Open-fields doctrine: Difference between revisions

Revision as of 22:03, 17 August 2023

Revision as of 23:33, 9 October 2023

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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 (judge)|Rebecca Bradley]] of [[Wisconsin Supreme Court|that state's Supreme Court]] was highly critical of it.<ref name="State v. Stietz">{{cite court |litigants=State v. Stietz|vol=895|reporter=[[North Western Reporter|N.W. 2d]]|opinion=796|court=[[Wisconsin Supreme Court|Wisc.]]|date=2017|pinpoint=812–815|url=https://scholar.google.com/scholar_case?case=15612653012475974548|access-date=September 17, 2019}}</ref>

===''State v. Dixson''===

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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 Bradley (judge)|Rebecca Grassl Bradley]] to write a [[concurring opinion|concurrence]], joined in its entirety by Justice [[Daniel Kelly (Wisconsin judge)|Daniel Kelly]] and partially by Chief Justice [[Patience D. Roggensack]],<ref name="Stietz 814–16">''Stietz'', 814–16</ref>{{efn|Roggensack did not join Part II of Bradley's concurrence, which dealt with the open-fields doctrine.<ref name="Stietz 814–16" />}} 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.<ref name="Stietz 814–16" />

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>