, as the plurality and special concurrence have done."
Oregon Supreme Court Prosecutors appealed the case to the
Oregon Supreme Court, which heard arguments in March 1988 and returned its decision at the end of the year. Writing for a unanimous court, Justice
W. Michael Gillette affirmed the lower court's
holding that Article I, Section 9 provided broader privacy protection than the Fourth Amendment and thus the open-fields doctrine did not apply in state prosecutions. After reviewing the facts of the case and all the appellate court's opinions, Gillette considered all the arguments. The two cases Van Hoommissen had pointed to as precedent adopting the open-fields doctrine were actually not dispositive of the issue, since one had involved a search on public land and the other appeared to rely on circumstances unique to that case. In another of its own recent holdings, he noted, the state Supreme Court had also rejected
Katz's reasonable expectation test, so in the instant case the court could consider the issue without relying on it. Gillette rejected the
textualist interpretation of the constitutional language that had been held by the Supreme Court and other states' courts to support the doctrine for three reasons. First, the court's own prior holdings recognized Article I, Section 9, as establishing a broad privacy interest beyond those items specified in it. Second, the Supreme Court had itself admitted in
Katz that in extending privacy protection to the user of a phone booth it was going beyond any possible meaning of "persons, houses, papers and effects", as Justice
Thurgood Marshall had noted in his
Oliver dissent. Lastly, Gillette noted, if read literally the Fourth Amendment as well as Oregon's constitution would have only protected citizens in their own houses, and not in any other buildings. "If the individual has a privacy interest in land outside the curtilage of his dwelling, that privacy interest will not go unprotected simply because of its location." Next, Gillette turned to the claim that
common law recognized a distinction between the curtilage of a house and the property as a whole. In
Hester, Justice
Oliver Wendell Holmes had cited
William Blackstone's
Commentaries on the Laws of England, a common reference for English common law, in holding this distinction originated there. But Gillette quoted the passage Holmes had cited, in which Blackstone discussed what constituted
burglary under common law, to cast doubt on Holmes' interpretation, noting that Blackstone had included all the possible outbuildings as places where unlawful entry and theft could be punished as burglary. Blackstone's chapter on trespass likewise specifically mentioned a man's land as legally protected. "Reliance on the common-law concept of curtilage to justify excluding land outside the curtilage from the protections of either constitutional provision is misplaced", Gillette concluded." Lastly Gillette rejected the state's argument that whether land outside curtilage was covered by its owner's privacy interest depended on how that land was used. It depended, he wrote, on whether the owner had taken steps to exclude intruders, such as putting up fences or posting the bounds. "Allowing the police to intrude into private land, regardless of the steps taken by its occupant to keep it private, would be a significant limitation on the occupant's freedom from governmental scrutiny." From this Gillette derived a "simple and objective" rule: "A person who wishes to preserve a constitutionally protected privacy interest in land outside the curtilage must manifest an intention to exclude the public by erecting barriers to entry, such as fences, or by posting signs." He then applied the rule to the instant case and found that it did not apply to the Dixsons since the signs they had posted on the road to their house barred only hunting. "There was no objective reason for the officers to believe that ... other uses such as hiking were forbidden" since it was common in Oregon for those uses to take place on large tracts of privately owned land where it was not expressly forbidden. Therefore, having affirmed the appeals court's rejection of the open-fields doctrine, the state's Supreme Court reversed it on the specific issues of the case and affirmed the conviction.
State v. Kirchoff A case that had begun before
Oliver provided the
Vermont Supreme Court with its opportunity to consider the open-fields doctrine almost a decade later. In 1982 Robert Kirchoff bought a parcel in the town of
Lincoln, Vermont, posted it and filed a notice to that effect with the town clerk. He allowed some of his neighbors to ride their bicycles on trails that crossed the property, but otherwise did not allow any access. Kirchoff had been living there for four years when the
Addison County sheriff received a tip that he was growing marijuana on his land. The sheriff and another law enforcement officer went to a neighboring house, crossed a fence, and followed an old logging road past some old "no trespassing" signs. They left the road and found the growing cannabis plants in the woods roughly 100 yards (91 m) from his house, invisible from the road. The sheriff called in two other officers to keep an eye on the marijuana while they got a
search warrant. Kirchoff went out to tend them at this point, and admitted to the officers that he had been growing them. When the sheriff returned, he and the police seized the plants and other evidence of the grow operation from Kirchoff's house. In early 1991 the Supreme Court issued its decision, holding 4–1 that the evidence should have been suppressed. After reviewing the facts of the case, Justice
James L. Morse conceded that the search was lawful under
Oliver. However, the court went on to note that it had to consider whether the search complied with Article 11 of the
state constitution, which while substantially similar to the Fourth Amendment did have some differences in wording. Most significantly, it referred to a person's "possessions" as coming under its purview rather than just their "effects". Did that mean it applied to all a person's landholdings, Morse asked? The minimal records from the state's original constitutional debates did not offer much guidance, so he looked at how other states with similar language had addressed the issue. They had divided on the issue, yet at the same time states that used "effects" in their constitutions had held it applied more broadly than
Oliver had held. Morse accepted the Oregon Supreme Court's rule in
Dixson that the open-fields doctrine did not apply where a landowner had, like Kirchoff, taken affirmative measures to control access to their land. He grounded this in state constitutional and statutory provisions that allowed public use of unposted land for many outdoor recreational activities and limited the liability of landowners for damages suffered by those they allowed, even implicitly, to engage in those activities on unposted land. "These provisions evidence the state's policy of providing the public with certain privileges and liberties not permitted under the common law", he wrote. "They evidence no intent, however, to limit the right of landowners to pursue their affairs free from unregulated intrusion by officials." Lastly, Morse said that while the Vermont Supreme Court was not completely discarding
Katz as the basis for its personalty-rooted concept of privacy, it found some issues doing so. It was not comfortable with the concept of a reasonable expectation, since that could too easily change "with political winds and the perceived exigencies of the day ... The question is not what society is prepared to accept but what the constitution requires." This formulation, Morse believed, would better protect people's privacy expectations as technology advanced. Lastly he placed the
burden of proof on the state in cases where a search such as the one in the instant case, was challenged as unconstitutional, and held that under that standard this search had violated the state constitution.
Louis P. Peck, in one of his last opinions before retirement, dissented at length, attacking and ridiculing the majority for
judicial activism in an opinion rife with cultural and literary references.
Dissent "I am sadly disappointed, and frustrated beyond comfort", by the majority opinion, Peck began. He likened it to a brief for the defendant in the case. "[I]t is, in my judgment, one of the most result-oriented opinions I have ever been exposed to. I am not prepared to countenance in silence the extreme and unwarranted judicial activism of which the opinion is an example." Guy Scott, owner of the on which the marijuana was growing, was arrested and charged with first-degree criminal possession of marijuana, a felony, after 200 plants were seized. At trial in
Chenango County Court, he moved to suppress the evidence against him as seized unconstitutionally. After the court ruled that it had not been, Scott pleaded guilty and appealed the conviction on the same grounds, arguing that by posting the property's bounds at intervals he had secured a reasonable expectation of privacy. In 1992, Judge Stewart Hancock wrote for the majority in a 4–3 decision reversing the appellate court and Scott's conviction that rejected the open-fields doctrine. Like Marshall and Oregon's
Dixson court, he found
Olivers recourse to a property-based privacy interest at odds with
Katz reasonable expectation test. But that would have little bearing as the majority found
New York's constitution, "with its own unique history", more relevant to the issues raised by Scott's case. Prior to 1938 New York, Hancock noted, had restricted searches and seizures only at the statutory level. When the state constitution was amended that year, in addition to language similar to that of the Fourth Amendment that had long been in the statute, it included a provision explicitly including telecommunications under the same warrant requirements, a reaction to the U.S. Supreme Court's
Olmstead case a decade earlier, which had held that police did not need a warrant for
wiretapping telephones since that took place far from the property of those communicating over them. Therefore, according to Hancock, it did not follow that the state constitution should or could be interpreted in the same way the
Oliver Court had interpreted the federal constitution. The majority responded that in that case she had not raised the issue of her land being posted.
State v. Johnson Again, as
Scott was reaching the New York Court of Appeals, another marijuana growing investigation across the country again gave rise to a state court's rejection of the open-fields doctrine. This case involved the additional question of whether federal involvement negated any state consideration of the issue. In 1991 agents of the federal
Drug Enforcement Administration (DEA) received a tip that a "Jim Johnson" was growing marijuana on his property near
Scott Lake. The two took this information to the
Thurston County Narcotics Task Force, and a detective helped them confirm that a man by that name lived in the area, and found his address. However, the only way to reach the property was via a dirt road that ran through
Millersylvania State Park. Washington's equivalent to the Fourth Amendment,
Article I, Section 7, is unlike New York and Oregon's very differently worded from its federal counterpart: "No person shall be disturbed in his private affairs, or his home invaded, without authority of law." It had thus, Alexander wrote, been held repeatedly to offer broader protection to privacy rights. The state had argued that the DEA agents had, by using an accessway to the house, complied with that provision, citing several precedents where searches had been upheld where police used routes for the public to approach a residence. But Alexander distinguished them from the instant case by noting that "here ... [the agents] were using it as the most convenient route on which to trespass on the Johnsons' property" instead of trying to reach the house and speak with its occupants; the fact that the agents intruded late at night in one argued against that, the judge observed. The posting, fencing and gate also indicated that "the Johnsons withdrew any permission that arguably may be implied for the DEA agents to use the accessway, especially at 1 a.m." Alexander conceded that the barn was not within the curtilage of the house, but again felt that was outweighed by the visible measures the Johnsons had taken to exclude the public from their property. This was not just an issue of privacy, Alexander noted, but the safety of law enforcement. Justice
Thurgood Marshall's dissent in
Oliver had noted that many rural landowners resorted to "self-help", as he put it, when faced with trespassers, and the DEA agents' furtive nocturnal visit to the Johnsons' barn could have resulted in violence. "We conclude that the agents' entry onto the Johnsons' property was an unreasonable intrusion into the Johnsons' private affairs", Alexander wrote. Since the remaining untainted evidence submitted to obtain the search warrant was thus insufficient to establish
probable cause, the Johnsons' convictions were reversed with directions to dismiss the charges. The
state Supreme Court declined to review the case the next year.
State v. Bullock Contemporaneously with
Johnson, another case involving the open-fields doctrine began working its way through Montana's state courts. Unlike its state and federal predecessors, it involved
illegally taken game rather than marijuana cultivation. In October 1991, Chuck Wing, a
Boulder, Montana, man saw a six- or seven-point bull
elk on a hill as he was returning from work. He knew that these elk could only be taken by hunters with special permits in that area. As he was watching he saw two men shoot the elk and put it in their truck, which he knew belonged to a man named Eddie Peterson, without
field dressing it. Wing reported it to
Jefferson County Sheriff Tom Dawson, which in turn passed the information to the
state Department of Fish, Wildlife and Parks (MFWP). Chris Anderson, an MFWP
game warden came from nearby
Helena to Boulder the next morning and interviewed Wing. Anderson learned that Peterson lived in nearby Basin Creek, and he and Dawson drove to his cabin, down a one-lane
Forest Service road bordered by private property in some stretches, with signs advising the public to stay on the road. At Peterson's house, the gate to his driveway was open, and the sheriff and game warden drove past an open gate, with "No trespassing" signs on either side, down a road to Peterson's cabin, which he had in the past moved behind a rise in the land so that it would not be visible from the road. Peterson continued to insist that the elk had been taken on his property, which Anderson did not believe. Bill Bullock, who was also on the property, attempted to corroborate Peterson's account even when offered
immunity from prosecution if he told Anderson what the game warden believed had actually happened. The next day Anderson returned to the property and confiscated the elk. Peterson was charged with unlawfully killing a game animal and Bullock with possessing an unlawfully killed game animal. The next question was resolved in Bullock's favor as the court held that its own prior precedent, and a similar case from
New Jersey, that anyone charged with an offense alleging possession of something automatically has standing to challenge the seizure and any evidence derived from it, regardless of another recent U.S. Supreme Court decision that had narrowed the scope of a similar longstanding rule of its own. Having established that both defendants had standing to challenge the state's evidence as unconstitutionally gathered, Trieweiler turned to that final question. Since the U.S. Supreme Court's recent decisions on the open-fields doctrine had revealed "what appear to be seeming inconsistencies", he believed it was proper for the court to reconsider whether it was good law in Montana. After retracing its history at the federal level, Triweiler turned to the state's cases, where cases that had upheld the doctrine after
Katz but before
Oliver and
Dunn had upheld it. He believed that the instant case, however, could be "factually distinguished" from those precedents, where the court had not considered the defendants' expectations of privacy over their open fields to be reasonable due to the circumstances of those cases. Precedent also held that while the language of Article II, Section 11, in the Montana Constitution was, like the corresponding provisions of New York and Oregon's, similar to the Fourth Amendment, it guaranteed broader protections against unlawful search and seizure. Trieweiler looked at the Oregon, New York and Washington cases. He found that the common element was that the defendants had taken steps to exclude all members of the public save those they invited onto the land, by posting, fencing or otherwise limiting access to the property. "We conclude that in Montana a person may have an expectation of privacy in an area of land that is beyond the curtilage which the society of this State is willing to recognize as reasonable, and that where that expectation is evidenced by fencing, 'No Trespassing,' or similar signs, or 'by some other means [which] indicate[s] unmistakably that entry is not permitted'", Trieweiler wrote, quoting
Scott. He explicitly excluded cases, such as some of the precedents he had discussed, where law enforcement had observed the illegal activity from adjoining public property, but declared that to the extent those cases relied on the open-fields doctrine they were overruled. Having rejected the open-fields doctrine for Montana courts as a general principle, Trieweiler turned to its applicability to the instant case. He noted that not only had Peterson posted the property and placed a gate at the entrance road, he had some years beforehand moved his cabin to a less visible location after repeated vandalism. On previous visits, law enforcement had requested his permission to come on the property. "The entry onto Peterson's property and observation of the elk carcass, which could not have otherwise been observed, was an unreasonable search in violation of Article II, Section 11, of the Montana Constitution", Triweiler concluded. Trieweiler rejected the state's argument that Peterson's offer to lead Anderson and Dawson to the purported kill site and permission for them to examine the elk constituted sufficient consent to allow the carcass into evidence as those actions only took place after the sheriff and warden had already trespassed far enough on to the property to see the carcass. The court affirmed the district court's denial of the defendants' motion to dismiss, but overruled its decision not to suppress the evidence from the search.
State v. Stietz The scenario Justice
Marshall feared in his
Oliver dissent came to pass in
Lafayette County, Wisconsin, in 2012. Near sunset on the last Sunday of November, the last day of the state's firearm
deer season, Robert Stietz, a cattle and mushroom farmer, went to patrol a detached parcel of his land off
state Highway 81 for illegal hunters and vandals, both of which he had had problems with in the past. He carried both his rifle and a pistol, and drove to the property in his wife's sedan since he did not expect to be bringing a deer carcass home. For the same reason, he wore camouflage and no
blaze orange. At the same time, unbeknownst to Stietz, two game wardens with the state's
Department of Natural Resources were patrolling the area in their vehicle, looking for hunters who might be trying to take a deer after the official end of the season,
20 minutes after sunset, which that day was 4:45 p.m. Just before 5, they found the sedan parked alongside the highway. In it they observed an open and empty gun case, a bottle of scent-killing spray and a camouflage
tree seat, all of which led them to deduce that the occupant of the car was probably hunting. The car's registration came back to Stietz when they checked it on their vehicle's computer. At trial, the wardens testified that they identified themselves as such upon seeing Stietz; he in turn said they did not do so clearly enough for him to hear and believed they were asking if he was a warden or had seen any. The wardens asked how many deer he had seen that day; after Stietz said he had seen seven does but was not at the time hunting, he testified that one of the men threw up his arms and seemed upset, which led him to further believe they might be trespassing. In May Stietz was sentenced to a year in prison and probation. The day of sentence, he filed his appeal, arguing the denial of his jury instructions constituted fatal error. In an unpublished 2016
per curiam opinion, the
appeals court upheld the conviction. which argued that Stietz had a constitutional right to raise the trespass issue and that not allowing him to do so violated that right. She also was sharply critical of the open-fields doctrine as used to justify the evidence behind the arrest. In the absence of those more specific justifications, the state had cited the open-fields doctrine as to how the wardens' uninvited presence on public land was legal. "The state is wrong", Bradley wrote. "The open fields doctrine does not transform private fields into public places that anyone is free to enter uninvited or without reason. Nor does it convert the act of trespassing into a lawful intrusion." It existed, she asserted, only to prevent the suppression of evidence gathered by intrusions into the areas it covered, and could not be extended to justify Stietz's arrest. "The open fields exception to the Fourth Amendment's warrant requirement was not intended to eliminate property owners' rights by sanctioning entry onto open land at any time for any reason, or no reason at all", she reiterated, citing
Bullock,
Dixson,
Johnson and
Scott in a footnote. Following the decision,
Assemblyman Adam Jarchow and
State Senator Dave Craig introduced a bill that would require that DNR wardens have reasonable suspicion of a law being broken before entering private property without the owner's consent. "Preventing poaching is somehow so important we allow DNR incursions on private property for any reason under the sun or no reason at all", Jarchow complained. "[S]omething is seriously out of whack here." It was vigorously opposed by
wildlife conservation organizations such as the
League of Conservation Voters and the state
Sierra Club chapter, who feared that it would severely hamper the wardens' ability to do their jobs, and was never brought to a vote. In his 2018 retrial, Stietz pleaded no contest to a single count of restricting or obstructing an officer and was sentenced to
time served. He filed suit in 2019 against the two wardens alleging they violated his rights under the
Second and Fourth amendments; it is currently pending in
federal court for the Western District of Wisconsin. == See also ==