Hart of the Issue: Open Season on the Open Fields Doctrine

By John M. Hart, III, Esq.

November in Northeastern Pennsylvania means a few things. The leaves are mostly down. The temperatures are dropping. Blaze orange starts appearing in the backs of pickup trucks. And before long, thousands of Pennsylvanians will head into the woods for one of our Commonwealth’s oldest traditions: hunting season.

This year, however, hunters and landowners should know about a significant change in Pennsylvania law concerning those woods —particularly when those woods are privately owned.

It’s a change that immediately brought me back to law school.

I can still remember sitting in class reading cases about something called the “open fields doctrine.” Law school has a way of introducing you to legal rules that seem perfectly logical on paper — and others that make you stop reading and think, “Wait a minute. They can really do that?”

The open fields doctrine was one of those for me.

The basic principle under federal constitutional law was that the Fourth Amendment’s protection against unreasonable searches and seizures generally did not extend to an “open field,” even when that field was privately owned.

I found that unsettling.

I particularly remember reading the cases involving police observing private property from aircraft. In California v. Ciraolo, police flew over a man’s property in an airplane and observed his fenced backyard from 1,000 feet. Then there was Florida v. Riley, where police observed a partially covered greenhouse from a helicopter hovering at 400 feet.

The United States Supreme Court concluded that those observations did not violate the Fourth Amendment.

As a law student, that felt incredibly intrusive to me.

The idea that you could own a piece of property, fence it, post it and plainly tell the rest of the world, “This is private,” yet the government’s ability to observe or enter certain portions of that property could still receive relatively little Fourth Amendment protection seemed contrary to what most people probably assume the word “private” means.

But constitutional law doesn’t always follow our everyday understanding of privacy.

And for years, Pennsylvania’s law largely followed that traditional open-fields approach.

Now, decades of Pennsylvania law have changed.

When “Private Property” Wasn’t Necessarily Private

The open fields doctrine has deep roots in federal constitutional law. Although the Fourth Amendment strongly protects a person’s home and the area immediately surrounding it — what lawyers call the curtilage — the United States Supreme Court has long treated open land differently.

Pennsylvania followed a similar path.

In 2007, our Pennsylvania Supreme Court decided Commonwealth v. Russo and concluded that Article I, Section 8 of the Pennsylvania Constitution — Pennsylvania’s own protection against unreasonable searches and seizures — did not provide greater protection to open fields.

For hunters and landowners, that became particularly significant because Pennsylvania’s Game and Wildlife Code gave Game Commission officers remarkably broad authority to enter land while performing their duties.

The law permitted officers to enter private property outside buildings and the curtilage of a home, whether that property was posted or not. Think about that for a moment.

You could own the land. You could put up a gate. You could post “NO TRESPASSING” signs. You could tell the entire world that people were not welcome to enter. And yet, under the law, those signs did not necessarily keep a Pennsylvania Game Commission officer from entering the property without a warrant.

This summer, the Pennsylvania Supreme Court changed the landscape.

The Case That Changed the Rule

On July 21, 2026, the Pennsylvania Supreme Court issued its decision in Punxsutawney Hunting Club, Inc. v. Pennsylvania Game Commission.

The case involved two private hunting clubs that had taken considerable steps to keep their properties private. Their lands were posted with no-trespassing signs, boundaries were marked with purple paint, gates were installed, and portions were fenced.

Nevertheless, Game Commission officers entered the properties without warrants or permission. The controversy also involved the placement of motion-activated surveillance cameras on private property.

The hunting clubs challenged the practice.

This time, Pennsylvania’s Supreme Court reconsidered the rule it had previously announced in Russo.

The Court overruled Russo and held that Pennsylvania’s Constitution provides greater protection for private open land than the Fourth Amendment to the United States Constitution.

That distinction is important.

We often think of the United States Constitution as the beginning and end of our constitutional rights. It isn’t.

The federal Constitution generally establishes a constitutional floor. A state constitution can provide its citizens with greater protections, and Pennsylvania has a long history of interpreting certain provisions of our Constitution independently.

That’s exactly what happened here. The Pennsylvania Supreme Court concluded that Article I, Section 8 protects private land beyond the immediate surroundings of a home when the owner has demonstrated a reasonable expectation of privacy by taking sufficient steps to exclude intruders.

In other words, a field does not necessarily lose constitutional protection simply because it is a field. For someone who remembers being troubled by the open fields doctrine as a law student, that’s a remarkable development to watch more than a decade later as a practicing Pennsylvania attorney.

What Does This Mean for Hunters?

There is an important limitation, and this is where headlines can sometimes oversimplify court decisions.

The Pennsylvania Supreme Court did not simply declare that every privately owned acre in Pennsylvania is automatically protected from every warrantless entry.

The Court focused on land where an owner has taken sufficient steps to establish a reasonable expectation of privacy.

That can include things familiar to Pennsylvania hunters and rural property owners: gates, fences, no-trespassing signs, purple paint and other measures clearly communicating that the property is private and outsiders are not permitted to enter.

When a landowner has sufficiently demonstrated that expectation of privacy, government officials — including Game Commission officers — generally cannot simply disregard those measures and enter the property to conduct a search. A warrant supported by probable cause, or a recognized exception to the warrant requirement, is ordinarily necessary.

But hunters shouldn’t misunderstand what happened.

The Game Code still applies on private property.

The decision doesn’t create immunity for hunters. It doesn’t prevent Game Commission officers from investigating suspected violations. It doesn’t eliminate search warrants. And the traditional exceptions to the warrant requirement remain.

The change concerns something more fundamental: how the government gets onto private property to conduct its investigation.

Now the Legislature Has Acted

When I first wrote this article, the Pennsylvania Supreme Court had spoken, but the story was not over.

The Pennsylvania General Assembly was considering Senate Bill 1431 in direct response to the Court’s decision. At the time, I wrote that the legislature had the ability to make the rule clearer and perhaps broader than the constitutional holding itself.

In fact, the version of the bill then before the General Assembly contained a remarkably straightforward rule: Game Commission officers would be required to obtain a valid warrant before entering private property, “posted or otherwise,” unless a recognized exception to the warrant requirement applied.

That was significant because the Supreme Court’s decision focused on whether a landowner had taken sufficient steps to demonstrate a reasonable expectation of privacy.

I noted that this could leave us litigating questions such as whether one sign was enough, whether purple paint was sufficient, whether there was a gate, or whether the property was fenced. My prediction was that the legislature might use the opportunity to make the rule simpler.

Then, before this issue of The Dunmorean could even go to press, the legislature acted. On October 22, 2026, Governor Josh Shapiro signed Senate Bill 1431 into law as Act 115 of 2026. The bill passed the House 203–0, and the Senate unanimously concurred in the House amendments, 50–0.

But there is an important twist: the final law did not adopt the broader “posted or otherwise” warrant requirement that appeared in the earlier version of the bill.

Before final passage, the House amended the legislation. The enacted version instead provides that Game Commission officers, employees and representatives may enter property outside of buildings only “in accordance with Section 8 of Article I of the Constitution of Pennsylvania.” The enforcement provision was likewise changed to tie an officer’s authority to that same standard.

In other words, the legislature did exactly what I suspected it might do in one respect — it responded quickly to the Supreme Court’s decision and changed the Game Code itself. But it stopped short of creating the broader, blanket warrant rule for all private property that the earlier bill appeared poised to establish.

That distinction matters.

The constitutional standard announced in Punxsutawney Hunting Club therefore remains central. Whether a particular piece of open land carries a reasonable expectation of privacy can still depend upon the steps the owner has taken to exclude intruders.

There is also a timing point hunters should know. Although Act 115 was signed on October 22, it does not take effect until 60 days later. So, during much of this November hunting season, the Pennsylvania Supreme Court’s constitutional decision is the immediate rule to understand; the statutory amendments will take effect in December.

Case Law Meets Statutory Law — In Real Time

This is about as good a real-world example of the relationship between case law and statutory law as I could have asked for when I started writing this article.

The General Assembly writes statutes. Courts interpret those statutes and determine whether government action complies with the Constitution.

Here, Pennsylvania already had statutes giving the Game Commission broad authority to enter private land. The Pennsylvania Supreme Court examined that authority against Article I, Section 8 of our state Constitution and concluded that portions of it could not survive constitutional scrutiny. The legislature then responded.

Importantly, the General Assembly cannot pass an ordinary statute that takes away a constitutional protection recognized by the Pennsylvania Supreme Court. The Constitution remains superior to a statute. But the legislature can rewrite the Game Code to conform to the Court’s constitutional ruling — and it can choose to provide even greater statutory protection if it wishes.

An earlier version of Senate Bill 1431 appeared ready to do the latter. The final version chose the former. So, in a matter of months, a dispute between private hunting clubs and the Pennsylvania Game Commission reached our Commonwealth’s highest court.

The Court reconsidered decades of precedent and interpreted our Constitution to provide greater protection to certain private land. The General Assembly then took up legislation addressing that decision, amended it, passed it unanimously, and sent it to the Governor, who signed it into law.

That entire process played itself out while this issue of The Dunmorean was being prepared for publication.

That’s how American law develops — and, in this instance, we got to watch it happen in real time.

A dispute between citizens and the government becomes a lawsuit. The lawsuit reaches Pennsylvania’s highest court. The Court interprets our Constitution. That decision changes decades of precedent. The legislature sees the consequences of that decision and considers whether a statute should establish an even clearer rule. And eventually, another court may be asked to interpret that statute.

Before You Head Into the Woods

Know whose property you’re hunting. Get permission when required. Respect posted land and purple-painted boundaries. Follow the Game Code.

And if you’re a landowner who wants your property to remain private, understand that the steps you take to communicate that expectation of privacy may now have constitutional significance.

More than a decade ago, I sat in a law school classroom reading about the open fields doctrine and wondering how land clearly intended to be private could receive so little constitutional protection.

I remember thinking that the law’s definition of “private” didn’t sound much like the definition ordinary people would use.

All these years later, Pennsylvania’s highest court has wrestled with that very question.

And perhaps there is something fitting about the fact that the case that caused Pennsylvania to reconsider the open fields doctrine didn’t begin in a city, an airport or a police station.

It began exactly where you’d expect a Pennsylvania case about the meaning of private property to begin: at a hunting club.

Have a safe and successful hunting season.

Be smart. Call Hart.