https://penncapital-star.com/a...s-by-game-officials/



Hunting clubs ask Pa. Supreme Court to ban warrantless searches by game officials

The Open Fields Doctrine has been the law for a century, but landowners say it violates the state constitution

By: Peter Hall - April 9, 2025 8:05 pm

In the summer of 2013, a state wildlife officer confronted a member of the Pitch Pine Hunting Club, accusing him of feeding bears outside a house on the club’s property.

Wildlife officer Mark Gritzer told club member Jon Mikesell that he had been watching Mikesell and his guests for several days, using binoculars and wearing camouflage to conceal himself in the club’s 1,100 acre swath of Clearfield County woods.

Gritzer left without giving Mikesell a ticket, but Mikesell was rattled because neither he nor any of the club’s other members had given the officer permission to enter the private club’s posted and gated property.

Pennsylvania laws, however, permit wildlife officers to search private lands without a warrant under a century-old U.S. Supreme Court decision. An attorney for Pitch Pine and the nearby 4,400-acre Punxsutawney Hunting Club said Wednesday that’s what Gritzer and other wildlife officers had done at least 22 times, including the installation of surveillance cameras.

“The clubs are private places, places where members go to enjoy nature without being watched, to have private conversations, without being listened to, to hunt without worrying that strangers might be hiding in the bushes,” Joshua Windham, of the conservative public interest law firm Institute for Justice, said.

The clubs sued the Pennsylvania Game Commission and Gritzer in Commonwealth Court, asking the court to find three state laws allowing the warrantless searches unconstitutional. The court ruled against them in 2023 and they appealed to the state’s highest court.


In an argument before the Pennsylvania Supreme Court on Wednesday, Windham argued the so-called Open Fields Doctrine created in the 1924 high court decision is at odds with the state constitution. He asked the court to reverse its own 2007 decision adopting the doctrine and invalidate the laws the decision upheld.

Courts across the nation have relied on the U.S. Supreme Court’s decision finding that the Fourth Amendment’s prohibition on warrantless searches of “persons, houses, papers, and effects” does not apply to open land not immediately surrounding a home. According to a study by the Institute for Justice, 90% of land in Pennsylvania is subject to warrantless searches, Windham told the Capital-Star.

Seven states have rejected the Open Fields Doctrine, most recently with the Tennessee Supreme Court finding last summer that warrantless searches by wildlife officials violated that state’s constitution.

Article 1 Section 8 of the Pennsylvania Constitution, which roughly corresponds to the Fourth Amendment, uses different language, guaranteeing people security in their “persons, houses, papers and possessions.”

“Everywhere you look … you find Pennsylvanians and others using the word possessions to describe private land,” Windham said. “William Penn’s Charter, the original charter that granted him the land that became this commonwealth, granted him the right to quote, ‘possess and enjoy the land.’”

Deputy state Attorney General Anthony Kovalchick argued on behalf of the game commission and Gritzer that reversing its own decision on the Open Fields Doctrine would require the state Supreme Court to jettison a century’s worth of legal precedent.

Justice David Wecht said the court takes the issue of precedent seriously, but challenged Kovalchick to name another area of law where people have no expectation of privacy.


“I mean, our cases make clear that even in a hotel room that you’re renting for a night or a rental car or a visit to another person’s house, you at least get a chance to show an expectation of privacy,” Wecht said.

Kovalchick replied that the Pennsylvania Constitution and the Fourth Amendment both provide for a “reasonable expectation of privacy” and reasonable people wouldn’t expect the woods where they hunt to be private.

He added that trespassing laws keeps out members of the public, but the fact that a game warden can enter a property to investigate hunting violations doesn’t mean that the owner has no privacy.

The justices asked Kovalchick about Gritzer’s placement of cameras on the clubs’ properties. He replied that it was done in response to allegations that members were illegally feeding elk and that no warrant was required to do so.

“Your answer is, ‘Well, the law doesn’t require it,’” Wecht said. “And a response from us might be, Well, why shouldn’t the law require that?’”

Kovalchick said the court should use the same reading of the constitution as it did inits 2007 decision on this issue, that the term “possessions” does not apply as broadly as the hunting clubs assert.

“If the framers wanted the word possessions to mean every single thing that is owned, including real property, it would have most likely used other phrases like private property,” Kovalchick said.

Justice Kevin Brobson noted other parts of the state constitution refer to the right to possess land. “I’m hard pressed to say that in Article One, Section One, they talked about land as a possession, but in Article One, Section Eight, they didn’t,” Brobson said.

Wecht proposed a hypothetical situation in which a person built a swimming pool in the middle of a heavily wooded property with a wall around it and used it to go skinny dipping.

“Mr. Greitzer could walk on and put up a camera … the person enjoying that pool cannot even attempt to show any expectation of privacy. How does that square with the Pennsylvania Constitution?” Wecht asked.

“A reasonable person would not believe that going out and doing things that you would only do in the home are reasonable to go out and do in the woods,” Kovalchick replied.

The court has no deadline to reach a decision.

Feeding bears is about as stupid as it gets, but then my son recently spent some time in a couple of southern states where they treat them like pets. Laughter was what he got when he asked about needing bear spray.