Another State Ditches Legal Doctrine To Protect Land From Gov’t Intrusion

Stock image of rural Maine

A United States Supreme Court doctrine rooted in Maine that means the vast majority of private land is not protected from government searches has been abandoned by yet another state.

The so-called Open Fields doctrine essentially allows police, wildlife wardens, or any other government agent to snoop on people’s property without first getting a warrant. This has led to cameras being installed on trees to monitor people on their own land, and allows any police officer to walk there and conduct surveillance on someone’s own land - even if there are No Trespassing signs to that is supposed prevent anyone entering. Under the doctrine, those signs are of no consequence in stopping the government or anyone else from trespassing anyway.

The doctrine was essentially created in its modern form in the mid-1980s in the case United States v. Oliver. That involved two appeals consolidated into one - with the Maine case, Maine v. Thornton, not getting the name (known as the caption). But the Thorntons were charged with drug offenses in Somerset County after a police officer found marijuana plants on land with signs to ward off intruders. The government appealed the suppression of evidence by Maine’s Supreme Judicial Court to the federal Supreme Court and won - getting the suppression overturned. Oliver relied on the thinnest of rationales in another case from 1924, called Hester - which had just one legal citation to an English treatise that purported to say what it did not (it was a definition of burglary, not that open fields had no constitutional protection).

To add to the absurdity, the U.S. Supreme Court says Open Fields doctrine does need to involve a field, or that the land involved is open.

Now Pennsylvania has joined other states in departing from the Oliver case, adopted more than 40 years ago. Other states, including Vermont, Montana, and Tennessee, have done the same. So has Oregon and New York.

In a unanimous opinion, Pennsylvania’s highest court said the doctrine and its own past precedent had “not aged well.” The court overturned the open fields doctrine under its own state constitution. This is something Maine’s own high court could do - but has never done so for searches and seizures.

The action was conducted by the Institute for Justice on behalf of hunting clubs. It was civil and not criminal, but the implication of the decision is that evidence could be suppressed in criminal cases.

For Maine, the consequence of Open Fields doctrine means that - according to analysis by the Cato Institute - a state that is overwhelmingly rural, of the private land owned less that three per cent gets protection from the Fourth Amendment - which is supposed to protect citizens against unreasonable searches and seizures. Government agents can walk and conduct surveillance on private land without getting a warrant or even have any suspicion at all that there is any criminal activity.

Maine had its own constitution and a provision that protects against certain government searches and seizures (article 1 section 5), but it has been rendered meaningless by Maine’s SJC, known as the Law Court. The court says that the Fourth Amendment is identical to or coextensive with it, and that there is no suppression when Maine’s constitution is breached - a position that has remained for more than a century. That effectively makes the most important state constitutional provision meaningless, merely words, and without a remedy. Some more recent Law Court cases have suggested this may change.

This latest decision adds to the weight of case law that could persuade the Law Court to do the same - which would mean a deviation under article 1 section 5 for the first time.