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.
What happened to Mikesell 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. But now, the clubs are fighting back in a lawsuit filed today by the Institute for Justice (IJ).
“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’ members are ordinary Pennsylvanians who desire and expect privacy on their land. Punxsutawney member and president of the club’s board, Frank Stockdale, says that club members feel unsettled by the constant intrusions.
“People should feel secure on private property,” Stockdale said. “They should feel like they have privacy and seclusion. But the Pennsylvania Game Commission is making us feel the opposite—we feel invaded.”
Both clubs have gone to great lengths to mark their land as private. There are “No Trespassing” signs and purple paint marks (which command intruders to stay out) posted along the property lines and throughout the properties. There are locked gates at all the entrances. But that hasn’t stopped the officers from entering and snooping around whenever they please.
“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?”
These wildlife officers think they can treat private land like public property because the Pennsylvania Supreme Court said they could in a 2007 ruling. In Commonwealth v. Russo, the Court held that the state Constitution’s provision against warrantless searches does not apply to private land. This flatly misreads the Pennsylvania Constitution, which has unique text protecting “possessions”—including private land—from such intrusions.
“Russo 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.”
Punxsutawney and Pitch Pine 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.”
The Institute for Justice is the nation’s leading advocate for property rights. This case is the latest in IJ’s Project on the Fourth Amendment, which seeks to vindicate the right to be secure from unreasonable searches and seizures. IJ is currently litigating on behalf of property owners in Tennessee who had government cameras installed on their land, an Ohio taxidermist who is regularly subjected to warrantless inspections, and security deposit box owners whose boxes were raided by the FBI.