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{{short description|
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[[File:U.S. 30 in Center Township.jpg|right|thumb|Open fields near [[Lisbon, Ohio]].|alt=Rolling countryside with fields, some cultivated, others not. There is a small house at the left center.]]
The '''open-fields doctrine''' (also '''open-field doctrine''' or '''open-fields rule'''), in the [[U.S. law]] of [[criminal procedure]], is the [[legal doctrine]] that a "[[warrantless search]] of the area outside a [[property]] owner's [[curtilage]]" does not violate the [[Fourth Amendment to the United States Constitution]]. However, "unless there is some other legal basis for the search," such a search "must exclude the home and any adjoining land (such as a yard) that is within an enclosure or otherwise protected from public scrutiny."<ref>''[[Black's Law Dictionary]]'' (9th ed. 2009), open-fields doctrine</ref>
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<blockquote>… open fields do not provide the setting for those intimate activities that the Amendment is intended to shelter from government interference or surveillance. There is no societal interest in protecting the privacy of those activities, such as the cultivation of crops, that occur in open fields.<ref>''Oliver'', 466 U.S. at 179.</ref></blockquote>
== Distinguishing open fields from curtilage ==
While open fields are not protected by the Fourth Amendment, the [[curtilage]], or outdoor area immediately surrounding the home, may be protected. Courts have treated this area as an extension of the house and as such subject to all the privacy protections afforded a person's home (unlike a person's open fields) under the Fourth Amendment.
An area is curtilage if it "harbors the intimate activity associated with the sanctity of a man's home and the privacies of life."<ref>''[[United States v. Dunn]]'', {{Ussc|480|294|1987|pin=300}}.</ref> Courts make this determination by examining "the proximity of the area claimed to be curtilage to the home, whether the area is included within an enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation by people passing by."<ref>''Dunn'', 480 U.S. at 301.</ref> Theoretically, many structures might extend the curtilage protection to the areas immediately surrounding them. The courts have gone so far as to treat a tent as a home for Fourth Amendment purposes in the past.<ref>''[
Despite this rather broad interpretation of curtilage, the courts seem willing to find areas to be outside of the curtilage if they are in any way separate from the home (by a fence, great distance, other structures, even certain plants).<ref>''[
==Rejections of doctrine by state courts==
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Since ''Oliver'', the highest courts of [[Montana]], [[New York (state)|New York]], [[Oregon]] and [[Vermont]], as well as a [[Washington (state)|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 [[boundary (real estate)|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
===''State v. Dixson''===
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|caption =
|full name = State of Oregon v. Theresa Dixson, Jeffrey Digby and Lorin Lou Dixson
|date decided = {{start date|1988|12|20
|citations = 766 [[Pacific Reporter|P.2d]] 1015, 307 Or. 195
|transcripts =
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|italic title = no
}}
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 {{convert|40|acre}} of forest. From the dwelling they were able to see cannabis planted {{convert|800|ft}} 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.<ref name="Dixson appeals court decision">{{cite court |litigants=State v. Dixson|vol=740|reporter=[[Pacific Reporter|P.2d]]|opinion=1124|court=[[Oregon Court of Appeals|Or.App.]]|date=1987|url=https://scholar.google.com/scholar_case?case=2784792647152094511|
====Oregon Court of Appeals====
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====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 (law)|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.<ref name="Dixson Supreme Court decision">{{cite court |litigants=State v. Dixson|vol=766|reporter=[[Pacific Reporter|P.2d]]|opinion=1015|court=[[Oregon Supreme Court|Oregon]]|date=1988|url=https://scholar.google.com/scholar_case?case=10757667275899417628|
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.<ref name="Dixson Supreme Court 1018–21">''Dixson II'', 1018–21</ref>
Gillette rejected the [[Textualism|textualist]] interpretation of the constitutional language that had been held by the Supreme Court and other states' courts to support the doctrine for
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 Jr.|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."<ref name="Dixson Supreme Court 1022–23">''Dixson II'', 1022–23</ref>
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===''State v. Kirchoff''===
{{Infobox court case
|name = State v. Kirchoff
|court = [[Vermont Supreme Court]]
|date decided = {{start date|1991|01|25}}
|citations = 156 Vt. 1, 587 [[Atlantic Reporter|A.2d]] 988
|judges = Allen, Peck, Dooley, Morse, Springer (specially assigned)
|decision by = Morse
|concurring = Springer
|dissenting = Peck
|keywords = {{hlist | search | seizure }}
|italic title = no
}}
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 {{convert|39|acre|ha|adj=on}} 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.<ref name="People v. Kirchoff">{{cite court |litigants=People v. Kirchoff|vol=587|reporter=[[Atlantic Reporter|A.2d]]|opinion=988|court=[[Vermont Supreme Court|Vt.]]|date=1988|url=https://scholar.google.com/scholar_case?case=9401759424447139849|access-date=October 1, 2019}}</ref>
Kirchoff had been living there for four years when the [[Addison County, Vermont|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.<ref name="Kirchoff at 990">''Kirchoff'', at 990</ref>
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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.<ref name="Kirchoff at 990" />
At trial, Kirchoff moved to have the evidence obtained from the search suppressed. It was denied, and he was convicted. He appealed to the state's Supreme Court.<ref name="Kirchoff at 990" />{{efn|Vermont has no intermediate appellate courts}} The case was not argued until 1989, and it took an additional two years for the court to decide.<ref name="Kirchoff at 999">''Kirchoff'', at 999</ref>
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 [[Constitution of Vermont|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".<ref name="Kirchoff 991–92">''Kirchoff'', 991–92</ref>
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.<ref name="Kirchoff 991–92" />
"Our decision, however, need not rest on the drafters' choice of one word over another", Morse wrote. "Even if we cannot say with confidence that the scope of the term 'possessions' mandates a right of privacy in real estate, it certainly does not rule out such a right." He noted that this interpretation was at odds with ''Oliver'', and said the fault lay with the ''Oliver'' Court, which had "misinterpreted its own Fourth Amendment precedent."<ref name="Kirchoff 991–92" />
In ''Oliver'', the Supreme Court had seemed "to equate privacy with crime", which Morse considered flawed. "If one assumes at the outset that people will only seek privacy in the use of their land for criminal purposes," he wrote, "the conclusion that society will not recognize a claim to privacy in the land readily follows. But we cannot presume how an individual will employ private lands—that is the nature of privacy." ''Oliver''{{'}}s association of privacy and criminality, according to Morse, was an ''[[ipse dixit]]''.<ref name="Kirchoff 992–93">''Kirchoff'', 992–93</ref>
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."<ref name="Kirchoff 994–96">''Kirchoff'', 994–96</ref>
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 (law)|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.<ref name="Kirchoff 994–96" />
There were two other opinions. District Judge Lewis Springer, specially assigned to sit on the court for this case due to a vacant seat, concurred but said the majority opinion should have more thoroughly grounded its arguments in the state's constitutional history rather than the federal constitution.<ref name="Kirchoff 997–99">''Kirchoff'', 997–99</ref> [[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.<ref name="Kirchoff 999–1008">''Kirchoff'', 999–1008</ref>
====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."<ref name="Kirchoff 999–1008" />
Peck suggested that the majority's confusion over the meaning of "possessions" in the state constitution was "a calculated tactic rather than the result of interpretive incompetency ... Disregarding a word because it may have different meanings in different contexts constitutes an argument weak to the point of absurdity." By doing so, he charged, the majority had been able to substitute its own meaning. If that had not been the plan, "I am afraid that the majority's training in elementary logic, if any, failed to penetrate or make a lasting impression. The[ir] reasoning is a [[syllogism|syllogistic]] blunder and a ''[[non sequitur (fallacy)|non sequitur]]''."<ref name="Kirchoff 999–1008" />
There was no constitutional problem presented by the case, Peck said; the state's existing laws were enough protection for landowners.
{{blockquote|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. In short, the majority has given birth to a right of privacy to commit crime. If our marijuana farmers have the good sense I think they have, they will soon be busy as little bees putting up no-trespassing signs, while laughing up their sleeves at the gullible naivete of the cooperative majority.}}
The insistence that police needed a warrant to search any posted or fenced land due to the state's trespass laws was, Peck wrote, "like saying a police cruiser, in responding to an emergency call, may not exceed the speed limit because there are laws against speeding."<ref name="Kirchoff 999–1008" />
Returning to the majority's apparent confusion over the meaning of "possessions", Peck said it was insulting to the framers of the Vermont Constitution to suggest that they "simply tossed in words willy-nilly with no intent that they have any particular meaning; merely filling in blanks, as it were, with the first word that came to mind." He believed that they chose their words carefully and would not have expected the level of protection the court was giving landowners.<ref name="Kirchoff 999–1008" />
Peck also called the majority's holding that the search was unconstitutional "a grossly unfair example of police-bashing", that he himself took personally.
{{blockquote|The police are not psychic. At the time they entered the open fields portion of defendant's property, they had no way of knowing or of anticipating that this Court would follow, sheep-like, the decision of one of the most activist-oriented among the state courts,{{efn|''Dixson''}} or that we would reject a contrary decision by the high court of a state which borders us and is far more similar to us in size and other characteristics than the former{{efn|Peck was referring to ''State v. Linder'', in which the [[New Hampshire Supreme Court|Supreme Court of neighboring New Hampshire]] had five years previously held the open-fields doctrine applied in that state.<ref name="State v. Linder">{{cite court|litigants=State v. Linder|vol=128|reporter=N.H.|opinion=66|court=[[New Hampshire Supreme Court|N.H.]]|date=1986|url=https://scholar.google.com/scholar_case?case=2487942038615680423|access-date=October 3, 2019}}</ref>}} ... I would remind the majority, as it sheds its tears for the defendant, that the entry was not arbitrary. It was not an afternoon of sport for the police, on the off-chance they might just happen to stumble on marijuana or some other contraband, in much the same spirit that we hunt deer and other game. The entry was undertaken in reliance on a "tip"; with every reason to believe the search was legitimate, and it was done in good faith.}} Peck feared that the majority's decision would unnecessarily handicap the state's police in preventing crime. 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." At the very least, the majority should have held the issue to be decided on a case-by-case basis rather than establishing a blanket rule.<ref name="Kirchoff 999–1008" />
===''People v. Scott''===
{{Infobox court case
|name = People v. Scott
|court = [[New York Court of Appeals]]
|full name = People of the State of New York v. Guy Scott
|date decided = {{start date|1992|04|02}}
|citations = 79 N.Y.2d 474
|judges = Kaye, Alexander, Titone, Hancock, Bellacosa, Wachtler, Simone
|number of judges = 7
|decision by = Hancock
|concurring = Kaye
|dissenting = Bellacosa
|prior actions = Conviction affirmed, 169 A.D.2d 1023 (1991)
|appealed from = [[New York Supreme Court, Appellate Division]], 3rd Dept.
|keywords = {{hlist | search | seizure }}
|italic title = no
}}
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. In July 1988, he returned, and confirmed his suspicions, finding about 50 cannabis plants being grown on the site, guarded by an armed man. He reported this to the [[New York State Police|state police]], who asked him to bring back a leaf from one of the plants. The next month he did, and after testifying ''[[in camera]]'' he returned with a detective.<ref name="Scott I">{{cite court |litigants=People v. Scott|vol=169|reporter=A.D.2d|opinion=1023|court=[[New York Supreme Court, Appellate Division|N.Y.A.D., 3rd Dept.]]|date=1991|url=https://scholar.google.com/scholar_case?case=14569517592155252184|access-date=September 19, 2019}}</ref>
Guy Scott, owner of the {{convert|165|acre}} 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, New York|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 {{convert|20|–|30|ft|m|adj=on}} intervals he had secured a reasonable expectation of privacy.<ref name="Scott I" />
Following ''Oliver'', a five-justice<!-- this is the correct title for those who serve on New York's appellate bench --> panel of the Third Department of the state's [[New York Supreme Court, Appellate Division|Appellate Division]] unanimously rejected that argument in 1991. "The marihuana in question here", it wrote, "was clearly grown in an open, uncultivated field away from the curtilage of any residential structure; thus, defendant had no legitimate expectation of privacy."<ref name="Scott I" /> Scott appealed to the [[New York Court of Appeals|Court of Appeals]], New York's highest court.<ref name="Scott II">{{cite court |litigants=People v. Scott|vol=79|reporter=N.Y.2d|opinion=474|court=[[New York Court of Appeals|N.Y.]]|date=1992|url=https://scholar.google.com/scholar_case?case=3389459308517600957|
In 1992, Judge<!-- again, this is the correct title for jurists of the New York Court of Appeals -->
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 v. United States|Olmstead]]'' case a decade earlier, which had held that police did not need a warrant for [[wiretap]]ping 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.<ref name="Scott II 486" />
[[File:Posted sign in front of cornfield, Red Hook, NY.jpg|thumb|right|A posted cornfield in New York]]
Hancock turned to the second part of the ''Katz'' test: whether Scott's interest in his privacy asserted by posting his property was objectively reasonable. The ''Oliver'' majority had dismissed the idea, pointing instead to social consensus as where to look, but, the judge wrote:
{{
While Hancock conceded that property rights do not automatically create a privacy interest, his review of the state's statutory and case law convinced him that, in interpreting both state and federal law on this issue, the state's courts had constantly followed the ''Katz'' concept of rooting privacy in the person, rather than property. He also shared Marshall's observation that the ''Oliver'' majority had suggested that a reasonable expectation of privacy depended on what the landowner intended to shield from view by posting or fencing the land:
{{
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,{{efn|{{cite court|litigants=People v. Reynolds|vol=71|reporter=N.Y.2d|opinion=552|court=[[New York Court of Appeals|N.Y.]]|date=1988|url=https://scholar.google.com/scholar_case?case=3911316398566985157|
===''State v. Johnson''===
{{Infobox court case
|name = State v. Johnson
|court = [[Washington Court of Appeals]], Division Two
|full name = State of Washington v. Tamara Sue Johnson and James Raymond Johnson
|date decided = {{start date|1994|09|07}}
|citations = 75 Wn. App. 692, 879 P.2d 984
|judges = Alexander, Morgan and Houghton
|number of judges = 3
|decision by = Alexander
|prior actions = criminal trial
|appealed from = Thurston County Superior Court
|appealed to = [[Washington Supreme Court]]
|subsequent actions = Review denied, 126 Wn.2d 1004 (1995)
|opinions = Alexander
|keywords = {{hlist | search | seizure }}
|italic title = no
}}
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.<ref name="State v. Johnson">{{Cite court|litigants=State v. Johnson|vol=75|reporter=Wn.App.|opinion=692|court=[[Washington Court of Appeals#Division II|Wn.App.Div.II]]|date=1994|url=https://scholar.google.com/scholar_case?case=239546820780301962|access-date=September 20, 2019}}</ref>
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 (Washington)|Scott Lake]]. The two took this information to the [[Thurston County, Washington|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]].<ref name="State v. Johnson" />
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The [[Washington Court of Appeals]] first reconsidered the trial court's ruling that the DEA acted without the cooperation or assistance of the state, which under the [[silver platter doctrine]] would have protected it from being challenged under the [[Washington State Constitution|state constitution]]. Judge Gerry Alexander rejected the state's argument that the local officers had only provided the DEA with locally relevant information, noting that a county detective had accompanied the DEA agents on one trip, the aerial surveillance and the involvement of local law enforcement in the arrest. And since the state was so involved, the court could consider whether the evidence was gathered in violation of the state constitution.<ref name="Johnson at 701">''Johnson'', at 701</ref>
Washington's equivalent to the Fourth Amendment, [[wikisource:Washington State Constitution#Article I - Declaration of Rights|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.<ref name="Johnson at 703">''Johnson'', at 703</ref>{{efn|In a 1984 case upholding the conviction of a marijuana grower based on warrantless aerial surveillance, [[Washington Supreme Court|Washington's Supreme Court]] had rejected the open-fields doctrine in ''[[dictum]]'' for this reason, but did not find it necessarily to rule on that question since it was not dispositive of the case.<ref name="State v. Myrick">{{cite court|litigants=State v. Myrick|vol=102|reporter=Wn.2d|opinion=506|pinpoint=512|court=[[Washington Supreme Court|Wash.]]|date=1984|url=https://scholar.google.com/scholar_case?case=6619139184248267253|
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."<ref name="Johnson 703-06">''Johnson'', 703-06.</ref>
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 [[Washington Supreme Court|state Supreme Court]] declined to review the case the next year.<ref name="Johnson 706-10">''Johnson'', 706-10.</ref>
===''State v. Bullock''===
{{Infobox court case
|name = State v. Bullock
|court = [[Montana Supreme Court]]
|full name = State of Montana v. Bill Bullock and Eddie Peterson
|date decided = {{start date|1995|08|04}}
|citations = 901 [[Pacific Reporter|P.2d]] 61
|judges = Trieweiler, Turnage, Nelson, Gray, Hunt, Weber and Leaphart
|number of judges = 7
|decision by = Triweiler
|prior actions = criminal trial and appeal
|appealed from = District Court for the Tenth Judicial District
|opinions = Trieweiler
|keywords = {{hlist | search | seizure }}
|italic title = no
}}
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 [[Poaching|illegally taken game]] rather than marijuana cultivation.<ref name="State v. Bullock">{{cite court|litigants=State v. Bullock|vol=901|reporter=[[Pacific Reporter|P.2d]]|opinion=61|court=[[Montana Supreme Court|Mont.]]|date=1995|url=https://scholar.google.com/scholar_case?case=2059160847971143084|access-date=September 21, 2019}}</ref>
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 (hunting)|field dressing]] it. Wing reported it to [[Jefferson County, Montana|Jefferson County]] Sheriff Tom Dawson, which in turn passed the information to the [[Montana Department of Fish, Wildlife and Parks|state Department of Fish, Wildlife and Parks]] (MFWP).<ref name="Bullock 64">''Bullock'' at 64</ref>
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Chris Anderson, an MFWP [[game warden]] came from nearby [[Helena, Montana|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 {{convert|7|mi|km|adj=on}} one-lane [[U.S. Forest Service|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 {{convert|334|ft|m|adj=on}} 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.<ref name="Bullock 64" />
Anderson and Dawson saw an elk carcass hanging from a tree roughly {{convert|125|ft}} from Peterson's cabin, likewise invisible from the road or adjoining property. Anderson asked where the elk had been killed, and Peterson took the two there, but while there were some of the animal's innards there were no tracks. Anderson believed the elk had been taken somewhere else, and told Peterson what Wing had told Dawson about seeing the day before.<ref name="Bullock 65">''Bullock'' at 65</ref>
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 [[Legal immunity|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.<ref name="Bullock 65" />
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The two men's trial took most of the next year. In February 1992 the county [[Montana inferior courts#Justice Court|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. The state appealed to District Court, and asked for a new trial; the defendants in turn asked that the charges be dismissed because they were misdemeanors and more than six months had elapsed since they had been charged. After that motion was denied, they pleaded guilty and, in October, appealed to the [[Montana Supreme Court]].<ref name="Bullock 65" />
The Supreme Court sent the case back down for [[evidentiary hearing]]s and imposition of sentence, proceedings that took place over the next two years.<ref name="Bullock 65" /> After they had been held, the justices heard arguments in early 1995 and rendered their decision in August.<ref name="State v. Bullock" />
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|trial ''de novo'']], and even so the delay had not been presumptively [[prejudice (law)|prejudicial]].<ref name="Bullock 66–67">''Bullock'', 66–67</ref> 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]],{{efn|{{cite court|litigants=New Jersey v. Alston|vol=88|reporter=N.J.|opinion=211|court=[[New Jersey Supreme Court|N.J.]]|date=1981|url=https://scholar.google.com/scholar_case?case=314960964097439038|
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.<ref name="Bullock 70–72">''Bullock'', 70–72</ref>
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===''State v. Stietz''===
{{Infobox court case
|name = State v. Stietz
|court = [[Wisconsin Supreme Court]]
|full name = State v. Robert Joseph Stietz
|date decided = {{start date|2017|06|13}}
|citations = 895 [[North Western Reporter|N.W.2d]] 796, 375 Wis.2d 572, 2017 WI 58
|judges = Abrahamson, Grassl Bradley, Kelly, Roggensack, Ziegler, Gableman
|number of judges = 6
|decision by = Abrahamson
|concurring = Bradley, Kelly, Roggensack
|dissenting = Ziegler, Gableman
|prior actions = Criminal trial
|appealed from = [[Wisconsin Court of Appeals]]
|opinions = Trial court erred in not permitting self-defense jury instruction in prosecution of farmer for armed confrontation with DNR game wardens on his property where they could not and did not clearly identify themselves as wardens and could have been seen by him as trespassers. Appeals court reversed and remanded
|keywords = {{hlist | search | seizure| self-defense | trespass }}
|italic title = no
}}
{{cquote|... [I]mportant practical considerations suggest that the police should not be empowered to invade land closed to the public. In many parts of the country, landowners feel entitled to [[Second Amendment to the United States Constitution|use self-help]] in expelling trespassers from their posted property. 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 ...<ref name="Marshall Oliver dissent note 19">''[[Oliver v. United States]]'', {{ussc|466|170|195n19|1984}} [[Thurgood Marshall|Marshall]], J., dissenting</ref>}}
The scenario Justice [[Thurgood Marshall|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 hunting#State government regulation|deer season]], Robert Stietz, a cattle and mushroom farmer, went to patrol a detached {{convert|25|acre|ha|adj=on}} parcel of his land off [[Wisconsin Highway 81|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]].<ref name="Stietz 803–804">{{cite court|litigants=State v. Stietz|vol=895|reporter=[[North Western Reporter|N.W.2d]]|opinion=796
At the same time, unbeknownst to Stietz, two game wardens with the state's [[Wisconsin Department of Natural Resources|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, [[civil twilight|20 minutes after sunset]], which that day was 4:45
The wardens decided to investigate. 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. Shortly after they passed it, Stietz himself saw them and approached them, believing from the blaze orange jackets that they were possibly trespassing hunters.<ref name="Stietz 805–807">''Stietz'', 805–807</ref>
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One of the wardens made a radio call for backup, at which point Stietz said later that he began to realize who they really were and relax slightly. He kept his gun pointed at the wardens, he testified, because they refused to lower theirs. Eventually deputy sheriffs came and, after assuring Stietz he would not be "gang tackled", took him into custody.<ref name="Stietz 805–807" />
Stietz faced six felony charges over the incident. At trial in March 2014, the jury convicted him of two: intentionally pointing a firearm at a law enforcement officer and resisting an officer with a dangerous weapon. His pretrial motions for [[jury instruction]]s on [[Right of self-defense|self-defense]], trespass, and violation of his [[right to keep and bear arms]] were denied, as were his post-trial motions for acquittal or a new trial.<ref name="Stietz 823–24">''Stietz'', 823–24</ref>
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
Stietz appealed to the [[Wisconsin Supreme Court]]. It accepted the case in late 2016 and heard oral arguments early the next year. In June 2017, by a 4–2 margin,{{efn|Justice [[Ann Walsh Bradley]] did not participate.<ref name="Stietz at 808">''Stietz'' at 808</ref>}} the court held that the trial court's denial of Stietz's requested self-defense instruction had deprived him of a factual credible argument that the jury could have believed and reversed and [[Remand (court procedure)|remanded]] the appeals court.<ref name="Stietz at 808" />
Justice [[Shirley Abrahamson]]'s majority opinion declined to address the proposed trespass instruction since she believed Stietz might well prevail on retrial with just the self-defense instruction. But the state had raised the open-fields doctrine in its briefs on the case, which led Justice [[Rebecca
In her arguments that the trespass instruction should have been permitted, Bradley had noted that at oral argument the state was unable to cite any statutory authority for the wardens' presence on Stietz's property,{{efn|Wisconsin law permits wardens to enter private property without permission or reasonable suspicion only to collect animal carcasses and prevent the spread of disease, none were present or argued to be. The state also argued that the wardens were executing a [[Terry stop]], but those can only be constitutional on public land}} nor evidence that they had Stietz's permission. She did not believe the parked car constituted reasonable suspicion of illegal hunting that would have allowed them to enter the property, either. And he had put up clear signals—the posting, gating and fencing of the property—that no one was to come on that property without his permission.<ref name="Stietz 810–14">''Stietz'', 810–14</ref>
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.<ref name="Stietz 810–14" />
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Dissenting justice [[Annette Ziegler]] wrote for herself and [[Michael Gableman]]. She primarily took issue with the majority opinion, primarily arguing that the wardens did have reasonable suspicion and legal authority to enter the property. She touched on the open-field doctrine only to note that the appeals court had held it applicable, and Stietz had not raised it on his appeal to the Supreme Court.<ref name="Stietz at 828">''Stietz'' at 828</ref>
Following the decision, [[Wisconsin State Assembly|Assemblyman]] [[Adam Jarchow]] and [[Wisconsin State Senate|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."<ref name="AB 411 story">{{cite news|author=[[Associated Press]]|title=Bill would restrict Wisconsin wardens on private property|url=https://www.outdoornews.com/2017/07/21/bill-restrict-wisconsin-wardens-private-property/|newspaper=Wisconsin Outdoor News|date=July 21, 2017|
In his 2018 retrial, Stietz pleaded
== See also ==
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* ''[[United States v. Depew]]'', 8 F.3d 424 (9th Cir. 1993)
* ''[[United States v. Reilly]]'', 76 F.3d 1271 (2d Cir. 1996)
* ''[[Kyllo v. United States]]'', 533 U.S. 27 (2001)
==Notes==
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