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Peck also called the majority's holding that the search was unconstitutional "a grossly unfair example of police-bashing", that he himself took personally.
{{quote|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|accessdate=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''===
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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|accessdate=September 21, 2019}}</ref>}}
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>
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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|accessdate=September 25, 2019}}}} that anyone charged with
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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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|pin=803–804|court=[[Wisconsin Supreme Court|Wisc.]]|date=2017|url=https://scholar.google.com/scholar_case?case=15612653012475974548|accessdate=September 27, 2019}}</ref>
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" />
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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>
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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