Open-fields doctrine
This method of reasoning gave way with the arrival of the landmark case Katz v. United States,[4] which established a two-part test for what constitutes a search within the meaning of the Fourth Amendment.
[18] 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."
[19] 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.
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.
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.
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.
"[26] 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."
[31] 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.
For all realistic and practical purposes, the sole beneficiary of today's decision is the owner of open fields who conducts criminal activity thereon in defiance of the law.
He accused it of "cho[osing] the possible prestige with which it may be honored by law reviews and other constitutional activists among the courts, and legal writers, to a recognition of the rights of the individual inhabitants of the State of Vermont."
[34] As the Dixson appeal was being considered by the Oregon courts, across the country, a hunter pursuing a wounded deer onto posted private property in Preston, New York, came across what appeared to him to be the remnants of a marijuana growing operation.
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 20–30-foot (6.1–9.1 m) intervals he had secured a reasonable expectation of privacy.
The Oliver majority had dismissed the idea, pointing instead to social consensus as where to look, but, the judge wrote: We believe that under the law of this State the citizens are entitled to more protection.
A constitutional rule which permits State agents to invade private lands for no reason at all — without permission and in outright disregard of the owner's efforts to maintain privacy by fencing or posting signs — is one that we cannot accept as adequately preserving fundamental rights of New York citizens.
[39]Judge Joseph Bellacosa's dissent, addressing not only Scott but a companion case in which the court had ruled evidence gathered in warrantless administrative searches of businesses to be inadmissible, focused largely on what he considered to be the majority's faulty reasoning for departing from Oliver.
In a similar case of a rural marijuana grower four years earlier,[e] he noted, the court had accepted evidence gathered by an aerial search and declined to consider the same privacy issues that defendant had raised.
[43] 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."
[44][f] 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.
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.
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.
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).
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.
In February 1992 the county Justice Court granted their motion to suppress all the evidence that Anderson and Dawson had obtained when they went on Peterson's property, dismissing entirely the case against Bullock in the process.
[49] On the first question, Justice Terry N. Trieweiler held for a unanimous court that the six-month deadline had not been passed due to the state's appeal that granted a trial de novo, and even so the delay had not been presumptively prejudicial.
[53] 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.
There is thus a serious risk that police officers, making unannounced, warrantless searches of 'open fields,' will become involved in violent confrontations with irate landowners ...[56]The scenario Justice Marshall feared in his Oliver dissent came to pass in Lafayette County, Wisconsin, in 2012.
[57] 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.
They parked their pickup truck, put on their own blaze orange jackets, on which their departmental insignia was not as conspicuous as it had been on their uniform shirts, and found the open cattle gate leading on to Stietz's property.
[63] 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.
