Punxsutawney Hunting Club v. PGC

[J-20-2025] IN THE SUPREME COURT OF PENNSYLVANIA WESTERN DISTRICT

TODD, C.J., DONOHUE, DOUGHERTY, WECHT, MUNDY, BROBSON, McCAFFERY, JJ.

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 :

OPINION

JUSTICE BROBSON DECIDED: JULY 21, 2026 Open fields are afforded no constitutional protection from warrantless searches

and seizure under the Fourth Amendment to the United States Constitution.1 In,

Commonwealth v. Russo, 934 A.2d 1199 (Pa. 2007), this Court held that the protections

1 The Fourth Amendment provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. U.S. Const. amend. IV. afforded under Article I, Section 8 of the Pennsylvania Constitution2 also do not extend to

open fields. In this appeal, we reexamine our decision in Russo in the context of a

constitutional challenge to portions of the Game and Wildlife Code (Code),3 which

expressly empower officials of the Pennsylvania Game Commission (Commission) to go

upon or enter private property, posted or otherwise, in the exercise of their powers and

duties under the Code (Entry Statutes).

For the reasons that follow, we conclude that slavish adherence to our decision in

Russo must give way to the greater privacy and property protections afforded under

Article I, Section 8 of our state charter. As our jurisprudence in this area has evolved, the

Court’s reasoning and result in Russo have not aged well. In short, we hold that:

(a) Russo was wrongly decided; (b) Article I, Section 8 of the Pennsylvania Constitution

affords greater protection to land beyond the curtilage of a home or building; and (c) most

of the challenged Entry Statutes are, consequently, unconstitutional.

I. BACKGROUND

A. Russo and the Entry Statutes

i. Russo

In Russo, this Court examined whether, under Article I, Section 8, “a landowner

has a reasonable expectation of privacy against enforcement of . . . [the] Code in his open

fields.” Russo, 934 A.2d at 1200. There, the appellant, Joseph Russo (Russo), killed a

2 Article I, Section 8 provides:

The people shall be secure in their persons, houses, papers and possessions from unreasonable searches and seizures, and no warrant to search any place or to seize any person or things shall issue without describing them as nearly as may be, nor without probable cause, supported by oath or affirmation subscribed to by the affiant. Pa. Const. art. I, § 8. 3 34 Pa. C.S. §§ 101-2965.

[J-20-2025] - 2 bear on his private, wooded property in Wyoming County, approximately nine minutes

after the opening of Pennsylvania’s bear-hunting season. Id. After Russo transferred the

bear to the Commission’s nearby station for examination and tagging, the Commission

received a tip that Russo’s hunting camp had been “baited” in violation of

Section 2308(a)(8) of the Code, 34 Pa. C.S. § 2308(a)(8).4 Id. Several Commission

officers entered Russo’s property, which was posted with “[n]o [t]respassing” signs,

without a warrant and found several large piles of “apple mash” as well as a corn feeder

close to Russo’s cabin. Id. at 1201. The officers also noticed a large indentation in the

apple mash consistent with a bear having lain there, a clearly identifiable paw print, leaves

containing blood droplets, and other evidence indicating that a bear had eaten at the bait

piles located on Russo’s property. Id. Certain officers also proceeded to Russo’s

residence located in Luzerne County, where they “observed a dead black bear carcass

hanging from a piece of construction equipment.” Id. The officers seized various items

of evidence from both locations, which demonstrated 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 [Russo’s] residence.” Id. at 1202.

Based on the foregoing, the Commonwealth charged Russo with, inter alia, a

violation of Section 2308(a)(8) of the Code. Id. Prior to trial,5 Russo filed a motion to

4 Section 2308(a)(8) of the Code provides, in pertinent part:

[I]t is unlawful for any person to hunt or aid, abet, assist or conspire to hunt any game or wildlife through the use of . . . [a]ny artificial or natural bait, hay, grain, fruit, nut, salt, chemical, mineral or other food as an enticement for game or wildlife, regardless of kind and quantity, or take advantage of any such area or food or bait prior to 30 days after the removal of such material and its residue. 34 Pa. C.S. § 2308(a)(8). 5 A district judge initially found Russo guilty, but Russo appealed to the Court of Common

Pleas of Wyoming County (trial court), before which he received a de novo trial.

[J-20-2025] - 3 suppress the evidence seized by the Commission officers on the basis that the

warrantless entry onto and search of his property violated Article I, Section 8. Id. The

trial court denied the motion, finding that, based upon the officers’ testimony and the

photographic evidence presented, the bait piles were not within the curtilage of Russo’s

cabin and, therefore, the warrantless search of Russo’s fields, where the bait piles were

found, was lawful. Id. The trial court ultimately convicted Russo, and Russo appealed to

the Commonwealth Court, challenging the denial of his suppression motion. Id. A

three-judge panel of the Commonwealth Court unanimously affirmed, concluding that

Russo “did not have a reasonable expectation of privacy in the property upon which the

bait piles were found” under Article I, Section 8. Id. In so doing, the Commonwealth

Court rejected Russo’s argument that the “[n]o [t]respassing” signs created a reasonable

expectation of privacy, explaining that a person does not commit a trespass when he is

privileged to enter a particular property and Section 901(a)(2) of the Code specifically

authorized the officers to enter Russo’s posted property to perform their duties.

Id. at 1202-03.

Russo filed a petition for allowance of appeal, which this Court granted to consider

whether Section 901(a)(2) of the Code is unconstitutional as a violation of Article I,

Section 8—i.e., whether a landowner has a reasonable expectation of privacy on his

posted property. Id. at 1203. This Court began its analysis of that issue by explaining

that the open fields doctrine was first recognized by the United States Supreme Court

(Supreme Court) in Hester v. United States, 265 U.S. 57 (1924), wherein Justice Oliver

Wendell Holmes, Jr., writing for a unanimous Supreme Court, concluded that “the special

protection accorded by the Fourth Amendment to the people in their ‘persons, houses,

papers[,] and effects,’ is not extended to the open fields. The distinction between the

[J-20-2025] - 4 latter and the house is as old as the common law.” Id. at 1203-04 (quoting Hester,

265 U.S. at 59).

This Court then discussed the Supreme Court’s six-to-three decision in Oliver v.

United States, 466 U.S. 170 (1984), which reaffirmed “the vitality of the open fields

doctrine as announced in Hester.” Id. at 1204 (quoting Oliver, 466 U.S. at 178). In Oliver,

the Supreme Court, “[t]urning its attention initially to the constitutional text,” held “that

open fields are not ‘effects’ within the meaning of the Fourth Amendment.” Id. Rather,

the Supreme Court observed, the framers of the Fourth Amendment “would have

understood the term ‘effects’ to be limited to personal, rather than real, property.” Id.

(quoting Oliver, 466 U.S. at 177 n.7). The Supreme Court went on to reason that, even

if “one had a subjective expectation of privacy in his open fields,” society would not be

prepared to recognize such an expectation as reasonable: [O]pen fields do not provide the setting for those intimate activities that the [Fourth] Amendment is intended to shelter from government interference or surveillance. There is no societal interest in protecting the privacy of those activities, such as the cultivation of crops, that occur in open fields. Moreover, as a practical matter[,] these lands usually are accessible to the public and the police in ways that a home, an office, or commercial structure would not be. It is not generally true that fences or “[n]o [t]respassing” signs effectively bar the public from viewing open fields in rural areas. And both petitioner . . . and respondent . . . concede that the public and police lawfully may survey lands from the air. Id. (first alteration in original) (quoting Oliver, 466 U.S. at 179). The Supreme Court also

“explicitly rejected the contention that the reasonableness of one’s expectation of privacy

in his open fields should be determined on an ad hoc, case-by-case basis” because it

would be unworkable. Id.

Turning back to the case before it, this Court reasoned that, pursuant to Oliver,

there was no question that the Commission officers’ search of Russo’s property was

lawful under the Fourth Amendment. Id. at 1205. “The issue,” this Court explained, was

“whether Pennsylvania has departed, or should depart, from [the open fields] doctrine

[J-20-2025] - 5 when applying Article I, Section 8.” Id. Thus, this Court observed that “[t]o determine

whether the open fields doctrine as enunciated in Oliver is consonant with Article I,

Section 8, [it would] undertake an independent analysis of that provision as guided by

[this Court’s] seminal decision” in Commonwealth v. Edmunds, 586 A.2d 887 (Pa. 1991).

Id. This Court explained that, “[u]nder Edmunds, a principled consideration of state

constitutional doctrine should include an examination of: (1) the text of the provision of

[Pennsylvania’s] Constitution; (2) the history of the provision, including the case[ ]law of

this Commonwealth; (3) relevant case[ ]law from other jurisdictions; and (4) policy

considerations, ‘including unique issues of state and local concern, and applicability within

modern Pennsylvania jurisprudence.’” Id. (quoting Edmunds, 586 A.2d at 895).

As to the text of Article I, Section 8, this Court explained that, given its similarity to

the text of the Fourth Amendment, “it [was] not surprising that [Russo] fail[ed] to make

any textually based arguments for departing from the federal open fields doctrine.” Id.

On that point, this Court explained that Article I, Section 8’s use of the term “possessions”

is similar to the Fourth Amendment’s use of the term “effects:” Like the word “effects” . . . , “possessions” appears as the last among four objects in which the people have a right to be secure, the others being their “persons,” “houses,” and “papers.” Pursuant to the interpretative doctrine of ejusdem generis, the term “possessions” should be construed in light of the particular words preceding it, all of which refer to intimate things about one’s person. If “possessions” had been intended to refer to everything one owned, such as open fields, then there would have been no need to specify the other three objects. We therefore find persuasive for present purposes the Oliver Court’s interpretation of the text of the Fourth Amendment. Nothing in the plain text of Article I, Section 8 suggests that open fields are entitled to the same degree of privacy as one’s person, house, papers, and possessions. Id. at 1205-06 (footnote omitted).

With respect to the second Edmunds factor—i.e., the history of Article I,

Section 8—this Court first addressed Russo’s observation that Article I, Section 8

[J-20-2025] - 6 provides greater privacy protection than the Fourth Amendment under certain, limited

circumstances. Id. at 1206 (citing Commonwealth v. Shaw, 770 A.2d 295, 299 (Pa. 2001)

(holding that warrant is required to release hospital-administered blood-alcohol content

test results to police under Article I, Section 8, even though it is not under Fourth

Amendment); Commonwealth v. Matos, 672 A.2d 769, 771, 776 (Pa. 1996) (holding that

police pursuit of individual constitutes “seizure” under Article I, Section 8, even though it

does not under Fourth Amendment); Commonwealth v. White, 669 A.2d 896, 902

(Pa. 1995) (holding that warrantless search of vehicle incident to arrest is not permissible

under Article I, Section 8, even though it is under Fourth Amendment)). This Court noted,

however, that Russo failed to explain how his particular circumstances implicated the

heightened privacy interest recognized in those contexts or to reference a case that was

even remotely analogous. Id. at 1206-07. Further, this Court pointed to several decisions

where it held that Article I, Section 8 does not provide greater protection than the Fourth

Amendment. Id. at 1207 (citing, inter alia, Commonwealth v. Duncan, 817 A.2d 455, 469

(Pa. 2003) (holding that police request for person’s name and address does not implicate

privacy rights under Article I, Section 8); Commonwealth v. Glass, 754 A.2d 655, 665

(Pa. 2000) (holding that anticipatory search warrants do not per se violate Article I,

Section 8); Commonwealth v. Cleckley, 738 A.2d 427, 433 (Pa. 1999) (holding that police

do not have to inform suspect of voluntariness of consent for search to be valid under

Article I, Section 8); Commonwealth v. Waltson, 724 A.2d 289, 293 (Pa. 1998) (holding

that, where probable cause exists to believe contraband is located within particular room

of single-unit house, Article I, Section 8 does not preclude search of entire residence);

Commonwealth v. Williams, 692 A.2d 1031, 1038-39 (Pa. 1997) (holding that warrantless

search of defendant’s bedroom by parole officer did not violate Article I, Section 8)).

[J-20-2025] - 7  Continuing, this Court explained that the exclusionary rule “was not an organic part

of Article I, Section 8” but, rather, was made applicable to Pennsylvania for Fourth

Amendment purposes by Mapp v. Ohio, 367 U.S. 643 (1961). Id. Prior to Mapp,

Pennsylvania adhered to “the fundamental principle of the common law that the

admissibility of evidence [was] not affected by the illegality of the means by which it was

obtained.” Id. (quoting Commonwealth v. Chaitt, 112 A.2d 379, 381 & n.1 (Pa. 1955)).

“Thus,” this Court observed, “any historical survey respecting open fields and privacy

under Article I, Section 8, like examination of any suppression case under the

Pennsylvania charter, hit[] a brick wall in 1961: there [was] no relevant history to support

a broader state constitutional interpretation because there was no point in seeking such

an interpretation, at least in a criminal case, since there was no exclusionary remedy

available.” Id. (emphasis omitted). Eventually, exclusionary decisions arose solely under

Article I, Section 8 and, in some cases, those decisions embraced “a greater protection

of privacy rights than that which was commanded under the Fourth Amendment and

Mapp.” Id. at 1208. This Court clarified, however, that “no decision of this Court [had]

squarely purported to examine and disapprove of the long and unbroken line of pre-Mapp

decisions holding that, far from recognizing greater exclusionary-rule-related privacy

rights, Article I, Section 8 contained no exclusionary remedy whatsoever.” Id. (emphasis

omitted).

What was most important to the Russo Court’s analysis was that Pennsylvania’s

“own unique history and case[ ]law simply [did] not reflect any ‘societal interest in

protecting the privacy of those activities, such as the cultivation of crops, that occur in

open fields’” because those lands are readily accessible to the public and law

enforcement. Id. at 1209 (quoting Oliver, 466 U.S. at 179). Therefore, this Court

reasoned that “open fields do not provide the setting for the kinds of intimate activities

[J-20-2025] - 8 with respect to which citizens would reasonably expect to be free from governmental

surveillance” under Article I, Section 8. Id. In support, this Court referenced three

Pennsylvania decisions: Commonwealth v. Rood, 686 A.2d 442, 450 (Pa. Cmwlth. 1996)

(en banc) (holding that landowner had no reasonable expectation of privacy under

Article I, Section 8 in wooded area located beyond curtilage of home), appeal denied,

699 A.2d 736 (Pa. 1997); Commonwealth v. Treftz, 351 A.2d 265, 270 (Pa. 1976) (holding

that defendant lacked standing under Article I, Section 8 to challenge validity of seizure

of murder victim’s corpse found in backwoods area of property); and Commonwealth v.

Bender, 811 A.2d 1016, 1023 (Pa. Super. 2002) (rejecting Article I, Section 8 challenge

to admissibility of tape-recorded conversation made in vehicle parked on defendant’s

property). Id. at 1209-10. Thus, although Russo provided an apt description of the

unique history of Article I, Section 8, this Court concluded that Russo failed to “relate that

unique history to the specific question of the reasonableness of an expectation of privacy

in one’s open fields.” Id. at 1210. This Court explained that “[t]he mere fact that this Court

has, under certain circumstances, accorded greater protections to the citizens of this

Commonwealth under Article I, Section 8 ‘does not command a reflexive finding in favor

of any new right or interpretation asserted. To the contrary, [this Court] should apply the

prevailing standard where [its] own independent state analysis does not suggest a distinct

standard.’” Id. (quoting Glass, 754 A.2d at 660). “[I]n short,” this Court explained,

“Pennsylvania history . . . weighs strongly against any notion that open fields are entitled

to the same heightened privacy as one’s person or home.” Id.

As to the third Edmunds factor—i.e., relevant case law from other jurisdictions—

this Court discussed the four decisions that Russo cited from other states that “refused to

adopt the federal open fields doctrine for purposes of their constitutions:” People v. Scott,

593 N.E.2d 1328 (N.Y. 1992); State v. Johnson, 879 P.2d 984 (Wash. Ct. App. 1994);

[J-20-2025] - 9 State v. Kirchoff, 587 A.2d 988 (Vt. 1991); and State v. Bullock, 901 P.2d 61 (Mont. 1995).

Id. at 1210-11. According to this Court, in Scott, the New York Court of Appeals held that

a landowner has a privacy interest in land located beyond the curtilage under Article 1,

Section 12 of the New York Constitution. Id. at 1210. This Court observed that the text

of Article 1, Section 12 is substantially similar to the text of Article I, Section 8 in that it

protects “effects” from unreasonable searches and seizures. Id. This Court, nonetheless,

explained that the Scott court “expressly disavowed ‘the Oliver majority’s . . . literal textual

analysis,’ instead[,] preferring to focus on the compatibility of the federal open fields

doctrine with New York case[ ]law.” Id. (first alteration in original) (quoting Scott,

593 N.E.2d at 1335). Because New York case law differed from Pennsylvania case law,

particularly with regard to trespass statutes, this Court reasoned that Scott did not provide

support for Russo’s position. Id.

This Court explained that, similarly, in Johnson, Kirchoff, and Bullock, the

Washington Court of Appeals, the Vermont Supreme Court, and the Montana Supreme

Court all determined that the open fields doctrine was incompatible with their respective

state constitutions. Id. at 1211. This Court noted, however, that, in Johnson and Kirchoff,

“the relevant general inquiry under [Washington’s and Vermont’s] constitutions was not,

as under the Fourth Amendment, the reasonableness of one’s privacy expectation.” Id.

Rather, the critical inquiry in Johnson focused on whether a law enforcement officer

unreasonably intruded into the defendant’s private affairs, and, in Kirchoff, the court

expressed reluctance “to use the phrase ‘reasonable expectation of privacy.’” Id. (quoting

Kirchoff, 587 A.2d at 995). This Court further explained that Article II, Section 10 of the

Montana Constitution contains an additional enumerated protection of privacy not found

in the Fourth Amendment or Article I, Section 8. Id. (citing Mont. Const. art. II, § 10 (“The

right of individual privacy is essential to the well-being of a free society and shall not be

[J-20-2025] - 10 infringed without the showing of a compelling state interest.”)). Accordingly, this Court

concluded that the decisions from states that have adopted the federal open fields

doctrine were more persuasive than Scott, Johnson, Kirchoff, and Bullock because the

wording of the relevant constitutional provisions from those states is substantially similar

to the language set forth in Article I, Section 8. Id. at 1211-12 (citing State v. Pinder,

514 A.2d 1241, 1246 (N.H. 1986); State v. Havlat, 385 N.W.2d 436, 440 (Neb. 1986);

Williams v. State, 166 N.E. 663 (Ind. 1929); Wolf v. State, 9 S.W.2d 350 (Tex. Crim.

App. 1928); State v. Zugras, 267 S.W. 804, 806 (Mo. 1924); Ratzell v. State, 228 P. 166,

168 (Okla. Crim. App. 1924); Brent v. Commonwealth, 240 S.W. 45, 48 (Ky. 1922); State

v. Gates, 703 A.2d 696, 701 (N.J. Super. Ct. Law Div. 1997); Betchart v. Dep’t of Fish &

Game, 205 Cal. Rptr. 135 (Cal. Ct. App. 1984)).

With respect to policy considerations—the last Edmunds factor—this Court

explained that, according to Russo, the guarantees of Article I, Section 8 should extend

to open fields in order to: (1) prevent “fishing expeditions” by “overly zealous” law

enforcement officers; (2) protect the right to privacy; (3) prevent the Commission’s officers

from treating others’ property as their own; (4) avoid confrontations between the

Commission’s officers and landowners; and (5) encourage the Commission’s officers to

apply for search warrants. Id. at 1212. Disagreeing, this Court noted that

“‘[i]mplementation of a state constitutional value . . . necessarily entails a searching,

evaluative inquiry’ into genuinely ‘unique state sources, content, and context as bases for

independent interpretation.’” Id. (alterations in original) (quoting Thomas G. Saylor,

Prophylaxis in Modern State Constitutionalism: New Judicial Federalism and the

Acknowledged Prophylactic Rule, 59 N.Y.U. Ann. Surv. Am. L. 283, 309-13 (2003)). This

Court noted that Russo failed to explain how the “general principles of Pennsylvania law,

decisions from other states, and [Pennsylvania’s] trespass statute,” upon which he relied

[J-20-2025] - 11 in support of his policy arguments, pertained to “unique issues of state and local concern,

and [were applicable] within modern Pennsylvania jurisprudence.” Id. (quoting Edmunds,

586 A.2d at 895). As such, this Court concluded that Russo’s arguments fell short of the

“searching inquiry required to determine that public policy considerations unique to

Pennsylvania suggest that the federal open fields doctrine [was] inconsistent with Article I,

Section 8.” Id. Indeed, this Court observed: The citizens of this Commonwealth throughout our history have shown a keen interest in protecting and preserving as an asset the diverse wildlife that find refuge in the fields and forests within our borders. This interest is so strong that it is enshrined by a separate provision of the Pennsylvania Constitution[, which is commonly referred to as the Environmental Rights Amendment (ERA)]: The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment. Pennsylvania’s public natural resources are the common property of all the people, including generations yet to come. As trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all the people. P[a]. C[onst]. art. 1, § 27. The legislative and executive branches, in turn, have enacted and executed a plethora of statutes and regulations designed to enforce the people’s right to the preservation of our wildlife. Thus, our Constitution and enacted statutes—as well as the agencies created to enforce them—all confirm that, in Pennsylvania, any subjective expectation of privacy against governmental intrusion in open fields is not an expectation that our society has ever been willing to recognize as reasonable. In short, the baseline protections of the Fourth Amendment, in this particular area, are compatible with Pennsylvania policy considerations insofar as they may be identified. More importantly, there is nothing in the unique Pennsylvania experience to suggest that we should innovate a departure from common law and from federal law and reject the open fields doctrine. Id. at 1212-13 (footnote omitted).

Based on the foregoing, this Court concluded that the guarantees of Article I,

Section 8 do not extend to open fields because “federal and state law, in this area, are

coextensive.” Id. at 1213. Consequently, this Court held that the Commission officers’

[J-20-2025] - 12 search of Russo’s property did not violate his constitutional right to be free from

unreasonable searches and seizures. Id.

Chief Justice Cappy authored a dissenting opinion, which then-Justice Baer and

Justice Baldwin joined. In that opinion, Chief Justice Cappy “vigorously” disagreed with

the majority that “application of the open fields doctrine [was consistent] with the

protections afforded by Article I, Section 8,” explaining: I would hold that Section 901(a)(2) [of the Code] is unconstitutional to the extent that it authorizes entry onto posted private property without any level of suspicion of illegal activity. I reach this conclusion because a constitutional rule which permits state agents to enter private land in outright disregard of the property owner’s efforts to maintain privacy is one that offends the fundamental rights of Pennsylvania citizens. Id. at 1213-14 (Cappy, C.J., dissenting).

Conducting his own Edmunds analysis and starting with the text, Chief Justice

Cappy pointed out that this Court has previously afforded a broad interpretation to the

term “possessions” by extending Article I, Section 8 protection to conversations

conducted in one’s home, telephone numbers accessible by a telephone company, and

bank records. Id. at 1215 (citing Commonwealth v. Brion, 652 A.2d 287 (Pa. 1994);

Commonwealth v. Melilli, 555 A.2d 1254 (Pa. 1989); Commonwealth v. DeJohn, 403 A.2d

1283 (Pa. 1979)). He reasoned that none of those “possessions” were consonant with

the majority’s narrow construction of Article I, Section 8 but this Court has, nevertheless,

“afforded them protection under certain circumstances pursuant to the text of Article I,

Section 8.” Id. Chief Justice Cappy also pointed out that Article I, Section 8 provides that

“no warrant to search ‘any place’ or to seize ‘any person or things’ shall issue without

probable cause.” Id. (emphasis in original). According to Chief Justice Cappy, “[t]his

language, which does not appear in the Fourth Amendment, suggests that a property

owner may possess a privacy interest in his land.” Id. For those reasons, Chief Justice

[J-20-2025] - 13 Cappy would have interpreted “possessions,” as set forth in Article I, Section 8, more

broadly than “effects,” as set forth in the Fourth Amendment. Id.

With respect to the history of Article I, Section 8, Chief Justice Cappy criticized the

majority’s reliance on a lack of precedent “suggest[ing] a reasonable expectation of

privacy in open fields,” noting that “[s]uch lack of precedent from this Court may arise from

the fact that there has never been a case in which the particular issue was presented.”

Id. More importantly, Chief Justice Cappy explained that Article I, Section 8 has always

been interpreted “to embody a strong notion of privacy that has been carefully

safeguarded in this Commonwealth for the past two centuries, whereas the sole purpose

for the exclusionary rule under the Fourth Amendment is to deter police misconduct.” Id.

(emphasis in original) (citation omitted). Consequently, Chief Justice Cappy would have

interpreted Article I, Section 8’s history “as encompassing a right of privacy in property

that is posted in a manner as to reasonably indicate that entry is not permitted.” Id.

As to precedent from other jurisdictions, Chief Justice Cappy found the Montana

Supreme Court’s decision in Bullock to be “particularly persuasive because it is based on

an interest that Pennsylvania and Montana share—a high regard for privacy.” Id. at 1216.

He explained that Pennsylvania’s “respect of privacy is equally [as] well-established [as

Montana’s,] as we have held that Article I, Section 8 embodies a strong notion of privacy

that has been carefully safeguarded in this Commonwealth for centuries.” Id.

Accordingly, Chief Justice Cappy was persuaded by Bullock’s reasoning and “the

decisions from those jurisdictions which have held that their state constitutions provide

greater protection of citizens’ privacy interests than that provided by the Fourth

Amendment.” Id.

With respect to the last Edmunds factor, Chief Justice Cappy reasoned that the

policy considerations supporting the use of search warrants generally—i.e., “to protect

[J-20-2025] - 14 citizens against unreasonable searches and seizures and . . . the right to be left alone”—

supported a rejection of the open fields doctrine. Id. at 1217. He opined that recognizing

such a privacy interest would not hinder law enforcement because the Commission’s

“officers could still search property that is not posted or fenced, could observe evidence

of violations of the . . . Code in plain view, or could obtain a warrant to search citizens’

private property upon receipt of information that a violation of the . . . Code has occurred.”

Id. Accordingly, while he appreciated the Commission’s obligation to protect and

preserve Pennsylvania’s wildlife, Chief Justice Cappy would have found that “the delicate

balance of competing interests falls on the side of protecting Pennsylvania citizens’

privacy interests.” Id. In other words, he found Russo’s “policy considerations to be

paramount.” Id.

For all of these reasons, Chief Justice Cappy concluded that “the text of Article I,

Section 8, its history in this Commonwealth, the related case law of other states, and the

relevant policy considerations support[ed] constitutional protection of a . . . landowner’s

right to privacy when he or she has posted the property in a manner that indicates that

entry is not permitted.” Id. Consequently, Chief Justice Cappy would have held “that a

citizen may claim privacy in an open field under Article I, Section 8 . . . when indicia would

lead a reasonable person to conclude that the area is private” and that Section 901(a)(2)

of the Code is, therefore, unconstitutional “to the extent that it authorizes entry onto posted

private property without any level of suspicion of illegal activity.” Id. Nonetheless,

because the Commission officers had some level of suspicion when they entered Russo’s

property based on the anonymous tip concerning baiting and the fact that Russo shot a

bear within minutes of the opening of bear hunting season, Chief Justice Cappy would

have remanded the matter to the trial court to determine whether that suspicion was

sufficient, independent of Section 901(a)(2), “to approach the door of [Russo’s] cabin to

[J-20-2025] - 15 investigate allegations that the property was baited and to seize evidence obtained in

plain view.”6 Id.

ii. The Entry Statutes

The Entry Statutes authorize the Commission’s officers, employees, and

representatives to enter private land outside of buildings and curtilage to inspect for

violations of the Code. Specifically, Section 303(c) of the Code, entitled “Game

Commission officers and employees,” provides: (c) Power and authority.--Every officer, employee or representative of the commission in the exercise of their powers and duties shall have the right and authority to go upon or enter any property, posted or otherwise, outside of buildings. 34 Pa. C.S. § 303(c). Section 901(a)(2) and (8) of the Code, entitled “Powers and duties

of enforcement officers,” provides: (a) Powers.--Any officer whose duty it is to enforce this title or any officer investigating any alleged violation of this title shall have the power and duty to: .... (2) Go upon any land or water outside of buildings, except curtilage, posted or otherwise, in the performance of the officer’s duty. .... (8) Conduct 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 at a hunting location when prima facie evidence of hunting exists. Any officer conducting an administrative inspection shall, if any person is

6 Justice Baldwin also authored a dissenting opinion, which then-Justice Baer joined. In that opinion, Justice Baldwin joined Chief Justice Cappy’s “cogent dissenting opinion” but wrote separately to address a point that is not relevant to our decision today.

[J-20-2025] - 16  present, present a badge or other means of official identification and state the purpose of the inspection. 34 Pa. C.S. § 901(a)(2), (8).

B. Factual and Procedural History

We now turn to the facts and circumstances of this case, which, given the

procedural posture, the parties do not appear to dispute. Appellants Punxsutawney

Hunting Club, Inc. (Punxsutawney), and Pitch Pine Hunting Club, Inc. (Pitch Pine)

(collectively, Hunting Clubs), are private, member-owned hunting clubs that own

4,400 acres and 1,100 acres of contiguous land, respectively, in Clearfield County,

Pennsylvania. The Hunting Clubs have houses (Punxsutawney has five, Pitch Pine has

one), where members stay overnight or vacation for longer periods of time. Their

properties include farm plots and woods with trail systems, where members and their

friends and family can hunt, hike, ski, target shoot, or otherwise “find[] solitude in nature.”

(Reproduced Record (R.R.) at 99a-101a, 137a-38a.) The Hunting Clubs value and

expect privacy on their land, emphasizing that “one of the core values” that their members

receive is “a private place—a sanctuary—where they can come to escape from the hustle

and bustle of daily life.” (Id. at 100a-01a, 138a.) The Hunting Clubs’ members “prefer

hunting on [their] land because, unlike on public game lands, they can easily find spots

where strangers will not unexpectedly walk in and spook nearby wildlife or accidentally

step into their line of fire.” (Id. at 102a, 139a.) The Hunting Clubs’ members use their

time “to have private conversations about personal topics that might not come up in daily

life” and that “they would not feel comfortable discussing on public property where

strangers could overhear them,” such as “family matters, marital problems, work

stressors, romantic feelings, and faith in God.” (Id. at 101a, 138a-39a.)

To ensure their members’ privacy, the Hunting Clubs have taken various measures

to exclude intruders and non-members from their land. They have posted clearly visible

[J-20-2025] - 17 “no trespassing” signs and purple paint7 along their property lines, installed locked gates

at all public entrances, and fenced some parts of their boundaries with waist-high, metal

wire. Punxsutawney, which has a public road running through its land, even planted

evergreens along that road “to create a ‘screen’ to prevent non-members from looking or

shooting into the property from the public road.” (Id. at 104a.) The Hunting Clubs only

grant permission to enter their land to their members, their members’ guests, contractors

who help maintain their properties, and a gas company that owns their land’s subsurface

mineral rights and accesses its well pads through a dedicated access trail.

Mark Gritzer (Warden Gritzer) works as a game warden for the Commission and

is assigned to the district in which the Hunting Clubs’ land is located. Since 2013, Warden

Gritzer and other Commission officers have entered the Hunting Clubs’ land without

consent, a warrant, or probable cause at least 15 to 22 times to look for evidence of

hunting offenses. Warden Gritzer even placed a trail camera on Punxsutawney’s property

in an attempt to develop probable cause for charges of illegal elk feeding. That camera

remained on Punxsutawney’s property for 78 days. On some occasions, Warden Gritzer

has cited individuals for violations of the Code.

In light of the foregoing, the Hunting Clubs filed a petition for review in the nature

of a complaint for declaratory and injunctive relief (Petition) in the Commonwealth Court’s

original jurisdiction against the Commission and Warden Gritzer. Therein, the Hunting

Clubs claimed, inter alia, that their private land constitutes a “possession” under Article I,

Section 8 and that the Commission’s and Warden Gritzer’s warrantless searches thereof

violated their right to be free from unreasonable searches and seizures. Because the

7 Pursuant to what is commonly referred to as the “Purple Paint Law,” Pennsylvania

landowners, except those in Philadelphia and Allegheny Counties, have the option to use purple paint, rather than “no trespassing” signs, to post their properties to alert others that trespassing is not permitted. See 18 Pa. C.S. § 3503(b)(1)(vi).

[J-20-2025] - 18 Commission’s and Warden Gritzer’s searches of their properties were conducted under

the authority of the Entry Statutes, the Hunting Clubs further claimed that the Entry

Statutes are unconstitutional under Article I, Section 8 “to the extent they allow

nonconsensual warrantless searches of private land that is posted, gated, occupied, and

used.” (Id. at 39a.) In so doing, the Hunting Clubs acknowledged this Court’s contrary

ruling in Russo but, nonetheless, claimed that Russo was wrongly decided. By way of

relief, the Hunting Clubs asked the Commonwealth Court to declare that the Entry

Statutes, as well as the Commission’s and Warden Gritzer’s “policy and practice of

nonconsensual warrantless searches of private land over which the owner has exercised

control,” violate Article I, Section 8 and to enter an order “permanently enjoining [the

Commission and Warden Gritzer] from enforcing the . . . Entry Statutes by searching [the

Hunting Clubs’] land or any other land over which the owner has exercised control, without

consent or a warrant.” (Id. at 42a.) The Commission and Warden Gritzer responded to

the Petition by filing an answer with new matter, wherein they claimed, inter alia, that the

Hunting Clubs’ request for relief was barred by Russo, that Warden Gritzer was at all

relevant times operating within the course and scope of his employment, and that the

Commission’s officers perform necessary functions in open fields in Pennsylvania.

Following a period of discovery, the parties filed cross-applications for summary

relief, which put the purely legal questions presented in this matter squarely before the

Commonwealth Court for its consideration. In an unpublished, memorandum opinion

authored by Judge Wojcik, the Commonwealth Court, sitting en banc, concluded that it

was bound by this Court’s decision in Russo. Punxsutawney Hunting Club, Inc. v. Pa.

Game Comm’n (Pa. Cmwlth., No. 456 M.D. 2021, filed Sept. 29, 2023), slip op. at 2, 9.

Based upon Russo, the Entry Statutes are constitutional. Id., slip op. at 9. The

Commonwealth Court also declined to “express an advisory opinion on whether, barring

[J-20-2025] - 19 Russo,” the Entry Statutes violate Article I, Section 8. Id. As a result, the Commonwealth

Court granted the Commission and Warden Gritzer’s application for summary relief,

denied the Hunting Clubs’ application for summary relief, and entered judgment in the

Commission and Warden Gritzer’s favor. Id.

Judge McCullough authored a concurring opinion, which Judge Wallace joined.

Id., slip op. at 1 (McCullough, J., concurring). Although acknowledging that the

Commonwealth Court was bound by this Court’s decision in Russo, Judge McCullough

wrote separately to emphasize her agreement with Chief Justice Cappy’s dissenting view

in Russo.

II. DISCUSSION

A. Whether Principles of Stare Decisis Compel Adherence to Russo

“Stare decisis is ‘a principle as old as the common law itself.’” Commonwealth v.

Alexander, 243 A.3d 177, 195 (Pa. 2020) (quoting Morrison Informatics, Inc. v. Members

1st Fed. Credit Union, 139 A.3d 1241, 1249 (Pa. 2016) (Wecht, J., concurring)). “The

basic legal principle of stare decisis generally commands judicial respect for prior

decisions of this Court and the legal rules contained in those decisions.” Stilp v.

Commonwealth, 905 A.2d 918, 954 n.31 (Pa. 2006). As explained by the Supreme Court,

“stare decisis promotes the evenhanded, predictable, and consistent development of

legal principles, fosters reliance on judicial decisions, and contributes to the actual and

perceived integrity of the judicial process.” Id. (quoting Randall v. Sorrell, 548 U.S. 230,

243 (2006)). “[G]eneral faithfulness to precedent[, however,] is not sufficient justification

to buttress judicial decisions proven wrong in principle.” Tincher v. Omega Flex, Inc.,

104 A.3d 328, 352 (Pa. 2014). Indeed, this Court has “long recognized that the doctrine

of stare decisis is not a vehicle for perpetuating error, but ‘a legal concept which responds

to the demands of justice and, thus, permits the orderly growth processes of the law to

[J-20-2025] - 20 flourish.’” Id. (quoting Pa. State Ass’n of Cnty. Comm’rs v. Commonwealth, 52 A.3d 1213,

1230 (Pa. 2012)). “No one would seriously maintain that stare decisis demands absolute

fidelity to what came before.” Alexander, 243 A.3d at 196.

Furthermore, “stare decisis ‘is at its weakest when we interpret the Constitution

because our interpretation can be altered only by constitutional amendment or by

overruling our prior decisions.’” Id. at 197 (quoting Agostini v. Felton, 521 U.S. 203, 235

(1997)). We, therefore, “are not constrained to closely and blindly re-affirm constitutional

interpretations of prior decisions which have proven to be unworkable or badly reasoned.”

Holt v. 2011 Legis. Reapportionment Comm’n, 38 A.3d 711, 759 n.38 (Pa. 2012).

Nevertheless, “[t]o ensure certainty and finality, overturning a decision requires a ‘special

justification, over and above the belief that the precedent was wrongly decided.’”

Allegheny Reprod. Health Ctr. v. Pa. Dep’t of Hum. Servs., 309 A.3d 808, 850 (Pa. 2024)

(quoting Alexander, 243 A.3d at 196). When considering whether to overrule established

precedent, this Court is guided by several factors: (1) the quality of the prior decision’s

reasoning; (2) the workability of the rule established by the prior decision; (3) the prior

decision’s consistency with other related decisions; (4) reliance on the prior decision; and

(5) the age of the prior decision. Alexander, 243 A.3d at 196.

i. Parties’ Arguments

The Hunting Clubs argue that this Court should overrule Russo: “Russo was

wrong the day it was decided, and stare decisis provides it no shield today.” (Hunting

Clubs’ Br. at 38.) To that end, the Hunting Clubs, noting that stare decisis is at its weakest

when we interpret the Pennsylvania Constitution, maintain that all four stare decisis

factors—i.e., the quality of the decision’s reasoning; the workability of the rule established

by the decision; the decision’s consistency with other related decisions; and reliance on

the decision—weigh in favor of overruling Russo.

[J-20-2025] - 21  As to the first stare decisis factor, the Hunting Clubs argue that Russo was poorly

reasoned because the parties failed to properly brief the Edmunds factors. In that regard,

the Hunting Clubs note that the Commonwealth failed to address Edmunds in its entirety

and Russo failed to “make any textually based arguments for departing from the federal

open fields doctrine,” demonstrate how Article I, Section 8’s history supports a “privacy

[right] in one’s open fields,” or provide any discussion on how other states’ constitutions

that protect “possessions” define that term. (Id. at 39 (quoting Russo, 934 A.2d at 1205,

1210).) The Hunting Clubs explain that “state constitutional decisions are more secure

when they proceed from a searching inquiry,” as contemplated in Edmunds, and,

therefore, “‘it is important that litigants brief and analyze’ all four of its factors.” (Id. at 39,

40 (quoting Russo, 934 A.2d at 1208 n.11; Edmunds, 586 A.2d at 895).) The Hunting

Clubs insist that the parties’ failure in this regard impacted this Court’s decision.

Specifically, they highlight that this Court never discussed Pennsylvania’s historical

concern for privacy or how other states define the term “possessions” or attempted to

provide a historical definition of that term; instead, this Court applied the ejusdem generis8

canon of statutory construction, which, according to the Hunting Clubs, should only be

used to resolve ambiguity in the statutory provision at issue. In the Hunting Clubs’ view,

this Court’s textual analysis in Russo should have ended with the overwhelming evidence

that the unambiguous meaning of the term “possessions” includes land and that this

Court’s “misuse of ejusdem generis produced a slew of downstream issues that could

have been avoided:” (1) “using ejusdem generis to narrow the meaning of ‘possessions’

violates the canon that constitutional provisions for the security of person and property

8 “Under our statutory construction doctrine ejusdem generis (‘of the same kind or class’),

where general words follow the enumeration of particular classes of persons or things, the general words will be construed as applicable only to persons or things of the same general nature or class as those enumerated.” McClellan v. Health Maint. Org. of Pa., 686 A.2d 801, 806 (Pa. 1996).

[J-20-2025] - 22 should be liberally construed;” (2) this Court failed to explain why “possessions” must be

“intimate” or “about one’s person,” when proximity was never before required, or “grapple

with the countless intimate activities that occur on private land;” and (3) “ejusdem generis

is supposed to ensure that a general word will not render specific words meaningless”

and reading the term “possessions” to include land does not render “persons, houses,

[or] papers” meaningless. (Id. at 42-43 (citations and internal quotation marks omitted).)

With respect to the workability factor, the Hunting Clubs contend that Russo is

unworkable because it allows government officials to violate Article I, Section 8 across

the Commonwealth. In support, the Hunting Clubs reference Alexander, wherein this

Court rejected the federal automobile exception in favor of greater privacy under Article I,

Section 8. (See id. at 44 (citing Alexander, 243 A.3d at 198 (“[W]e cannot ignore

constitutional commands even if they make the work of police or prosecutors harder.”)).)

The Hunting Clubs argue that this Court cannot allow game wardens to treat all private

land like public property even if it makes their jobs easier because “[Article I,] Section 8

was adopted to secure privacy, and the best way to secure privacy . . . is to respect

landowners’ efforts to exclude intruders.” (Id.) For that reason, the Hunting Clubs insist

that we should require consent, a warrant, or an exception to the warrant requirement to

invade private land where government officials see clear signs of ownership.

As to Russo’s consistency with related precedent, the Hunting Clubs maintain that

Russo constitutes a break from precedent and that, as a result, stare decisis has less

force. Specifically, the Hunting Clubs explain that, “[b]efore Russo, this Court followed a

baseline rule: [Article I,] Section 8 protects property owners’ right to privacy when they

have ‘a common-law interest’ or the ‘right to exclude others from the premises.’” (Id. at 45

(quoting Commonwealth v. Gordon, 683 A.2d 253, 258 (Pa. 1996)).) The Hunting Clubs

also note that, in Commonwealth v. Ickes, 873 A.2d 698 (Pa. 2005), this Court held that

[J-20-2025] - 23 “[g]ame [o]fficers must . . . adhere to the minimum [constitutional] standards applicable to

all law enforcement officers” and, consequently, this Court struck down a statutory

provision that allowed game officers to stop any person at any time and demand

identification “without a standard of suspicion.” (Id. at 46 (some alterations in original)

(quoting Ickes, 873 A.2d at 703).) The Hunting Clubs complain that, just two years later,

this Court reversed course in Russo and “held that the very existence of hunting laws

exempts game wardens from scrutiny when searching private land.” (Id.) The Hunting

Clubs further observe that, in Alexander, this Court held that “our constitution prioritizes

the protection of privacy rights caused by the unreasonable search above the need . . .

to assist law enforcement efforts.” (Id. (alteration in original) (quoting Alexander, 243 A.3d

at 204).) “Russo’s tension with Alexander,” the Hunting Clubs claim, “supplies yet another

reason not to apply stare decisis.” (Id. at 47.)

Finally, the Hunting Clubs argue that Russo has produced no valid reliance

interests because it was decided only 18 years ago and, since that time, neither this Court

nor any other Pennsylvania court has applied Russo and/or the open fields doctrine in a

published decision. They acknowledge that the Commission’s officers use Russo to enter

private land but suggest that they have no valid reliance interest in doing so, noting that,

“[i]f it is clear that a practice is unlawful, individuals’ interest in its discontinuance clearly

outweighs any law enforcement ‘entitlement’ to its persistence.”9 (Id. (quoting Alexander,

243 A.3d at 200).)

9 The Pennsylvania Association of Criminal Defense Lawyers, the Defender Association

of Philadelphia, and the ACLU of Pennsylvania (Defense Amici) jointly filed an amicus brief in support of the Hunting Clubs’ position, wherein they add that “stare decisis should not be a barrier to holding that the open fields doctrine violates Article I, Section 8” because stare decisis “is not a vehicle for perpetuating error” and there is a special justification for overruling Russo, given that it relies upon Oliver and Oliver’s rationale has been eroded. (Defense Amici’s Br. at 28 (citation omitted).)

[J-20-2025] - 24  The Commission and Warden Gritzer, on the other hand, argue that this Court

must have a special justification for overruling one of its prior decisions, which they claim

is absent here. They, however, only address stare decisis’s reliance factor. To that end,

the Commission and Warden Gritzer observe that the predecessor to Sections 303(c)

and 901(a)(2) of the Code was enacted in 1923 and, although Russo was not decided

until 2007, the Commission has relied on the open fields doctrine for over a century to

carry out its duties. They note that, less than one year later, in 1924, the Supreme Court

issued its decision in Hester, wherein it recognized the open fields doctrine under the

Fourth Amendment. The Commission and Warden Gritzer explain that, “[t]hroughout the

century following Hester, courts in Pennsylvania have consistently applied the ‘open

fields’ doctrine in cases governed by the Pennsylvania Constitution.” (Commission and

Warden Gritzer’s Br. at 18.) Indeed, the Commission and Warden Gritzer point out that,

three decades before Russo was decided, this Court, in Treftz, invoked the open fields

doctrine to reject a suppression challenge to a corpse that was discovered in the

defendant’s open fields. Thus, the Commission and Warden Gritzer explain: [T]he Hunting Clubs seek to jettison a longstanding rule of constitutional law that “is as old as the common law” and has been applied by both the . . . Supreme Court and this Court[] and relied upon by the Commonwealth to protect its wildlife[] for almost a century. (Id. at 19.) Consequently, the Commission and Warden Gritzer emphasize that reliance

interests favor adhering to Russo.

In reply, the Hunting Clubs argue that “Russo was patently flawed” because “[i]t

demonstrably misread [Article I,] Section 8’s text in a way that exposed the vast majority

of private land to warrantless searches.” (Hunting Clubs’ Reply Br. at 10.) The Hunting

Clubs suggest that this is exactly “the kind of ‘special justification’ that justifies revisiting

Russo.” (Id. (internal citation omitted).) The Hunting Clubs reiterate that “[t]he Russo

briefing was thin” and further note that, “[i]n our adversarial system, courts depend on the

[J-20-2025] - 25 parties to make their best points.” (Id. at 10-11.) The Hunting Clubs suggest that, by

failing to make his best points, “Russo undermined the ‘quality of [the Court’s] reasoning.’”

(Id. at 11 (alteration in original) (quoting Alexander, 243 A.3d at 196).) Lastly, the Hunting

Clubs contend that the Commission and Warden Gritzer’s reliance argument must fail

because the Commission “has no valid ‘interest’ in following a doctrine that violates

[Article I,] Section 8.” (Id.)

ii. Analysis

This case invites us to interpret, again, Article I, Section 8 and its tolerance for

the federal open fields doctrine. Stare decisis, therefore, is at its weakest. Nevertheless,

we still must look to the stare decisis factors to assess whether there is a special

justification to overrule Russo. In so doing, we need not engage in a frontal attack of

Russo’s reasoning or analysis. Instead, we begin by pointing out that our more recent

decision in Alexander adopted then-Justice, now-Chief Justice Todd’s “compelling

analysis” of “the heightened protocols of Article I, Section 8” from her dissent in

Commonwealth v. Gary, 91 A.3d 102 (Pa. 2014), including her explanation that, “[u]nlike

the Fourth Amendment, Article I, Section 8 uses the [broader] term ‘possessions’” and

that this “difference in language suggests that the warrant requirement of Article I,

Section 8 was intended to protect an individual’s privacy interest in all of his or her

possessions.” Alexander, 243 A.3d at 202 (quoting Gary, 91 A.3d at 143 (Todd, J.,

dissenting).10 Given the Alexander Court’s recognition that Article I, Section 8 uses more

expansive terminology than its federal counterpart, this alone constitutes a sufficient

10 More specifically, in Alexander, this Court adopted Justice Todd’s Edmunds analysis

from her dissent in Gary, which included a detailed discussion of Article I, Section 8’s history. See Alexander, 243 A.3d at 202 (“We conclude that Justice Todd’s Edmunds analysis thoroughly and convincingly established the heightened protocols of Article I, Section 8 and see no need to tread that same ground. The scholarly analysis thoroughly discussed the four Edmunds factors, and we adopt Justice Todd’s compelling analysis as our own.”).

[J-20-2025] - 26 reason to revisit Russo. We, nonetheless, briefly consider the remaining stare decisis

factors, as we believe that they provide additional justification for revisiting Russo.11

Turning to the workability of the rule established by Russo—i.e., application of the

open fields doctrine in Pennsylvania—we agree with the Hunting Clubs that the utility of

the doctrine to the Commission’s officers and other government officials in the

performance of their duties under the Code, the ERA, and other laws, must give way to

the privacy protection afforded by Article I, Section 8. As this Court explained in

Alexander: “We are not a policy branch, and we cannot ignore constitutional commands

even if they make the work of police . . . harder.” Alexander, 243 A.3d at 198.

With respect to Russo’s age and reliance thereon, we note that Russo is only a

little over 18 years old and no Pennsylvania court has applied Russo’s holding in a

published decision. While Pennsylvania courts, including this Court, have referenced

Russo and its holding, those courts cite Russo for general principles of law and/or to point

out that this Court has extended greater protections under the Pennsylvania Constitution

than that afforded by the United States Constitution when our independent analysis

concludes that a different standard should be applied. See, e.g., Gary, 91 A.3d at 108;

Commonwealth v. Arter, 151 A.3d 149, 156 (Pa. 2016). In other words, to our knowledge,

no Pennsylvania court has relied upon Russo in a published decision to conclude that the

warrantless entry onto posted, private land located beyond the curtilage of a home or

building did not violate Article I, Section 8. Consequently, there is no long post-Russo

lineage and/or multiple precedents to overcome, and, therefore, we would not “disrupt[]

an entire area of law” if we overrule it. Allegheny Reprod. Health Ctr., 309 A.3d at 887.

11 We need not address Russo’s consistency with related decisions because, as explained above, Russo has become an outlier with respect to how this Court approaches Article I, Section 8 and the privacy protection it affords. To the extent that this Court’s precedent remains relevant, however, we refer to the portion of our Edmunds analysis below addressing interpretative case law from this Court relative to Article I, Section 8.

[J-20-2025] - 27 The Commission and Warden Gritzer, nevertheless, claim that, even prior to Russo, they

have relied on the open fields doctrine to support their warrantless entries onto private

land. To the extent that the Commission’s officers entered land in reliance on Hester,

such warrantless pre-Russo entries were based upon the open fields doctrine under the

Fourth Amendment, not any conclusion about the reach of the doctrine under Article I,

Section 8. To state the obvious, any pre-Russo conduct cannot have been in reliance on

Russo and, therefore, factors not into our consideration of whether Russo should remain

extant.

Upon consideration of these stare decisis factors, as well as the fact that stare

decisis is, here, at its weakest, we conclude that our respect for stare decisis is not a bar

to reconsidering Russo at this time. Given that conclusion, we now consider whether

Russo was wrongly decided—i.e., whether Article I, Section 8 affords greater protection

than the Fourth Amendment in the context of open fields.

B. Whether Russo Was Wrongly Decided – Edmunds Analysis

In order to determine whether Russo was wrongly decided, we again look to the

analysis set forth in Edmunds in order to determine whether Article I, Section 8 should

provide greater protection than the Fourth Amendment in the context of open fields—i.e.,

whether the open fields doctrine, as applied in Fourth Amendment jurisprudence, is in

harmony with Article I, Section 8. Edmunds instructs that, when considering whether the

Pennsylvania Constitution affords greater protection than the United States Constitution,

we should independently analyze four factors: (1) “the text of the Pennsylvania

constitutional provision;” (2) the history of that constitutional provision, including relevant

Pennsylvania case law; (3) related case law from other jurisdictions; and (4) “policy

considerations, including unique issues of state and local concern[] and applicability

within modern Pennsylvania jurisprudence.” Edmunds, 586 A.2d at 895.

[J-20-2025] - 28  i. Parties’ Arguments

The Hunting Clubs argue that Russo was wrongly decided because all four

Edmunds factors weigh in favor of rejecting the open fields doctrine in Pennsylvania. 12

As to the text of Article I, Section 8, the Hunting Clubs reference a number of historical

sources, including dictionaries, statutes, legal decisions, and writings from “major

founding-era thinkers” indicating that the term “possessions” includes land. (Hunting

Clubs’ Br. at 15-18.) The Hunting Clubs also reference a new “corpus linguistics” study,

which they allege “confirms that[,] when founding-era Americans used the term

‘possessions,’ they typically meant land.” (Id. at 18 (citing James C. Phillips, A Corpus

Linguistics Analysis of “Possessions” in American English, 1760-1776, 27:1 Chapman L.

Rev. 143 (2023)).) Lastly, they suggest that “[n]earby constitutional text provides further

evidence that the term ‘possessions’ includes land.” (Id. at 19 (citing, inter alia, Pa. Const.

art. I, § 1).)

With respect to its history, the Hunting Clubs note that Article I, Section 8 was

adopted to prevent arbitrary searches by government officials that had been occurring

during pre-Revolutionary times. They explain that “[e]arly Pennsylvanians’ disdain for

arbitrary searches aligned with the [English] common law’s protections for private land.”

(Id. at 23.) In support, the Hunting Clubs suggest that both historical and modern

publications and cases demonstrate that Pennsylvania landowners have always

maintained—from the onset of settlement—a right to exclude intruders from their land and

12 The Hunting Clubs emphasize that they do not concede that the federal open fields

doctrine is correct. In doing so, they point out that, after Katz v. United States, 389 U.S. 347 (1967), “reoriented Fourth Amendment law around ‘reasonable expectations of privacy,’ a majority of federal circuits and state supreme courts rejected the open fields doctrine.” (Hunting Clubs’ Br. at 14 n.1.) The Hunting Clubs note, however, and we agree, that “Edmunds does not require [us] to question the federal doctrine to reject it under [Article I,] Section 8.” (Id.) We, therefore, do not discuss and/or question the federal open fields doctrine further.

[J-20-2025] - 29 that an invasion of private land, during those pre-Revolutionary times, constituted a

trespass. The Hunting Clubs further explain that this Court has repeatedly held—“at

least 17 times”—that Article I, Section 8 affords an enhanced privacy right beyond that

which is proscribed by the Fourth Amendment. (Id. at 26 & n.3.) The Hunting Clubs

maintain that this enhanced privacy right encompasses the right to exclude intruders from

private property. In support, they observe that Article I, Section 8 protects the right of

Pennsylvanians to be “secure” in their possessions and that the term “secure” is “tied to

property rights.” (Id. at 26-27 (quoting, inter alia, John Locke, Second Treatise of Civil

Government §§ 95, 123 (1690) (noting that people form governments to “secure

enjoyment of their properties”)).) The Hunting Clubs also explain that, in Gordon, a case

examining whether a squatter had a right to privacy under Article I, Section 8, this Court

ultimately concluded that a party could establish a right to privacy by showing

“characteristics of ownership,” such as the “critical . . . right to exclude others from the

premises in question.” (Id. at 27 (quoting Gordon, 683 A.2d at 258).) Although that

squatter did not make the necessary showing and this Court, therefore, denied him relief,

the Hunting Clubs insist that Gordon is relevant here: “Just as early Pennsylvanians were

entitled to privacy when they closed their land, today’s landowners deserve privacy when

they take lawful steps to exclude intruders.” (Id. at 28.)

As to precedent from other jurisdictions, the Hunting Clubs argue that “seven

states have rejected the open fields doctrine under [constitutional] provisions similar to

[Article I,] Section 8—either because their provisions protect ‘possessions’ or because

they protect more privacy than the Fourth Amendment.” (Id. at 29.) More specifically, the

Hunting Clubs explain that the constitutions of three states—Mississippi, Tennessee, and

Vermont—protect “possessions” in the search provisions of their respective constitutions

and that their high courts have rejected the open fields doctrine on the basis that the term

[J-20-2025] - 30 “possessions” is broader than the term “effects” as used in the Fourth Amendment and

encompasses land. The Hunting Clubs also note that courts in both Vermont and

Tennessee have rejected warrantless searches of land by game wardens. The Hunting

Clubs further emphasize that the high courts from four other states—Washington,

Oregon, New York, and Montana—all of which have adopted heightened privacy

protections under their respective state constitutions, have similarly rejected the open

fields doctrine. The Hunting Clubs, therefore, insist that Article I, Section 8, “which this

Court has repeatedly held protects more privacy than the Fourth Amendment, surely has

no less regard for privacy than the Montana, New York, Oregon, and Washington

constitutions.” (Id. at 34.)

Finally, with respect to public policy, the Hunting Clubs argue that rejection of “the

open fields doctrine harmonizes the state policies that converge on private land”—i.e.,

trespass, adverse possession, ejectment, and quiet title—all of which, according to the

Hunting Clubs, treat land as a “possession.” (Id. at 34-35.) The Hunting Clubs further

maintain that “allowing state officials to enter private land whenever and however they

please would seriously undermine at least three state constitutional rights: [a]

landowner[’s] [right to] privacy, associational freedom [under Article I, Section 7 of the

Pennsylvania Constitution13], and [the] right to bear arms” under Article I, Section 21 of

the Pennsylvania Constitution.14 (Id. at 35.) The Hunting Clubs, nevertheless,

acknowledge that the ERA “allows game wardens to enforce reasonable hunting laws.”

(Id. at 37.) They maintain, however, that “game wardens’ power to enforce hunting laws

13 The Hunting Clubs reference Article I, Section 7 as the basis for associational freedom,

but freedom of association is actually found in Article I, Section 20 of the Pennsylvania Constitution, which provides, in relevant part, that “[t]he citizens have a right in a peaceable manner to assemble together for their common good . . . .” Pa. Const. art. I, § 20. 14 Article I, Section 21 provides: “The right of the citizens to bear arms in defense of

themselves and the State shall not be questioned.” Pa. Const. art. I, § 21.

[J-20-2025] - 31 must honor—not displace—other state constitutional rights.” (Id.) In the Hunting Clubs’

view, “[t]he solution . . . is simple:” Rather than give officials unlimited power to invade private land at the expense of other rights, this Court should follow the path charted in Montana, Tennessee, and Vermont. Like Pennsylvania, Montana has a provision securing environmental rights, and the other two states have clauses authorizing hunting regulations. Yet none of [those] states follow the open fields doctrine. Instead, game wardens must get consent, a warrant, or prove an exception to the warrant requirement before searching posted land. That approach harmonizes the important state policies that converge on private land.[15] (Id. at 37-38 (citations omitted).)

The Commission and Warden Gritzer similarly engage in a detailed Edmunds

analysis, but they reach a different result. In their view, consideration of the Edmunds

factors “inevitably compel[s] the conclusion that, in the ‘open fields’ context, the

requirements of the Fourth Amendment and the requirements of [Article I,] Section 8 are

coextensive.” (Commission and Warden Gritzer’s Br. at 20.) As to the text of Article I,

Section 8, the Commission and Warden Gritzer argue that the “slight difference in

wording” between the Fourth Amendment and Article I, Section 8—i.e., “effects” versus

“possessions”—“does not warrant the dramatic departure from Fourth Amendment

15 Defense Amici, who, as stated previously, filed an amicus brief in support of the Hunting

Clubs’ position in this matter, generally argue that Russo should be overruled because Article I, Section 8 does not allow officials unfettered discretion to trespass and search private land. The Pennsylvania Farm Bureau and the National Federation of Independent Business Small Business Legal Center Inc. also jointly filed an amicus brief in support of the Hunting Clubs’ position, wherein they focus on policy considerations unique to Pennsylvania— namely, the enactment of certain agriculturally related legislation and technological advancements for securing a warrant—which they suggest support discarding the open fields doctrine in Pennsylvania. The Commonwealth Foundation for Public Policy Alternatives (Commonwealth Foundation) also filed an amicus brief in support of the Hunting Clubs’ position, wherein it argues that “the open fields doctrine offends the guaranteed right of privacy embedded in Article I, Section 8.” (Commonwealth Foundation’s Br. at 7 (capitalization omitted).)

[J-20-2025] - 32 jurisprudence proposed by the Hunting Clubs.” (Id. at 22.) The Commission and Warden

Gritzer further contend that this Court, in Russo, properly applied the interpretive doctrine

of ejusdem generis to conclude that open fields did not constitute “possessions.” In

support, they direct our attention to Brent, a case in which the Kentucky Court of Appeals16

applied ejusdem generis to the search provision of Kentucky’s constitution and concluded

that such provision “was intended to mean the intimate things about one’s person.”

(Id. at 24 (quoting Brent, 240 S.W. at 48).) The Commission and Warden Gritzer suggest

that, “[g]iven that this Court’s textual analysis in Russo precisely tracked the [Kentucky]

Court of Appeals’ textual analysis in Brent, which had interpreted and applied virtually

identical language 85 years earlier” and predated the Supreme Court’s introduction of the

open fields doctrine in Hester, “there is simply no merit to the Hunting Clubs’ contention

that Russo’s construction of the word ‘possessions’ appearing in [Article I,] Section 8

resulted from deficient briefing or faulty research.” (Id. at 25-26.)

With respect to Article I, Section 8’s history, the Commission and Warden Gritzer

begin by distinguishing Gordon, noting that this Court merely held that the squatter had

no reasonable expectation of privacy in the abandoned house that he occupied because

he had no legal right to enter the house and/or to exclude others therefrom. They insist,

however, that Gordon does not stand for the proposition that “the Hunting Clubs enjoy

constitutional protection from warrantless searches of open fields merely because they

have the right to exclude non-members from those fields.” (Id. at 30.) Indeed, the

Commission and Warden Gritzer note that, even prior to Russo, this Court reasoned that

the curtilage is “afforded a greater privacy protection than an open field because of the

traditional significance of the home as a haven from governmental intrusions.” (Id. at 31

(emphasis in original) (quoting Commonwealth v. Oglialoro, 579 A.2d 1288, 1292

16 At the time that Brent was decided, the Court of Appeals was Kentucky’s highest court.

[J-20-2025] - 33 (Pa. 1990)).) To accept the Hunting Clubs’ argument, they explain, this Court would have

to treat an individual’s home and curtilage the same as an individual’s open fields. To

that end, the Commission and Warden Gritzer point out that, while the Hunting Clubs’

members may have private conversations while hunting or fishing on the Hunting Clubs’

land, it is not objectively reasonable to expect those conversations to be private. Hunting,

fishing, and trapping, they emphasize, are simply not activities that can take place in the

home or its curtilage such that an expectation of privacy should attach. Thus, the

Commission and Warden Gritzer contend that, because there is no objectively reasonable

expectation of privacy in the large portion of the Hunting Clubs’ land located beyond the

curtilage, such land cannot constitute “possessions” under Article I, Section 8.

As to precedent from other states, the Commission and Warden Gritzer reiterate

that this Court’s construction of Article I, Section 8 “in Russo mirrored the construction of

[the respective provision of] the Kentucky Constitution in Brent” and further note that, in

the century since Brent was decided, Brent “has continued to govern cases involving the

reach and application” of the Kentucky Constitution. (Id. at 33, 34.) They also point out

that “[s]ome state courts have construed the word ‘possessions’ to mean essentially the

same thing as the word ‘effects.’” (Id. at 34.) The Commission and Warden Gritzer then

generally explain that Russo’s adoption of the open fields doctrine was consistent with

decisions rendered by courts in “New Hampshire, Nebraska, Indiana, Texas, Missouri,

Oklahoma, Kentucky, New Jersey, and California” and that, “[i]n Russo, this Court

adequately explained why contrary decisions rendered by courts in New York,

Washington, Vermont, and Montana did not provide persuasive reasons for interpreting

[Article I,] Section 8 to prohibit warrantless searches of open fields in Pennsylvania.”

(Id. at 35 (citing Russo, 934 A.2d at 1210-12).) The Commission and Warden Gritzer

continue that, “[t]o the extent that this Court deems it appropriate to consider decisions

[J-20-2025] - 34 from other [s]tates that were not available when Russo was decided,” the North Dakota

Supreme Court, in State v. Mittleider, 809 N.W.2d 303 (N.D. 2011), rejected the exact

same argument that the Hunting Clubs advance here and concluded that the North

Dakota Constitution did not protect open fields. (Id. at 36.) In the Commission and

Warden Gritzer’s view, “Mittleider provides further support for this Court’s decision in

Russo.” (Id.)

Finally, with respect to public policy, the Commission and Warden Gritzer

emphasize that, as this Court correctly explained in Russo, rejection of the open fields

doctrine “in the hunting context would place [Article I,] Section 8 on a collision course with

the [ERA].” (Id. at 36-37.) In their view, the Entry Statutes are all designed to fulfill the

Commission’s constitutional duty under the ERA to protect wildlife. They note that the

General Assembly has vested “ownership” of “game or wildlife” in the Commission and

that “game or wildlife” is “outside the scope of purely private property.” (Id. at 38 (quoting

Section 103(a) of the Code, 34 Pa. C.S. § 103(a); Robinson Twp. v. Commonwealth,

83 A.3d 901, 955 (Pa. 2013)).) Thus, because the Commission has an ownership interest

in the wild animals living on or traveling through the Hunting Clubs’ land, the Commission

and Warden Gritzer assert that “any subjective expectation of privacy against

governmental intrusion on open fields is not an expectation that our society has ever been

willing to recognize as reasonable.” (Id. (quoting Russo, 934 A.2d at 1213).) The

Commission and Warden Gritzer further point out that a rejection of the open fields

doctrine would “‘displace’ much of this Court’s ERA jurisprudence on a much broader

scale, including decisions that predated Russo and [that] did not specifically involve open

fields.” (Id. at 39.) In support, they note that this Court has utilized the ERA as a basis

for upholding provisions of the Solid Waste Management Act17 to allow the warrantless

17 Act of July 7, 1980, P.L. 380, as amended, 35 P.S. §§ 6018.101 to .1003.

[J-20-2025] - 35 search of certain physical structures without violating Article I, Section 8. (Id. at 39 (citing

Dep’t of Env’t Res. v. Blosenski Disposal Serv., 566 A.2d 845, 849-50 (Pa. 1989)).) The

Commission and Warden Gritzer, therefore, claim that, because “the ERA can sometimes

justify warrantless searches of physical structures without violating [Article I,] Section 8,

it follows . . . that it can justify warrantless searches of open fields, which have never

enjoyed protection under [Article I,] Section 8.” (Id. at 40 (emphasis in original) (citing

Russo, 934 A.2d at 1212-13).) As a result, the Commission and Warden Gritzer insist

that the Hunting Clubs have ultimately failed to articulate any reason to reject Russo’s

reliance on the ERA as a policy reason for adopting the open fields doctrine.18

In reply, the Hunting Clubs argue that the Commission and Warden Gritzer

essentially repeat Russo’s textual errors. They expound that “Russo—hamstrung by

deficient briefing—never asked how the founding generation would have understood the

term ‘possessions.’” (Hunting Clubs’ Reply Br. at 4.) According to the Hunting Clubs, the

text of Article I, Section 8 is “clear:” “possessions” includes private land. (Id. at 5.) The

Hunting Clubs point out that, “[w]hen it comes to original meaning,” the Commission and

Warden Gritzer “cite[] zero founding-era dictionaries, statutes, cases, or writings” and

have “no response to Professor Phillips’s finding that ‘86% of the time[] possessions likely

or clearly included land.’” (Id. at 6 (quoting Phillips, supra, at 163).) The Hunting Clubs

also argue that, because the text of Article I, Section 8 is clear and there is no ambiguity

to resolve, the statutory canon ejusdem generis does not, as the Commission and

18 The Pennsylvania Fish and Boat Commission (PFBC) filed an amicus brief in support

of the Commission and Warden Gritzer’s position in this matter. In that brief, PFBC generally argues that Russo is correct and the Hunting Clubs have failed to provide any compelling reason to overturn that decision. The Pennsylvania State Police also filed an amicus brief in support of the Commission and Warden Gritzer’s position, wherein it generally argues that, in Russo, this Court properly concluded that the plain text of Article I, Section 8 does not encompass real property.

[J-20-2025] - 36 Warden Gritzer suggest, apply. The Hunting Clubs explain, however, that, even if

ejusdem generis did apply, “reading ‘possessions’ to include land would not render any

of [Article I, Section 8’s] preceding terms meaningless” because none of those terms

include land; instead, it would honor the ejusdem generis canon because those preceding

terms are all types of property. (Id. at 8.) As to the Commission and Warden Gritzer’s

reliance on Brent, the Hunting Clubs suggest that, in that case, the Kentucky Court of

Appeals made the same errors relative to the ejusdem generis canon as this Court did in

Russo and “[t]he mere fact that Brent made Russo’s errors first does not justify repeating

them.” (Id. at 9.)

The Hunting Clubs further maintain, contrary to the Commission and Warden

Gritzer’s contentions, that they have a legitimate expectation of privacy in their “closed

land.” (Id. at 11.) In support, the Hunting Clubs point out that the historical context in

which Article I, Section 8 was adopted supports a landowner’s right to privacy in closed

land. They suggest that this historical right to privacy is also reflected in the text of

Article I, Section 8 itself and “[t]his Court has always held[—other than in Russo—]that

the owner of property enumerated in [Article I,] Section 8 can legitimately expect privacy

from physical intrusions unless he fails to preserve it.” (Id. at 13 (emphasis in original).)

The Hunting Clubs further posit that, if Treftz is the Commission and Warden Gritzer’s

best case, “Russo is truly an outlier” because, in Treftz, the officers entered a field

“beyond the fenced area” that was “freely open” to the public and this Court’s lead holding

was based on a lack of standing, as the defendant did not own the land in question.

(Id. at 13, 14 (quoting Treftz, 351 A.2d at 267).) The Hunting Clubs maintain that, the text

of Article I, Section 8 aside, the Commission and Warden Gritzer have failed “to explain

why it’s ‘legitimate’ to expect privacy for . . . activities at home but ‘illegitimate’ to expect

them on private land.” (Id. at 15.) In the Hunting Clubs’ view, it is entirely reasonable to

[J-20-2025] - 37 expect privacy on their private land when they have taken steps to exclude intruders

therefrom.

The Hunting Clubs also contend that the Commission and Warden Gritzer’s public

policy argument relative to the ERA “treats [Article I,] Section 8 as irrelevant when [the

ERA] is involved.” (Id. at 16.) To that end, the Hunting Clubs suggest that “[t]he

Constitution does not require this Court to make a Sophie’s Choice about which parts to

enforce and which to ignore;” instead, Article I, Section 8 should be read in harmony with

the ERA. (Id.) The Hunting Clubs explain that the ERA was adopted to put environmental

rights “on par with” political rights. (Id. at 17 (quoting Robinson Twp., 83 A.3d at 953).)

They maintain that, despite the fact that the ERA appoints the Commonwealth as “trustee”

over the Commonwealth’s “public natural resources” and that a trustee “cannot properly

exercise [his] power . . . in such [a] manner as will involve a violation of any of his duties

to the beneficiary,” the Commission and Warden Gritzer propose to enforce the ERA in a

way that violates Article I, Section 8. (Id. (some alterations in original) (citations omitted).)

The Hunting Clubs propose that, “[n]ot only is that wrong,” but it is also unnecessary,

given that “Vermont, Montana, and Tennessee all have constitutional provisions that

either secure environmental rights or authorize reasonable hunting regulations” and none

of those states have adopted the open fields doctrine but, rather, require their game

wardens to obtain a warrant or prove an exception to the warrant requirement before

searching private land. (Id. at 18.) The Hunting Clubs also point out that the Commission

and Warden Gritzer’s theory that game wardens can ignore Article I, Section 8 when they

are enforcing hunting laws and regulations under the ERA “would have grave implications

for other rights.” (Id. at 19.) In support, the Hunting Clubs posit, following the Commission

and Warden Gritzer’s logic, that “the [General Assembly] could forbid hunters from

posting on social media in order to discourage . . . hunting,” which “would surely violate

[J-20-2025] - 38 [Article I,] Section 7’s speech protections” and “this Court would have to uphold the law

because it was designed to conserve natural resources under [the ERA].” (Id.)

ii. Analysis a. Text of Article I, Section 8 We begin our Edmunds analysis with an examination/comparison of the language

of Article I, Section 8 and the Fourth Amendment. As noted above, the Fourth

Amendment provides: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. (Emphasis added.) Article I, Section 8 similarly, yet distinctly, provides: The people shall be secure in their persons, houses, papers and possessions from unreasonable searches and seizures, and no warrant to search any place or to seize any person or things shall issue without describing them as nearly as may be, nor without probable cause, supported by oath or affirmation subscribed to by the affiant. (Emphasis added.) While the language of Article I, Section 8 may be similar to that of the

Fourth Amendment, “we are not bound to interpret the two provisions as if they were

mirror images.” Edmunds, 586 A.2d at 895-96. While slight, there is, indeed, a textual

distinction between the Fourth Amendment and Article I, Section 8. Unlike the Fourth

Amendment, which establishes a “right of the people to be secure in their persons,

houses, papers, and effects,” Article I, Section 8 guarantees the right of the people to “be

secure in their persons, houses, papers and possessions.” U.S. Const. amend. IV

(emphasis added); Pa. Const. art. I, § 8 (emphasis added). In Oliver, the Supreme Court

concluded that “the term ‘effects’ is less inclusive than ‘property’ and cannot be said to

encompass open fields.” Oliver, 466 U.S. at 177. The same, however, cannot be said

for the term “possessions” as used in Article I, Section 8.

[J-20-2025] - 39  This Court, in Russo, applied the interpretative doctrine of ejusdem generis to

Article I, Section 8 and concluded that “the term ‘possessions’ should be construed in

light of the particular words preceding it, all of which refer to intimate things about one’s

person.” Russo, 934 A.2d at 1206. The Russo Court continued that, “[i]f ‘possessions’

had been intended to refer to everything one owned, such as open fields, then there would

have been no need to specify the other three objects.” Id. Consequently, the Russo

Court found the Supreme Court’s interpretation of the text of the Fourth Amendment in

Oliver to be persuasive and, as such, determined that “[n]othing in the plain text of

Article I, Section 8 suggests that open fields are entitled to the same degree of privacy as

one’s person, house, papers, and possessions.” Id. By applying the ejusdem generis

doctrine to reach this conclusion, however, the Russo Court failed to explore first the

actual meaning of the word “possessions” and, thus, the intent behind the use of that

particular word in the constitutional text. See Friends of Danny DeVito v. Wolf, 227 A.3d

872, 889 (Pa. 2020) (“[W]hile ejusdem generis is a useful tool of statutory construction,

such tools are used for the sole purpose of determining the intent of the General

Assembly. Ejusdem generis must yield in any instance in which its effect would be to

confine the operation of a statute within narrower limits that [sic] those intended by the

General Assembly when it was enacted.”).

“When interpreting constitutional language, we are mindful that the language of the

Constitution controls and that it must be interpreted ‘in its popular sense, as understood

by the people when they voted on its adoption.’” McLinko v. Dep’t of State, 279 A.3d 539,

577 (Pa. 2022) (citation omitted). There is evidence that both the framers of the

Pennsylvania Constitution and the people who voted to ratify it understood the term

“possessions” as used in Article I, Section 8 to include land. First, “[i]n ascertaining the

meaning of a word in accordance with its common and approved usage, this Court has

[J-20-2025] - 40 found it helpful to consult dictionaries.” Id. Around the time of Article I, Section 8’s

enactment,19 various English language and legal dictionaries defined “possession” and

“possess” in a manner that signifies that the term “possessions” as used in Article I,

Section 8 included land. See, e.g., Giles Jacob, A New Law Dictionary (1739) (providing

that “possession . . . is either actual, where a person actually enters into lands or

tenements descended or conveyed to him; or in law, when lands, &c. are descended to

a man and he hath not actually entered into them” (capitalization omitted)); Nathan Bailey,

The New Universal Etymological English Dictionary (4th ed. 1756) (defining “[a]ctual

possession” as “when a man[] actually enters into lands or tenements descended to him”);

2 Timothy Cunningham, A New and Complete Law Dictionary (1764) (defining “[a]ctual

possession” as “when a man actually enters into lands and tenements to him descended”

and “[p]ossession in law” as “when the lands or tenements are descended to a man, and

he hath not as yet actually entered into them”); 2 Samuel Johnson, A Dictionary of the

English Language (4th ed. 1773) (defining “possession” as “[t]he state of owning or having

in one’s own hands or power; property” and “[t]he thing possessed”); 2 John Ash, The

New and Complete Dictionary of the English Language (1775) (defining “possess” as “[t]o

19 As explained more fully infra, the right of the people to be free from unreasonable

searches and seizures was initially set forth in Clause 10 of Pennsylvania’s original Constitution of 1776, which provided: That the people have a right to hold themselves, their houses, papers, and possessions free from search and seizure, and therefore warrants without oaths or affirmations first made, affording a sufficient foundation for them, and whereby any officer or messenger may be commanded or required to search suspected places, or to seize any person or persons, his or their property, not particularly described, are contrary to that right, and ought not be granted. Arter, 151 A.3d at 157 & n.3. Clause 10, however, “was reworded during the 1790 revisions to the Pennsylvania Constitution[] and reappeared as Article I, Section 8.” Id. at 157. Notably, and rather importantly, both Clause 10 and Article I, Section 8 contain the term “possessions.”

[J-20-2025] - 41 have as an owner, to occupy”); William Perry, The Royal Standard English Dictionary

(1775) (defining “possession” as “property; a having in one’s power”); Thomas Dyche &

William Pardon, A New General English Dictionary (1781) (defining “possession” as

“having any thing in our own keeping or power; in Law, he that is the present occupier,

though it be by disseisin, hath right to any land, house, &c. against all others”); 2 Thomas

Sheridan, A Complete Dictionary of the English Language (3d ed. 1790) (defining

“possession” as “[t]he state of owning or having in one’s own hands or power” and

“possess” as “[t]o have as an owner, to be master of; to enjoy, or occupy actually”); James

Barclay, Complete and Universal English Dictionary (1792) (defining “possess” as “to

have as an owner; to enjoy or occupy actually” and “possession” as “the state of having

in one’s hands or power” and “[t]he thing enjoyed by a person”); and 2 Richard Burn &

John Burn, A New Law Dictionary (1792) (describing “possession” as, inter alia, “the

lowest degree of title, which may be without any apparent right, or pretence of right; as

where one man invades the possession of another, and, by force or surprise, turns him

out of the occupation of his lands, which is usually called a disseisin”).

Second, founding-era statutes similarly signify that the Provincial Assembly and

later the General Assembly—i.e., Pennsylvania lawmakers—referred to land as

“possessions.” See, e.g., Act of November 27, 1700 (2 St.L. 12, Ch. 11, § 1) (establishing

that “whosoever shall violently or forcibly enter in to the house or possessions of any other

person within this province or territories . . . shall be punished as a breaker of the peace”);

Act of March 26, 1762 (6 St.L. 196, Ch. 480, § 6) (granting city officials “full power and

authority to enter upon the lots, grounds and possessions of any person or persons . . .

through which the said common sewers do or ought to run to regulate them, and . . . to

make, amend and repair the same”); Act of March 26, 1785 (11 St.L. 519, Ch. 1145, § 4)

(providing that “no person or persons that now hath or have any claim to the possession

[J-20-2025] - 42 of any lands, tenements or hereditaments . . . from the commonwealth . . . shall hereafter

enter or bring any action for the recovery thereof . . . unless he . . . [has] had the quiet

and peaceable possession of the same within seven years next before such entry or

bringing such action”); Act of April 4, 1785 (11 St.L. 560, Ch. 1159, Preamble) (setting

forth “the happy termination of the late war the people of this state are in quiet possession

of very extensive and valuable tracts of land, which require cultivation and improvement”

as reason to erect and open loan office). Indeed, Pennsylvania lawmakers appear to

have even made a distinction between “effects” and “possessions.” See, e.g., Act of

February 18, 1769 (7 St.L. 277, Ch. 594, §§ 4, 6) (providing that city officials “shall meet

. . . and . . . consider, determine and agree on which of the said streets and public lanes

and alleys within the inhabited and settled parts of the said city shall be first paved, having

regard to the streets that are most used by the country in bringing their produce and

effects to market” and granting city officials “full power and authority to enter upon the

lots, grounds and possessions of any person or persons . . . through which the said

common sewers do or ought to run, to regulate them, and . . . to make, amend and repair

the same”).

Third, early decisions from this Court referred to land as a “possession” or

described the “possession” of land, thereby signifying that the original meaning of the

term “possessions,” as used in Article I, Section 8, included land. See, e.g., Fothergill’s

Lessee v. Stover, 1 Dall. 6, 7 (Pa. 1763) (concluding that party had proven that

“[s]ettlement and [p]ossession” of land had been made); Richardson’s Lessee v.

Campbell, 1 Dall. 10, 10 (Pa. 1764) (noting, in land dispute, that plaintiff had proven

“upwards of twenty [y]ears [p]ossession”); Andrew’s Lessee v. Fleming, 2 Dall. 93, 94

(Pa. 1786) (describing ejectments as “possessory actions”); McCurdy v. Potts, 2 Dall. 98,

98-99 (Pa. 1788) (finding in favor of plaintiff in trespass action, given that he “actually

[J-20-2025] - 43 entered, and enjoyed, for a length of time, a peaceable possession” and, therefore, “had

not only an actual, but a legal possession”); Fitzalden v. Lee, 2 Dall. 205, 205-06

(Pa. 1793) (explaining that parties “agreed to try the right to the possession in a summary

manner” and that defendant was in possession of land by agreement); Peaceable v.

Nicholls, 1 Yeates 293, 294 (Pa. 1793) (explaining how certain founding-era statute

provided “excellent safeguard to landed possessions” relative to ejectment action);

Respublica v. Sloane, 2 Yeates 229, 230 (Pa. 1797) (synopsis) (stating that purpose of

certain founding-era statutes addressing forcible entry and detainer onto land “was to

punish lawless persons for forcibly dispossessing their peaceable neighbours from their

quiet possessions”).

Finally, when “attempt[ing] to divine the framers’ intent,” “[w]e must consider our

charter as a whole in terms of establishing a set of normative values that limit[] the

government’s authority to search without a warrant;” Article I, Section 8 must, therefore,

be read “in conjunction with more abstract considerations of how far the government may

encroach on the rights of citizens.” Alexander, 243 A.3d at 206-07. Article I, Section 1 of

the Pennsylvania Constitution20 sets forth the inherent rights of the people to, inter alia,

“acquir[e], possess[] and protect[] property.” Pa. Const. art. I, § 1. It is axiomatic that, by

granting the people the right to possess property in Article I, Section 1, the framers

intended for all forms of property, including land, to constitute a “possession” for purposes

of Article I, Section 8. See In re Charlestown Outdoor, LLC, 280 A.3d 948, 957 (Pa. 2022)

(discussing property rights in zoning context and stating that “Article I, Section 1 . . .

protects the people’s right to enjoyment of private property”).

20 Article I, Section 1 provides: “All men are born equally free and independent, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting property and reputation, and of pursuing their own happiness.” Pa. Const. art. I, § 1.

[J-20-2025] - 44  For all of these reasons, we conclude that the original meaning of the term

“possessions” as used in Article I, Section 8, unlike the term “effects” as used in the Fourth

Amendment, includes land. We further conclude that this textual difference supports an

interpretation of Article I, Section 8 that affords greater privacy protection to

Pennsylvanians for open fields than does the Fourth Amendment. b. History of Article I, Section 8 and Interpretative Case Law This Court has previously set forth the history of Article I, Section 8 when

considering, inter alia, whether, under a particular set of circumstances, Article I,

Section 8 provides greater protection than the Fourth Amendment. See Commonwealth

v. Sell, 470 A.2d 457, 466-69 (Pa. 1983); Edmunds, 586 A.2d at 896-99; Gary, 91 A.3d

at 143-48 (Todd, J., dissenting); Arter, 151 A.3d at 157-61. We reiterate that history here.

“[C]ontrary to the popular misconception that state constitutions are somehow

patterned after the United States Constitution, the reverse is true. The federal Bill of

Rights borrowed heavily from the Declarations of Rights contained in the constitutions of

Pennsylvania and other colonies.” Edmunds, 586 A.2d at 896. Indeed, the right of

Pennsylvanians to be free from unreasonable searches and seizures originated 15 years

prior to the promulgation of the Fourth Amendment in Clause 10 of Pennsylvania’s

original Constitution of 1776. See id.; Sell, 470 A.2d at 466. In 1790, Clause 10 was

reworded during the extensive revisions to Pennsylvania’s original Constitution and

reappeared as Article I, Section 8. See Edmunds, 586 A.2d at 897. “[W]ith the exception

of the words ‘subscribed to by the affiant,’ which were added by the Constitutional

Convention of 1873,” Article I, Section 8 “has remained untouched for [200] years.” Id.

Despite these revisions, “the language employed in [Article I, Section 8] does not vary in

any significant respect from the words of its counterpart in our first [C]onstitution”—i.e.,

Clause 10. Sell, 470 A.2d at 467. “The text of Article I, [S]ection 8 thus provides no basis

for the conclusion that the philosophy and purpose it embodies today differs from those

[J-20-2025] - 45 which first prompted the Commonwealth to guarantee protection from unreasonable

governmental intrusion.” Id. “Rather, the survival of the language now employed in

Article I, [S]ection 8 through over 200 years of profound change in other areas

demonstrates that the paramount concern for privacy first adopted as a part of our organic

law in 1776 continues to enjoy the mandate of the people of this Commonwealth.” Id.

We, therefore, begin with a discussion of why and how Clause 10, and, in turn,

Article I, Section 8, came to be in Pennsylvania. “[F]rom the time of its birth during our

nation’s revolutionary summer of 1776, [Clause 10] recognized and protected a natural

and fundamental human right to privacy of our people.” Gary, 91 A.3d at 143 (Todd, J.,

dissenting). The framers of the Pennsylvania Constitution and the people who voted to

ratify it, most, if not all, of whom were subjects of the British Crown, “had firsthand

experience . . . with how [that] right could be diminished through the granting of exclusive

decision-making authority to officials empowered to search an individual’s person, or the

places where the individual kept [his] most important possessions, as to whether a search

would be conducted[] and, if so, the time, place, and manner of the search.” Id. at 144.

The British Crown’s customs officers, who were “charged with the collection of various

excise taxes, imposed without the consent of the American colonists,” “claimed the

plenary power to forcibly enter homes, warehouses, and other places to search for

smuggled goods, without any warrant or other judicial authorization.” Id. These invasive

searches “engendered great public opposition,” and, in an effort to combat that

opposition, colonial government officials granted “customs officers ‘general writs of

assistance’ to authorize [the] searches.” Id. at 144-45 (citation omitted). The court-issued

writs “gave customs officers ‘blanket authority to search where they pleased for goods

imported in violation of the British tax laws.’” Id. at 145 (quoting Stanford v. Texas,

379 U.S. 476, 481 (1965)). Consequently, “colonists came to view the manner of the

[J-20-2025] - 46 customs officers’ reliance on [the court-issued writs] to carry out sweeping searches as

an even greater affront to their privacy.” Id. In fact, “popular opposition became

sufficiently strong that it impeded customs officials from carrying out their search and

seizure duties, due to the fact that, once people in an area became aware of the presence

of the officers, mobs of angry people would routinely appear and carry away the goods

which the officers sought.” Id. The British Parliament responded to these actions “by

enacting the Townshend Revenue Act of 1767, which, to facilitate the obtaining of the

writs . . . , empowered the highest court from each colony to issue them.” Id. “This[,

however,] engendered not only further opposition from the people[] but also from the high

courts themselves.” Id.

The opposition to and concerns with the arbitrariness of the British Crown’s

customs officers’ searches and the use of court-issued writs of assistance to facilitate

those searches was shared by Pennsylvania colonists. Indeed, in 1767, John Dickinson

“forcefully attacked the writ in his influential publication” titled “Letters of a Pennsylvania

Farmer.” Id. Therein, “Dickinson argued that the power of general search conferred by

the writs, which extended to all places of privacy, including the innermost confines of a

colonist’s home, had been recognized even in England as ‘dangerous to freedom and

expressly contrary to the common law’” and “that the writs were ‘utterly destructive to

liberty’ since, unlike in England, the people here had no security ‘against the undue

exercise of this power by the [C]rown.’” Id. at 146 (citation omitted). This “Court’s colonial

predecessor, along with that of Connecticut, was unique in basing its refusal to issue such

writs on the fact that they failed to restrict searches to only specific places and

enumerated items and did not require an official to disclose to a judicial officer, prior to a

search, his reasons for conducting it.” Id. The “preference towards taking the decisional

authority for the conduct and scope of searches away from the officials who would perform

[J-20-2025] - 47 them[] and placing [it] in the hands of a neutral judicial officer who could narrowly tailor

the search to only certain areas and items[] based on the particular information presented

to him” extended beyond our Court’s colonial predecessor to our Provincial Assembly.

Id. Indeed, Pennsylvania and Massachusetts “were the only colonies to supplant the

authority of our own excise collectors to conduct warrantless excise searches with a

requirement that the searches be conducted pursuant to supplementary search warrants,

which authorized searches of places based on information provided by the official on

where he thought goods on which duty had not been paid might be found.” Id.

This history demonstrates that the right to be free from arbitrary searches and to

abolish the use of general warrants of assistance was of “vital importance to the drafters

of [Pennsylvania’s] first Constitution.” Id.; see also Edmunds, 586 A.2d at 897. In fact,

“the members of our inaugural constitutional convention . . . immediately formed a ‘Bill of

Rights Committee[]’ and assigned as one of its primary tasks the drafting of protections

for the ‘freedom from arbitrary search[es].’” Gary, 91 A.3d at 146 (Todd, J., dissenting)

(citation omitted). The result: Clause 10 and, later, Article I, Section 8. Clause 10,

specifically its requirement of prior authorization for searches—i.e., warrants issued by

neutral third parties and supported by probable cause—“represents a deliberate and

affirmative repudiation of the . . . judicially unsupervised search practices [that] the

framers found so repugnant.” Id. at 147. “[I]n accordance with this strong historical

tradition [to be free from arbitrary searches], the warrant requirement of Article I, Section 8

should be given the broadest reasonable application to searches conducted by

government officials in this Commonwealth.” Id. at 148.

Shifting specifically to open fields, English common law’s treatment of an intrusion

onto private land as a trespass is entirely consistent with a determination that the framers

[J-20-2025] - 48 of Pennsylvania’s original Constitution intended for the right to be free from arbitrary

searches to extend beyond the curtilage to open fields. As William Blackstone explained: Every unwarrantable entry on another’s soil the law entitles a trespass by breaking his close; . . . For every man’s land is in the eye of the law inclosed and set apart from his neighbour’s: and that either by a visible and material fence, as one field is divided from another by a hedge; or, by an ideal invisible boundary, existing only in the contemplation of law, as when one man’s land adjoins to another’s in the same field. 3 William Blackstone, Commentaries on the Laws of England 209-10 (1765). Similarly,

in Entick v. Carrington, 19 Howell’s State Trials 1029 (CP 1765), a case brought by a

“pamphleteer suspected of writing seditious documents” against “four of the King’s

messengers[,] who had acted pursuant to a warrant ‘to search for and seize the

[pamphleteer] and his books and papers’” and who broke into and damaged the

pamphleteer’s home, Lord Camden stated: By the laws of England, every invasion of private property, be it ever so minute, is a trespass. No man can set his foot upon my ground without my licence, but he is liable to an action, though the damage be nothing; which is proved by every declaration in trespass, where the defendant is called upon to answer for bruising the grass and even treading upon the soil. Richard A. Epstein, Entick v. Carrington and Boyd v. United States: Keeping the Fourth

and Fifth Amendments on Track, 82 U. Chi. L. Rev. 27, 28-29 (2015). Ultimately, Lord

Camden determined that the King’s messengers were liable to the pamphleteer for their

trespass. Id. at 29-30.

Importantly, Pennsylvania adopted certain aspects of English common law—

including its treatment of an invasion of private land as a trespass—as its own. See 1 Pa.

C.S. § 1503(a) (“The common law and such of the statutes of England as were in force

in the Province of Pennsylvania on May 14, 1776[,] and which were properly adapted to

the circumstances of the inhabitants of this Commonwealth shall be deemed to have been

in force in this Commonwealth from and after February 10, 1777.”). Early Pennsylvania

[J-20-2025] - 49 lawmakers then adapted that common law to meet the changing circumstances of

Pennsylvania colonists, striking a balance between a landowner’s “unqualified right to

exclude people” from his land and the need for a distinction between enclosed and

unenclosed land as people settled in Pennsylvania. Brian Sawers, The Right to Exclude

From Unimproved Land, 83 Temple L. Rev. 665, 675-79 (2011); see, e.g., Act of

November 27, 1700 (2 St.L. 70, Ch. 56, § 1) (providing that “all corn fields and grounds

kept for inclosures . . . shall be well fenced” and that “whosoever, not having their grounds

inclosed with . . . sufficient fence[s] . . . , shall hurt, kill or do damage to any [livestock] of

any other person, by hunting or driving them out of or from the said grounds, shall be

liable” to owner thereof); Act of August 26, 1721 (3 St.L. 254, Ch. 246, § 3) (establishing

that no person “shall . . . carry any gun or hunt on the improved or inclosed lands of any

plantation other than his own, unless he have license or permission from the owner”).

Given that the English common law forbade intrusions onto private land, even those

committed by individuals acting on behalf of the British Crown, and that Pennsylvania

adopted that common law as its own and then adapted it to meet its circumstances, there

is no reason to believe that the antipathy of the framers of Pennsylvania’s original

Constitution for arbitrary searches did not extend to open fields, at least those open fields

that are improved, enclosed, and/or marked to exclude intruders.

Russo aside, however, there is a dearth of interpretive case law from this Court

relative to the application of Article I, Section 8 to open fields. Our research uncovered

three cases that could be of potential relevance, all of which predate Russo: Treftz,

Oglialoro, and Gordon. With respect to Treftz, the Commission and Warden Gritzer

suggest, albeit in connection with their stare decisis arguments, that this Court invoked

the open fields doctrine “as a reason for refusing to suppress the discovery of a corpse

that had been used as evidence to secure a conviction for first-degree murder.”

[J-20-2025] - 50 (Commission and Warden Gritzer’s Br. at 18.) They continue that, because “the

defendant sought to suppress the discovery of the body pursuant to both the Fourth

Amendment and [Article I,] Section 8[,] . . . this Court’s application of the open fields

doctrine disposed of the defendant’s state constitutional claim as well as his federal

constitutional claim.” (Id. at 18 n.5 (emphases omitted) (internal quotation marks

omitted).) In making these arguments, however, the Commission and Warden Gritzer

ignore two key points.

First, in Treftz, the trial court denied the defendant’s motion to suppress the

deceased’s body, which was discovered pursuant to a defective search warrant in the

woods of certain real property owned and possessed by individuals that were not the

defendant approximately 148 yards from the backyard of a small farmhouse, due to a lack

of standing. Treftz, 351 A.2d at 266-68. The trial court went further, however, and

concluded that, even if the defendant had standing, it did not believe that the search and

seizure constituted an unreasonable invasion of privacy. Id. at 268. In affirming the

defendant’s judgment of sentence, this Court concluded that the interest the defendant

asserted, “that of an occasional and transient visitor . . . , who last visited . . . three weeks

prior to the illegal search, and who had no remaining personal belongings on the property,

[fell] well below the legal standards to justify any reasonable expectations of privacy” and,

therefore, the defendant did not have standing to attack the validity of the search and the

subsequent seizure of the deceased’s body—i.e., the defendant “had effectively

‘abandoned’ all cognizable interest in the searched premises.” Id. at 269, 270. This Court

also went further and concluded that, “inasmuch as the protection of the Fourth

Amendment against unreasonable searches and seizures does not extend to ‘open

fields,’ there was no unreasonable search.” Id. at 271. Both the trial court’s and this

Court’s statements relative to the lack of an unreasonable invasion of privacy and/or an

[J-20-2025] - 51 unreasonable search given that the protections afforded by the Fourth Amendment do

not extend to open fields constitute dicta, because such statements were wholly

unnecessary to resolve the defendant’s suppression motion given his lack of standing.

As such, we cannot rely on Treftz as a statement/conclusion as to the applicability of the

open fields doctrine in Pennsylvania. Second, while the defendant may have sought

suppression of the deceased’s body as a violation of both the Fourth Amendment and

Article I, Section 8, this Court did not discuss Article I, Section 8 and/or whether Article I,

Section 8 provides the same or greater protection than that of the Fourth Amendment.

For these reasons, Treftz does not, as the Commission and Warden Gritzer suggest,

stand for the proposition that Pennsylvania’s interpretative case law supports a

conclusion that the protections afforded by Article I, Section 8 do not extend to open fields.

Turning to Oglialoro, the defendant in that case filed a motion to suppress

marijuana seized from his property on the basis that the warrantless helicopter search of

his pole barn at a height of 50 feet interfered with his reasonable expectation of privacy.

Oglialoro, 579 A.2d at 1289-90. The trial court denied the defendant’s motion, and,

following his conviction for various drug offenses, the defendant appealed to the Superior

Court. Id. The Superior Court held that the marijuana was suppressible and, therefore,

reversed the defendant’s judgment of sentence and granted him a new trial. Id. at 1290.

In so doing, the Superior Court relied upon federal jurisprudence—i.e., the protections

afforded by the Fourth Amendment. Id. (citing People v. Sabo, 230 Cal. Rptr. 170, 176

(Cal. Ct. App. 1986) (concluding that “helicopter views from non-navigable airspace of the

marijuana glimpsed through the missing panels of the greenhouse constituted an

unreasonable invasion of respondents’ expectation of privacy, and the seizure of the

contraband under the warrant issued pursuant to the helicopter viewing violated

respondents’ Fourth Amendment rights”), cert. denied, 481 U.S. 1058 (1987)). This Court

[J-20-2025] - 52 granted allocatur to consider the propriety of the Superior Court’s conclusion that the

suppressed evidence was obtained through an illegal search. Id. Ultimately, this Court

concluded: (1) “[b]y installing a transparent, or at most translucent, roof, [the defendant]

readily allowed exposure of the contents of the structure to the sunlight outside and also

knowingly exposed his activities therein to persons lawfully operating aircraft over his

property;” and (2) while curtilage is often afforded greater privacy protection than an open

field due to its proximity to one’s home, such protection is not absolute and does not bar

police observation, so “long as the police have a right to be where they are[] and the

activity is clear and visible.” Id. at 1292. This Court, nevertheless, affirmed the Superior

Court’s decision because “the helicopter’s presence at 50 feet above the barn

represented a hazard to persons and property on the ground and . . . the conduct of the

police in flying at [that] level was unreasonable.” Id. at 1294.

The Commission and Warden Gritzer cite Oglialoro for the proposition that “more

than three decades ago” this Court recognized that “the curtilage is ‘afforded a greater

privacy protection than an open field because of the traditional significance of the home

as a haven from governmental intrusions.’” (Commission and Warden Gritzer’s Br. at 31

(emphasis omitted) (citation omitted).) In setting forth that proposition, however, the

Commission and Warden Gritzer fail to acknowledge that this Court’s decision in Oglialoro

was based entirely on the Fourth Amendment and its interpretative case law. Indeed, this

Court did not cite, reference, or discuss Article I, Section 8. Additionally, Oglialoro did not

involve open fields, as the pole barn subject to the search was located within the curtilage.

For these reasons, Oglialoro, like Treftz, does not support a conclusion that the

protections afforded by Article I, Section 8 do not extend to open fields.

Finishing with Gordon, the defendant in that case, who was squatting in an

abandoned and dilapidated house, filed a motion to suppress certain evidence that was

[J-20-2025] - 53 found within that house following a warrantless search. Gordon, 683 A.2d at 255. The

trial court denied the defendant’s motion on the basis that the warrantless search of the

house, namely the dining room in which the defendant had been living, did not violate his

rights under the Fourth Amendment or Article I, Section 8. Id. Following his subsequent

trial and conviction, the defendant appealed to the Superior Court, which reversed the

trial court’s denial of suppression, vacated the defendant’s judgment of sentence, and

remanded for a new trial. Id. at 255-56. In so doing, the Superior Court “held that the

police violated [the defendant’s] right to be free from unreasonable governmental

searches and seizures under Article I, Section 8.” Id. at 256. This Court granted the

Commonwealth’s petition for allowance of appeal to determine “whether an individual has

a reasonable and legitimate expectation of privacy in a room of an abandoned house

under Article I, Section 8.” Id. (footnote omitted). In addressing that issue, this Court set

forth the two-part test that courts use to determine whether the police have violated an

individual’s rights under Article I, Section 8. Id. “That test requires a person to (1) have

exhibited a subjective expectation of privacy and (2) have demonstrated that the

expectation is one that society is prepared to recognize as reasonable and legitimate.”

Id. Applying that test, this Court concluded that, while the defendant demonstrated that

“he had a subjective expectation of privacy in the dining room of the abandoned house”

given “the presence of a sheet separating [that] room from the rest of the house,

electricity, a mattress[,] and a television,” the defendant failed to establish that such

expectation was legitimate—i.e., “some possessory-based factor from which [this Court]

could find a reasonable expectation of privacy.” Id. at 257-58. This Court explained that

“a defendant can establish a legitimate expectation of privacy, despite lacking a

common-law interest in the real property, if he demonstrates certain characteristics of

ownership[, a]mong the critical . . . of [which] is the right to exclude others from the

[J-20-2025] - 54 premises.” Id. at 258. To that end, this Court disagreed with the Superior Court that the

defendant sustained his burden of demonstrating that “the sheet served to exclude others

from the dining room,” explaining that the defendant did not present any evidence to

demonstrate that “he excluded other people living in the house from the dining room” or

that he hung the sheet himself in an effort to exclude others. Id. This Court continued

that the defendant’s “claimed exclusion of the public from the dining room [was]

implausible because the evidence revealed that the house had an unlocked, open exterior

door.” Id. Given that the defendant failed to satisfy his burden, this Court concluded that

the warrantless search of the house did not violate his rights under Article I, Section 8.

Id. at 259.

Although it is not an open fields case, Gordon demonstrates that this Court has

interpreted Article I, Section 8 to provide privacy protection to real property if the owner

and/or possessor thereof has demonstrated a legitimate expectation of privacy by taking

steps to exclude intruders therefrom. Thus, on at least some basic level, Gordon is helpful

in answering the question of whether Article I, Section 8 affords greater protection than

the Fourth Amendment in the context of open fields.

Taking a step back, we cannot ignore that, outside the context of open fields, this

Court has “declared that ‘[t]he notion of privacy in Article I, [Section] 8 is greater than that

of the Fourth Amendment,’ and, when compared to federal courts, Pennsylvania courts

‘have given greater weight to an individual’s privacy interests when balancing the

importance of privacy against the needs of law enforcement.’” Arter, 151 A.3d at 157-58

(first alteration in original) (quoting Commonwealth v. McCree, 924 A.2d 621, 626-27

(Pa. 2007)). Indeed, this Court has concluded on numerous occasions that Article I,

Section 8 provides greater privacy protection than the Fourth Amendment. See, e.g.,

Alexander, 243 A.3d at 207 (holding that Article I, Section 8 requires both probable cause

[J-20-2025] - 55 and exigent circumstances to justify warrantless search of vehicle); Arter, 151 A.3d at 151

(holding that Article I, Section 8 commands application of exclusionary rule to parole and

probation revocation hearings); Commonwealth v. Martin, 626 A.2d 556, 561 (Pa. 1993)

(holding, inter alia, that Article I, Section 8 authorizes canine sniff search of person only

when police have probable cause to believe that such search will produce contraband or

evidence of crime); Edmunds, 586 A.2d at 888 (holding that adoption of “good faith”

exception to exclusionary rule would frustrate guarantees set forth in Article I, Section 8);

Sell, 470 A.2d at 469 (holding that person charged with possessory offense must be

afforded “automatic standing” to challenge admissibility of evidence alleged to be fruit of

illegal search and seizure).

For all of the above-stated reasons, we conclude that Article I, Section 8’s history,

like its text, supports an interpretation of Article I, Section 8 that is broader than the Fourth

Amendment with respect to the expectation of privacy that Pennsylvania citizens enjoy

relative to open fields. As such, we turn to the third prong of the Edmunds analysis and

examine case law from other jurisdictions.

c. Case Law from Other Jurisdictions

The third prong of the Edmunds analysis requires us to consider relevant case law

from other jurisdictions. In their brief to this Court, the Hunting Clubs cite several

decisions from states rejecting the federal open fields doctrine under state constitutional

provisions similar to Article I, Section 8. According to the Hunting Clubs, the high courts

from three states that have constitutional provisions that protect “possessions” from

unreasonable searches and seizures—Mississippi, Tennessee, and Vermont—and the

high courts from four states that have constitutional provisions that provide more robust

privacy protections to their citizens than that afforded by the Fourth Amendment—

[J-20-2025] - 56 Washington, Oregon, New York, and Montana—have all rejected the federal open fields

doctrine. We consider each of these cases in turn.

In Falkner v. State, 98 So. 691 (Miss. 1924), the Mississippi Supreme Court

considered whether the warrantless search of a wooded area located approximately

300 yards from a residence violated the property owner’s privacy rights guaranteed by

Article 3, Section 23 of the Mississippi Constitution, which provides, in relevant part, that

“[t]he people shall be secure in their persons, houses, and possessions, from

unreasonable seizure or search.” Falkner, 98 So. at 691-92 (emphasis added) (quoting

Miss. Const. art. 3, § 23). In analyzing that provision, the court explained: The security of the section is of the persons, houses, and possessions. If the section meant only to protect the persons and houses the words “and possessions” would be superfluous and meaningless. The rule is clear that in construing Constitutions every word is to be given some meaning. The words “and possessions” indicate clearly something other than houses and persons. The term “possessions” is a very comprehensive term, and includes practically everything which may be owned, and over which a person may exercise control. Id. at 692. After consulting various dictionary definitions, the court held that

“possessions,” as used in Article 3, Section 23, is broader than “papers and effects,” as

used in the Fourth Amendment, and includes “all of the property of the citizen,” including,

in this case, the wooded land located approximately 300 yards from the property owner’s

residence. Id. at 692-93. As a result, the court concluded that the warrantless search of

that wooded land was unconstitutional. Id. at 693.

In Welch v. State, 289 S.W. 510 (Tenn. 1926), the Tennessee Supreme Court

considered whether the warrantless search of a wire-fenced lot located more

than 300 yards from a residence that was used to confine livestock violated the property

owner’s rights under Article I, Section 7 of the Tennessee Constitution, which provides,

in pertinent part, “[t]hat the people shall be secure in their persons, houses, papers and

[J-20-2025] - 57 possessions, from unreasonable searches and seizures.” Welch, 289 S.W. at 510

(emphasis added) (quoting Tenn. Const. art. 1, § 7). The court explained: [T]he word “possessions” was added for a purpose, and means more than houses or mansions, something in addition thereto. We see no reason why this word should not be given the ordinary meaning ascribed to it by lexicographers. In our opinion, it refers to property, real or personal, actually possessed or occupied. Id. After consulting multiple dictionaries and literary sources, the court reasoned that the

framers of Tennessee’s Constitution “must have intended the word ‘possessions’ to have

included more than the ‘curtilage.’” Id. at 510-11. The court could not believe that the

framers “intended to license officers to go upon the property of one in actual possession

and occupancy and promiscuously search about with the hope or expectation of finding

contraband goods[] but, on the other hand, . . . proposed to prohibit such conduct by the

[constitutional] provision in question.” Id. at 511.

In Kirchoff, the Vermont Supreme Court held that the warrantless search of posted

land consisting of woods, swamp, and meadows in an isolated area violated Chapter I,

Article 11 of the Vermont Constitution, which provides, in relevant part, “[t]hat the people

have a right to hold themselves, their houses, papers, and possessions, free from search

or seizure.” Kirchoff, 587 A.2d at 990-91 (emphasis added) (quoting Vt. Const. ch. 1,

art. 11). In so holding, the court acknowledged that the warrantless search of open fields

would be permissible under the Fourth Amendment but ultimately concluded that

Chapter I, Article 11 provided greater protection than the Fourth Amendment in the

context of open fields. Id. at 990-93. The court, inter alia, explained that its research

suggested that, “at the time the Vermont Constitution was adopted, the word

‘possessions’ in certain contexts would have included all real estate over which an

individual exercised a certain degree of control.” Id. at 991. The court cautioned,

however, that, while “people undoubtedly have a possessory interest in the land they own

[J-20-2025] - 58 or occupy, not all state intrusions onto private lands [would] violate [Chapter I,] Article 11.”

Id. at 993. Consequently, the court “define[d] the contours of the right to privacy in open

fields by determining when activities in open fields are sufficiently private to warrant

constitutional protection and when, on the other hand, they are sufficiently public not to

deserve protection.” Id. After setting forth its own standard for determining the legitimacy

of a possessor’s expectation of privacy, which diverged, at least in some respects, from

the standard established in Katz, the court reasoned: By no stretch of the imagination could the officers reasonably conclude, under the standards we have set out here, that their “walk-on” search was permissible. Given the extensive posting of the land, [the property owner’s] intent to exclude the public was unequivocal. On these facts, we find that the officers’ walk over [the property owner’s] logging roads and through his woods violated his right to privacy under [Chapter I,] Article 11. Id. at 996. Notably, in State v. Dupuis, 197 A.3d 343, 348 (Vt. 2018), the Vermont

Supreme Court applied its holding from Kirchoff to conclude that Chapter I, Article 11,

which, to reiterate, “protects against warrantless searches of ‘open fields’ when the

landowner objectively demonstrates his or her intent for privacy through actions such as

posting ‘no trespass’ signs,” “provides the same protection when the warrantless search

is for the purpose of enforcing hunting laws.” Dupuis, 197 A.3d at 344.

In State v. Myrick, 688 P.2d 151 (Wash. 1984), the Washington Supreme Court

considered whether aerial surveillance of open fields at an altitude of 1,500 feet violated

Article 1, Section 7 of the Washington Constitution, which provides that “[n]o person shall

be disturbed in his private affairs, or his home invaded, without authority of law” and

“requires a warrant for arrests, searches and seizures subject only to a few, limited

exceptions.” Myrick, 688 P.2d at 152-53 (quoting Wash. Const. art. 1, § 7). The court

reasoned that “the unique language” of Article 1, Section 7, which “mandates protection

of the person in his private affairs,” provides greater protection than the Fourth

Amendment, which fails “to explicitly provide protection for anything other than a person,

[J-20-2025] - 59 his house, papers and effects.” Id. at 153, 155. The court, therefore, explained that “the

question [of] whether all warrantless aerial surveillance violates [Article 1, Section 7] is

not answered by looking to the nature of the property viewed, alone;” instead, that is “but

one factor in determining whether the aerial surveillance has unconstitutionally intruded

into a person’s ‘private affairs.’” Id. at 155. Ultimately, the court concluded that, even

though the property owner “had taken many precautions against intrusion onto his

property,” including “a fence, numerous no trespassing signs, electronic sensors, and an

observation platform to detect intruders,” the aerial surveillance was not a search because

the property owner’s marijuana gardens “were identifiable with the unaided eye from the

lawful and nonintrusive altitude of 1,500 feet above ground level.” Id. at 152, 155.

Remarkably, in Johnson, the Washington Court of Appeals cited Myrick to support its

holding that the warrantless entry onto bounded and posted property located outside the

curtilage constituted an unreasonable intrusion into the landowners’ private affairs.

Johnson, 879 P.2d at 992-94.

In State v. Dixson, 766 P.2d 1015 (Or. 1988), the Oregon Supreme Court

considered whether Article I, Section 9 of the Oregon Constitution, which provides, in

germane part, that “[n]o law shall violate the right of the people to be secure in their

persons, houses, papers, and effects, against unreasonable search, or seizure,” protects

private land located outside of the curtilage. Dixson, 766 P.2d at 1016-17 (quoting Or.

Const. art. I, § 9). While recognizing that the text of Article I, Section 9 is similar to that

of the Fourth Amendment, the court concluded that the scope of Article I, Section 9 “is

broader than a literal reading of its terms” and “protects the privacy of the individual from

certain kinds of governmental scrutiny.” Id. at 1022. The court continued that, “[i]f the

individual has a privacy interest in land outside the curtilage of his dwelling, that privacy

interest will not go unprotected simply because of its location.” Id. Instead, the court

[J-20-2025] - 60 explained, the issue of “whether governmental intrusions into privately owned land would

significantly impair an individual’s interest in freedom from scrutiny” must be determined

on a case-by-case basis: An individual’s privacy interest in land he or she has left unimproved and unbounded is not sufficient to trigger the protections of Article I, [S]ection 9. Thus, it is not sufficient that the property in question is privately owned, or that it is shielded from view by vegetation or topographical barriers, because those features do not necessarily indicate the owner’s intention that the property be kept private. A person who wishes to preserve a constitutionally protected privacy interest in land outside the curtilage must manifest an intention to exclude the public by erecting barriers to entry, such as fences, or by posting signs. Id. at 1023-24. Applying those principles to the facts of this particular case, however, the

court concluded that, because the property owners had only blocked access to the

property with cables and posted “[n]o [h]unting” signs, “there was no objective reason for

the officers to believe that, in addition to the restriction on hunting, other uses such as

hiking were forbidden” and, therefore, the officers’ actions did not violate Article I,

Section 9. Id. at 1024.

In Scott, the New York Court of Appeals held that the open fields doctrine does not

adequately protect the fundamental rights afforded by Article I, Section 12 of the New

York Constitution, which provides, in relevant part, that “[t]he right of the people to be

secure in their persons, houses, papers and effects, against unreasonable searches and

seizures, shall not be violated.” Scott, 593 N.E.2d at 1330; N.Y. Const. art. I, § 12. In so

doing, the court reasoned that New York citizens were entitled to more protection than

that offered by the open fields doctrine. Scott, 593 N.E.2d at 1335. The court explained: A constitutional rule which permits [s]tate agents to invade private lands for no reason at all—without permission and in outright disregard of the owner’s efforts to maintain privacy by fencing or posting signs—is one that we cannot accept as adequately preserving fundamental rights of New York citizens. Such a rule is contrary to New York decisions, particularly those adopting the Katz rationale in search and seizure cases.

[J-20-2025] - 61 Id. Thus, the court concluded that, “where landowners fence or post ‘[n]o [t]respassing’

signs on their private property or, by some other means, indicate unmistakably that entry

is not permitted, the expectation that their privacy rights will be respected and that they

will be free from unwanted intrusions is reasonable.” Id. at 1338. Because the property

in question was posted with “no trespassing” signs and there was no evidence that the

landowner permitted others onto his land and/or failed to manifest a subjective

expectation of privacy, the court determined that the warrantless entries on the rural, hilly,

undeveloped, and uncultivated fields and woodlands violated Article I, Section 12.

Id. at 1330, 1338.

In Bullock, the Montana Supreme Court considered whether Article II, Section 11

of the Montana Constitution, which provides, in pertinent part, that “[t]he people shall be

secure in their persons, papers, homes and effects from unreasonable searches and

seizures,” prohibits warrantless searches and seizures of posted, private land located

beyond the curtilage. Bullock, 901 P.2d at 69 (quoting Mont. Const. art. II, § 11). Relying

on Dixson, Scott, and Johnson, the court explained that, “[l]ike [its] sister states, Montana

has a strong tradition of respect for the right to individual privacy.” Id. at 72-75.

Consequently, the court concluded that “a person may have an expectation of privacy in

an area of land that is beyond the curtilage which the society of this [s]tate is willing to

recognize as reasonable, and that where that expectation is evidenced by fencing, ‘[n]o

[t]respassing,’ or similar signs, or ‘by some other means [which] indicate[s] unmistakably

that entry is not permitted,’ entry by law enforcement officers requires permission or a

warrant.” Id. at 75-76 (some alterations in original) (internal citation omitted). Applying

that rationale to the specific facts of the case, the court determined that, because the

landowner “took numerous precautions to ensure that others would not enter his property

without permission,” the landowner’s expectation of privacy was reasonable and,

[J-20-2025] - 62 therefore, the warrantless entry onto the landowner’s property constituted an

unreasonable search in violation of Article II, Section 11. Id. at 76.

The Commission and Warden Gritzer, in their brief, rely heavily on the Kentucky

Court of Appeals’ decision in Brent. In so doing, the Commission and Warden Gritzer

point out that “this Court’s construction of [Article I,] Section 8 in Russo mirrored the

construction of Section 10 of the Kentucky Constitution in Brent.” (Commission and

Warden Gritzer’s Br. at 33.) They continue that, “[i]n the century since [it] was decided,”

Brent “has continued to govern cases involving the reach and application of Section 10.”

(Id. at 34.) The Commission and Warden Gritzer suggest that “[t]he Kentucky Supreme

Court’s continued application of Brent is especially significant because Kentucky’s Bill of

Rights ‘was taken almost verbatim’ from the Pennsylvania Constitution of 1790.”

(Id. (citation omitted).) The Commission and Warden Gritzer also cite decisions from the

high courts of Michigan and New Hampshire, claiming that those courts have construed

“possessions” to mean the same thing as “effects.” They then claim that this Court’s

adoption of the open fields doctrine in Russo was also consistent with decisions rendered

by courts in Nebraska, Indiana, Texas, Missouri, Oklahoma, New Jersey, and California.

Arguably, in doing so, they rely on the decisions that this Court cited with favor in Russo.

The Commission and Warden Gritzer then direct our focus to a North Dakota Supreme

Court case, which they claim rejected the Hunting Clubs’ argument in this case. We will

discuss each of these decisions separately.

In Brent, the Kentucky Court of Appeals considered whether the warrantless entry

onto private land located roughly 350 to 400 yards from the landowner’s residence in a

wooded area violated Section 10 of Kentucky’s Constitution, which provides, in pertinent

part, that “[t]he people shall be secure in their persons, houses, papers and possessions

from unreasonable search and seizure.” Brent, 240 S.W. at 46-47 (emphasis added)

[J-20-2025] - 63 (quoting Ky. Const. § 10). The court recognized the textual distinction between

Section 10 and the Fourth Amendment but reasoned “[w]hether these words, as so used,

include like or different kinds of property has not been decided, but, with their common

purpose in view, it is not a strained construction to say that they have the same essential

meaning.” Id. at 47. The court opined that “the doctrine of ejusdem generis applie[d] and

that, in construing the term ‘possessions,’ [it] must have regard for the particular and

specific words preceding it and confine its application to things of like kind.” Id. at 48.

Applying the ejusdem generis doctrine, the court explained: [T]he word “possessions” should be deemed to have been used, not in the broad sense which it might bear if standing alone, but in the sense of its relationship to the words of more definite and particular meaning which precede it and with which it is associated and to be construed. If considered in its broadest sense it includes “houses” and “papers,” and no effect whatever could be given to those words which would result in the violation of a well-known rule of statutory construction. Why use the words “houses” and “papers,” if the word “possessions” is to be construed as meaning every species of property in one’s actual or constructive possession? It is not to be presumed that the Constitution makers intended the word to be all-embracing and inclusive and in effect to nullify and render superfluous other words associated with it. In our opinion it was intended to mean the intimate things about one’s person, like in kind to those previously denominated[.] Id. For these reasons, the court concluded that the warrantless entry at issue did not

violate Section 10. Id. at 49.

The Hunting Clubs insist that the Kentucky Court of Appeals made the same errors

in Brent that this Court made in Russo by applying the doctrine of ejusdem generis “to

Kentucky’s search clause without first defining the original meaning of ‘possessions’” and

by rejecting a reading of the term “possessions” to include land. (Hunting Clubs’ Reply

Br. at 8-9.) In the Hunting Clubs’ view, “[t]he mere fact that Brent made Russo’s errors

first does not justify repeating them” because, while Kentucky’s Bill of Rights may have

been inspired by Pennsylvania’s Constitution, “this case is about how Pennsylvanians

[J-20-2025] - 64 understood their Constitution” at the time of its adoption, “not how Kentucky courts

understood theirs 146 years later.” (Id. at 9 (emphasis omitted).) On these points, we

agree with the Hunting Clubs and find no reason to follow Brent simply because: (1) the

framers of the Kentucky Bill of Rights may have borrowed language from the 1790 version

of the Pennsylvania Constitution; and (2) this Court’s construction of Article I, Section 8

in Russo may have mirrored the Kentucky Court of Appeals’ construction of Section 10 in

Brent. Instead, we will draw our own conclusions as to Brent’s relevancy to our

consideration of whether Article I, Section 8 provides greater protection than the Fourth

Amendment in the context of open fields.

In People v. Smith, 360 N.W.2d 841 (Mich. 1984), the Michigan Supreme Court

considered whether the defendant had standing to challenge the seizure of a trailer

parked in the fenced lot of an abandoned restaurant. Smith, 360 N.W.2d at 842-45. In

answering that question, the court was called upon to consider whether Article 1,

Section 11 of the Michigan Constitution, which provides, in relevant part, that “[t]he

person, houses, papers and possessions of every person shall be secure from

unreasonable searches and seizures,” should be interpreted more liberally than the

Fourth Amendment. Id. at 848 (emphasis added) (quoting Mich. Const. art. 1, § 11).

Ultimately, the court noted that, while it has on occasion concluded that Article 1,

Section 11 provides greater protection to its citizens than the Fourth Amendment, it has

never concluded that the difference in wording between the two “mandates a higher

standard in every case.” Id. The court continued: [W]e are not even convinced that the difference in wording is . . . a difference in meaning as it affects this case. The terms “possessions” and “effects” are virtually identical in meaning and are often used interchangeably. Webster’s New Collegiate Dictionary (2d ed.), p. 262, supports this conclusion in that it defines “effects” as “[g]oods; possessions[.]”

[J-20-2025] - 65 Id. at 849 (emphasis omitted). For these reasons, the court rejected the defendant’s

argument that the difference in wording required it to adopt an “automatic standing” rule

and, instead, adopted a “reasonable expectation of privacy” test to determine whether a

defendant has standing to attack the propriety of a search or seizure. Id. at 849-53. That

test requires the court to determine whether, based on the totality of the circumstances,

“the defendant had an expectation of privacy in the object of the search and seizure and

whether that expectation is one that society is prepared to recognize as reasonable.”

Id. at 852-53. Because the record was inadequate to answer that question, the court

remanded the matter to the trial court for further proceedings. Id. at 253.

In Pinder, the New Hampshire Supreme Court concluded that Part I, Article 19 of

the New Hampshire Constitution, which provides, in germane part, that “[e]very subject

hath a right to be secure from all unreasonable searches and seizures of his person, his

houses, his papers, and all his possessions,” was not designed to protect open fields—

i.e., “unoccupied and undeveloped lands somewhat removed from dwellings and other

protected structures.” Pinder, 514 A.2d at 1244, 1246 (emphasis added) (quoting N.H.

Const. pt. I, art. 19). Citing to Falkner, Brent, Hester, and Oliver, the court reasoned that,

while it interprets the term “possessions” broadly, it does not interpret it so broadly that it

encompasses open fields. Id. at 1245-46. Because the evidence sought to be

suppressed was discovered in “open fields lying outside the defendant’s curtilage,” the

court concluded that the warrantless search did not offend Part I, Article 19. Id. at 1246.

In Havlat, the Nebraska Supreme Court considered whether the warrantless entry

onto an open field—i.e., private land located more than one-quarter mile from farm

buildings near a small creek that was surrounded by a heavy growth of trees and

underbrush—violated Article I, Section 7 of the Nebraska Constitution, which provides, in

relevant part, that “[t]he right of the people to be secure in their persons, houses, papers,

[J-20-2025] - 66 and effects against unreasonable searches and seizures shall not be violated.” Havlat,

385 N.W.2d at 439-41; Neb. Const. art. I, § 7. Applying the holding of one of its prior

decisions, which was based on the Fourth Amendment and “merely anticipated Oliver,”

to the Nebraska Constitution, the court held: [A] person’s capacity to claim the protection of [A]rticle I, [Section] 7. . . as to unreasonable searches and seizures, like its counterpart, the [F]ourth [A]mendment . . . , depends upon whether the person who claims such protection has a legitimate expectation of privacy in the invaded place. Further, the open fields doctrine of Hester . . . is applicable under our Constitution. Havlat, 385 N.W.2d at 440 (citing State v. Cemper, 307 N.W.2d 820 (Neb. 1981)). As

such, the court concluded that no constitutional protection attached to the defendant’s

activities in his open fields and, therefore, the warrantless search thereof did not offend

Article I, Section 7. Id. at 441.

In Williams, the Indiana Supreme Court concluded that no warrant was required to

search the private land in question or to seize the evidence located thereon because,

inter alia, Article 1, Section 11 of the Indiana Constitution, which provides, in pertinent

part, that “[t]he right of the people to be secure in their persons, houses, papers, and

effects, against unreasonable search or seizure, shall not be violated,” “does not make

necessary the obtaining of a search warrant to enable officers to search fields, woods, or

land which is some distance from a house or dwelling.” Williams, 166 N.E. at 663; Ind.

Const. art. 1, § 11.

In Wolf, the Texas Court of Criminal Appeals considered whether the warrantless

entry onto private, mostly undeveloped land located approximately three-fourths of a mile

from the dwelling house violated Article 1, Section 9 of the Texas Constitution, which

provides, in germane part, that “[t]he people shall be secure in their persons, houses,

papers and possessions, from all unreasonable seizures or searches.” Wolf, 9 S.W.2d

at 350 (emphasis in original) (quoting Tex. Const. art. 1, § 9). Focusing on whether the

[J-20-2025] - 67 search was unreasonable, rather than defining the term “possessions,” and citing to, inter

alia, Brent, Zugras, and Hester, the court reasoned: It is apparent from the precedents that the immunity from interference is founded upon the desire to give effect to the idea that “a man’s home is his castle”; that an unreasonable search is one which trenches upon the peaceful enjoyment of the house in which he dwells or in which he works and does business, and those things connected therewith, such as gardens, outhouses, and appurtenances necessary for the domestic comfort of the dwelling house or that in which the business is conducted. In its limitations, the immunity intended is analogous to that which applies to the curtilage of which the common law speaks, and does not render unreasonable the search of woods, fields, ravines, or open spaces not so connected with the place of business or dwelling, though owned by the same individual. Id. at 350-51. As such, the court concluded that the warrantless entry at issue did not

offend Article 1, Section 9. Id. at 351.

In Zugras, the Missouri Supreme Court concluded that the search of a woodland

area located approximately 150 yards from a residence was not unreasonable or in

violation of Article 2, Section 11 of the Missouri Constitution,21 which, at that time,

provided, in pertinent part, “that the people shall be secure in their persons, papers,

homes and effects, from unreasonable searches and seizures.” Zugras, 267 S.W. at 806

(quoting Mo. Const. art. 2, § 11). In so holding, the court appears to have relied almost

exclusively on the Kentucky Court of Appeals’ decision in Brent. See id.

In Ratzell, the Oklahoma Criminal Court of Appeals considered whether a search

and seizure was unreasonable under Article II, Section 30 of the Oklahoma Constitution,

which provides, in relevant part, that “[t]he right of the people to be secure in their persons,

houses, papers, and effects against unreasonable searches or seizures shall not be

21 Since the Missouri Supreme Court issued its decision in Zugras, the Missouri Constitution has undergone multiple revisions. The general prohibition against unreasonable searches and seizures appears to now be set forth in Article I, Section 15 of the Missouri Constitution.

[J-20-2025] - 68 violated.” Ratzell, 228 P. at 167 (quoting Okla. Const. art. II, § 30). In concluding that it

was not, the court reasoned: We think it would be stretching the meaning and purpose of this provision of our Constitution too far to hold that [the] terms [persons, houses, papers, and effects] include a place in an unfrequented ravine or pasture, not near the place of abode, where a seizure would in no way disturb the privacy of the home or the business or occupation of the suspected violator of the law. These constitutional and statutory provisions were not designed to protect bootleggers, rum runners, or other law violators. They were designed for the protection of innocent persons against arbitrary and unreasonable searches that invade the privacy of the ordinary affairs of life. One who goes into the woods, thickets or pastures of sparsely settled communities in search of contraband goods is not necessarily a trespasser, and a search for outlawed goods in such places may be “reasonable” with the meaning of the Constitution. Id. at 168.

In Gates, the New Jersey Superior Court considered whether the warrantless entry

onto private lands consisting of a mixture of wetlands, fields, and forests by conservation

officers investigating suspected violations of New Jersey’s fish and game laws was

unreasonable and in violation of Article I, Paragraph 7 of the New Jersey Constitution,

which provides, in germane part, that “[t]he right of the people to be secure in their

persons, houses, papers, and effects, against unreasonable searches and seizures, shall

not be violated.” Gates, 703 A.2d at 696-97; N.J. Const. art. I, ¶ 7. After weighing the

strong public interest served by the enforcement of laws regulating hunting against the

privacy intrusion that the open fields doctrine would have upon individual liberties, the

court concluded that it could not state that “the open fields doctrine provide[s] inadequate

protection for [New Jersey’s] citizenry; or that the public policy reasons in favor of the

doctrine are outweighed by the resulting intrusion upon individual liberties; or[] that there

are sound policy reasons for departing from United States constitutional law.” Gates,

703 A.2d at 701. Consequently, the court felt constrained to follow Oliver and to “hold

[J-20-2025] - 69 that the open fields doctrine applies under the facts of this case and that no violation of

Article I, Paragraph 7 . . . has occurred.” Id. The court continued, however, that, even if

it were to apply “an ad hoc test . . . based upon the adequacy of efforts made to establish

a right of privacy by private land[]owners,” the efforts made by the landowner in this case

“to keep people off the property were, at best, feeble and not reasonably calculated to

provide the expectation of privacy now claimed by the defendants.” Id.

In Betchart, the California Court of Appeal for the First District considered whether

Article I, Section 13 of the California Constitution, which provides, in relevant part, that

“[t]he right of the people to be secure in their persons, houses, papers, and effects against

unreasonable seizures and searches may not be violated,” provides broader protection

than the Fourth Amendment in the context of open fields. Betchart, 205 Cal. Rptr. at 136

& n.2 (quoting Cal. Const. art. I, § 13). The court explained that, “[u]nder California law,

a claim of illegal warrantless search is measured by a balancing test: ‘whether the person

has exhibited a reasonable expectation of privacy, and, if so, whether that expectation

has been violated by unreasonable governmental intrusion.’” Id. at 136-37 (citation

omitted). Focusing on the regulated nature of wild game hunting and how the need for a

warrant to search open fields would impede enforcement of game regulations, the court

concluded that the landowner’s expectation of privacy while hunting on his agricultural

range land was unreasonable. Id. at 137-39. Consequently, the court concluded that

the warrantless entries by fish and game personnel “onto open fields constitute only a

minimal intrusion into the private use of the property.” Id. at 139. The court did, however,

express that those warrantless entries could not, absent probable cause, “exceed the

specific limited purpose of enforcing wild game regulations.” Id.

In Mittleider, the North Dakota Supreme Court concluded that, while Article I,

Section 8 of the North Dakota Constitution, which provides, in germane part, that “[t]he

[J-20-2025] - 70 right of the people to be secure in their persons, houses, papers and effects, against

unreasonable searches and seizures shall not be violated,” may in some instances

provide greater protection than that afforded by the Fourth Amendment, such provision

“is not implicated unless a reasonable expectation of privacy is invaded.” Mittleider,

809 N.W.2d at 308 (citation omitted); N.D. Const. art. I, § 8. The court concluded that the

“‘no trespassing’ signs posted around the [landowners’] farmstead did not create a

reasonable expectation of privacy in the entrance of the farmstead.” Mittleider,

809 N.W.2d at 308. The court explained that, “[b]ecause a reasonable expectation of

privacy was not invaded,” Article I, Section 8 was not implicated and, therefore, it need

not consider whether Article I, Section 8 affords North Dakota citizens greater protection

than that offered by the Fourth Amendment. Id.

Our review of these decisions from our sister states reveals that the constitutions

of many of the states that have adopted the open fields doctrine—Nebraska, Indiana,

Missouri, Oklahoma, New Jersey, California, and North Dakota—contain language that is

virtually identical to that of the Fourth Amendment. More specifically, those states’

constitutions refer to “effects,” not “possessions.” It is, therefore, unremarkable, for the

purposes of our analysis, that those states have adopted the federal open fields doctrine

in toto. What is remarkable is that three states—Oregon, New York, and Montana—have

rejected the federal open fields doctrine under their own state charters, despite the fact

that language in their state charters that protect from unreasonable searches and

seizures mirrors that of the Fourth Amendment. One additional state—Washington—

whose constitution contains language that is unlike both the Fourth Amendment and

Article I, Section 8, has also rejected the open fields doctrine on the basis that its

constitution provides heightened privacy protection to its citizens.

[J-20-2025] - 71  With respect to states with provisions that mirror Article I, Section 8, in particular

the use of the word “possessions,” the results are mixed. Three of those states—

Mississippi, Tennessee, and Vermont—have rejected the open fields doctrine after

concluding that the term “possessions” includes land over which the landowner has

exercised some degree of control. Four—Kentucky, Michigan, New Hampshire, and

Texas—have adopted the open fields doctrine. Importantly, however, we respectfully

disagree with the approach taken by the Kentucky Court of Appeals in Brent, which this

Court later emulated in Russo. In Brent, the Kentucky Court of Appeals applied the

ejusdem generis canon of statutory construction to conclude that the term “possessions”

as used in Section 10 of Kentucky’s Constitution means “the intimate things about one’s

person,” which does not include land located outside of the curtilage. Brent, 240 S.W.

at 48. In so doing, however, the Kentucky Court of Appeals failed to consider first the

original meaning of the term “possessions.” As noted above, ejusdem generis is a tool of

statutory construction to be used to suss out legislative intent, not to ignore the words

themselves. We can also distinguish the decision from another of those states—Texas—

due to its focus. In concluding that the warrantless entry onto open fields did not offend

Article I, Section 9 of the Texas Constitution, the Texas Court of Criminal Appeals

focused, not on defining the term “possessions,” but, rather, on whether the search itself

was unreasonable.

After considering these decisions from other jurisdictions, and given

Pennsylvania’s history of providing heightened privacy protection to its citizens, as

detailed above, we find ourselves more persuaded by the decisions from those

jurisdictions that have chosen to reject the federal open fields doctrine and, instead, to

provide greater protection than that offered by the Fourth Amendment to landowners that

exercise at least some control over their land located outside of the curtilage. For these

[J-20-2025] - 72 reasons, we conclude that case law from other jurisdictions, like Article I, Section 8’s text

and history, supports an interpretation of Article I, Section 8 that is broader than the Fourth

Amendment with respect to Pennsylvania citizens’ privacy rights as they relate to open

fields. We, therefore, turn to the last prong of the Edmunds analysis and consider relevant

Pennsylvania policy considerations.

d. Policy Considerations

To complete our Edmunds analysis, we examine relevant policy considerations,

particularly those of state and local concern within the Commonwealth and how they apply

within modern Pennsylvania jurisprudence. The Commission and Warden Gritzer,

similarly to this Court in Russo, focus on a singular policy consideration: the open fields

doctrine, and more specifically the Entry Statutes, enable the Commission to fulfill its duty

under the ERA to conserve, maintain, and protect wildlife. We agree with this Court’s

statement in Russo that “[t]he citizens of this Commonwealth throughout our history have

shown a keen interest in protecting and preserving as an asset the diverse wildlife that

find refuge in the fields and forests within our borders,” which interest ultimately resulted

in the ERA. Russo, 934 A.2d at 1212. We also agree with the Commission, Warden

Gritzer, and, significantly, the Hunting Clubs that the ERA permits the Commission and

its officers to enforce the Code. We disagree, however, with the Russo Court’s conclusion

that “any subjective expectation of privacy against governmental intrusion in open fields

is not an expectation that our society has ever been willing to recognize as reasonable”

and the Commission and Warden Gritzer’s contention that “a rule prohibiting warrantless

searches of open fields in the hunting context would place [Article I,] Section 8 on a

collision course with the [ERA].” Id. at 1213; (Commission and Warden Gritzer’s Br.

at 36-37).

[J-20-2025] - 73  Instead, we, like Chief Justice Cappy in his dissent in Russo, believe that a balance

must and can be achieved between the interest in protecting, preserving, and maintaining

wildlife under the ERA and the interest in protecting our citizen’s privacy rights guaranteed

by Article I, Section 8. See Robinson Twp., 83 A.3d at 946 (“[B]ecause the [Pennsylvania]

Constitution is an integrated whole, we are cognizant that effect must be given to all of its

provisions whenever possible.”). Recognition of a protected privacy interest in private

land located outside the curtilage over which the landowner has taken steps to exclude

others therefrom will not, as the Commission and Warden Gritzer suggest, unreasonably

impede their ability to effectuate their duty under the ERA to conserve, protect, and

maintain wildlife.22 The Commission’s officers will still be permitted to: (1) conduct

warrantless searches of private property that is not posted, fenced, or otherwise marked

to exclude intruders; (2) observe evidence of Code violations that occur in plain view on

private property that is posted, fenced, or otherwise marked to exclude intruders;

(3) obtain a warrant to search private property that is posted, fenced, or otherwise marked

to exclude intruders based upon their receipt of information that a Code violation has

occurred;23 and/or (4) apply a recognized exception to the warrant requirement as a

means to search private property that is posted, fenced, or otherwise marked to exclude

intruders. While this means that the current balance, as reflected in Russo, must shift

toward affording greater protection to possessed land and limiting the reach of the federal

22Furthermore, “we cannot ignore constitutional commands[, including Article I, Section 8,] even if they make the work of police . . . harder.” Alexander, 243 A.3d at 198. 23 As then-Justice, now-Chief Justice Todd recognized in her dissent in Gary, “not only

has our Court steadfastly protected the important right of personal privacy by insisting, through our decisions, on the use of a warrant for searches of all areas in which our citizenry has a reasonable privacy interest, unless not reasonably practicable, we have also purposefully sought to encourage the use of warrants to conduct searches by making them far easier for police officers to obtain in conducting field investigations.” Gary, 91 A.3d at 157 (Todd, J., dissenting) (emphasis added); see also id. at 157-59.

[J-20-2025] - 74 open fields doctrine under our state charter, it is the weight and pull of our citizens’ privacy

rights under our state charter that demands the realignment, not a diminution of the

importance of our citizens’ right to the conservation, maintenance, and protection of

wildlife under the ERA.

Moreover, as to other relevant policy considerations, we agree with the Hunting

Clubs that rejection of the open fields doctrine coheres with modern state property

claims—i.e., trespass, adverse possession, ejectment, and quiet title—that treat land as

a possession. See Briggs v. Sw. Energy Prod. Co., 224 A.3d 334, 346 (Pa. 2020) (“[A]

trespass occurs when a person who is not privileged to do so intrudes upon land in

possession of another, whether willfully or by mistake.” (emphasis added)); City of Phila.

v. Galdo, 217 A.3d 811, 820 (Pa. 2019) (“An individual who claims title by adverse

possession in Pennsylvania must prove actual, continuous, exclusive, visible, notorious,

distinct, and hostile possession of the land for a period of twenty-one years.” (emphasis

added)); Duncan v. Chartiers Nature Conservancy, Inc., 348 A.3d 91, 95 (Pa. 2025) (“[A]n

ejectment action lies only when a purported property owner is ‘out of possession’ but has

‘a present right to immediate possession.’” (emphasis added) (citation omitted)); id. (“[A]

quiet title action is appropriate when ‘a party in possession’ of property seeks to ‘test his

title as against an adverse claimant[,]’ which may be the record title owner.” (second

alteration in original) (emphasis added) (citation omitted)). We also observe that there is

some merit to the Hunting Clubs’ arguments that permitting the Commission’s officers

and other government officials to roam freely and, in some instances, to install cameras

on private land that is posted and/or fenced in an effort to exclude intruders: (1) interferes

with a landowner’s right to freedom of association under Article I, Section 20 due to the

potential inability to keep his/her conversations private; and (2) makes it difficult to safely

[J-20-2025] - 75 and responsibly exercise his/her right to bear arms under Article I, Section 21 due to the

increased potential for a hunting-related accident.

For all of the above-stated reasons, we conclude that the relevant policy

considerations, like Article I, Section 8’s history and text and the case law from other

jurisdictions, supports an interpretation of Article I, Section 8 that is broader than the

Fourth Amendment with respect to the expectation of privacy that Pennsylvania citizens

enjoy relative to their open fields.

e. Conclusion

Based on the foregoing Edmunds analysis, we conclude that Russo was wrongly

decided because the text of Article I, Section 8; its history of providing enhanced privacy

rights; case law from other jurisdictions, including those with similar constitutional

provisions and that share Pennsylvania’s commitment to protecting privacy; and relevant

policy considerations all support interpreting Article I, Section 8 as affording greater

protection than the Fourth Amendment in the context of open fields. In light of that

conclusion, and our conclusion that our respect for stare decisis is not a bar in this case

to reconsidering Russo, we hereby overrule Russo and consider whether the Entry

Statutes violate Article I, Section 8.

C. Constitutionality of the Entry Statutes

i. Parties’ Arguments

The Hunting Clubs argue that the Entry Statutes violate Article I, Section 8 because

they allow the Commission’s officers to search private land even when landowners have

taken steps to exclude intruders therefrom—i.e., by posting “no trespassing” signs,

marking boundaries with purple paint, and installing gates at every entrance—without a

warrant, probable cause, or the existence of a recognized exception to the warrant

requirement.

[J-20-2025] - 76  The Commission and Warden Gritzer, on the other hand, argue that the Hunting

Clubs have failed to demonstrate that the Entry Statutes clearly, plainly, and palpably

violate Article I, Section 8. In support, they first contend that, to the extent that the Hunting

Clubs rely on Ickes to support their constitutional challenge, such reliance is misplaced

because Ickes involved a statute that “require[d] an individual to provide a game officer

with identifying information upon demand even if that individual had not been lawfully

subjected to an investigatory detention under Terry v. Ohio, 392 U.S. 1 (1968),” whereas

the Entry Statutes do not permit the seizure of persons but, rather, allow the

Commission’s officers to enter private land. (Commission and Warden Gritzer’s Br.

at 41-42.) The Commission and Warden Gritzer then claim that, in light of this Court’s

decision in Russo, the Entry Statutes do not violate Article I, Section 8 because they

“merely authorize game officers to enter open fields without penetrating ‘buildings’ or

‘curtilage.’” (Id. at 43.) The Commission and Warden Gritzer further contend that the

Hunting Clubs waived any separate or distinct challenge to the constitutionality of

Section 901(a)(8) of the Code for failing to develop any meaningful argument in their brief

relative to that specific provision. They, nevertheless, offer reasons why they believe that

Section 901(a)(8), by itself, does not violate Article I, Section 8.

In reply, the Hunting Clubs argue that if Russo is overruled, the Entry Statutes

cannot stand because they permit “classic” unreasonable searches. (Hunting Clubs’

Reply Br. at 20.) The Hunting Clubs indicate that they are not certain what the

Commission and Warden Gritzer mean when they say that the Hunting Clubs waived any

separate and distinct challenge to Section 901(a)(8) of the Code because they challenged

that statute for the same reason that they challenged Sections 303(c) and 901(a)(2)—i.e.,

it authorizes a warrantless search of their landed “possessions” in violation of Article I,

Section 8.

[J-20-2025] - 77  ii. Analysis

“The constitutionality of a statute is a pure question of law, over which our standard

of review is de novo and our scope of review is plenary.” Commonwealth v. Hunte,

337 A.3d 483, 497 (Pa. 2025) (citing Commonwealth v. Torsilieri, 316 A.3d 77, 86

(Pa. 2024)). Statutes enjoy a presumption of constitutionality, and challengers bear the

heavy burden of demonstrating that their provisions “clearly, plainly, and palpably” violate

the Pennsylvania Constitution. Id. (quoting Pa. Env’t Def. Found. v. Commonwealth,

279 A.3d 1194, 1202 (Pa. 2022)). “A statute is facially unconstitutional only where no set

of circumstances exist[s] under which the statute would be valid.” Commonwealth v.

Pownall, 278 A.3d 885, 904 (Pa. 2022) (quoting Clifton v. Allegheny Cnty., 969 A.2d 1197,

1222 (Pa. 2009)). By contrast, a statute is unconstitutional as applied when “its

application to a particular person under particular circumstances deprived that person of

a constitutional right.” Commonwealth v. Shifflett, 335 A.3d 1158, 1165 (Pa. 2025)

(quoting Martin v. Donegal Twp., 325 A.3d 502, 509 (Pa. 2024)).

Sections 303(c) and 901(a)(2) of the Code unquestionably permit the

Commission’s officers, employees, and representatives to enter private land, posted or

otherwise, outside of buildings and curtilage without a warrant to inspect for violations of

the Code. Thus, in order to determine whether those statutory provisions are

unconstitutional, either facially or as applied to the Hunting Clubs, we must consider to

what extent the protections afforded by Article I, Section 8 apply to open fields. It is not

enough to simply conclude that Article I, Section 8 affords greater privacy protection than

the Fourth Amendment in this context. Rather, we must set forth the scope of the privacy

protection applicable to a landowner’s open fields. “In determining the scope of protection

afforded under Article I, Section 8, this Court employs the same two-part test employed

by the . . . Supreme Court to determine the sweep of the [Fourth Amendment]—a test first

[J-20-2025] - 78 articulated by Justice Harlan in his concurring opinion in Katz.” Commonwealth v.

Duncan, 817 A.2d 455, 463 (Pa. 2003). “That test requires a person to (1) have exhibited

a subjective expectation of privacy and (2) have demonstrated that the expectation is one

that society is prepared to recognize as reasonable and legitimate.” Gordon, 683 A.2d

at 256.

There is no question that the Hunting Clubs have exhibited a subjective

expectation of privacy in their land located beyond the curtilage. They have posted their

properties’ boundary lines with clearly visible “no trespassing” signs and purple paint,

installed locked gates at all public entrances, and fenced some of their properties’

boundaries with waist-high, metal wire, all in an effort to exclude non-members and

intruders therefrom. Additionally, Punxsutawney planted evergreen trees along the public

road that runs through its land to create a “screen” as a means to prevent non-members

from looking or shooting into its property from the public road. Moreover, the Hunting

Clubs only permit entry onto their properties by members, their members’ guests,

contractors who help maintain their properties, and a gas company that owns the

subsurface mineral rights to their properties and that accesses its well pad through a

defined access trail. Collectively, these efforts demonstrate that the Hunting Clubs, at

least subjectively, expect that the privacy of their members will be protected when those

members are present on the Hunting Clubs’ private land, including their open fields.

The more pertinent question is whether society is prepared to recognize the

Hunting Clubs’ subjective expectation of privacy in their land as reasonable. To answer

that question, we must first make an important distinction. Truly open fields—i.e., private

land that is unposted and unbounded—is fundamentally different in kind than private land

conspicuously posted with “no trespassing” signs and purple paint and/or bounded by

fences, gates, and other structures. With respect to the former, the landowner has made

[J-20-2025] - 79 absolutely no attempt to exclude intruders and/or to advise the public that the land is

indeed private, whereas, with respect to the latter, the landowner has taken steps to notify

the public that the land is private and that they should not intrude thereon without

permission. We believe that society is both prepared and willing to protect a landowner’s

expectation of privacy in his/her affairs conducted on his/her private land located beyond

the curtilage as reasonable and legitimate when such landowner has taken sufficient

steps to notify members of the public that the land is private and that they should not

trespass thereon.

We, therefore, conclude that the scope of the protection afforded under Article I,

Section 8 to a landowner’s open fields 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. Government officials,

therefore, must obtain a warrant based upon probable cause or satisfy one of the

recognized exceptions to the warrant requirement before entering the private land of any

landowner that has taken such steps. As Sections 303(c) and 901(a)(2) of the Code

permit the Commission’s officers, employees, and representatives to enter private land,

posted or otherwise, outside of buildings and curtilage without a warrant, probable cause,

and/or satisfying one of the recognized exceptions to the warrant requirement to inspect

for violations of the Code, the Hunting Clubs have met their heavy burden of establishing

that such statutory provisions clearly, plainly, and palpably violate Article I, Section 8.24

24 In his concurring and dissenting opinion, Justice Wecht expresses his belief that Article I, Section 8 “embraces a broader privacy entitlement” and that “[l]andowners reasonably may expect that their land is protected against arbitrary and warrantless government entries” irrespective of whether such landowners “adorn[] [their] land with flimsy paper signs or splatters [of] purple paint on a handful of trees.” (Concurring and Dissenting Op. at 2 (Wecht, J.).) Justice Wecht premises his conclusion, at least in part, on the Supreme Court’s decision in United States v. Jones, 565 U.S. 400 (2012), which, according to Justice Wecht, held “that there are two ways to invoke the protections of the (continued…)

[J-20-2025] - 80 While we are always reluctant to strike down a statutory provision as facially

unconstitutional, we cannot contemplate any circumstance under which Sections 303(c)

and 901(a)(2) would be valid under our decision today.25 See Hunte, 337 A.3d at 517-18.

Fourth Amendment:” (1) “[a] person can demonstrate an expectation of privacy in the area searched;” or (2) “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 2 n.5 (quoting Jones, 565 U.S. at 404-05).) Justice Wecht reasons that, “[b]ecause 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.” (Id.) This conclusion, however, ignores that a person cannot be convicted of defiant or agricultural trespass in Pennsylvania unless he/she enters or remains on property where notice against trespass has been given by, inter alia, posting in a manner that is reasonably likely to inform potential intruders that entry is prohibited or fencing/enclosures that are designed to exclude intruders. See 18 Pa. C.S. § 3503(b), (b.2). Additionally, we cannot ignore that this case is about rural, undeveloped land, not a suburban one-acre plot or a nine-acre tract of land upon one acre in the center of which sits a swimming pool. There may be ways by which the owners of those latter two properties can demonstrate a reasonable and legitimate expectation of privacy that does not involve marking the boundaries of their properties with “no trespassing” signs or purple paint. We resolve only the question of whether the Hunting Clubs here have done so. In other words, we reserve for another day the question of whether the privacy protections afforded by Article I, Section 8 extend to landowners who have taken fewer steps than the Hunting Clubs, or even no steps, to exclude intruders from their properties. 25 In her concurring and dissenting opinion, Chief Justice Todd rejects our conclusion that

Sections 303(c) and 901(a)(2) of the Code are facially unconstitutional and, instead, would hold that such provisions are “unconstitutional only as applied to the facts of this case” because, in her view, “there are circumstances under which the provisions may be constitutionally applied”—i.e., where the Commission’s officers, employees, and representatives enter onto unposted land. (Concurring and Dissenting Op. at 1 (Todd, C.J.) (emphasis omitted).) To reach this conclusion, Chief Justice Todd looks past the fact that Sections 303(c) and 901(a)(2) expressly allow entry onto all land, unposted and posted. To save Sections 303(c) and 901(a)(2) from facial invalidity, Chief Justice Todd rewrites those provisions, severing the express authority to enter posted land. By doing so, Chief Justice Todd proves the point. Sections 303(c) and 901(a)(2), as written, are unconstitutional on their face. See Holland v. Marcy, 883 A.2d 449, 456-57 (Pa. 2005) (“This Court may not amend the statute but instead must examine the statute as drafted by the legislature.”). Because Chief Justice Todd fails to explain how Sections 303(c) and 901(a)(2), as written, can be applied constitutionally to both unposted and posted land, we stand by our conclusion that the statutes are facially unconstitutional. (continued…)

[J-20-2025] - 81  The same, however, cannot be said with respect to Section 901(a)(8) of the Code.

Unlike the provisions of the Code we strike down today, there is nothing in the text of

Section 901(a)(8) that permits the Commission’s officers, employees, and

representatives to enter private land, posted or otherwise. While our decision today may

certainly impact how the Commission’s officers, employees, and representatives perform

“administrative inspections,” the Hunting Clubs have not presented us with a compelling

enough argument to conclude that the provision could not be applied in a constitutional

fashion. In short, the Hunting Clubs have not demonstrated that Section 901(a)(8) clearly,

plainly, and palpably violates Article I, Section 8.26

We also considered whether any portions of Sections 303(c) and 901(a)(2) of the Code could be saved under a severance analysis. See Section 1925 of the Statutory Construction Act of 1972, 1 Pa. C.S. § 1925. Nonetheless, we concluded that there does not appear to be any invalid language that we can sever and that would yield operative and constitutional text consistent with the legislative intent behind the enactment of these provisions of the Code. Accordingly, the provisions fall in their entirety. 26 The Commonwealth Foundation, which, as stated previously, filed an amicus brief in

support of the Hunting Clubs’ position in this matter, adds that, even if this Court continues to recognize the open fields doctrine, Section 901(a)(8) of the Code is still unconstitutional because it “grants an officer the power to conduct searches[—i.e., “administrative inspections”—]that are forbidden under normal search and seizure jurisprudence.” (Commonwealth Foundation’s Br. at 22.) We will not consider the Commonwealth Foundation’s claim, which the Hunting Clubs have not sufficiently developed in this appeal. See Commonwealth v. Cotto, 753 A.2d 217, 224 n.6 (Pa. 2000) (“An amicus curiae is not a party and cannot raise issues that have not been preserved by the parties.”). To be clear, in this matter, we are rejecting the Hunting Clubs’ constitutional challenge to Section 901(a)(8) of the Code. We are not declaring that section constitutional, although it is presumptively so until a court decides otherwise. See Hunte, 337 A.3d at 497 (“Statutes enjoy a presumption of constitutionality . . . .”). In his concurring and dissenting opinion, Justice Wecht expresses his belief that Section 901(a)(8) of the Code authorizes the Commission’s officers, employees, and representatives “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,” “[s]o long as [those] officer[s, employees, and representatives] believe[] that someone is hunting.” (Concurring and Dissenting Op. at 11 (Wecht, J.).) We disagree and reiterate that there is simply nothing within the text of Section 901(a)(8) that expressly permits such an entry onto private land.

[J-20-2025] - 82  III. CONCLUSION

For all of the foregoing reasons, we hold that stare decisis does not compel our

adherence to Russo, that Russo was wrongly decided, and that Sections 303(c)

and 901(a)(2) of the Code violate Article I, Section 8 of the Pennsylvania Constitution. In

so doing, we further hold that Article I, Section 8 provides Pennsylvania citizens with

greater protection than the Fourth Amendment to the United States Constitution as it

relates to the open fields of any landowner that has demonstrated a reasonable

expectation of privacy by taking sufficient steps to exclude intruders therefrom.

Accordingly, the Commission’s officers, employees, and representatives, as well as any

other government officials, must obtain a warrant based upon probable cause or satisfy

one of the recognized exceptions to the warrant requirement before entering such

property. For these reasons, we reverse the Commonwealth Court’s order.27

Justices Donohue, Dougherty and Mundy join the opinion.

Justice Donohue files a concurring opinion.

Justice Mundy files a concurring opinion.

Chief Justice Todd files a concurring and dissenting opinion.

Justice Wecht files a concurring and dissenting opinion in which Justice McCaffery

joins.

27 In light of our conclusions, we need not remand this matter to the Commonwealth Court

because, by striking down Sections 303(c) and 901(a)(2) of the Code as violative of Article I, Section 8, this Court has essentially granted the Hunting Clubs the declaratory and injunctive relief that they sought in their Petition and their application for summary relief.

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