[J-20-2025] [MO: Brobson, J.]
IN THE SUPREME COURT OF PENNSYLVANIA
WESTERN DISTRICT
PUNXSUTAWNEY HUNTING CLUB, INC., : No. 23 WAP 2023
AND PITCH PINE HUNTING CLUB, INC., :
: Appeal from The Order of the
Appellants : Commonwealth Court entered
: September 29, 2023, at No. 456 MD
: 2021.
v. :
: ARGUED: April 9, 2025
:
PENNSYLVANIA GAME COMMISSION, :
AND MARK GRITZER, IN HIS OFFICIAL :
CAPACITY AS AN OFFICER OF THE :
PENNSYLVANIA GAME COMMISSION, :
:
Appellees :
CONCURRING AND DISSENTING OPINION
JUSTICE WECHT DECIDED: JULY 21, 2026
For the reasons that the Majority thoroughly and convincingly explains, Article I,
Section 8 of Pennsylvania’s Constitution affords greater privacy protections than the
Fourth Amendment to the United States Constitution, and our Commonwealth v. Russo1
precedent must be reversed.2
I write separately to address two points of divergence that remain, notwithstanding
my agreement with that important holding.
1 934 A.2d 1199 (Pa. 2007).
2 Maj. Op. at 76.
First, while I agree that the Game and Wildlife Code’s3 “Entry Statutes”4 are facially
unconstitutional, I differ with the Majority’s rationale. The Majority holds that the “scope
of the protection afforded under Article I, Section 8 to a landowner's open fields only
extends to private land located beyond the curtilage over which the landowner has
demonstrated a reasonable and legitimate expectation of privacy by taking sufficient
steps to exclude intruders therefrom.”5 The Majority maintains that society would
recognize privacy protections only for those who have “taken steps to notify the public
that the land is private and that they should not intrude thereon without permission.” 6 I
3 See 34 Pa.C.S. §§ 101-2965 (“the Game and Wildlife Code” or “the Code”). 4 34 Pa.C.S. §§ 303(c), 901(a)(2).
5 Maj. Op. at 80. The Majority correctly determines that the Punxsutawney Hunting Club has established an expectation of privacy that society would deem reasonable and has demonstrated that the Entry Statutes are unconstitutional. Id. I add that, independent of a landowner’s state constitutional rights, even if the Punxsutawney Hunting Club could not demonstrate an expectation of privacy, the Entry Statutes would be in constitutional peril. In United States v. Jones, 565 U.S. 400 (2012), the United States Supreme Court held that law enforcement officers’ placement of a GPS device on a vehicle violated the Fourth Amendment. Id. at 402-03. Jones held that there are two ways to invoke the protections of the Fourth Amendment. A person can demonstrate an expectation of privacy in the area searched. Alternatively, a person can invoke a trespass theory, which affords the right to challenge a search or seizure when a government agent “physically occupied private property for the purpose of obtaining information.” Id. at 404-05. Because the Entry Statutes authorize such a trespass, they likely are unconstitutional under Jones and the Fourth Amendment, as well as under Article I, Section 8.
The Majority opines that Jones has no application here because a law enforcement officer’s warrantless entry onto land would not satisfy the elements of Pennsylvania’s defiant trespass statute. See Maj. Op. at 80-81 n.24. I disagree. The Jones Court’s trespass theory had nothing to do with whether the law enforcement officer was susceptible to criminal prosecution or whether a person raising a Fourth Amendment claim could allege violation of a criminal statute. Trespass was the principle recognized by the Jones Court as a vehicle that could be used to establish a violation of Fourth Amendment rights. That a law enforcement officer’s action does not constitute a crime has no bearing upon the trespass theory applied by the Jones Court, a theory that likely would prohibit the warrantless entries that the Code authorizes.
6 Maj. Op. at 80.
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believe that Pennsylvania’s Constitution embraces a broader privacy entitlement.
Landowners reasonably may expect that their land is protected against arbitrary and
warrantless governmental entries. The right does not depend upon whether one adorns
one’s land with flimsy paper signs or splatters purple paint on a handful of trees.
Second, I am unable to join in the Majority’s decision to uphold the constitutionality
of 34 Pa.C.S. § 901(a)(8). That provision of the Game and Wildlife Code bestows upon
game wardens the “power and duty” to search a hunter’s private effects and containers
without probable cause and without a search warrant.7 This statutory authorization of
suspicionless and warrantless searches is unconstitutional.
I.
The open fields doctrine may bring to mind images of forested tracts, expansive
farms, or isolated game lands.8 But, for constitutional purposes, open fields are not
limited to such bucolic settings. Any spaces owned by a landowner that extend beyond
the house and its curtilage constitute open fields.9 The protections afforded to open fields
under Article I, Section 8 of the Pennsylvania Constitution apply as much to a one-acre
plot in a suburban borough as they do to a rural one-hundred acre tract. The owner of
the latter might believe it prudent to post “No Trespassing” signs on trees surrounding the
property. The owner of the former would never think to do so. Both owners possess
7 Id. at 81.
8 See, e.g., Oliver v. United States, 466 U.S. 170, 173 (1984) (farmland); Russo, 934 A.2d at 1200-01 (hunting camp); State v. Bullock, 901 P.2d 61, 64 (Mont. 1995) (hunting cabin surrounded by forest); State v. Dixson, 766 P.2d 1015, 1016 (Or. 1988) (heavily forested land accessible only on foot). As the Majority notes, the open fields doctrine flows from the pen of Holmes himself, who thought it “as old as the common law.” Hester v. United States, 265 U.S. 57, 69 (1924). See Maj. Op. at 4.
9 See Oliver, 466 U.S. at 178 (indicating that the open fields doctrine encompasses those outdoor areas owned by a landowner “except in the area immediately surrounding the home”); see also Bullock, 901 P.2d at 70 (“it appears that if an area is not curtilage, it is an open field”).
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open fields susceptible to warrantless law enforcement entry. Yet, according to the
Majority, only the owner of the latter tract would have the right to prevent such unlawful
entry. I disagree, as there is no difference between the two for purposes of constitutional
privacy analysis.
Consider a hypothetical. A husband and a wife own a nine acre tract of land.
Imagine that the property is square-shaped, with three rows of one acre plots. On the
northern center acre sits the family home. Just south of the house, in the acre at the
center of the square and outside of the house’s curtilage, is a swimming pool. The
remaining acres are covered sparsely in trees. The property is neither fenced nor walled.
The trees are neither painted purple nor posted with signage. The husband and wife
enjoy floating privately in their pool on warm summer evenings. Under the Majority’s
approach, this couple is entitled to no constitutionally protected privacy unless they post
signs on the trees surrounding their pool. If the Majority is correct, a law enforcement
officer can walk right onto their property, surveil at will, and even take photographs of the
couple enjoying their time together in the pool—all without probable cause or a search
warrant. This does not comport with the heightened expectation of privacy that
Pennsylvanians enjoy under our Constitution. The pool-floating couple’s assertion of
privacy is as reasonable as that asserted by the Punxsutawney Hunting Club in this case;
indeed, moreso.10
10 The Majority suggests that landowners such as the pool-floating couple or the owner of a one-acre suburban lot may one day be able to demonstrate a reasonable expectation of privacy in their lands, even though they have not posted signs or painted any of their trees. See Maj. Op. at 80-81 n.24. The Majority declines to address such circumstances, choosing instead to “resolve only the question of whether the Hunting Clubs here have done so.” Id. In the end, I believe the Majority offers these landowners false hope; their path to establishing an expectation of privacy is foreclosed by the Majority’s conclusion that society would recognize privacy protections “only” for those who have “taken steps to notify the public that the land is private and that they should not intrude thereon without permission.” Id. at 80. This conclusion unnecessarily limits the (continued…)
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Privacy rights cannot and do not depend upon a landowner’s decision or ability to
staple signs to a tree or to erect fences. To impose such requirements is to ignore the
fact that each home, property, usage, and terrain is different. Each implicates concerns
of its own, which are necessarily idiosyncratic. Because the Majority’s approach
unnecessarily will abridge landowners’ privacy rights, it will likely spawn suppression
litigation in our trial courts. Fencing often is unaffordable or even impossible on large
plots, or across difficult terrains and topographies. Privacy rights are not enjoyed only by
those who can afford or manage to fence their entire property. Does a landowner who
uses chain link fence, which creates no visual barrier to the property, have a greater claim
to privacy than the person who puts up no fence at all, merely because the former has
used some form of fencing? How many signs must one nail to a tree in order to safeguard
one’s expectation of privacy? For the one-acre suburban plot, is one sign enough? Two?
This arbitrary bifurcation of privacy rights will compel law enforcement officers to make
rapid, on-the-beat determinations of whether a landowner has undertaken sufficient
efforts to ensure his privacy. Mistakes will lead to trespass accusations and unlawful
seizures of evidence. Instead of inducing law enforcement officers to risk such errors,
and instead of separating property owners into the haves and the have-nots, we should
demand of our government agents what our Constitution requires: get a search warrant.
A landowner either has an expectation of privacy or he does not. Privacy rights do
not exist only for those who take proactive steps to keep the government (and others)
out. A homeowner is not required to shut his front door in order to expect privacy in his
home. A woman is not required to close the zipper on her purse. A cell phone user is
expectation of privacy to the Appellants’ class of landowners. Resolution of this case does not require such a limitation, a limitation that erects an insurmountable barrier to any who maintain a legitimate expectation of privacy in their land, even if they have not “taken steps to exclude intruders therefrom.” Id.
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not required to lock his device lest police officers root through his files. Such efforts may
be well-advised, even intuitive. But they are not constitutional prerequisites. The
yardstick for the right of privacy is not how loudly one announces one’s expectation of it.
The Majority correctly invalidates the Entry Statutes. But its erroneous limitation
regarding who can assert privacy rights will have repercussions beyond this case. Those
who post signs, or who fence their boundaries, can rest assured that no law enforcement
officer will enter their property without a search warrant. But today’s holding offers no
solace to those who own open fields but have not satisfied the Majority’s privacy
protection requirements. Unless and until landowners outwardly proclaim their privacy
through signs, paint, or fences, they can expect no privacy, and law enforcement officers
freely can enter their lands without search warrants. Article I, Section 8 cannot, and does
not, countenance such a dichotomy of privacy rights.
II.
The Majority holds that, unlike the Entry Statutes, Section 901(a)(8) of the Game
and Wildlife Code passes constitutional muster, because “nothing in the text of Section
901(a)(8) . . . permits the [Game] Commission’s officer’s, employees, and representatives
to enter private land, posted or otherwise.”11 I disagree. The text of the Game and Wildlife
Code unambiguously permits game wardens or law enforcement officers to enter private
land in order to conduct nearly boundless administrative searches, and these are
unconstitutional.
Pennsylvania’s Game and Wildlife Code vests “ownership, jurisdiction over and
control of game or wildlife” in a “Commission.”12 The Commission is bound by statute to
“protect, propagate, manage and preserve the game or wildlife of this Commonwealth
11 Maj. Op. at 81.
12 34 Pa.C.S. § 303.
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and to enforce, by proper actions and proceedings, the laws of this Commonwealth
relating thereto.”13 The Commission is empowered to set hunting seasons, select taking
limits, declare or repeal declarations of open season hunting, increase or reduce bag or
possession limits, define geographical parameters for hunting, fix the type and number of
equipment to be used for hunting, limit the number of hunters permitted to hunt or trap
within specific geographical parameters, govern the use of recorded or amplified game
calls, classify wild birds and animals, prohibit the import or export of species of birds or
animals that it deems dangerous to people or to the environment, manage the lands and
waters within its control, collect and classify data, and serve “sportsmen by preserving
and promoting our special heritage of recreational hunting and furtaking” by operating in
a manner that affords “adequate opportunity” to hunt and trap.14 The Commission is
empowered to “[t]ake any necessary action to accomplish and assure the purposes”15 of
the Game and Wildlife Code.
In addition to assigning this broad set of responsibilities to the Commission, the
Game and Wildlife Code also provides far-reaching enforcement powers to “[a]ny officer
whose duty it is to enforce” the Code, or any officer “investigating any alleged violation”
of the Code.16 Section 901(a)(8) of the Code confers upon any officer responsible for
enforcing the Game and Wildlife Code the “power and duty to:”
[c]onduct 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
13 Id. at 322(a).
14 Id. §§ 322(c)(1)-(11), (13).
15 Id. § 322(c)(12).
16 Id. § 901(a).
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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.17
Contrary to the Majority’s reading, this section of the Game and Wildlife Code
permits officers to enter any land or open field in order to “[c]onduct administrative
inspections.” Game wardens and law enforcement officers are licensed by the Code to
enter private property and search through clothing, vehicles, coolers and other closed
containers, and hunting blinds or structures, as long as there is reason to believe that a
person is hunting, even absent any suspicion whatsoever that the hunting is illegal. These
statutory powers implicate the same privacy concerns as the Entry Statutes. They must
meet the same fate.
Both Article I, Section 8 of the Pennsylvania Constitution and the Fourth
Amendment to the United States Constitution require a search warrant before police
officers can search a person or seize his belongings.18 Issuance of a search warrant
means that “police have convinced a neutral magistrate upon a showing of probable
cause, which is a reasonable belief, based on the surrounding facts and totality of
circumstances, that an illegal activity is occurring or evidence of a crime is present.” 19
“[E]ven absent probable cause, some searches without warrants do not violate state or
federal constitutional privacy rights.”20 One such exception is an administrative search,
“which does not always require a showing of probable cause.”21 “In the name of protecting
17 Id. § 901(a)(8).
18 Commonwealth v. Petroll, 738 A.2d 993, 998 (Pa. 1999) (citation omitted). 19 Id.
20 Id. at 999 (citations omitted).
21 Id. at 1000 (citations omitted).
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the public’s welfare, the government often weaves an intricate web of regulatory
scrutiny”22 to oversee businesses or activities that may pose a danger to the public.
Businesses or activities of this type historically have been subject to scrutiny, “have little
or no expectation of privacy,” and, consequently, expect to be “subject to warrantless
administrative searches”23 in the normal course of operations. Such closely-regulated
industries include solid waste management,24 automobile junk yards,25 mining,26 firearm
dealers,27 and alcohol distilling and distribution.28
In New York v. Burger, the Supreme Court of the United States promulgated a
three-pronged approach for ascertaining the reasonableness of a warrantless search of
a closely regulated industry:
First, there must be a “substantial” government interest that informs the
regulatory scheme pursuant to which the inspection is made . . . .
Second, the warrantless inspection must be “necessary to further [the]
regulatory scheme”. . . .
Finally, the “statute’s inspection program, in terms of the certainty and
regularity of its application, [must] provid[e] a constitutionally adequate
substitute for a warrant.” In other words, the regulatory statute must perform
two basic functions of a warrant: it must advise the owner of the [] premises
22 Id.
23 Id. (citations omitted).
24 See Department of Environmental Resources v. Blosenski Disposal Service, 566 A.2d 845, 848 (Pa. 1989).
25 See New York v. Burger, 482 U.S. 691, 712 (1987).
26 See Donovan v. Dewey, 452 U.S. 594, 606 (1981).
27 See United States v. Biswell, 406 U.S. 311, 316-17 (1972).
28 See Colonnade Catering Corp. v. United States, 397 U.S. 72, 76 (1970).
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that the search is being made pursuant to the law and has a properly defined
scope, and it must limit the discretion of the inspecting officers.29
Such a statutory scheme must be “sufficiently comprehensive and defined[, so]
that the owner of the commercial property cannot help but be aware that his property will
be subject to periodic inspections undertaken for specific purposes.”30 The searches
must be “carefully limited in time, place, and scope.”31
Hunting is demonstrably different from those businesses and activities that have
historically been so heavily regulated that habitual governmental inspection routinely can
(and should) be expected. For one thing, Section 901(a)(8) of the Code authorizes
administrative inspections not on the commercial premises of a business, but upon the
personal effects and property of a private citizen. For another, hunting on privately owned
land is an entirely different animal (so to speak) from the historical anticipation of
governmental regulation and inspection expected in industries or activities that raise
safety risks to the public at large. Nonetheless, even assuming, arguendo, that hunting
is a closely regulated industry, Section 901(a)(8) plainly fails to satisfy the final Burger
prong.
Section 901(a)(8) does not in any constitutionally meaningful way “limit the
discretion of the inspecting officers.”32 The warrantless searches authorized by Section
901(a)(8) are neither “comprehensive and defined,”33 nor “carefully limited in time, place,
and scope.”34 An “officer whose duty it is to enforce [the Code] or any officer investigating
29 Burger, 482 U.S. at 702-03 (citations omitted).
30 Id. at 705 n.16 (citations omitted).
31 Biswell, 406 U.S. at 315.
32 Burger, 482 U.S. at 703.
33 Id. at 705 n.16 (citations omitted).
34 Biswell, 406 U.S. at 315.
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any alleged violation of [the Code]”35 is not limited to any location or geographical
parameters. Contrary to the Majority’s interpretation, Section 901(a)(8) clearly permits, if
not encourages, officers to enter private property. So long as that officer believes that
someone is hunting—not even hunting illegally—Section 901(a)(8) authorizes that officer
to enter private land and search nearly any person, place, item, or container located on
the property, all without a warrant or even the barest suspicion of illegal activity. Nor does
the section impose any time constraints. Nothing in Section 901(a)(8) circumscribes
these searches by time of day or duration. Section 901(a)(8) does nothing to curtail an
officer’s discretion. While Section 901(a)(8) identifies specific items and areas that may
be searched,36 it also endows officers with discretion to inspect “other implements of
taking,” to search “any means of transportation or its attachments,” and to open and
rummage through “any coolers or containers possessed at a hunting location.”37 In sum,
when an officer possesses a prima facie belief that a person is hunting, that officer is
entitled by Section 901(a)(8) to search any item, place, container, or vehicle on the
property, at any time of the day, and for as long the officer deems necessary. Because it
imposes no meaningful constraints upon the discretion of the officers enforcing the Code,
Section 901(a)(8) fails to satisfy the Burger test. Accordingly, it “clearly, plainly, and
palpably”38 violates the Fourth Amendment to the United States Constitution and Article
I, Section 8 of the Pennsylvania Constitution.
* * *
35 34 Pa.C.S. § 901(a).
36 See id. § 901(a)(8) (allowing inspections of “persons, licenses and permits, firearms, ammunition . . ., [and] game bags, game, meat poles, tags, clothing, waterfowl blinds, decoys, tree stands, [and] immediate hunting locations”).
37 Id.
38 Commonwealth v. Hunte, 337 A.3d 483, 497 (Pa. 2025).
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For these reasons, I join Parts I, II(A), II(B), and III of the Majority Opinion. I concur
in the result of Part II(C) with regard to the unconstitutionality of the Entry Statutes. As
for the Majority’s finding that Section 901(a)(8) is constitutional, I respectfully dissent.
Justice McCaffery joins this concurring and dissenting opinion.
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