Fourth Amendment of the United States Constitution
Protects citizens from unreasonable search and seizure.
• "The right of the people to be secre in their persons, houses, papers, and effects against unreasonable seaches and seizures, shall not be violated, and no Warrants shall issue, but upon probably cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
• That protection does not extend to the actions of law enforcement officers carrying out their duty to protect people and property, including the state's fish, game and other natural resources.
MADISON - Despite rumors to the contrary, the United States Constitution does not prohibit conservation wardens from entering private land to carry out their duties. Numerous court cases have upheld that position, according to Michael Lutz, acting chief legal counsel for the Wisconsin Department of Natural Resources, who conducts legal training for conservation wardens.
Case law from both federal and Wisconsin courts has routinely upheld the concept of "open fields," according to Lutz. Supreme Court Justice Lewis Powell argued in Oliver vs. United States (1984) as follows:
"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."
Brown vs. State of Wisconsin (1964) offers a similar rationale for open fields: "Since criminal convictions require substantial evidence, the police must be given reasonable power to gather probative evidence."
"Open Fields is anything that's not considered the home. It could be the woods, it could be a pasture," Lutz concludes.
It does not matter if there is a no trespassing sign, he says. "From a constitutional standpoint, the owner might have a personal expectation of privacy but that is not a constitutional right to privacy, meaning it is not one that society will recognize. Officers can go on that property, crawl over a fence or walk past a no trespassing sign," he asserts.
Lutz outlines other rights pertaining to law enforcement officers. They are entitled to go on private property in the same way as the general public. "Like anyone else, they can enter the driveway and knock on the door." But without reasonable suspicion of some illegal action they may go no further without permission.
"Curtilage" must be respected
The rules change as the law enforcement officer approaches the curtilage. "In its simplest terms," Lutz says, "curtilage is the yard around the home. We will not go and randomly inspect a back yard looking for bait piles because that would be a violation of the curtilage."
Specifying the actual behavior of wardens' actions in the field falls to Tom Van Haren, administrative warden policy and regulation specialist for the Bureau of Wildlife, using the DNR Law Enforcement Handbook.
There must be an indication that some law is being broken, according to Van Haren. "They (wardens) might be in a neighbor's woods, for instance. They see a pile of corn, a spotlight on the back of a house, hear a shot fired. At that point, they can enter the curtilage."
Van Haren takes a practical approach to the issue of curtilage. Wardens are too busy to make random checks on someone's private property, he suggests. "They have thousands of acres to cover. We're going to focus our attention on areas where there is a problem."
A few states have interpreted their constitution to give more protection than that offered by the U. S. Constitution. Montana is one of those, where Jim Kropp serves as the chief of the Law Enforcement Division.
A 1995 case involving an illegally harvested bull elk led to a state Supreme Court decision that has Montana Fish, Wildlife and Parks officials still scratching their heads. A county sheriff and a Montana game warden tracked two men with a poached animal from public land onto private land where the shooters had hung the untagged elk from a tree beside a house. They entered the property, confiscated the elk and issued citations to the men involved.
The courts ruled in favor of the two law-breakers, saying authorities had violated their constitutional rights. As a result, according to Kropp, Montana officials must now spend an inordinate amount of time and money to conduct investigations.
He relates a particular problem with unlicensed outfitters within large tracts of private land. "They think they can do whatever they want. We've had several large scale poaching operations," he said.
Like the Blue River Outfitter case a few years ago here in Wisconsin, poachers have the potential to rob hunting opportunities from their neighbors and increase law enforcement costs.
- Lee Fahrney is the Times' outdoors writer and can be reached at (608) 967-2208 or fiveoaks@mhtc.net.
Case law from both federal and Wisconsin courts has routinely upheld the concept of "open fields," according to Lutz. Supreme Court Justice Lewis Powell argued in Oliver vs. United States (1984) as follows:
"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."
Brown vs. State of Wisconsin (1964) offers a similar rationale for open fields: "Since criminal convictions require substantial evidence, the police must be given reasonable power to gather probative evidence."
"Open Fields is anything that's not considered the home. It could be the woods, it could be a pasture," Lutz concludes.
It does not matter if there is a no trespassing sign, he says. "From a constitutional standpoint, the owner might have a personal expectation of privacy but that is not a constitutional right to privacy, meaning it is not one that society will recognize. Officers can go on that property, crawl over a fence or walk past a no trespassing sign," he asserts.
Lutz outlines other rights pertaining to law enforcement officers. They are entitled to go on private property in the same way as the general public. "Like anyone else, they can enter the driveway and knock on the door." But without reasonable suspicion of some illegal action they may go no further without permission.
"Curtilage" must be respected
The rules change as the law enforcement officer approaches the curtilage. "In its simplest terms," Lutz says, "curtilage is the yard around the home. We will not go and randomly inspect a back yard looking for bait piles because that would be a violation of the curtilage."
Specifying the actual behavior of wardens' actions in the field falls to Tom Van Haren, administrative warden policy and regulation specialist for the Bureau of Wildlife, using the DNR Law Enforcement Handbook.
There must be an indication that some law is being broken, according to Van Haren. "They (wardens) might be in a neighbor's woods, for instance. They see a pile of corn, a spotlight on the back of a house, hear a shot fired. At that point, they can enter the curtilage."
Van Haren takes a practical approach to the issue of curtilage. Wardens are too busy to make random checks on someone's private property, he suggests. "They have thousands of acres to cover. We're going to focus our attention on areas where there is a problem."
A few states have interpreted their constitution to give more protection than that offered by the U. S. Constitution. Montana is one of those, where Jim Kropp serves as the chief of the Law Enforcement Division.
A 1995 case involving an illegally harvested bull elk led to a state Supreme Court decision that has Montana Fish, Wildlife and Parks officials still scratching their heads. A county sheriff and a Montana game warden tracked two men with a poached animal from public land onto private land where the shooters had hung the untagged elk from a tree beside a house. They entered the property, confiscated the elk and issued citations to the men involved.
The courts ruled in favor of the two law-breakers, saying authorities had violated their constitutional rights. As a result, according to Kropp, Montana officials must now spend an inordinate amount of time and money to conduct investigations.
He relates a particular problem with unlicensed outfitters within large tracts of private land. "They think they can do whatever they want. We've had several large scale poaching operations," he said.
Like the Blue River Outfitter case a few years ago here in Wisconsin, poachers have the potential to rob hunting opportunities from their neighbors and increase law enforcement costs.
- Lee Fahrney is the Times' outdoors writer and can be reached at (608) 967-2208 or fiveoaks@mhtc.net.
