Commonwealth v. Russo

A.2d 1199 Pennsylvania, Appellee, COMMONWEALTH RUSSO, Jr., Appellant. Joseph Pennsylvania. Supreme Court of April Submitted 20, 2007.

Decided Nov. Russo, Wilkes-Barre, D. Bigda, Esq., Joseph Andrew for Jr. Skumanick, Jr., Paul for

George Esq., Commonwealth Pennsylvania. CAPPY, C.J., CASTILLE, SAYLOR,

BEFORE: EAKIN, BAER, FITZGERALD, BALDWIN and JJ.

OPINION

Justice CASTILLE.* granted We allowance of case to appeal instant whether, determine under Article 8 of the Pennsyl- Section Constitution, vania a a landowner has reasonable privacy against enforcement of Pennsylvania’s Game Code his fields. Because the Fourth we conclude Amendment fields doctrine as enunciated the United States, Supreme States Court in Oliver United 466 U.S. equally S.Ct. L.Ed.2d under applies Commonwealth, affirm,

the Constitution of this on we albeit grounds, different the order of the Court. * reassigned matter This was to this author.

At 6:45 a.m. on nine minutes after the November season, Pennsylvania’s bear-hunting appellant Jo- opening Jr., Russo, a bear near his hunting claimed to have killed seph Wyoming County. cabin in Pursuant Mehoopany Township, 2323(a)(2) Code,1 appellant transported Game Section station in Dallas for exami- the bear Game Commission day, nation and Later the Game Commission tagging. hunting camp was “baited” in tip appellant’s received 2308(a)(8) of the Game The infor- violation Code.2 (hereinaf- relayed mation to Wildlife Officer was Conservation “WCO”) Wasserman, who, turn, ter directed Depu- William Pierce to ty Jeffrey go appellant’s camp WCO William investigate.3 arriving approximately p.m., after dark at 6:00 WCO

Upon camp unoccupied. Pierce found appellant’s apparently Appel “No property clearly posted Trespassing” lant’s was truck, After his Pierce signs. parking stepped Officer over that, 2323(a)(2) provides any year 1. Section of the Game Code "[i]n shall, stations, person which the commission establishes check each big killing any game, present big game within hours after for 2323(a)(2). tagging.” § examination and 34 Pa.C.S. elk, "big game” "including] the Game Code deer, as the whitetail defines turkey.” the bear the wild 34 Pa.C.S. 2308(a) provides, pertinent part, 2. Section of the Game Code follows: § 2308. Unlawful devices and methods title, (a) Except provided in General as otherwise it is rule.— aid, abet, any person conspire unlawful for to hunt or assist or any game through hunt or wildlife the use of: bait, fruit, nut, salt, (8) Any hay, grain, natural artificial or chemi- cal, wildlife, game mineral or other food as an enticement for or regardless quantity, advantage any of kind and or take such area or prior days or bait to 30 after the removal of material food such and its residue.... 34 Pa.C.S. § 2308(a). {(. :¡s sK ¡it ^[*] s}s (entitled, 901(a)(2) "powers the Game and 3. Section Code duties of officers”) "[a]ny duty enforcement vests in officer whose it is to enforce investigating alleged any any this title or officer violation of this title” alia, to, “power duty” "any the and inter enter land or water outside of otherwise, buildings, performance posted or the officer's 901(a)(2). duties.” 34 Pa.C.S. six hun approximately the and walked driveway cable across observed, in plain cabin until he toward appellant’s dred feet mash”4 located about view, ten-foot eight- by pile “apple an the The also noticed in from cabin. officer feet the ninety having a bear large a consistent with apple mash indentation there, and leaves clearly paw print, a bear lain identifiable Pierce Wasserman called Officer droplets. with blood Officer to Officer Was pile. him of bait Pursuant and informed instructions, Pierce leaves bloody seized serman’s Officer dis his Officer Pierce Continuing investigation, as evidence. a mash as corn feeder pile apple a second as well covered cabin. fifty yards appellant’s one approximately hundred down returned his drove Finally, Officer Pierce vehicle After yards into the woods.5 a dirt road about four hundred truck, found he got his the officer out and what parking body rest of as bear entrails. recognized Although location, the entrails was not at the an examination of revealed eaten recently apples. that the bear had corn and mashed its as then bear’s contents officer seized the stomach evidence.

Meanwhile, him once Pierce informed of the bait Officer had Jolley, a pile, Wasserman contacted Officer James Officer main- County, appellant Luzerne WCO stationed where his accom- Jolley, tained residence. Officers Wasserman WCOs, panied proceeded two home deputy appellant’s driveway, the officers Upon pulling appellant’s Pittston. into somebody subsequently Pierce like took Officer testified: "It looks As 4. crushing put through type apples and them some of a machine or something just potatoes only with like that. It's like mashed blender consistency. squish pick up like a heavier You can them and them (N.T.), your They’re up.” Testimony hands. all mashed Notes of 3/31/04, photographs 7. The it from the taken at trial court found "clear correctly day 'apple mash’ is the next more identified through pomace apples put which after have been remains —that i.e., naturally occurring phenome- press,” "obviously ... not a cider Op. non.” Trial Ct. at 2 n. 2. woods appellant is no in the record owned the There indication fact, sug- only testimony Pierce In relevant that Officer entered. N.T., 3/31/04, gests appellant these did not own woods. See fact, however, relating parties, not raise to this 147. The do issue disposition it does not case. and thus affect our observed a dead black bear carcass hanging piece construction equipment. When officers knocked on appel- door, lant’s he answered and invited them in. In response their questioning, appellant indicated that he was aware of the bait at his but camp asserted that the bear was not shot at either of the bait piles. The officers then seized the bear carcass as departed. evidence and

Officers Pierce and Wasserman returned to appellant’s camp the next morning to take photographs and measure- ments gather and to additional evidence. At the first apple pile Pierce, mash discovered by Officer the officers found and seized a small of bear piece tissue. A forensic DNA analysis subsequently performed by the United States Fish and Wild- life 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 viola- tions of the Game Code: Taking Unlawful or Possession of Wildlife, Game or 2307;6 § 34 Pa.C.S. and Unlawful Devices Methods, § 34 Pa.C.S. supra. see After being found guilty both offenses before a district judge, appellant ap- pealed to the Court of Common Pleas of Wyoming County.

Prior to trial de novo before Judge President Brendan J. Vanston, filed appellant a motion to suppress the evidence seized Wasserman, Officers Pierce and challenging the legality of their entry onto and search of his property under Section 8 of the Pennsylvania Constitution. On 31, 2004, March the trial court held a suppression hearing, which the court novo, consolidated with appellant’s trial de denied the motion. Officers Pierce and Wasserman testified Commonwealth, for the describing detail the course of the investigation they conducted on November 25 and 2002. Appellant’s case-in-chief primarily consisted of the testimony 2307(a) provides of the Game Code is unlawful ”[i]t for aid, abet, any person attempt conspire or to hunt for or take or use, possess, transport any game or conceal unlawfully or wildlife taken thereof, for, properly take, or not any part marked or trap, or to hunt kill, conceal, transport, possess any game contrary use or wildlife provisions 2307(a). of this title.” 34 Pa.C.S. located on to the effect that trees were neighbor apple of his trial, the At the conclusion of appellant’s property. land near of the offenses and ordered appellant the court convicted two $1,000 lines, $2,599.87 restitution, the in pay him to of prosecution. costs the testimony trial found on the

The court “[b]ased that “the photographic presented” officers and the evidence curtilage [appellant’s] bait is not the pile nearest within rejected the court Op. Consequently, cabin.” Trial Ct. at 5. the argument prohibited that Article appellant’s piles search of the fields the bait officers’ warrantless where otherwise,” reasoned, the found. “To rule court “would were on any private- emasculate the enforcement of the Game Code ‘no only post trespass- as one would have to ly realty, owned out the Id. The court ing’ signs keep game wardens.” a result be absurd and a result that the stated that such would surely Appellant ap- constitutional framers did not intend. Court, pursuing suppression to the Commonwealth his pealed claim. 7, 2005, a January three-judge panel

On Common of the trial unanimously affirmed the order wealth (Pa.Cmwlth. Russo, court. Commonwealth A.2d 1279 2005). published opinion In a authored the Honorable Jubelirer, that, Renée Cohn the court held under Article Constitution, Pennsylvania Section 8 of the did not appellant expectation property upon a reasonable privacy have the bait piles began which were found. court and ended analysis argument its with that the “No appellant’s Trespass that he created a reasonable ing” signs posted expectation Thus, property. the court noted that a person if ... trespass privileged does commit he is “licensed or place against trespass giv as to which notice enter[ ][the] 3503(b)(l)(ii) (defining § en.” Id. at 1284 (quoting Pa.C.S. omitted)). the offense of criminal Turn trespass) (emphasis Code, ing Game court observed that Section 901(a)(2) authorizes a specifically “go upon any WCO to land posted otherwise, buildings, or water outside of performance duty.” (quoting of the officer’s Id. 34 Pa.C.S. (cid:127) 901(a)(2)). Therefore, concluded, “[appellant’s court cannot form the basis of a reasonable

posting signs it be privacy[ would unreasonable ] [because] officers, expect game privileged for him to who are land, compliance enter the not do so to assure would Indeed, Id. at 1285. Game Law.” Commonwealth Court that, otherwise, the trial court’s observation agreed with on very easily carry illegal enterprises by “criminals could ‘No around the merely placing Trespassing’ signs perimeter footnote, Finally, their Id. in a the court noted the property.” reliance on the fields doctrine Commonwealth’s as set Oliver, supra, forth but determined it was unnecessary to decide the doctrine applied whether under the because of the court’s at holding Constitution case. Id. n. 13.

Appellant petitioned appeal. this Court for allowance of On 22, 2005, granted appellant’s petition November we and direct- to parties following ed the address the issue: “Whether 34 901(a)(2) Pa.C.S. is unconstitutional because Article Sec- provides tion 8 the Constitution a landowner in a reasonable his posted proper- Russo, (2005). ty.” Commonwealth v. 585 Pa. 887 A.2d a trial Our standard review of court’s denial of a suppression motion is well established: may only consider the evidence and Commonwealth’s

[W]e so much of the evidence for the defense as remains uncon- tradicted when read the context the record as a whole. Where the record the factual of the trial supports findings court, by may we are bound those facts and reverse if only the legal conclusions drawn therefrom are error. Boczkowski, 577 Pa. A.2d (2004). court, course, An is not appellate by bound the court’s conclusions of suppression law. Commonwealth v. Duncan, (2003). 438,817 A.2d by fields doctrine first the open recognized was U.S. States, in Hester v. Supreme Court United U.S. case, 68 L.Ed. 898 In that S.Ct. while surveil- lived), (where two Hester’s father Hester the home of ling and hand a exit the house officers observed Hester revenue suspected to the officers bottle an individual whom quart After bootleg whiskey. the illegal attempting purchase be men, fled, Hester dis- they began pursuing two officers the bottle. There- his customer carding juga would-be at an undisclosed after, recovered the vessels the officers them contain house and determined distance is, illicitly distilled.” Id. whisky, whisky “moonshine Hester claimed that the evidence was at 446. S.Ct. the offi- Fourth Amendment because under the inadmissible In a for a opinion it brief seized warrant.7 cers without Jr., Holmes, con- court, unanimous Justice Oliver Wendell if had been a is obvious that even there “[i]t cluded illegal an search by was not obtained trespass, [evidence] Citing Id. Blackstone’s Commentaries seizure.” on the “the special Holmes held that Justice England, Laws of people the Fourth Amendment protection accorded houses, effects,’ is not extended ‘persons, papers and their latter and The distinction between the fields. 59, 44 house is as old as the common law.” Id. at S.Ct. at 446. later, in a v. United

Sixty years 6-8 decision Oliver States, vitality of the supra, the High “reaffirm[ed]” Oliver, 466 fields in Hester. doctrine as announced U.S. 1741; at id. at 176 n. at 1740 n. 6 S.Ct. at S.Ct. the cases discredited Hes- (rejecting “subsequent notion to the consti- reasoning”). Turning initially ter’s its attention text, Court noted that fields are not tutional the Oliver Fourth Amendment. In- meaning “effects” within the observed, deed, Framers have under- the Court would “[t]he term to be rather than personal, stood the ‘effects’ limited real, (citing, at 177 n. n. 7 property.” Id. S.Ct. at 1740 did, among as Justice Holmes Commentaries, Blackstone’s sources). other exclusionary adopted in

7. The Fourth rule was 1914. See Amendment States, U.S. L.Ed. 652 Weeksv. United 34 S.Ct. subjective Even one had a assuming expectation privacy of fields, in reason, his the Oliver on to such an Court went expectation not one that society is would be prepared recognize as reasonable:

[O]pen not provide setting fields do the for those intimate activities that the Amendment intended is to shelter from government interference or There no socie surveillance. activities, tal interest in the' protecting privacy those such as the crops, cultivation that occur More open fields. over, as a practical matter these lands usually are accessible home, office, the public police ways that a an or commercial structure would not be. It is not generally true that fences or “No Trespassing” signs effectively bar public viewing open fields rural areas. And both petitioner Oliver and respondent Thornton concede lawfully public police may survey lands from the air. 178,104

Id. at at 1741-12. S.Ct. Finally, rejected Court explicitly Oliver the contention that the reasonableness of one’s his hoc, open fields should be an ad case-by-case determined on basis:

Under police this officers approach, guess would have to before every search whether had landowners erected fences sufficiently posted a high, warning sufficient number of signs, located contraband in an area sufficiently secluded privacy.... establish a The of a lawfulness search sophisticated rules, would turn on a highly set of ifs, ands, qualified by all sorts of and buts and requiring the drawing subtle nuances and hairline distinctions. ad hoc approach only makes it for policeman difficult discern his it also scope authority; danger creates a rights arbitrarily constitutional will be inequitably enforced. (citations 181-82,

Id. at 104 S.Ct. and quotation marks omitted). regard, In specifically that taken to reject[ed] suggestion steps protect privacy the open that in an field are expectations establish true, course, It is Oliver and legitimate. petitioner Thornton, criminal respondent order conceal their activities, planted upon the marihuana secluded land and erected fences and “No around the Trespassing” signs property. may precautions, And it be that because of such public upon few members of the stumbled the marihuana seized the Neither of crops police. suppositions these demonstrates, however, that the privacy was legitimate required by sense the Fourth Amendment. of legitimacy test is not chooses whether individual Rather, assertedly to conceal the correct “private” activity. inquiry is whether the government’s infringes intrusion upon personal and societal values protected by Fourth Amendment. (footnote 182-83, omitted).

Id. at S.Ct. There question can be no that the judice search sub Amendment, was lawful under the Fourth given issue, however, fields doctrine.8 The Pennsylvania whether has departed, depart, should from that doctrine when applying Section 8 of our To Constitution. deter mine the whether fields doctrine as enunciated in Oliver is consonant with Article Section we will undertake an independent analysis provision guided by our semi Edmunds, nal decision Edmunds, A.2d 887 Under consideration principled of state constitutional doctrine should include an examination (1) (2) of: text Constitution; provision our history provision, including the of this caselaw Common (3) wealth; jurisdictions; relevant caselaw from other considerations, policy “including unique issues state and concern, local applicability modern within Edmunds, jurisprudence.” 586 A.2d at 895. Consistently Edmunds, has appellant dutifully discussed the four Appellant argue does not suppress of the evidence he seeks to curtilage hunting was seized within the of his cabin. brief, the Commonwealth fails even factors his whereas cite our decision in that case.9 Text 1. our Edmunds analysis comparison of the begin

We I, to that of the Fourth Amend- of Article Section 8 language Amendment of the pro- ment. The Fourth U.S. Constitution as vides follows: in their people persons,

The to be secure right houses, effects, and unreasonable searches papers, against seizures, violated, not be and no Warrants shall and shall issue, cause, by Oath or affir- upon probable supported but searched, mation, to be particularly describing place or to be seized. persons things and the 8 of the Similarly, Article Section Constitution provides as follows: houses, persons, papers shall be secure in their people seizures, from unreasonable searches and possessions any person or to seize any place

and no warrant search describing nearly may shall them as as things issue without cause, be, oath or affir- probable supported by nor without mation subscribed to the affiant. similarity provi the textual between the

Given two sions, it fails to make surprising appellant departing open based for from the federal textually arguments Like the “effects” in the Fourth Amend fields doctrine. word ment, objects as the last four “possessions” appears among secure, being to be the others people which the have “houses,” and Pursuant to the “persons,” “papers.” their ejusdem generis, the term interpretative “posses doctrine particular construed in light sions” should be words it, things all of refer to intimate about one’s preceding which entirely argument appellant's brief consists of his 9. The section analysis notwithstanding granting direction when Edmunds this Court’s parties constitutionality appeal that the also discuss the allowance of 901(a)(2). Because we hold that the officers’ actions in 34 Pa.C.S. rights appellant’s under Article Section we this case did not violate constitutionality need not reach the of the statute. intended to refer had been If “possessions” person.10 fields, there owned, then would such as one everything objects. three We the other specify been no need to have the Oliver present purposes for persuasive therefore find Fourth Amendment. the text of the interpretation Court’s suggests text of Nothing plain one’s degree the same fields are entitled to house, papers, possessions. person, History analysis, the Edmunds

Turning history prong it has that in the decades past generally observes appellant Amendment, I, Article that, Fourth unlike the been stated citizens’ safeguard a desire to by 8 motivated Section was this Thus, cites recent decisions which appellant privacy. proposes Cappy Dissenting Opinion, Mr. Chief Justice In his citing of “possessions/' the decisions this interpretation of broader 256, (1994), Brion, 539 Pa. 652 A.2d 287 in Commonwealth v. Court 405, (1989), Melilli, 555 A.2d 1254 and 521 Pa. Commonwealth v. 32, (1979). DeJohn, 1283 None of 486 Pa. 403 A.2d v. Commonwealth decisions, however, analysis included an Edmunds three those —Melilli Edmunds, 4- they preceded and Brion because the and DeJohn because Further, paradigm. it majority ignored post-Edmunds the Edmunds 3 Brion, that, I, privacy, respect Section 8 notable to Article is only standard, case, merely repeated the familiar i.e.: post-Edmunds privacy, within the of whether one's activities fall "To determine first, exhibited an defendant] has [the we must examine: whether second, expectation is one expectation privacy: of whether that Brion, recognize A.2d society prepared as reasonable.” 652 is that 81, 450, Blystone, 549 A.2d (quoting v. 519 Pa. 288-89 Commonwealth course, (1988)). That, test for reasonable is the same 87 See, e.g., Com privacy applies under the Fourth Amendment. that 680, Millner, Pa. 888 A.2d 691-92 monwealth v. 585 say contained the sort of neither Melilli nor DeJohn Suffice it that Edmunds, disposed, we searching inquiry contemplated are not time, importance supervening of Ed present at the disavow munds. home, sanctity and in involved the It is also notable that Brion majority emphasizing point, invoked Commonwealth that the Brion Shaw, (1978) proposition for the that: Pa. 383 A.2d 496 476 world, person "Upon closing one’s home to the outside the door of degree expect highest known to our may legitimately Shaw, 499). Brion, (quoting A.2d at society.” at 289 383 652 A.2d Amendment, exclusively Fourth under the Shaw was a case decided I, Brion, then, I, entirely 8 was an Article Section case Article Section 8. principle. upon Fourth Amendment reliant 132 I, has accorded under Article greater protection

Court other, 8 in Appellant’s certain limited contexts. See Brief at alia, Shaw, 11-12 inter Pa. (citing, Commonwealth v. (2001)) A.2d (requiring hospital- warrant for seizure of blood-alcohol content test under Article administered results required Section 8 where warrant not under Fourth Amend ment) Matos, (lacking analysis); Edmunds Commonwealth v. (1996) 543 Pa. 672 A.2d 769 (holding police pursuit meaning individual is a “seizure” of Article within Amendment) though even it is not under Fourth (applying Edmunds); White, Commonwealth v. 543 Pa. 669 A.2d (1995) (rejecting federal rule search allowing warrantless arrest) (lacking analysis vehicle when incident to Edmunds dicta). however, characterizing it as Appellant, fails to the instant explain implicates heightened privacy how case contexts, recognized interest these other nor does he draw our attention to remotely analogous case to the one Indeed, at bar. a sufficient rebuttal appellant’s argument regard this would be to point many decisions which has held Section 8 does not afford See, greater than the Fourth protection e.g., Amendment. Duncan, (2003) Pa. 817 A.2d 455 (lack address); privacy right in one’s name and Common Glass, wealth v. A.2d (anticipatory warrants); 517, search v. Cleckley, Commonwealth 558 Pa. 738 (1999) (voluntariness search); A.2d 427 of consent to Com Waltson, (1998) 223, v. monwealth 555 Pa. 724 A.2d 289 warrants); for (particularity requirement Commonwealth v. (1997) (warrantless Williams, 577, 547 Pa. 692 A.2d 1031 searches); Melendez, parole 323, v. Commonwealth 544 Pa. (1996) Ohio, 676 A.2d 226 and v. (“stop Terry frisk” under 392 (1968)). 1, 1868, U.S. 88 S.Ct. 20 L.Ed.2d 889 Taking broader and more fundamental historical examination, that, it is noting worth the time the U.S. that the Supreme Court determined Fourth Amendment and the then-recent federal rule not exclusionary apply did fields, unbroken, I, prevailing interpretation Article by Pennsylvania Section 8 courts that that provision was

133 Indeed, exclusionary remedy no whatsoever. notwith- offered in exis- exclusionary that the federal rule had been standing Weeks, Court, the 1914 decision in this and supra, tence since decisions, enforcing repeatedly our refused Superior I, in Article remedy encompassed to find a similar Section 1, Instead, historical of Article interpretation Court’s principle 8 followed “the fundamental always Section not admissibility that the of evidence is affected common law the means it obtained.” by illegality by which was Chaitt, 532, 379, 380 Pa. 112A.2d 381 & n. 1 v. Commonwealth cases); Agoston, Commonwealth v. 364 Pa. (collecting (1950); 464, 575, Hunsinger, A.2d 585 Commonwealth v. Dabbierio, 185, (1927); Pa. 138 A. 683 Commonwealth v. (1927); 174, 679, v. Mon- 290 Pa. 138 A. Commonwealth tanero, (1953); 96 A.2d 178 Pa.Super. 18 A.2d 84 The exclu- Dugan, Pa.Super. I, itself, then, an Article

sionary organic part rule was not 8; it imposition, applicable against Section was a federal made Ohio, for purposes by Mapp the states Fourth Amendment (1961). Thus, any 367 U.S. S.Ct. L.Ed.2d 1081 survey historical fields and under respecting open like case suppression examination charter, under the hits a Pennsylvania brick wall 1961: there is no history support relevant a broader state consti- tutional interpretation point because there was no seeking case, interpretation, such an at least in a criminal since there no exclusionary remedy was available. course, changed

Matters after Mapp, courts, having become familiar necessity with command rule, operation of the federal to enter- exclusionary began tain equivalent guise claims under the of Article Section 8. progression consciously explained, was announced indeed, instances, in many such disclosure unimpor- was Court, tant because this citing while both the Fourth Amend- ment and Article a coterminous employed ap- See, proach. e.g., Commonwealth v. Bosurgi, (1963); Eazer, 320, A.2d 304 455 Pa. (1973); White, 84,

A.2d 398 Commonwealth v. 459 Pa. Brooks, (1974); 547, A.2d 40 Commonwealth v. 468 Pa. Holzer, 93, (1976); 480 Pa. A.2d 652 Commonwealth v. however, decisions Eventually, exclusionary A.2d 101 I, exclusively arose that rendered under Article were Section 8, and other decisions so rendered while recognizing were Supreme the course taken a break from U.S. represented authority, greater and an embrace of a protection than that commanded under the privacy rights which was See, Mapp. e.g., Fourth Amendment and Commonwealth v. DeJohn, 32, (1979); 486 Pa. 403 A.2d 1283 Commonwealth v. Edmunds, Sell, 46, (1983); 504 Pa. 470 A.2d 457 supra. Even clear, for no decision of this development entirely this was purported Court has to examine and squarely disapprove long pre-Mapp and unbroken line of decisions holding that, recognizing greater exclusionary-rule-related far from I, Article 8 contained no privacy rights, exclusionary remedy whatsoever. case, however, require

Our decisional task this does not explain synthesize pre- post-Mapp us Court’s that, expressions concerning reality Section The decades, past body few substantial cases has arisen involving exclusionary under Article all reme dy. have been with an Edmunds holdings explained Some Edmunds, see, others contain analysis, e.g., holdings while see, terms, are in Edmunds unexplained e.g., Commonwealth Shaw, (2001); 564 Pa. A.2d 295 Commonwealth v. White, (1995); 543 Pa. 669 A.2d 896 Commonwealth v. Mason, (1993); 535 Pa. 637 A.2d Commonwealth v. (1992).11 Hess, 532 Pa. 617 A.2d 307 What is most Dissenting Opinion recognizes 11. The of the Chief Justice the mandato- ry analysis Op. nature of the set forth in Edmunds. See ("A comports A.2d at 1214 determination of whether Oliver with the rights guaranteed Pennsylvania citizens under Article Section 8 of the requires an examination of Constitution the four factors Edmunds, set forth in Commonwealth v. 586 A.2d 887 (1991).”) added). (emphasis agree We that state constitutional deci- they proceed searching inquiry. sions are more secure when from a Dissenting Opinion posits Madame Justice Baldwin's that Edmunds solely encourage litigants provide exists Edmunds information in briefing, require thought processes does not that the Court's in render-

135 places explicit, a burden holding made be ing state constitutional litigants, courts. upon not on the litigants brief the important for it is noted the reason that Edmunds requirement that is to facilitate the in that decision announced factors adequate ‘plain Pennsylvania “make a statement’ courts any rely, to avoid grounds upon which we in order independent state Pennsylvania squarely upon rested our decision that we have doubt Edmunds, having been the Edmunds 586 A.2d at 895. jurisprudence.” established, Court did not four-part inquiry the was case where the Nevertheless, parties. the briefing from the of such have the benefit there; holding 8 simply its Article Section announce Court did rather, four-part searching inquiry test contem engaged in the it plated. Edmunds rendered decisions since Although it true that the Court has is analysis, in and even accompanied an Edmunds which were not Edmunds, numer- there also are parties failed to brief cases where ous, engaged has where this Court careful state constitutional decisions searching inquiry See Common- responsible, Edmunds outlined. in the 187, 655, (2000) Glass, (challenge to 754 A.2d 661 wealth v. 562 Pa. warrant) four-part (characterizing as "the anticipatory Edmunds search claims”); evaluating Com- methodology in state constitutional to aid 427, (1999) 517, (applying 430 Cleckley, Pa. 738 A.2d monwealth v. 558 Pennsylvania validity Con- of consent search under Edmunds to assess 289, Waltson, 223, stitution); 291 Pa. 724 A.2d v. 555 Commonwealth overbroad) ("In (1998) v. (challenge Commonwealth that warrant was Edmunds, methodology analyzing proffered for issues this court Constitution.”) (citation omit- pursuant which arise ted); 266, Hawkins, 76, 265, A.2d 268 553 Pa. 718 Commonwealth v. (1998) analysis 8 claim that (applying to Article Edmunds vicariously privacy inter- assert "should be able to criminal defendants challenge allegedly police belonging intrusive to others in order ests conduct”) ("When decide whether our state Constitution asked to protections than the United States provides greater privileges and Constitution, request light Edmunds [four in we evaluate the 1031, Williams, factors].”); Pa. 692 A.2d v. 547 Commonwealth search) (“When Pennsyl- (1997) determining whether the (parolee counterpart greater provides protection than its Constitution vania constitution, fac- [four considers the Edmunds federal this Court the tors.]”); Matos, n. 3 672 A.2d v. 543 Pa. (1996) determining scope of seizure under Article (applying Edmunds in D., 8; declining Hodari 499 U.S. to follow California Edmunds, (1991)) ("In this Court 111 S.Ct. L.Ed.2d analysis methodology of state four-pronged to aid created a mandatory, high- methodology, while not claims. This constitutional whenever this lights important should be considered touchstones that upon decisions weighs impact United States Constitutional Court Cass, claims.”); accord Commonwealth state constitutional 25, Court) Announcing Judgment (Opinion A.2d searches) (school (noting developed in a four [Edmunds ] that "we addressing applicability methodology pronged that we will follow authority] the constitu- Supreme Amendment Court Fourth [U.S. Pennsylvania”). tionality of school searches important for present purposes, however, our own unique history and do simply caselaw not reflect “societal activities, interest in protecting of those such as Oliver, cultivation of crops, occur fields.” 104 S.Ct. at 1741. As the Oliver observed, U.S. a notation are, these agree, practical which we lands as a matter, readily accessible to the public and to enforce- law Id. Thus, ment. in Pennsylvania, as in almost every other state, open provide fields do not the setting for the kinds of intimate activities with to respect which citizens would reason- ably expect to be free from governmental surveillance. Arti- I, cle protection Section 8’s of privacy has been in existence for over two hundred years, yet, there has never been suggestion, source, in any Pennsylvania that would militate a fact, In contrary conclusion. the decisions of the courts of this Commonwealth that are analogous most reflect a recognition of the distinction between the home fields when determining legitimacy of expectation one’s of privacy Rood, I, under Section 8. See Commonwealth v. Article 686 Moreover, applied methodology this Court has the Edmunds in consid- ering I, state provisions constitutional claims under other than Article See, Erie, 375, e.g., Pap’s 591, City Section 8. A.M. v. 571 Pa. 812 A.2d of (2002) (freedom I, expression 603 Pennsyl- of under Article Section 7 of Constitution) ("We agree vania parties helpful also that it is to Pennsylvania analysis, conduct our possible, constitutional to the extent consistently Edmunds.’’) suggested by that, (noting with the model also I, 8, although Edmunds involved "spoke Article Section the decision to appropriate analysis of constitutional claims aas class”); Means, 309, 143, Commonwealth v. 565 Pa. 773 A.2d (2001) Court) (Opinion Announcing Judgment (applying of Edmunds to challenging multi-faceted state constitutional claim permitting statute trial); impact testimony penalty phase admission of victim capital of Swinehart, 500, 957, (1995) Commonwealth (evaluating 541 Pa. 664 A.2d immunity provided whether use and derivative use in 42 Pa.C.S. 5947 was privilege consistent with Article Section 9’s self-incrimination) ("We against compelled four-pronged find that the analysis method of in thorough established Edmunds to be the most task.”) accomplishing manner of (applying our Edmunds where chal- lenger Circuit, provide analysis); failed to Edmunds United Artists’ Theater City Philadelphia, Inc. v. 535 Pa. 635 A.2d of (1993) (applying sounding Edmunds to state constitutional claim I, 10). Takings Clause of Article Section We reiterate that we believe that state constitutional decisions are more they supported by searching secure when are inquiry contemplated by Edmunds. alloc, (en denied, (Pa.Cmwlth.1996) banc), 442, 450 A.2d (1997) had no that landowner (holding 699 A.2d 736 Pa. I, 8 in under Article Section expectation privacy of reasonable home); curtilage area of his Common beyond outdoor wooded (noting, 351 A.2d Trefiz, wealth v. seizure standing challenge that defendant lacked holding 8, that under Article Section corpse of murder victim hunters); area accessible corpse was found backwoods Bender, 811 A.2d also see challenge (rejecting (Pa.Super.2002) ... recording made “not inside admissibility tape [defen [r]ather, ... at location outside some dant’s] home[ but] continu[ing] then residence and four walls [defendant’s] proper ... on exclusively parked within vehicle” defendant’s ty). general observa- ably summarizes Court’s

Appellant of Article regarding unique history tions in Edmunds however, an Missing appellant’s analysis, question relate that attempt unique history specific of an one’s the reasonableness Edmunds, (addressing with 586 A.2d at 899 Compare fields. in light rule propriety “good-faith” exception exclusionary of 8). I, The mere fact that history of of Article Section unique has, circumstances, greater this under certain accorded under Article to the citizens of this Commonwealth protections I, in of finding 8 “does not command a reflexive favor Section contrary, To the we any interpretation new asserted. our indepen- should standard where own apply prevailing suggest state does not a distinct standard.” analysis dent Glass, 655, v. 754 A.2d (citation omitted). Appellant and internal marks quotation I, unique history of the suggest any aspect fails 8 that the lie to the “old as the common put Section would open distinction between house and fields Justice law” Hester, that, in an as author Holmes invoked observation classic, supremely Justice Holmes was Law, Common short, in Pennsylvania history, to make. positioned well weighs strongly against notion that any open fields are enti- heightened tled to the same person one’s or home. jurisdictions 3. Other Edmunds,

Consistently guidance with next we consid jurisdictions. brief, er relevant caselaw from other In his appellant discusses four decisions from our sister states that adopt have refused to the federal fields doctrine for -First, purposes their constitutions. cites appellant People Scott, 79 N.Y.2d 583 N.Y.S.2d N.E.2d (1992), in which the Court of Appeals New York held that a landowner had a protectable privacy interest in land beyond curtilage his home under Article notes, New York constitution. As appellant the text of the New York constitutional provision substantially similar to that of Article Section 8 of our Constitution. See N.Y. Const, I, § 12 art. (protecting right of the to be people “[t]he houses, effects, secure their persons, papers and against seizures”). Nevertheless, unreasonable searches and the Scott court expressly disavowed “the ... majority’s Oliver literal analysis,” textual instead preferring focus on the compati bility of the federal fields doctrine with New York Scott, caselaw. 583 N.Y.S.2d 593 N.E.2d at 1335. Appel lant fails to suggest York New decisions cited is consistent Scott with the Article 8 jurispru fact, dence In Commonwealth. York deci New emphasis is, sions’ on state if trespass statutes anything, contrary Compare caselaw. People Glee son, (1975), 36 N.Y.2d 369 N.Y.S.2d 330 N.E.2d 72 Scott, cited 583 N.Y.S.2d 593 N.E.2d at 1336 (suppress sheriff) information ing obtained as a result of a “trespass” by Rood, 686 A.2d at 450 (noting that officer specifical “was and, fact, ly authorized required by law to investigate the field and wooded area on located Rood’s property” (citing 741(2), 901(a)(2), former Section now Section of the Game Code)). Johnson, next

Appellant cites v. State 75 Wash.App. (1994) P.2d 984 879 and State v. Kirchoff, 156 Vt. 587

139 Washington of (1991), Appeals the Court of A.2d which the that each determined and Court of Vermont Supreme the respec- with the incompatible fields was doctrine federal Both constitutions. the John- of states’ tive those provisions noted, however, the relevant that courts son and Kirchoff not, constitutions was respective under their general inquiry Amendment, of one’s the reasonableness the Fourth as under Johnson, (“Unlike at 990 879 P.2d expectation. See privacy of expectations subjective into reasonable inquiry the is must the Fourth Amendment be made when Washington the State inquiry the critical under implicated, ... the law enforcement focuses on [whether] Constitution ‘private the defendant’s unreasonably into intrude[d] officers “reluc- ”);12 A.2d 995 (expressing Kirchoff, affairs[.]’ ”). of privacy’ ‘reasonable phrase expectation to use the tan[ce] protection the afforded Conversely, determining scope “[i]n 8, this the same two- employs under Article Court Supreme the United part employed by test States Fourth Amendment of the U.S. sweep determine the Duncan, Pa. v. Constitution.” Commonwealth That test to demon- requires person A.2d (2) that the subjective expectation privacy; strate: as society recognize is one “that prepared Id. legitimate.” (quoting reasonable (1996)). Gordon, Pa. 683 A.2d Bullock, 361, 901 272 Mont. Finally, appellant cites State (1995), in Supreme P.2d Court Montana which rejected doctrine for that state’s purposes fields emphasized In so court holding, constitution. Bullock includes, the Montana in addition its own constitution Amendment, provision to the Fourth an additional counterpart Indeed, Id. at 75. found federal Constitution. rejection explained Washington court courts’ 12. The Johnson owing unique language as state constitu- federal standard counterpart person be Fourth “No shall tion’s Amendment: invaded, affairs, authority private or his disturbed in his home without Const, language such Wash. absence of law.” art. detracts Section 8 of Constitution further persuasive support in his appellant's Johnson reliance on analysis. Edmunds 140 II, 10 of the Montana Constitution provides of individual is essential to “[t]he the well- of a

being society free and shall not be infringed without the showing compelling of a state interest.” Given the absence Constitution, such provision find we determining Bullock unpersuasive compatibility I, federal fields open doctrine with Article Section 8. notes,

As appellant responsibly other adopted states have the federal fields open purposes respec doctrine for of their guarantees tive constitutional unreasonable against searches and The wording seizures. of the constitutional provisions states, these unlike Montana Washington, substantially I, See, similar to that of Article Section 8 our Constitution. Pinder, 66, (1986) e.g., 1241, State v. 128 N.H. 514 A.2d 1246 Const, (adopting federal part fields doctrine under N.H. I, 19); Havlat, 554, 436, art. v. State 222 Neb. 385 N.W.2d 440 Const, (1986) (Neb. I, 7); State, § art. Williams 201 Ind. Const, 175, (1929) (Ind. I, 166 11); § N.E. 663 art. v.Wolf State, Const, 124, (1928) (Tex. 110 9 Tex.Crim. S.W.2d 350 art. I, 9); 492, (1924) § Zugras, 804, State 306 Mo. 267 S.W. 806 (Mo. Const, II, State, 11); § art. Ratzell v. 27 Okla.Crim. (1924) (Okla. 228 30); P. § Const. Bill of Rights Commonwealth, (1922) Brent v. 194 Ky. 240 S.W. 10); Gates, § State v. N.J.Super. A.2d (Ky. Const. ¶ Const, (1997) (N.J. 7); art. Dep’t Betchart v. Game, (1984) Fish & Cal.App.3d Cal.Rptr. 135 Const, 13). reason, art. (Cal. For we find the decisions from these persuasive states more than the decisions from the upon four states appellant which relies. Policy considerations

Appellant concludes his analysis by Edmunds referencing policy five considerations that he claims his support position. According appellant, to of Article guarantees Section 8 (1) should extend to fields order: to prevent “overly zealous officers” police conducting from “fishing expeditions”; (2) (3) to “protect right privacy”; prevent [ ] WCOs (4) “treating] property own”; of others as their landowners; confrontations between WCOs avoid apply Appellant’s for search warrants. encourage WCOs Brief at 17-18. article, Mr. scholarly colleague

In a recent our learned of a Saylor explained why “[ijmplementation Thomas Justice ... necessarily searching, state constitutional entails value sources, into state con- inquiry” genuinely “unique evaluative tent, bases independent interpretation.” and context as for Saylor, Prophylaxis Thomas G. in Modem State Constitution- Acknowledged alism: Neto Judicial Federalism and the Pro- Rule, 59 N.Y.U. Ann. Am. L. 309-13 phylactic Surv.

Indeed, otherwise, it tag-line “policy” were could meta- for a morphose majority’s implementation into cover transient personal system of its own value as if it an organic were command. As for support policy arguments, appellant his law, cites from general principles Pennsylvania decisions states, statute, § other and our trespass Pa.C.S. actually explaining per-

without how of these authorities concern, “unique applica- tains issues state and local and Edmunds, Pennsylvania modern bility jurisprudence.” within on Appellant’s A.2d 895. reliance authorities either come state directly another are indistinct jurisdictions from those of most other merely highlights absence of Pennsylvania support sources to his This position. argument falls short of the kind of searching inquiry required to determine that public policy unique considerations to Penn- sylvania suggest that the federal is incon- open fields doctrine sistent with Article Section 8 of our Constitution.

The citizens of this our throughout history Commonwealth a have shown keen interest and protecting preserving as an asset the diverse wildlife that find refuge fields and forests within our borders. This interest is that it is strong so Scott, Appellant’s (quoting 13. See Brief at 18 583 N.Y.S.2d Johnson, 1336); 993); (quoting N.E.2d at id. 879 P.2d at id. at 19 996-97). (citing Kirchoff, 587 A.2d at See, Glass, e.g., Appellant’s (citing Brief at 17 Commonwealth (Pa.Super.1998) proposition purpose A.2d for the that the protect "to Section 8 is citizens from unreasonable searches seizures”); 3502). (citing § and id. at 19 34 Pa.C.S. by separate provision enshrined Consti- tution: air, water,

The to clean people pure have natural, scenic, historic and preservation esthetic Pennsylvania’s of the environment. natural public values resources are the common of all property people, includ- resources, ing generations yet come. As trustee of these shall and maintain them conserve for the benefit of all the people. Const, 1, art. 27. branch legislative executive

Pa. turn, es, in enacted and executed a plethora have statutes regulations designed to enforce the people’s right Thus, of our preservation wildlife.15 our Constitution and enacted statutes —as well as the created to enforce agencies that, in Pennsylvania, any subjective them—all confirm expec tation of privacy against governmental intrusion fields an expectation society is not that our has ever been willing short, In recognize protections reasonable. baseline Amendment, area, the Fourth are particular compatible Pennsylvania policy they with considerations insofar as may importantly, be identified. More there is nothing the unique Pennsylvania experience suggest that we should departure innovate a common law and from federal law reject and the fields doctrine. open

In light foregoing, hold that the guarantees we of Article 8 of the Pennsylvania Constitution do not fields; law, area, extend to open federal and state in this are Therefore, coextensive.16 affirm we the Commonwealth determination that Court’s Officers Wasserman and Pierce did Enforcement, noting, every it is worth is a monumental ta'sk. For fifty square Pennsylvania, only three hundred miles of land in one full- assigned protection. time WCO is to conduct wildlife A WCO’s duties just enforcing hunting trapping investigat- include not and laws but also accidents, ing hunting conducting surveys, assisting wildlife in wildlife projects, providing programs. and research educational Pa. Game Commit, Commission," tp://www. "About the Game at ht (last pgc.state.pa.us/pgc/cwp/view.asp?a=481 q=& 151287 visited Nov. 19, 2007). reason, require 16. For this the instant case does not us to reach the 901(a)(2). constitutionality § of 34 Pa.C.S. from unreasonable to be free appellant’s not violate and seizures.17 searches

Affirmed. the join SAYLOR, EAKIN and FITZGERALD

Justice opinion. opinion which dissenting files a CAPPY

Chief Justice join. BALDWIN BAER Justice Justice in which dissenting opinion files BALDWIN Justice joins. BAER Justice CAPPY, dissenting. Justice

Chief By adopting dissent. respectfully vigorously I owner doctrine, property that a Majority today holds fields property interest in constitutionally protected privacy has no posted he of whether curtilage, regardless his outside entry unmistakably indicates in a manner that property declined to Majority has holding, soBy not permitted. allocatur, i.e. granted issue for which we precise rule on the 901(a)(2) of the Game constitutionality of Section Penn- 901(a)(2), Code, permits which 34 Pa.C.S. Wildlife Officer Wildlife Conservation Game Commission sylvania suspi- level tvithout property posted private enter onto I Majority, Contrary a warrant. cion and without inconsis- fields doctrine is application believe that 8 of the Article Section afforded protections tent I hold would Pennsylvania Constitution. it authorizes

901(a)(2) the extent that is unconstitutional suspi- any level property without entry posted private onto a conclusion because I reach this illegal activity. cion of private to enter agents state permits rule constitutional which efforts property of the owner’s outright disregard in land notes, an failed to conduct appellant Court the Commonwealth 17. As applicability analysis, preferring not to reach the Edmunds 8. Because we Article open fields doctrine under federal answered, question be must foundational constitutional believe that the reaching conclusion. reasoning in its court's we do not endorse the maintain privacy is one that offends the fundamental rights of Pennsylvania citizens. by Majority,

As noted Supreme United States Court the validity reaffirmed fields doctrine and clarified the doctrine’s scope and Oliver United in applicability States, 170, 1735, (1984). 466 U.S. S.Ct. L.Ed.2d per Oliver se approach, holding that a adopted has no property constitutionally protected owner in interest land the curtilage, regardless outside of the steps taken to A determination of whether Oliver comports privacy.1 assure rights guaranteed Pennsylvania with the citizens under Article I, Section 8 of the Pennsylvania Constitution an requires examination of the four factors set forth in Commonwealth v. Edmunds, (1991). 374, I A.2d 887 shall briefly address each factor.

The first Edmunds factor concerns the text of the two 8, provisions. constitutional of the Pennsyl- vania Constitution declares that citizens “shall be secure houses, their persons, possessions,” papers while Fourth Amendment to the United States Constitution secures Oliver, Thurgood strong dissenting 1. Justice Marshall opinion filed a joined by which was Justices William Brennan and John Paul Stevens. initially disagreed interpretation The Dissent with the literal of the text of the Fourth property Amendment and the conclusion that real is not 186, protected spaces possessions. included in the list of Id. at Majority curtilage S.Ct. 1735. It reasoned that the conceded that the protected by the home appearing is the Constitution without such term Further, in the text of the Amendment. the Dissent noted that neither a public telephone booth fairly nor a conversation conducted therein can house, person, be paper, yet described as or effect and the Court had granted protection activity Fourth Amendment over such Katz States, 347, 353, (1967). United 389 U.S. 88 S.Ct. 19 L.Ed.2d 576 disagreed The Oliver dissenters also with the conclusion that might privacy interest a landowner have in the of his fields is not one society prepared recognize as reasonable. 466 U.S. at They 104 S.Ct. positive recognizes noted that law legitimacy posted landowners' land at {id. 1735); privately S.Ct. exposed owned woods and fields that are not public employed variety ways view are society in a acknowl (id. 1735); edges privacy deserve 104 S.Ct. and that the claim to strengthened by precau was the fact that the landowners took public, tions to exclude the States, unlike the circumstances in Hester v. United 265 U.S. 44 S.Ct. 68 L.Ed. 898 Id. at S.Ct. 1735. houses, “persons, in their to be secure people right Majority The concludes: and papers effects.” Amendment, “posses- in the Fourth “effects” Like the word objects four which among the last as appears sions” secure, their being the others to be have a people to the in- “houses,” Pursuant “papers.” “persons,” term “posses- ejusdem generis, doctrine terpretative particular words light construed in sions” should be about one’s it, things to intimate all of refer preceding which intended to refer to had been “possessions” If person. fields, owned, then there would such as one everything objects. the other three We specify no need to have been purposes the Oliver present find for persuasive therefore of the Fourth Amendment. of the text interpretation Court’s I, suggests Article text of Nothing plain degree privacy are entitled to the same fields house, possessions. person, papers, as one’s at 1205-06. Op. interpretation “possessions”

I disagree. Majority’s person intimate about one’s does encompassing only things a case we afforded comport previous with our law which T, e.g. of Article Section 8. See Common interpretation broad (1994) Brion, (holding 539 Pa. 652 A.2d 287 wealth I, a provides constitutionally recognized Section 8 in one’s privacy in conversations conducted Melilli, home); 555 A.2d (1989) inter constitutionally protected privacy a (recognizing 8 in numbers accessible telephone est under Article DeJohn, 486 Pa. a Commonwealth v. by telephone company); I, that Article Section 8 (holding 403 A.2d 1283 records). banking interest in one’s Conver protects privacy numbers, sations, and bank records do not fall telephone houses, papers “persons, under a narrow construction them under possessions,” yet protection we have afforded to the text of Article Section pursuant certain circumstances no I note that Article Section 8 states that further “any person to search or to seize “any place” warrant shall issue cause. things” probable language, without This Amendment, does not in the Fourth appear suggests which that a property may possess owner interest his Thus, land. I find that Article would Section 8 should be more than the Fourth interpreted broadly Amendment to greater offer protection. the second

Regarding factor of the Edmunds analysis, history provision, constitutional the Majority reasons I, that Article notwithstanding protection Section 8’s of priva- cy for hundred there years, over two has never been any Pennsylvania in source that suggestion suggests a reason- privacy 136, able in fields. at Op. 934 A.2d at 1209. Such lack of from precedent may this Court arise from the fact that there has never been a in case which the particular presented. Surely issue was the mere passage of time does not affect a citizen’s to ability seek constitutional protection of an interest that has not yet been formally recognized as of such worthy protection. important More to I, the historical is the that analysis fact Article Section 8 is embody strong meant to notion that privacy has been carefully safeguarded this for the past two centuries, id., 897, 586 A.2d at purpose whereas sole for the exclusionary rule under the Fourth Amendment is deter Leon, police misconduct. (citing Id. United States v. 468 U.S. 677). 897, 916, 3405, 104 82 S.Ct. L.Ed.2d Considering this history, rich I Article interpret would Section 8 as encom- passing right privacy property posted is in a reasonably manner as to indicate that entry permitted.2 is not Majority's implication analysis 2. The that a historical of Article 8, only occurring should include matters after the United States Ohio, 643, 1684, Supreme Mapp Court's decision in v. 367 U.S. 81 S.Ct. Majority prior 6 L.Ed.2d 1081 is unfounded. The declares that history support “there no relevant a broader state interpretation point seeking constitutional because there was no such case, interpretation, an at least in a criminal since there was no exclusionary remedy Op. (empha- available.” 934 A.2d at 1207 supplied). respectfully I sis submit the fact that there was no exclusionary remedy import is irrelevant to the historical guaranteed by Article Section 8. 147 related analysis, of the Edmunds prong to the third Turning states, acknowledges Majority other case law adopted se rule rejected per have jurisdictions several under afforded the protections as inconsistent Oliver Bullock, Mont. v. 272 See Montana state constitutions. their Scott, 583 N.Y.2d (1995); v. People 901 P.2d Dixson, (1992); v. Oregon 593 N.E.2d 1328 N.Y.S.2d 1, 587 (1988); Kirchoff, Vt. P.2d 1015 State Or. Johnson, P.2d (1991); Wash.App. A.2d 988 State to be particularly v. Bullock I find the decision Montana Pennsylva- on interest that it is based an persuasive because In Bull- for high regard privacy. share —a nia and Montana ock, examined whether Montana Supreme II, prohibits warrant- 11 of the Montana Constitution land that falls outside private and seizures on less searches inquiry The court dwelling. of a answered curtilage doc- fields adopt in and declined to the affirmative forth in trine as set Oliver. warrant, enforce- the law or a search permission

Without property onto gate private in Bullock entered a ment officers The signs. Trespassing” been “No posted had which charged the cabin and hanging an elk near officers observed ruling In that lower violations. game the defendants with motion the defendants’ by failing grant court erred decision found that the Oliver initially the court suppress, in Katz v. concepts returned to the discredited improperly States, 19 L.Ed.2d 576 88 S.Ct. United U.S. Dixson, Scott, The court examined the decisions Montana, like Johnson, that and convinced supra, was York, strong had a tradition Washington, Oregon, New As 901 P.2d at 75. privacy. for the respect right individual interest, cited an the Bullock court of such privacy evidence Montana Constitution contained provision additional is essential privacy of individual that states “[t]he infringed shall not be without society of a free well-being state interest.” showing compelling of a Mont. Const. II, Art. Majority

The finds Bullock unpersuasive based on this 139-40, additional constitutional provision. Op. at 934 A.2d at Majority 1211. The fails to recognize the issue Bull- ock, however, II, interpretation was the of Article Constitution, of the Montana contains language nearly which identical to the Fourth Amendment. The Bullock court cited II, Section 10 of its merely constitution as an additional ground to demonstrate Montana’s tradition for strong respect privacy. individual Bullock court stated:

We conclude that in Montana person may have an expec- tation of privacy an area of land that is beyond the curtilage the society willing which of this State is to recog- ' reasonable, nize as and that that expectation where is by fencing, evidenced “No or similar Trespassing,” signs, or “by some other unmistakably means indicates [which] entry is not permitted,” entry by law enforcement officers decisions, or a requires permission As in our prior warrant. however, this requirement apply does not observations land from private public property. (citations omitted). at P.2d 75-6

This respect Commonwealth’s privacy equally well- established as we have held that Article Section 8 embodies a strong notion of carefully has been safeguarded Edmunds, in this for centuries. A.2d 896. Accordingly, I am persuaded by reasoning in Bullock jurisdictions and the decisions from those which have held that their state constitutions provide greater protection of citizens’ privacy interests than that provided by the Fourth Amend- ment. I

Finally, believe that the last factor in the Edmunds analysis policy weighs favor of Appellant. — considerations — contends, alia, Appellant inter recognizing that a privacy interest in that property clearly posted is as private supports warrants, the the policy behind use of search which is to protect against citizens unreasonable searches and seizures and to protect right the to be left alone. Appellant argues recognizing that such not privacy handicap interest would law enforcement because officers could still search property that is fenced, of of violations not or could observe evidence posted view, to or could obtain a warrant plain the Game Code of information property upon receipt citizens’ private search Majority that a of the Game Code has occurred. violation searching of that this “falls short of the kind argument finds public policy to determine that considerations inquiry required fields suggest to federal unique Pennsylvania 8 of our is inconsistent with Article Section Consti- doctrine I as I agree 934 A.2d at 1212. cannot Op. tution.” para- to be Appellant’s proffered policy find considerations obligation protect I appreciate mount. Game Officers’ Commonwealth, I of this but preserve game wildlife that the balance of competing nevertheless find delicate would Pennsylvania side citizens’ protecting interests falls on the interests. privacy factors, I examination of the Edmunds

In summary, upon history that the text of Article its conclude states, Commonwealth, and the the related case law of other policy support protection relevant considerations constitutional he or she privacy of a landowner’s when posted entry has a manner that indicates that property Accordingly, may I hold that a citizen permitted. would claim in an field under Article Section 8 of indicia lead a reason- Pennsylvania Constitution when would I private. able to conclude that the area is would person 901(a)(2) therefore find unconstitutional to the extent that it authorizes onto without entry posted private property any suspicion illegal activity. level convinced, however,

I entirely am not such conclusion disposes possessed of this case because the Game Officers some entered suspicion they Appellant’s proper- level when they property as an that the was ty anonymous tip received shot a bear min- recognized Appellant baited within Because the opening hunting utes of bear season. Officers, courts did not examine the Game lower whether authority, independent officer, other enforcement had law issue, the statute at Appellant’s the door of approach cabin that the baited investigate allegations property was view,

and to seize I plain evidence obtained would remand the court the parties the matter to trial to afford a full and fair to address such opportunity issue. BAER join

Justice and Justice BALDWIN this dissenting opinion. BALDWIN, dissenting.

Justice I join Chief Justice I Cappy’s cogent dissenting opinion. separately emphasize majority’s write that the indication Brion, Court, that this 589 Pa. (1994), “ignored the Edmunds paradigm” A.2d 287 is confus Majority at 131 n. 934 A.2d ing. Opinion, op. at 1206 n. 10. Edmunds, Commomwealth (1991), Pa. 586 A.2d 887 Pennsylvania’s held that Constitution provides greater protec Constitution, tions than the United States finding rule, good exception exclusionary faith found constitu Leon, tional under the Fourth Amendment in United States v. (1984), 468 U.S. S.Ct. 82 L.Ed.2d 677 violated Constitution. Edmunds 8 of Pennsylvania’s that in requires order facilitate the appropriate analysis, “litigants seeking this Court’s review of claims based exclu on the sively Pennsylvania Constitution” should brief and known as the Edmunds the four analyze generally factors Shaw, analysis.1 Commonwealth v. 617, 622, 564 Pa. 770 A.2d Duncan, (2001); Commonwealth v. 438, 445, (2003) (use of Edmunds 817 A.2d framework litigants “strongly places This a burden on encourage[d]”). not the courts. a court litigants, Clearly, may consider all information provided by litigant, but it is not requires 1. Edmunds following analyzed by litigants four are factors to be briefed implicating provision Pennsylvania in each case hereafter 1) 2) provision; constitution: text of the constitutional case-law; 3) history provision, including Pennsylvania related states; 4) considerations, policy including case-law from other Land] concern, unique applicability issues of state and local within Pennsylvania jurisprudence. modern 389-90,

Edmunds at 586 A.2d at 894-95. of each of four state its review explicitly required Edmunds factors. Majority the Edmunds paradigm,”

If, by “ignored of each of analysis explicit no that there was say means correct; however, Majority if the factors, is Edmunds analysis an appropriate to conduct the Court failed means that depart- for a decision reasons state-specific history required by standards, they believe from federal ing Edmunds does Edmunds, is incorrect. assumption explicit, made processes be thought Court’s require litigants provide encourages that strongly rather but reach a reasoned information to the appropriate Court with claim under independent on an decision Duncan, supra. See Constitution. joins dissenting opinion. BAER

Justice

934A.2d 1218 BLOOD, Appellee Jay COMPANY, Appellant. OLD GUARD INSURANCE Pennsylvania. Supreme Court of Argued Sept. 20, 2007.

Decided Nov.

Case Details

Case Name: Commonwealth v. Russo

Court Name: Supreme Court of Pennsylvania

Date Published: Nov 20, 2007

Citation: 934 A.2d 1199

Docket Number: 135 MAP 2005

Court Abbreviation: Pa.