Because you have to tag it.....unlike bunnies n squirrels, and things associated with being small game?????Fleroo said:And what does my in-depth mind take from all of what Bluetick so graciously posted ? Why are Turkey considered a "Big Game" animal ?
IN THE SUPREME COURT OF PENNSYLVANIA
CAPPY, C.J., CASTILLE, SAYLOR, EAKIN, BAER, BALDWIN, FITZGERALD, JJ.
COMMONWEALTH OF PENNSYLVANIA,
JOSEPH RUSSO, JR.,
No. 135 MAP 2005
Appeal from the Order of the
Commonwealth Court dated January 7,
2005, at No. 1050 C.D. 2004, affirming the
Order of the Court of Common Pleas of
Wyoming County, Criminal Division, exited
April 23, 2004, at No. 2003-445.
864 A.2d 1279 (Pa. Cmwlth. 2005)
SUBMITTED: April 6, 2006
MR. JUSTICE CASTILLE * DECIDED: November 20, 2007
We granted allowance of appeal in the instant case to determine whether, under
Article I, Section 8 of the Pennsylvania Constitution, a landowner has a reasonable
expectation of privacy against enforcement of Pennsylvania’s Game Code in his open
fields. Because we conclude that the Fourth Amendment open fields doctrine as
enunciated by the United States Supreme Court in Oliver v. United States, 466 U.S. 170,
104 S.Ct. 1735 (1984) applies equally under the Constitution of this Commonwealth, we
affirm, albeit on different grounds, the order of the Commonwealth Court.
* This matter was reassigned to this author.
At 6:45 a.m. on November 25, 2002, nine minutes after the opening of
Pennsylvania’s bear-hunting season, appellant Joseph Russo, Jr., claimed to have killed a
bear near his hunting cabin in Mehoopany Township, Wyoming County. Pursuant to
Section 2323(a)(2) of the Game Code,1 appellant transported the bear to the Game
Commission station in Dallas for examination and tagging. Later that day, the Game
Commission received a tip that appellant’s hunting camp was “baited” in violation of Section
2308(a)(8) of the Game Code.2 The information was relayed to Wildlife Conservation
1 Section 2323(a)(2) of the Game Code provides that, “n any year in which the
commission establishes check stations, each person shall, within 24 hours after killing any
big game, present the big game for examination and tagging.” 34 Pa.C.S. § 2323(a)(2).
Section 102 of the Game Code defines “big game” as “includ[ing] the elk, the whitetail deer,
the bear and the wild turkey.” 34 Pa.C.S. § 102.
2 Section 2308(a) of the Game Code provides, in pertinent part, as follows:
§ 2308. Unlawful devices and methods
(a) General rule.--Except as otherwise provided in this title, it is unlawful
for any person to hunt or aid, abet, assist or conspire to hunt any game or
wildlife through the use of:
* * * *
(8) Any artificial or natural bait, hay, grain, fruit, nut, salt, chemical,
mineral or other food as an enticement for game or wildlife, regardless of
kind and quantity, or take advantage of any such area or food or bait prior
to 30 days after the removal of such material and its residue. . . .
* * * *
34 Pa.C.S. § 2308(a).
Officer (hereinafter “WCO”) William Wasserman, who, in turn, directed Deputy WCO
William Jeffrey Pierce to go to appellant’s camp to investigate.3
Upon arriving after dark at approximately 6:00 p.m., WCO Pierce found appellant’s
camp apparently unoccupied. Appellant’s property was clearly posted with “No
Trespassing” signs. After parking his truck, Officer Pierce stepped over a cable across the
driveway and walked approximately six hundred feet toward appellant’s cabin until he
observed, in plain view, an eight- by ten-foot pile of “apple mash”4 located about ninety feet
from the cabin. The officer also noticed in the apple mash a large indentation consistent
with a bear having lain there, a clearly identifiable bear paw print, and leaves with blood
droplets. Officer Pierce called Officer Wasserman and informed him of the bait pile.
Pursuant to Officer Wasserman’s instructions, Officer Pierce seized the bloody leaves as
evidence. Continuing his investigation, Officer Pierce discovered a second pile of apple
mash as well as a corn feeder approximately one hundred fifty yards from appellant’s
cabin. Finally, Officer Pierce returned to his vehicle and drove down a dirt road about four
3 Section 901(a)(2) of the Game Code (entitled, “powers and duties of enforcement
officers”) vests in “[a]ny officer whose duty it is to enforce this title or any officer
investigating any alleged violation of this title” the “power and duty” to, inter alia, enter “any
land or water outside of buildings, posted or otherwise, in the performance of the officer’s
duties.” 34 Pa.C.S. § 901(a)(2).
4 As Officer Pierce subsequently testified: “It looks like somebody took apples and put
them through some type of a crushing machine or a blender or something like that. It’s just
like mashed potatoes only with a heavier consistency. You can pick them up and like
squish them in your hands. They’re all mashed up.” Notes of Testimony (N.T.), 3/31/04, at
7. The trial court found it “clear from the photographs taken the next day that the ‘apple
mash’ is more correctly identified as pomace -- that which remains after apples have been
put through a cider press,” i.e., “obviously . . . not a naturally occurring phenomenon.” Trial
Ct. Op. at 2 n.2.
hundred yards into the woods.5 After parking his truck, the officer got out and found what
he recognized as bear entrails. Although the rest of the body was not at the location, an
examination of the entrails revealed that the bear had recently eaten corn and mashed
apples. The officer then seized the bear’s stomach and its contents as evidence.
Meanwhile, once Officer Pierce had informed him of the bait pile, OfficerWasserman
contacted Officer James Jolley, a WCO stationed in Luzerne County, where appellant
maintained his residence. Officers Wasserman and Jolley, accompanied by two deputy
WCOs, proceeded to appellant’s home in Pittston. Upon pulling into appellant’s driveway,
the officers observed a dead black bear carcass hanging from a piece of construction
equipment. When the officers knocked on appellant’s door, he answered and invited them
in. In response to their questioning, appellant indicated that he was aware of the bait at his
camp but asserted that the bear was not shot at either of the bait piles. The officers then
seized the bear carcass as evidence and departed.
Officers Pierce and Wasserman returned to appellant’s camp the next morning to
take photographs and measurements and to gather additional evidence. At the first apple
mash pile discovered by Officer Pierce, the officers found and seized a small piece of bear
tissue. A forensic DNA analysis subsequently performed by the United States Fish and
Wildlife Service established that all the blood and tissue recovered by the officers in the
course of their investigation came from the bear whose carcass was seized at appellant’s
residence. Thereafter, appellant was charged with two summary violations of the Game
5 There is no indication in the record that appellant owned the woods that Officer Pierce
entered. In fact, the only relevant testimony suggests that appellant did not own these
woods. See N.T., 3/31/04, at 59, 147. The parties, however, do not raise any issue
relating to this fact, and thus it does not affect our disposition of the case.
Code: Unlawful Taking or Possession of Game or Wildlife, 34 Pa.C.S. § 2307;6 and
Unlawful Devices and Methods, 34 Pa.C.S. § 2308, see supra. After being found guilty of
both offenses before a district judge, appellant appealed to the Court of Common Pleas of
Prior to trial de novo before President Judge Brendan J. Vanston, appellant filed a
motion to suppress the evidence seized by Officers Pierce and Wasserman, challenging
the legality of their entry onto and search of his property under Article I, Section 8 of the
Pennsylvania Constitution. On March 31, 2004, the trial court held a suppression hearing,
which the court consolidated with appellant’s trial de novo, and denied the motion. Officers
Pierce and Wasserman testified for the Commonwealth, describing in detail the course of
the investigation they conducted on November 25 and 26, 2002. Appellant’s case-in-chief
consisted primarily of the testimony of his neighbor to the effect that apple trees were
located on land near appellant’s property. At the conclusion of the trial, the court convicted
appellant of the two offenses and ordered him to pay $1,000 in fines, $2,599.87 in
restitution, and the costs of prosecution.
The trial court found “ased on the testimony of the officers and the photographic
evidence presented” that “the nearest bait pile is not within the curtilage of [appellant’s]
cabin.” Trial Ct. Op. at 5. Consequently, the court rejected appellant’s argument that
Article I, Section 8 prohibited the officers’ warrantless search of the fields where the bait
piles were found. “To rule otherwise,” the court reasoned, “would emasculate the
enforcement of the Game Code on any privately owned realty, as one would only have to
post ‘no trespassing’ signs to keep out the game wardens.” Id. The court stated that such
6 Section 2307(a) of the Game Code provides that “t is unlawful for any person to aid,
abet, attempt or conspire to hunt for or take or possess, use, transport or conceal any
game or wildlife unlawfully taken or not properly marked or any part thereof, or to hunt for,
trap, take, kill, transport, conceal, possess or use any game or wildlife contrary to the
provisions of this title.” 34 Pa.C.S. § 2307(a).
a result would be absurd and a result that the constitutional framers surely did not intend.
Appellant appealed to the Commonwealth Court, pursuing his suppression claim.
On January 7, 2005, a three-judge panel of the Commonwealth Court unanimously
affirmed the order of the trial court. Commonwealth v. Russo, 864 A.2d 1279 (Pa. Cmwlth.
2005). In a published opinion authored by the Honorable Renée Cohn Jubelirer, the court
held that, under Article I, Section 8 of the Pennsylvania Constitution, appellant did not have
a reasonable expectation of privacy in the property upon which the bait piles were found.
The court began and ended its analysis with appellant’s argument that the “No
Trespassing” signs that he posted created a reasonable expectation of privacy in the
property. Thus, the court noted that a person does not commit trespass if he is “licensed or
privileged to . . . enter[ ] [the] place as to which notice against trespass is given.” Id. at
1284 (quoting 18 Pa.C.S. § 3503(b)(1)(ii) (defining the offense of criminal trespass)
(emphasis omitted)). Turning to the Game Code, the court observed that Section 901(a)(2)
specifically authorizes a WCO to “go upon any land or water outside of buildings, posted or
otherwise, in the performance of the officer’s duty.” Id. (quoting 34 Pa.C.S. § 901(a)(2)).
Therefore, the court concluded, “[appellant]’s posting of the signs cannot form the basis of
a reasonable expectation of privacy[ ] [because] it would be unreasonable for him to expect
that game officers, who are privileged to enter the land, would not do so to assure
compliance with the Game Law.” Id. at 1285. Indeed, the Commonwealth Court agreed
with the trial court’s observation that, otherwise, “criminals could very easily carry on illegal
enterprises by merely placing ‘No Trespassing’ signs around the perimeter of their
property.” Id. Finally, in a footnote, the court noted the Commonwealth’s reliance on the
open fields doctrine as set forth in Oliver, supra, but determined that it was unnecessary to
decide whether the doctrine applied under the Pennsylvania Constitution because of the
court’s holding in the case. Id. at n.13.
Appellant petitioned this Court for allowance of appeal. On November 22, 2005, we
granted appellant’s petition and directed the parties to address the following issue:
“Whether 34 Pa.C.S. § 901(a)(2) is unconstitutional because Article I, Section 8 of the
Pennsylvania Constitution provides a landowner with a reasonable expectation of privacy in
his posted property.” Commonwealth v. Russo, 887 A.2d 1212 (Pa. 2005).
Our standard of review of a trial court’s denial of a suppression motion is well
[W]e may consider only the Commonwealth’s evidence and so much of the
evidence for the defense as remains uncontradicted when read in the context
of the record as a whole. Where the record supports the factual findings of
the trial court, we are bound by those facts and may reverse only if the legal
conclusions drawn therefrom are in error.
Commonwealth v. Boczkowski, 846 A.2d 75, 89 (Pa. 2004). An appellate court, of course,
is not bound by the suppression court’s conclusions of law. Commonwealth v. Duncan,
817 A.2d 455, 459 (Pa. 2003).
The open fields doctrine was first recognized by the U.S. Supreme Court in Hester v.
United States, 265 U.S. 57, 44 S.Ct. 445 (1924). In that case, while surveilling the home of
Hester’s father (where Hester lived), two revenue officers observed Hester exit the house
and hand a quart bottle to an individual whom the officers suspected to be attempting to
purchase illegal bootleg whiskey. After the officers began pursuing the two men, they fled,
Hester discarding a jug and his would-be customer the bottle. Thereafter, the officers
recovered the vessels at an undisclosed distance from the house and determined them to
contain “moonshine whisky, that is, whisky illicitly distilled.” Id. at 58, 44 S.Ct. at 446.
Hester claimed that the evidence was inadmissible under the Fourth Amendment because
the officers seized it without a warrant.7 In a brief opinion for a unanimous court, Justice
Oliver Wendell Holmes, Jr., concluded that “t is obvious that even if there had been a
trespass, the [evidence] was not obtained by an illegal search or seizure.” Id. Citing
Blackstone’s COMMENTARIES ON THE LAWS OF ENGLAND, Justice Holmes held that “the
special protection accorded by the Fourth Amendment to the people in their ‘persons,
houses, papers and effects,’ is not extended to the open fields. The distinction between the
latter and the house is as old as the common law.” Id. at 59, 44 S.Ct. at 446.
Sixty years later, in a 6-3 decision in Oliver v. United States, supra, the High Court
“reaffirm[ed]” the vitality of the open fields doctrine as announced in Hester. Oliver, 466
U.S. at 178, 104 S.Ct. at 1741; id. at 176 n.6, 104 S.Ct. at 1740 n.6 (rejecting the notion
that “subsequent cases discredited Hester’s reasoning”). Turning its attention initially to the
constitutional text, the Oliver Court noted that open fields are not “effects” within the
meaning of the Fourth Amendment. Indeed, the Court observed, “[t]he Framers would
have understood the term ‘effects’ to be limited to personal, rather than real, property.” Id.
at 177 n.7, 104 S.Ct. at 1740 n.7 (citing, as Justice Holmes did, Blackstone’s
COMMENTARIES, among other sources).
Even assuming one had a subjective expectation of privacy in his open fields, the
Oliver Court went on to reason, such an expectation is not one that society would be
prepared to recognize as reasonable:
[O]pen 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.
Moreover, as a practical matter these lands usually are accessible to the
public and the police in ways that a home, an office, or commercial structure
would not be. It is not generally true that fences or “No Trespassing” signs
7 The Fourth Amendment exclusionary rule was adopted in 1914. See Weeks v. United
States, 232 U.S. 383, 34 S.Ct. 341 (1914).
effectively bar the public from viewing open fields in rural areas. And both
petitioner Oliver and respondent Thornton concede that the public and police
lawfully may survey lands from the air.
Id. at 178, 104 S.Ct. at 1741-42.
Finally, the Oliver Court explicitly rejected the contention that the reasonableness of
one’s expectation of privacy in his open fields should be determined on an ad hoc, case-bycase
Under this approach, police officers would have to guess before every search
whether landowners had erected fences sufficiently high, posted a sufficient
number of warning signs, or located contraband in an area sufficiently
secluded to establish a right of privacy. . . . The lawfulness of a search would
turn on a highly sophisticated set of rules, qualified by all sorts of ifs, ands,
and buts and requiring the drawing of subtle nuances and hairline
distinctions. The ad hoc approach not only makes it difficult for the
policeman to discern the scope of his authority; it also creates a danger that
constitutional rights will be arbitrarily and inequitably enforced.
Id. at 181-82, 104 S.Ct. at 1743 (citations and quotation marks omitted). In this regard, the
reject[ed] the suggestion that steps taken to protect privacy establish that
expectations of privacy in an open field are legitimate. It is true, of course,
that petitioner Oliver and respondent Thornton, in order to conceal their
criminal activities, planted the marihuana upon secluded land and erected
fences and “No Trespassing” signs around the property. And it may be that
because of such precautions, few members of the public stumbled upon the
marihuana crops seized by the police. Neither of these suppositions
demonstrates, however, that the expectation of privacy was legitimate in the
sense required by the Fourth Amendment. The test of legitimacy is not
whether the individual chooses to conceal assertedly “private” activity.
Rather, the correct inquiry is whether the government's intrusion infringes
upon the personal and societal values protected by the Fourth Amendment.
Id. at 182-83, 104 S.Ct. at 1743 (footnote omitted).
There can be no question that the search sub judice was lawful under the Fourth
Amendment, given the open fields doctrine.8 The issue, however, is whether Pennsylvania
has departed, or should depart, from that doctrine when applying Article I, Section 8 of our
Constitution. To determine whether the open fields doctrine as enunciated in Oliver is
consonant with Article I, Section 8, we will undertake an independent analysis of that
provision as guided by our seminal decision in Commonwealth v. Edmunds, 586 A.2d 887
(Pa. 1991). Under Edmunds, a principled consideration of state constitutional doctrine
should include an examination of: (1) the text of the provision of our Constitution; (2) the
history of the provision, including the caselaw of this Commonwealth; (3) relevant caselaw
from other jurisdictions; and (4) policy considerations, “including unique issues of state and
local concern, and applicability within modern Pennsylvania jurisprudence.” Edmunds, 586
A.2d at 895. Consistently with Edmunds, appellant has dutifully discussed the four factors
in his brief, whereas the Commonwealth fails even to cite our decision in that case.9
We begin our Edmunds analysis with a comparison of the language of Article I,
Section 8 to that of the Fourth Amendment. The Fourth Amendment of the U.S.
Constitution provides as follows:
The right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated,
8 Appellant does not argue that any of the evidence he seeks to suppress was seized within
the curtilage of his hunting cabin.
9 The argument section of appellant’s brief consists entirely of his Edmunds analysis
notwithstanding this Court’s direction when granting allowance of appeal that the parties
also discuss the constitutionality of 34 Pa.C.S. § 901(a)(2). Because we hold that the
officers’ actions in this case did not violate appellant’s rights under Article I, Section 8, we
need not reach the constitutionality of the statute.
and no Warrants shall issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be searched, and the
persons or things to be seized.
Similarly, Article I, Section 8 of the Pennsylvania Constitution provides as follows:
The people shall be secure in their persons, houses, papers and possessions
from unreasonable searches and seizures, and no warrant to search any
place or to seize any person or things shall issue without describing them as
nearly as may be, nor without probable cause, supported by oath or
affirmation subscribed to by the affiant.
Given the textual similarity between the two provisions, it is not surprising that
appellant fails to make any textually based arguments for departing from the federal open
fields doctrine. Like the word “effects” in the Fourth Amendment, “possessions” appears as
the last among four objects in which the people have a right to be secure, the others being
their “persons,” “houses,” and “papers.” Pursuant to the interpretative doctrine of ejusdem
generis, the term “possessions” should be construed in light of the particular words
preceding it, all of which refer to intimate things about one’s person.10 If “possessions” had
10 In his Dissenting Opinion, Mr. Chief Justice Cappy proposes a broader interpretation of
“possessions,” citing the decisions of this Court in Commonwealth v. Brion, 652 A.2d 287
(Pa. 1994), Commonwealth v. Melilli, 555 A.2d 1254 (Pa. 1989), and Commonwealth v.
DeJohn, 403 A.2d 1283 (Pa. 1979). None of those three decisions, however, included an
Edmunds analysis -- Melilli and DeJohn because they preceded Edmunds, and Brion
because the 4-3 post-Edmunds majority ignored the Edmunds paradigm. Further, it is
notable that, with respect to Article I, Section 8 privacy, Brion, the only post-Edmunds
case, merely repeated the familiar standard, i.e.: “To determine whether one's activities fall
within the right of privacy, we must examine: first, whether [the defendant] has exhibited an
expectation of privacy: and second, whether that expectation is one that society is prepared
to recognize as reasonable.” Brion, 652 A.2d at 288-89 (quoting Commonwealth v.
Blystone, 549 A.2d 81, 87 (Pa. 1988)). That, of course, is the same test for reasonable
expectation of privacy that applies under the Fourth Amendment. See, e.g.,
Commonwealth v. Millner, 888 A.2d 680, 691-92 (Pa. 2005).
been intended to refer to everything one owned, such as open fields, then there would have
been no need to specify the other three objects. We therefore find persuasive for present
purposes the Oliver Court’s interpretation of the text of the Fourth Amendment. Nothing in
the plain text of Article I, Section 8 suggests that open fields are entitled to the same
degree of privacy as one’s person, house, papers, and possessions.
Turning to the history prong of the Edmunds analysis, appellant generally observes
that in the past decades it has been stated that, unlike the Fourth Amendment, Article I,
Section 8 was motivated by a desire to safeguard citizens’ privacy. Thus, appellant cites
recent decisions in which this Court has accorded greater protection under Article I, Section
8 in certain other, limited contexts. See Appellant’s Brief at 11-12 (citing, inter alia,
Commonwealth v. Shaw, 770 A.2d 295 (Pa. 2001) (requiring warrant for seizure of hospitaladministered
blood-alcohol content test results under Article I, Section 8 where warrant not
required under Fourth Amendment) (lacking Edmunds analysis); Commonwealth v. Matos,
672 A.2d 769 (Pa. 1996) (holding that police pursuit of individual is a “seizure” within
meaning of Article I, Section 8 even though it is not under Fourth Amendment) (applying
Suffice it to say that neither Melilli nor DeJohn contained the sort of searching inquiry
contemplated by Edmunds, and we are not disposed, at the present time, to disavow the
supervening importance of Edmunds.
It is also notable that Brion involved the sanctity of the home, and in emphasizing that point,
the Brion majority invoked Commonwealth v. Shaw, 383 A.2d 496 (Pa. 1978) for the
proposition that: “Upon closing the door of one's home to the outside world, a person may
legitimately expect the highest degree of privacy known to our society.” Brion, 652 A.2d at
289 (quoting Shaw, 383 A.2d at 499). Shaw was a case decided exclusively under the
Fourth Amendment, not Article I, Section 8. Brion, then, was an Article I, Section 8 case
entirely reliant upon Fourth Amendment principle.
Edmunds); Commonwealth v. White, 669 A.2d 896 (Pa. 1995) (rejecting federal rule
allowing warrantless search of vehicle when incident to arrest) (lacking Edmunds analysis
and characterizing it as dicta). Appellant, however, fails to explain how the instant case
implicates the heightened privacy interest recognized in these other contexts, nor does he
draw our attention to any case that is remotely analogous to the one at bar. Indeed, a
sufficient rebuttal to appellant’s argument in this regard would be to point to the many
decisions in which this Court has held that Article I, Section 8 does not afford greater
protection than the Fourth Amendment. See, e.g., Commonwealth v. Duncan, 817 A.2d
455 (Pa. 2003) (lack of privacy right in one’s name and address); Commonwealth v. Glass,
754 A.2d 655 (Pa. 2000) (anticipatory search warrants); Commonwealth v. Cleckley, 738
A.2d 427 (Pa. 1999) (voluntariness of consent to search); Commonwealth v. Waltson, 724
A.2d 289 (Pa. 1998) (particularity requirement for warrants); Commonwealth v. Williams,
692 A.2d 1031 (Pa. 1997) (warrantless parole searches); Commonwealth v. Melendez, 676
A.2d 226 (Pa. 1996) (“stop and frisk” under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868
Taking a broader and more fundamental historical examination, it is worth noting
that, at the time the U.S. Supreme Court determined that the Fourth Amendment and the
then-recent federal exclusionary rule did not apply to open fields, the unbroken, prevailing
interpretation of Article I, Section 8 by the Pennsylvania courts was that that provision
offered no exclusionary remedy whatsoever. Indeed, notwithstanding that the federal
exclusionary rule had been in existence since the 1914 decision in Weeks, supra, this
Court, and the Superior Court enforcing our decisions, repeatedly refused to find a similar
remedy encompassed in Article I, Section 8. Instead, this Court’s historical interpretation of
Article I, Section 8 always followed “the fundamental principle of the common law that the
admissibility of evidence is not affected by the illegality of the means by which it was
obtained.” Commonwealth v. Chaitt, 112 A.2d 379, 381 & n.1 (Pa. 1955) (collecting cases);
Commonwealth v. Agoston, 72 A.2d 575, 585 (Pa. 1950); Commonwealth v. Hunsinger,
138 A. 683 (Pa. 1927); Commonwealth v. Dabbierio, 138 A. 679, 681 (Pa. 1927);
Commonwealth v. Montanero, 96 A.2d 178 (Pa. Super. 1953); Commonwealth v. Dugan,
18 A.2d 84 (Pa. Super. 1941). The exclusionary rule itself, then, was not an organic part of
Article I, Section 8; it was a federal imposition, made applicable against the states for
Fourth Amendment purposes by Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684 (1961). Thus,
any historical survey respecting open fields and privacy under Article I, Section 8, like
examination of any suppression case under the Pennsylvania charter, hits a brick wall in
1961: there is no relevant history to support a broader state constitutional interpretation
because there was no point in seeking such an interpretation, at least in a criminal case,
since there was no exclusionary remedy available.
Matters changed after Mapp, of course, and Pennsylvania courts, having become
familiar by necessity with the command and operation of the federal exclusionary rule,
began to entertain equivalent claims under the guise of Article I, Section 8. The
progression was not consciously announced or explained, and indeed, in many instances,
such disclosure was unimportant because this Court, while citing both the Fourth
Amendment and Article I, Section 8, employed a coterminous approach. See, e.g.,
Commonwealth v. Bosurgi, 190 A.2d 304 (Pa. 1963); Commonwealth v. Eazer, 312 A.2d
398 (Pa. 1973); Commonwealth v. White, 327 A.2d 40 (Pa. 1974); Commonwealth v.
Brooks, 364 A.2d 652 (Pa. 1976); Commonwealth v. Holzer, 389 A.2d 101 (Pa. 1978).
Eventually, however, exclusionary decisions arose that were rendered exclusively under
Article I, Section 8, and other decisions were so rendered while recognizing that the course
taken represented a break from U.S. Supreme Court authority, and an embrace of a
greater protection of privacy rights than that which was commanded under the Fourth
Amendment and Mapp. See, e.g., Commonwealth v. DeJohn, 403 A.2d 1283 (Pa. 1979);
Commonwealth v. Sell, 470 A.2d 457 (Pa. 1983); Edmunds, supra. Even this development
was not entirely clear, for no decision of this Court has squarely purported to examine and
disapprove of the long and unbroken line of pre-Mapp decisions holding that, far from
recognizing greater exclusionary-rule-related privacy rights, Article I, Section 8 contained
no exclusionary remedy whatsoever.
Our decisional task in this case, however, does not require us to explain and
synthesize this Court’s pre- and post-Mapp expressions concerning Article I, Section 8.
The reality is that, in the past few decades, a substantial body of cases has arisen under
Article I, Section 8, all involving the exclusionary remedy. Some holdings have been
explained with an Edmunds analysis, see, e.g., Edmunds, while others contain holdings
that are unexplained in Edmunds terms, see, e.g., Commonwealth v. Shaw, 770 A.2d 295
(Pa. 2001); Commonwealth v. White, 669 A.2d 896 (Pa. 1995); Commonwealth v. Mason,
637 A.2d 251 (Pa. 1993); Commonwealth v. Hess, 617 A.2d 307 (Pa. 1992).11 What is
11 The Dissenting Opinion of the Chief Justice recognizes the mandatory nature of the
analysis set forth in Edmunds. See Slip Op. at 2 (“A determination of whether Oliver
comports with the rights guaranteed Pennsylvania citizens under Article I, Section 8 of the
Pennsylvania Constitution requires an examination of the four factors set forth in
Commonwealth v. Edmunds, 586 A.2d 887 (Pa. 1991).”) (emphasis added). We agree that
state constitutional decisions are more secure when they proceed from a searching inquiry.
Madame Justice Baldwin’s Dissenting Opinion posits that Edmunds exists solely to
encourage litigants to provide Edmunds information in briefing, does not require that the
Court’s thought processes in rendering a state constitutional holding be made explicit, and
places a burden upon litigants, not on the courts.
Edmunds noted the reason that it is important for litigants to brief the factors announced in
that decision is to facilitate the requirement that Pennsylvania courts ”make a ‘plain
statement’ of the adequate and independent state grounds upon which we rely, in order to
avoid any doubt that we have rested our decision squarely upon Pennsylvania
jurisprudence.” Edmunds, 586 A.2d at 895. Edmunds having been the case where the
four-part inquiry was established, the Court did not have the benefit of such briefing from
the parties. Nevertheless, the Court did not simply announce its Article I, Section 8 holding
there; rather, it engaged in the searching inquiry the four-part test contemplated.
Although it is true that the Court has rendered decisions since Edmunds which were not
accompanied by an Edmunds analysis, and even in cases where the parties failed to brief
Edmunds, there also are numerous, careful state constitutional decisions where this Court
has engaged in the responsible, searching inquiry Edmunds outlined. See Commonwealth
v. Glass, 754 A.2d 655, 661 (Pa. 2000) (challenge to anticipatory search warrant)
(characterizing Edmunds as “the four-part methodology to aid in evaluating state
constitutional claims”); Commonwealth v. Cleckley, 738 A.2d 427, 430 (Pa. 1999) (applying
Edmunds to assess validity of consent search under Pennsylvania Constitution);
Commonwealth v. Waltson, 724 A.2d 289, 291 (Pa. 1998) (challenge that warrant was
overbroad) (“In Commonwealth v. Edmunds, this court proffered a methodology for
analyzing issues which arise pursuant to the Pennsylvania Constitution.”) (citation omitted);
Commonwealth v. Hawkins, 718 A.2d 265, 266, 268 (Pa. 1998) (applying Edmunds
analysis to Article I, Section 8 claim that criminal defendants “should be able to vicariously
assert privacy interests belonging to others in order to challenge allegedly intrusive police
conduct”) (“When asked to decide whether our state Constitution provides greater
privileges and protections than the United States Constitution, we evaluate the request in
light of the [four Edmunds factors].”); Commonwealth v. Williams, 692 A.2d 1031, 1038 (Pa.
1997) (parolee search) (“When determining whether the Pennsylvania Constitution
provides greater protection than its counterpart in the federal constitution, this Court
considers the [four Edmunds factors.]”); Commonwealth v. Matos, 672 A.2d 769, 772 n.3
(Pa. 1996) (applying Edmunds in determining scope of seizure under Article I, Section 8;
declining to follow California v. Hodari D., 499 U.S. 621, 111 S.Ct. 1547 (1991)) (“In
Edmunds, this Court created a four-pronged methodology to aid in the analysis of state
constitutional claims. This methodology, while not mandatory, highlights important
touchstones that should be considered whenever this Court weighs the impact of United
States Constitutional decisions upon state constitutional claims.“); accord Commonwealth
v. Cass, 709 A.2d 350, 358 (Pa. 1998) (Opinion Announcing Judgment of Court) (school
searches) (noting that “we developed in [Edmunds] a four pronged methodology that we
will follow in addressing the applicability of [U.S. Supreme Court Fourth Amendment
authority] to the constitutionality of school searches in Pennsylvania”).
Moreover, this Court has applied the Edmunds methodology in considering state
constitutional claims under provisions other than Article I, Section 8. See, e.g., Pap's A.M.
v. City of Erie, 812 A.2d 591, 603 (Pa. 2002) (freedom of expression under Article I, Section
7 of Pennsylvania Constitution) (“We also agree with the parties that it is helpful to conduct
our Pennsylvania constitutional analysis, to the extent possible, consistently with the model
suggested by Edmunds.”) (noting also that, although Edmunds involved Article I, Section 8,
the decision “spoke to the appropriate analysis of Pennsylvania constitutional claims as a
class”); Commonwealth v. Means, 773 A.2d 143, 147 (Pa. 2001) (Opinion Announcing
Judgment of Court) (applying Edmunds to multi-faceted state constitutional claim
challenging statute permitting admission of victim impact testimony at penalty phase of
capital trial); Commonwealth v. Swinehart, 664 A.2d 957, 958 (Pa. 1995) (evaluating
whether use and derivative use immunity provided in 42 Pa.C.S. § 5947 was consistent
most important for present purposes, however, is that our own unique history and caselaw
simply do not reflect any “societal interest in protecting the privacy of those activities, such
as the cultivation of crops, that occur in open fields.” Oliver, 466 U.S. at 179, 104 S.Ct. at
1741. As the Oliver Court observed, a notation with which we agree, these lands are, as a
practical matter, readily accessible to the public and to law enforcement. Id. Thus, in
Pennsylvania, as in almost every other state, open fields do not provide the setting for the
kinds of intimate activities with respect to which citizens would reasonably expect to be free
from governmental surveillance. Article I, Section 8’s protection of privacy has been in
existence for over two hundred years, and yet, there has never been any suggestion, in any
Pennsylvania source, that would militate a contrary conclusion. In fact, the decisions of the
courts of this Commonwealth that are most analogous reflect a recognition of the distinction
between the home and open fields when determining the legitimacy of one’s expectation of
privacy under Article I, Section 8. See Commonwealth v. Rood, 686 A.2d 442, 450 (Pa.
Cmwlth. 1996) (en banc), alloc. denied, 699 A.2d 736 (Pa. 1997) (holding that landowner
had no reasonable expectation of privacy under Article I, Section 8 in outdoor wooded area
beyond curtilage of his home); Commonwealth v. Treftz, 351 A.2d 265, 270 (Pa. 1976)
(noting, in holding that defendant lacked standing to challenge seizure of corpse of murder
victim under Article I, Section 8, that corpse was found in backwoods area accessible to
hunters); see also Commonwealth v. Bender, 811 A.2d 1016, 1023 (Pa. Super. 2002)
with Article 1, Section 9’s privilege against compelled self-incrimination) (“We find that the
four-pronged method of analysis established in Edmunds to be the most thorough manner
of accomplishing our task.”) (applying Edmunds where challenger failed to provide
Edmunds analysis); United Artists' Theater Circuit, Inc. v. City of Philadelphia, 635 A.2d
612, 615 (Pa. 1993) (applying Edmunds to state constitutional claim sounding in Takings
Clause of Article I, Section 10).
We reiterate that we believe that state constitutional decisions are more secure when they
are supported by the searching inquiry contemplated by Edmunds.
(rejecting Article I, Section 8 challenge to admissibility of tape recording made “not . . .
inside of [defendant’s] home[ but] [r]ather, . . . at some location outside the four walls of
[defendant’s] residence and then continu[ing] exclusively within . . . vehicle” parked on
Appellant ably summarizes this Court’s general observations in Edmunds regarding
the unique history of Article I, Section 8. Missing from appellant’s analysis, however, is an
attempt to relate that unique history to the specific question of the reasonableness of an
expectation of privacy in one’s open fields. Compare with Edmunds, 586 A.2d at 899
(addressing propriety of “good-faith” exception to exclusionary rule in light of unique history
of Article I, Section 8). The mere fact that this Court has, under certain circumstances,
accorded greater protections to the citizens of this Commonwealth under Article I, Section 8
“does not command a reflexive finding in favor of any new right or interpretation asserted.
To the contrary, we should apply the prevailing standard where our own independent state
analysis does not suggest a distinct standard.” Commonwealth v. Glass, 754 A.2d 655,
660 (Pa. 2000) (citation and internal quotation marks omitted). Appellant fails to suggest
any aspect of the unique history of Article I, Section 8 that would put the lie to the “old as
the common law” distinction between house and open fields that Justice Holmes invoked in
Hester, an observation that, as author of the classic, THE COMMON LAW, Justice Holmes
was supremely well positioned to make. Pennsylvania history, in short, weighs strongly
against any notion that open fields are entitled to the same heightened privacy as one’s
person or home.
3. Other jurisdictions
Consistently with guidance from Edmunds, we next consider relevant caselaw from
other jurisdictions. In his brief, appellant discusses four decisions from our sister states that
have refused to adopt the federal open fields doctrine for purposes of their constitutions.
First, appellant cites People v. Scott, 593 N.E.2d 1328 (N.Y. 1992), in which the Court of
Appeals of New York held that a landowner had a protectable privacy interest in land
beyond the curtilage of his home under Article I, Section 12 of the New York constitution.
As appellant notes, the text of the New York constitutional provision is substantially similar
to that of Article I, Section 8 of our Constitution. See N.Y. CONST. art. I, § 12 (protecting
“[t]he right of the people to be secure in their persons, houses, papers and effects, against
unreasonable searches and seizures”). Nevertheless, the Scott court expressly disavowed
“the Oliver majority’s . . . literal textual analysis,” instead preferring to focus on the
compatibility of the federal open fields doctrine with New York caselaw. Scott, 593 N.E.2d
at 1335. Appellant fails to suggest that any of the New York decisions cited in Scott is
consistent with the Article I, Section 8 jurisprudence of this Commonwealth. In fact, the
New York decisions’ emphasis on state trespass statutes is, if anything, contrary to
Pennsylvania caselaw. Compare People v. Gleeson, 330 N.E.2d 72, 72 (N.Y. 1975), cited
in Scott, 593 N.E.2d at 1336 (suppressing information obtained as a result of a “trespass”
by sheriff) with Rood, 686 A.2d at 450 (noting that officer “was specifically authorized and,
in fact, required by law to investigate the field and wooded area located on Rood's property”
(citing former Section 741(2), now Section 901(a)(2), of the Game Code)).
Appellant next cites State v. Johnson, 879 P.2d 984 (Wash. Ct. App. 1994) and
State v. Kirchoff, 587 A.2d 988 (Vt. 1991), in which the Court of Appeals of Washington and
the Supreme Court of Vermont each determined that the federal open fields doctrine was
incompatible with the respective provisions of those states’ constitutions. Both the Johnson
and Kirchoff courts noted, however, that the relevant general inquiry under their respective
constitutions was not, as under the Fourth Amendment, the reasonableness of one’s
privacy expectation. See Johnson, 879 P.2d at 990 (“Unlike the inquiry into subjective and
reasonable expectations of privacy that must be made when the Fourth Amendment is
implicated, the critical inquiry under the Washington State Constitution focuses on . . .
[whether] the law enforcement officers unreasonably intrude[d] into the defendant's ‘private
affairs[.]’”);12 Kirchoff, 587 A.2d at 995 (expressing “reluctan[ce] to use the phrase
‘reasonable expectation of privacy’”). Conversely, “n determining the scope of protection
afforded under Article I, Section 8, this Court employs the same two-part test employed by
the United States Supreme Court to determine the sweep of the Fourth Amendment of the
U.S. Constitution.” Commonwealth v. Duncan, 817 A.2d 455, 463 (Pa. 2003). That test
requires a person to demonstrate: (1) a subjective expectation of privacy; and (2) that the
expectation is one “that society is prepared to recognize as reasonable and legitimate.” Id.
(quoting Commonwealth v. Gordon, 683 A.2d 253, 256 (Pa. 1996)).
Finally, appellant cites State v. Bullock, 901 P.2d 61 (Mont. 1995), in which the
Supreme Court of Montana rejected the open fields doctrine for purposes of that state’s
constitution. In so holding, the Bullock court emphasized that the Montana constitution
includes, in addition to its own counterpart to the Fourth Amendment, an additional
provision not found in the federal Constitution. Id. at 75. Indeed, Article II, Section 10 of
the Montana Constitution provides that “[t]he right of individual privacy is essential to the
well-being of a free society and shall not be infringed without the showing of a compelling
state interest.” Given the absence of any such provision in the Pennsylvania Constitution,
we find Bullock unpersuasive in determining the compatibility of the federal open fields
doctrine with Article I, Section 8.
As appellant responsibly notes, other states have adopted the federal open fields
doctrine for purposes of their respective constitutional guarantees against unreasonable
12 The Johnson court explained the Washington courts’ rejection of the federal standard as
owing to the unique language of that state constitution’s counterpart to the Fourth
Amendment: “No person shall be disturbed in his private affairs, or his home invaded,
without authority of law.” WASH. CONST. art. 1, § 7. The absence of such language in
Article I, Section 8 of the Pennsylvania Constitution further detracts from appellant’s
reliance on Johnson as persuasive support in his Edmunds analysis.
searches and seizures. The wording of the constitutional provisions of these states, unlike
Montana and Washington, is substantially similar to that of Article I, Section 8 of our
Constitution. See, e.g., State v. Pinder, 514 A.2d 1241, 1246 (N.H. 1986) (adopting federal
open fields doctrine under N.H. CONST. part I, art. 19); State v. Havlat, 385 N.W.2d 436,
440 (Neb. 1986) (NEB. CONST. art. I, § 7); Williams v. State, 166 N.E. 663 (Ind. 1929) (IND.
CONST. art. I, § 11); Wolf v. State, 9 S.W.2d 350 (Tex. Crim. App. 1928) (TEX. CONST. art. I,
§ 9); State v. Zugras, 267 S.W. 804, 806 (Mo. 1924) (MO. CONST. art. II, § 11); Ratzell v.
State, 228 P. 166, 168 (Okla. Crim. App. 1924) (OKLA. CONST. Bill of Rights § 30); Brent v.
Commonwealth, 240 S.W. 45, 48 (Ky. 1922) (KY. CONST. § 10); State v. Gates, 703 A.2d
696, 701 (N.J. Super. L. 1997) (N.J. CONST. art. I, ¶ 7); Betchart v. Dep’t of Fish & Game,
205 Cal. Rptr. 135 (Cal. Ct. App. 1984) (CAL. CONST. art. I, § 13). For this reason, we find
the decisions from these states more persuasive than the decisions from the four states
upon which appellant relies.
4. Policy considerations
Appellant concludes his Edmunds analysis by referencing five policy considerations
that he claims support his position. According to appellant, the guarantees of Article I,
Section 8 should extend to open fields in order: (1) to prevent “overly zealous police
officers” from conducting “fishing expeditions”; (2) to “protect [ ] the right of privacy”; (3) to
prevent WCOs from “treat[ing] the property of others as their own”; (4) to avoid
confrontations between WCOs and landowners; and (5) to encourage WCOs to apply for
search warrants. Appellant’s Brief at 17-18.
In a recent scholarly article, our learned colleague Mr. Justice Thomas Saylor
explained why “mplementation of a state constitutional value . . . necessarily entails a
searching, evaluative inquiry” into genuinely “unique state sources, content, and context as
bases for independent interpretation.” Thomas G. Saylor, Prophylaxis in Modern State
Constitutionalism: New Judicial Federalism and the Acknowledged Prophylactic Rule, 59
N.Y.U. ANN. SURV. AM. L. 283, 309-13 (2003). Indeed, were it otherwise, the tag-line
“policy” could metamorphose into cover for a transient majority’s implementation of its own
personal value system as if it were an organic command. As support for his policy
arguments, appellant cites general principles of Pennsylvania law, decisions from other
states, and our trespass statute, 18 Pa.C.S. § 3502, without actually explaining how any of
these authorities pertains to “unique issues of state and local concern, and applicability
within modern Pennsylvania jurisprudence.” Edmunds, 586 A.2d at 895. Appellant’s
reliance on authorities that either come directly from another state13 or are indistinct from
those of most other jurisdictions14 merely highlights the absence of Pennsylvania sources
to support his position. This argument falls short of the kind of searching inquiry required to
determine that public policy considerations unique to Pennsylvania suggest that the federal
open fields doctrine is inconsistent with Article I, Section 8 of our Constitution.
The citizens of this Commonwealth throughout our history have shown a keen
interest in protecting and preserving as an asset the diverse wildlife that find refuge in the
fields and forests within our borders. This interest is so strong that it is enshrined by a
separate provision of the Pennsylvania Constitution:
The people have a right to clean air, pure water, and to the preservation of
the natural, scenic, historic and esthetic values of the environment.
Pennsylvania's public natural resources are the common property of all the
people, including generations yet to come. As trustee of these resources, the
Commonwealth shall conserve and maintain them for the benefit of all the
13 See Appellant’s Brief at 18 (quoting Scott, 593 N.E.2d at 1336); id. (quoting Johnson,
879 P.2d at 993); id. at 19 (citing Kirchoff, 587 A.2d at 996-97).
14 See, e.g., Appellant’s Brief at 17 (citing Commonwealth v. Glass, 718 A.2d 804, 810 (Pa.
Super. 1998) for the proposition that the purpose of Article I, Section 8 is “to protect citizens
from unreasonable searches and seizures”); id. at 19 (citing 34 Pa.C.S. § 3502).
PA. CONST. art. 1, § 27. The legislative and executive branches, in turn, have enacted and
executed a plethora of statutes and regulations designed to enforce the people’s right to
the preservation of our wildlife.15 Thus, our Constitution and enacted statutes -- as well as
the agencies created to enforce them -- all confirm that, in Pennsylvania, any subjective
expectation of privacy against governmental intrusion in open fields is not an expectation
that our society has ever been willing to recognize as reasonable. In short, the baseline
protections of the Fourth Amendment, in this particular area, are compatible with
Pennsylvania policy considerations insofar as they may be identified. More importantly,
there is nothing in the unique Pennsylvania experience to suggest that we should innovate
a departure from common law and from federal law and reject the open fields doctrine.
In light of the foregoing, we hold that the guarantees of Article I, Section 8 of the
Pennsylvania Constitution do not extend to open fields; federal and state law, in this area,
are coextensive.16 Therefore, we affirm the Commonwealth Court’s determination that
15 Enforcement, it is worth noting, is a monumental task. For every three hundred fifty
square miles of land in Pennsylvania, only one full-time WCO is assigned to conduct wildlife
protection. A WCO’s duties include not just enforcing hunting and trapping laws but also
investigating hunting accidents, conducting wildlife surveys, assisting in wildlife research
projects, and providing educational programs. Pa. Game Comm’n, “About the
Pennsylvania Game Commission,” at
http://www.pgc.state.pa.us/pgc/cwp/view.asp?a=481&q=151287 (last visited Nov. 19,
16 For this reason, the instant case does not require us to reach the constitutionality of 34
Pa.C.S. § 901(a)(2).
Officers Wasserman and Pierce did not violate appellant’s right to be free from
unreasonable searches and seizures.17
Messrs. Justice Saylor, Eakin and Fitzgerald join the opinion.
Mr. Chief Justice Cappy files a dissenting opinion in which Mr. Justice Baer and
Madame Justice Baldwin join.
Madame Justice Baldwin files a dissenting opinion in which Mr. Justice Baer joins.
Theres your answer -
I think that's the longest post I've ever seen here!