Punxsutawney Hunting Club, Inc. v. Pa. Game Comm’n

Constitutionality of warrantless searches conducted by game wardens on private hunting club properties

Punxsutawney Hunting Club, Inc. v. Pa. Game Comm’n, 2023 WL 6366772 (Pa. Cmwlth.) (unreported), direct appeal, appeal docket 23 WAP 2023

In this case, the Pennsylvania Supreme Court will consider the constitutionality of Sections 303(c) and 901(a)(2) and (8) of the Game and Wildlife Code, 34 Pa. C.S. §§ 303(c) and 901(a)(2) and (8) (Entry Statutes), which authorize wildlife enforcement officers to enter and inspect property for violations.

Section 303(c) of the Game and Wildlife Code provides:

(c) Power and authority.–

Every officer, employee or representative of the [C]ommission in the exercise of their powers and duties shall have the right and authority to go upon or enter any property, posted or otherwise, outside of buildings.

34 Pa. C.S. § 303(c). Section 901(a)(2) and (8) of the Game and Wildlife Code provides:

(a) Powers.–

Any officer whose duty it is to enforce this title or any officer investigating any alleged violation of this title shall have the power and duty to:

* * *

(2) Go upon any land or water outside of buildings, except curtilage, posted or otherwise, in the performance of the officer’s duty.

* * *

(8) Conduct administrative inspections of persons, licenses and permits, firearms, ammunition and other implements of taking, game bags, game, meat poles, tags, clothing, waterfowl blinds, decoys, tree stands, immediate hunting locations, or any means of transportation or its attachments used as blinds or as hunting locations, and any coolers or containers possessed at a hunting location when prima facie evidence of hunting exists. Any officer conducting an administrative inspection shall, if any person is present, present a badge or other means of official identification and state the purpose of the inspection.

34 Pa. C.S. § 901(a)(2), (8).

The Punxsutawney Hunting Club and Pitch Pine Hunting Club (Hunting Clubs) own property in Pennsylvania that is used exclusively for hunting and related activities. The Hunting Clubs posted “No Trespassing” signs, painted boundary lines with purple paint, and secured all entry points with locks. Nevertheless, the Pennsylvania Game Commission (PGC), including Officer Mark Gritzer, entered the clubs’ properties without warrants or probable cause on multiple occasions, including for the purposes of installing surveillance cameras to monitor potential hunting violations. The Hunting Clubs filed a complaint with Commonwealth Court alleging that the Entry Statutes violated their rights under the Fourth Amendment to the United States (U.S.) Constitution and its analogous state counterpart, Section 8 of the Pennsylvania Constitution. The Hunting Clubs and PGC filed cross-applications for summary relief. Commonwealth Court summarized the parties arguments as follows:

The Hunting Clubs recognize that Russo constitutes binding precedent that forecloses their constitutional challenge of the Entry Statutes. However, they believe that Russo was wrongly decided. According to the Hunting Clubs, the term “possessions” in Section 8 should be construed to include private land. Indeed, article I, section 1 of the Pennsylvania Constitution, Pa. Const. art. I, § 1 (Section 1), recognizes the right of possessing property. The Hunting Clubs argue that it is illogical to say that Section 1 of the Pennsylvania Constitution protects the right to “possess” land, but that land is not a “possession” for purposes of Section 8.

The Hunting Clubs further argue that, barring Russo, the Entry Statutes are unconstitutional under Section 8. Landowners who signal that their land is not open to the public have a reasonable expectation of privacy and must be entitled to protection under Section 8. If the land is protected, then game wardens who want to search it must obtain consent or a warrant, or show a warrant exception. Because the Entry Statutes authorize warrantless searches of land that is used and marked as private, they violate Section 8.

The Commission counters that Russo is binding precedent and controls the outcome here. Contrary to the Hunting Clubs’ assertions, Russo was properly decided. No Pennsylvania court has ever held that possession or ownership alone creates a right to privacy that is protected by Section 8. Russo properly applied the factors for deciding the scope of state constitutional protection. It thoroughly and accurately analyzed the text of Section 8, its history under Pennsylvania law, the majority of sister states that support the current interpretation of the open fields doctrine, and the public policy issues involved. Under Russo, the Entry Statutes are indisputably constitutional, and this precedent should not be overturned.

Even barring Russo, the Commission argues that the Entry Statutes are valid exercises of the Commonwealth’s constitutional obligations as trustee of wildlife under article I, section 27 of the Pennsylvania Constitution, Pa. Const. art. I, § 27, commonly known as the Environmental Rights Amendment (ERA). The Commission, as designated by the Commonwealth, is constitutionally responsible for managing and protecting wildlife in the state. In order to execute this authority, the Commission employees need to enter private property where wildlife may be present and hunting may be occurring. Hunters have surrendered their reasonable expectation of privacy by choosing to participate in a highly regulated activity. Thus, the Commission argues that the Hunting Clubs do not present a case that might implicate privacy rights under Section 8.

Slip op. at 3-4.

Commonwealth Court granted summary relief in favor of the PGC, acknowledging that it was bound by the precedent set in Russo. Commonwealth Court explained:

In Russo, the Pennsylvania Supreme Court examined whether a landowner has a reasonable expectation of privacy against enforcement of the Game and Wildlife Code in his open fields under the Fourth Amendment and Section 8. Russo involved an appeal from a conviction for violation of the Game and Wildlife Code’s prohibition against certain types of baiting in bear hunting. Russo, 934 A.2d at 1200; see Section 2308(a)(8) of the Game and Wildlife Code, 34 Pa. C.S. § 2308(a)(8). The conviction was based on evidence that wildlife conservation officers gathered when they entered the landowner’s hunting camp, which was posted with “No Trespassing” signs, without a warrant. Russo, 934 A.2d at 1201. The landowner filed a motion to suppress the seized evidence, which was denied. Id. at 1202.

On appeal, the Supreme Court noted that both the Fourth Amendment and Section 8 protect the reasonable expectations of privacy of those legitimately occupying a certain space, relative to searches and seizures of law enforcement personnel. Russo, 934 A.2d at 1208. However, the Supreme Court determined that this reasonable expectation of privacy did not extend to open fields. Id. at 1209. Under the interpretative doctrine of ejusdem generis, the Court construed Section 8’s use of the term “possessions” in the light of the particular words preceding it – all of which refer to intimate things about one’s person. Russo, 934 A.2d at 1205-06. Given the textual similarity between the two constitutional provisions, the Court held that the Fourth Amendment’s open fields doctrine, as enunciated by the U.S. Supreme Court in Oliver v. United States, 466 U.S. 170 (1984), applied equally under the Pennsylvania Constitution. Russo, 934 A.2d at 1208-09. The Supreme Court also opined that the open fields doctrine is consistent with the ERA, which enshrines the Commonwealth’s interest in protecting and conserving public natural resources, including wildlife within its fields and forests. Russo, 934 A.2d at 1212-13. Thus, the Court concluded that the landowner had “no reasonable expectation of privacy” under either the Fourth Amendment or Section 8, arising from posting “No Trespassing” signs at his hunting camp where Section 901(a)(2) of the Game and Wildlife Code, 34 Pa. C.S. § 901(a)(2), specifically authorizes an officer to “go upon any land or water outside of buildings, posted or otherwise, in the performance of the officer’s duty.” Russo, 934 A.2d at 1203. The Supreme Court held that “the guarantees of …Section 8 … do not extend to open fields.” Id. at 1213. Thus, the Supreme Court affirmed the determination that the wildlife conservation officers did not violate the landowner’s right to be free from unreasonable searches and seizures. Id.

The Supreme Court’s opinion in Russo is binding precedent. See Commonwealth v. Tilghman, 673 A.2d 898, 903 (Pa. 1996) (holding that an opinion decided by a majority of our Supreme Court “becomes binding precedent on the courts of this Commonwealth”). As an intermediate appellate court, we have no authority to refuse to apply Supreme Court precedent, much less overturn it. Zauflik v. Pennsbury School District, 72 A.3d 773, 783-84 (Pa. Cmwlth. 2013), aff’d, 104 A.3d 1096 (Pa. 2014). Based on Russo, the Entry Statutes are constitutional.

Slip op. at 6-9.

In concurring opinion joined by Judge Wallace, Judge McCullough acknowledged the court was “bound by the Supreme Court’s decision in Commonwealth v. Russo, 934 A.2d 1199 (Pa. 2007), to reach this result,” but emphasized her “agreement with Justice Cappy’s Dissenting Opinion in Russo wherein he opined that Section 901(a)(2) of the Game and Wildlife Code, 34 Pa. C.S. § 901(a)(2), is inconsistent with the protections afforded by article I, section 8 of the Pennsylvania Constitution, Pa. Const. art. I, § 8 to the extent that it authorizes entry onto posted private property without any level of suspicion of illegal activity”:

In this regard, I believe Justice Cappy, evaluating the four factors set forth in Commonwealth v. Edmunds, 586 A.2d 887 (Pa. 1991), correctly observed that

the text of article I, section 8, its history in this Commonwealth, the related case law of other states, and the relevant policy considerations support constitutional protection of a Pennsylvania landowner’s right to privacy when he or she has posted the property in a manner that indicates that entry is not permitted. Accordingly, I would hold that a citizen may claim privacy in an open field under [a]rticle I, [s]ection 8 of the Pennsylvania Constitution when indicia would lead a reasonable person to conclude that the area is private.

Russo, 934 A.2d at 1217 (Cappy, J., dissenting).

I must adhere to the caution of former Justice Cappy in his Dissenting Opinion that a “constitutional rule which permits state agents to enter private land in outright disregard of the property owner’s efforts to maintain privacy is one that offends the fundamental rights of Pennsylvania citizens.” Id. at 1214.

Nevertheless, the fact remains that the view of Justice Cappy in Russo is a minority view. Accordingly, although I fundamentally disagree that Punxsutawney Hunt Club, Inc., and Pitch Pine Hunting Club had no constitutionally protected privacy interest in their posted private land, I must nevertheless concur in the result reached by the Majority.

Slip op. at PAM-1 – PAM-2.

On August 20, 2024, the Supreme Court granted oral argument to consider the following issues, ”as rephrased by this Court:”

1. Was this Court’s decision in Commonwealth v. Russo, 934 A.2d 1199 (Pa. 2007), wrongly decided in allowing state officials to enter private property outside the curtilage without consent, a warrant, or probable cause in violation of Article I, Section 8 of the Pennsylvania Constitution?

2. Do the principles of stare decisis compel adherence to Russo?

3. Are Sections 303(c), 901(a)(2), and 901(a)(8) of the Game and Wildlife Code unconstitutional for allowing game wardens of the Pennsylvania Game Commission to enter private property outside the curtilage without consent, a warrant, or probable cause in violation of Article I, Section 8 of the Pennsylvania Constitution?