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posted land means nothing to DNR (c&p)
jwb267
Member Posts: 19,664 ✭✭✭
Is it legal for Maryland Natural Resources Police officers to walk onto your private land?
According to a recent opinion from Allegany County District Court Judge Edward Malloy Jr., the answer is "yes" and the officers need neither probable cause nor reasonable suspicion that something is amiss.
Malloy's opinion comes in the form of a multipaged written memorandum included in the case file that charges Joseph Bryan Lepore, 46, Millersville, with hunting deer during closed season and having a loaded weapon in a vehicle.
The charges were made during the muzzleloader deer season in October when Cpl. Mike Friend encountered Lepore on his own property at Martin's Mountain Lane in eastern Allegany County.
The case file indicates that Lepore carried a centerfire rifle and not a muzzleloader as required and that the loaded weapon was on an all-terrain vehicle.
Lepore, defending himself in court, claimed that Friend's presence on private property violated his Fourth Amendment rights that protect him from unreasonable search and seizure.
Malloy called for a legal timeout to research what is known as the open field doctrine or open field exception. The legal timeout is known by its Latin name, sub curia, which, in essence, means "there is something to be considered before moving foward."
The considering is done and the trial will resume for its conclusion on Feb. 28.
"As a police officer, Cpl. Friend was permitted to enter Mr. Lepore's property and search the wooded area beyond the home and curtilage without a warrant," Malloy writes.
Curtilage refers to land near the dwelling or home.
In arriving at his opinion, Malloy cites federal and state court precedents. Even a property surrounded by a fence and posted with "No Trespassing" signs is considered to be an open field and may be entered by law enforcement officers, according to one referenced decision.
Sgt. Art Windemuth said copies of Malloy's opinion have been given to every Natural Resources Police officer in the state.
"We want people to know what we can and what we can't do," Windemuth said. "We don't want a misunderstanding in the field to escalate into a confrontation that will put our officers in danger."
Lt. Greg Bartles, the NRP commander for Allegany and Garrett counties, said this week that officers enter private ground on a regular basis.
"We are expected to protect wildlife," Bartles said. "It wouldn't make sense to waste an officer's time by having him set up surveillance on the parking lot at Walmart. We want him on lands where fishing and hunting take place."
Bartles said the charge of hunting bears over bait often comes because officers have been on private land before the hunting season and have found bait locations. Then, on opening day of the hunt, the officers return, enter the private lands and see if anybody is hunting over that bait.
"The wildlife belongs to everybody in the state," Bartles said. "We can't allow a private landowner to hunt whenever he wants or in any way he wants. In this case, Cpl. Friend had a right to be there and the judge has agreed." Lepore's Ruger .270 caliber rifle was seized that day.
NRP has made an effort in recent years to draw the attention of prosecutors and judges to various natural resources laws and regulations, according to Bartles. Some larger counties, such as Anne Arundel, have set aside certain days and certain prosecutors to deal with such cases on an ongoing basis.
"We are very pleased that Judge Malloy took the time to study the open field exception to the Fourth Amendment," Bartles said, adding that rulings and decisions at the district court level are not binding on any other Maryland court.
Contact Outdoor Editor Mike Sawyers at msawyers@times-news.com.
According to a recent opinion from Allegany County District Court Judge Edward Malloy Jr., the answer is "yes" and the officers need neither probable cause nor reasonable suspicion that something is amiss.
Malloy's opinion comes in the form of a multipaged written memorandum included in the case file that charges Joseph Bryan Lepore, 46, Millersville, with hunting deer during closed season and having a loaded weapon in a vehicle.
The charges were made during the muzzleloader deer season in October when Cpl. Mike Friend encountered Lepore on his own property at Martin's Mountain Lane in eastern Allegany County.
The case file indicates that Lepore carried a centerfire rifle and not a muzzleloader as required and that the loaded weapon was on an all-terrain vehicle.
Lepore, defending himself in court, claimed that Friend's presence on private property violated his Fourth Amendment rights that protect him from unreasonable search and seizure.
Malloy called for a legal timeout to research what is known as the open field doctrine or open field exception. The legal timeout is known by its Latin name, sub curia, which, in essence, means "there is something to be considered before moving foward."
The considering is done and the trial will resume for its conclusion on Feb. 28.
"As a police officer, Cpl. Friend was permitted to enter Mr. Lepore's property and search the wooded area beyond the home and curtilage without a warrant," Malloy writes.
Curtilage refers to land near the dwelling or home.
In arriving at his opinion, Malloy cites federal and state court precedents. Even a property surrounded by a fence and posted with "No Trespassing" signs is considered to be an open field and may be entered by law enforcement officers, according to one referenced decision.
Sgt. Art Windemuth said copies of Malloy's opinion have been given to every Natural Resources Police officer in the state.
"We want people to know what we can and what we can't do," Windemuth said. "We don't want a misunderstanding in the field to escalate into a confrontation that will put our officers in danger."
Lt. Greg Bartles, the NRP commander for Allegany and Garrett counties, said this week that officers enter private ground on a regular basis.
"We are expected to protect wildlife," Bartles said. "It wouldn't make sense to waste an officer's time by having him set up surveillance on the parking lot at Walmart. We want him on lands where fishing and hunting take place."
Bartles said the charge of hunting bears over bait often comes because officers have been on private land before the hunting season and have found bait locations. Then, on opening day of the hunt, the officers return, enter the private lands and see if anybody is hunting over that bait.
"The wildlife belongs to everybody in the state," Bartles said. "We can't allow a private landowner to hunt whenever he wants or in any way he wants. In this case, Cpl. Friend had a right to be there and the judge has agreed." Lepore's Ruger .270 caliber rifle was seized that day.
NRP has made an effort in recent years to draw the attention of prosecutors and judges to various natural resources laws and regulations, according to Bartles. Some larger counties, such as Anne Arundel, have set aside certain days and certain prosecutors to deal with such cases on an ongoing basis.
"We are very pleased that Judge Malloy took the time to study the open field exception to the Fourth Amendment," Bartles said, adding that rulings and decisions at the district court level are not binding on any other Maryland court.
Contact Outdoor Editor Mike Sawyers at msawyers@times-news.com.
Comments
Too old to live...too young to die...
That's weird, my copy of the Constitution doesn't list the "open field exception". According to mine the officer needs a warrant. I must have an old copy or something.[V]
If not, then he has no right to enter private land, same as if it was a private abode, unless he had a warrant.
That's weird, my copy of the Constitution doesn't list the "open field exception".If you'll read it closely your copy actually doesn't address open fields at all. Therein lies the problem.
It only refers to....The right of the people to be secure in their persons, houses, papers, and effects
Back in the early part of the last century the Supreme Court ruled that people didn't have a 'reasonable expectation of privacy' out in open fields/wooded areas the way they would in their home and it's immediate area. Their ruling stated that due to there being no reasonable expectation of privacy it's not legally a 'search', meaning no warrant is required.
All of this was fallout from the market hunters and their ilk devesatating our wildlife and the public demand for putting an end to their activities.
Not saying I agree, just clarifying where they're coming from on this.
BS. Having a centerfire rifle ON YOUR OWN LAND does not mean you are hunting.
This needs to go to a higher court.
People know this so,
Some people destroy habitat so there is no excuse for game wardens to tresspass.
Some people destroy Indian artifacts so goverment can not use eminant domain or delay permit approval of/on property.
Treasure hunters melt gold and silver artifacts and get melt value instead of fighting all current levels of goverment plus some past goverments for ownership of any finds.
Our forefathers that created our goverment were great men. Many of the latter batch were/are obsessive compulsive and make things much worse when they deviate from the original plan eg 4th.
Bad case law, I hope they can appeal, and win at a higher level.
Margaret Thatcher
"There are three kinds of lies: lies, damned lies and statistics."
Mark Twain
In Kentucky the Game Wardens could go on private property, I for one was glad as they kept the unauthorized hunters and poachers off my property..I guess it is all in ones perspective , Violation of ones rights????? or protection from poachers and unauthorized hunters??
I do know that in Iowa, no centerfire rifles on public land during deer shotgun or muzzleloader. But on private land, its okay. You can still coyote hunt.
"The case file indicates that Lepore carried a centerfire rifle and not a muzzleloader as required and that the loaded weapon was on an all-terrain vehicle."
BS. Having a centerfire rifle ON YOUR OWN LAND does not mean you are hunting.
This needs to go to a higher court.
Agreed.
In PA you will be arrested on your own property by the PA Game Commission if you go looking for a lost calf at night during the deer season. "Casting a light at night during an active big game season"
How about - casting a light at night NOT during an active big game season? Any problems with them during those times then???
I have always been confused by that part.
I need a license to hunt deer, because they belong to the "state" and I should have to pay for the privledge to hunt them.
BUT
When I hit one on the highway with my vehicle, nobody at the "state" cares and I need to talk to my insurance company. Shouldn't they be responsible for their animals running amock - much like a farmer and his livestock loose on the highway?
quote:Originally posted by drobs
"The case file indicates that Lepore carried a centerfire rifle and not a muzzleloader as required and that the loaded weapon was on an all-terrain vehicle."
BS. Having a centerfire rifle ON YOUR OWN LAND does not mean you are hunting.
This needs to go to a higher court.
Agreed.
Regardless of my personal suspicions etc. as to what he may or may not have been doing - in States that I have lived, one can carry or possess, whatever weapon (is otherwise legal to possess) on their own property at any time of year and any time of day (maybe excluding public roads).
This case ought to go up the judiciary chain ... regardless of who or what this man was or was not doing and regardless of his motives.
quote:Originally posted by gunpaq
In PA you will be arrested on your own property by the PA Game Commission if you go looking for a lost calf at night during the deer season. "Casting a light at night during an active big game season"
How about - casting a light at night NOT during an active big game season? Any problems with them during those times then???
In Ohio they gleefully crucify you for spot-lighting at night, armed or not deer season or not.
quote:Originally posted by jev1969
That's weird, my copy of the Constitution doesn't list the "open field exception".If you'll read it closely your copy actually doesn't address open fields at all. Therein lies the problem.
It only refers to....The right of the people to be secure in their persons, houses, papers, and effects
Back in the early part of the last century the Supreme Court ruled that people didn't have a 'reasonable expectation of privacy' out in open fields/wooded areas the way they would in their home and it's immediate area. Their ruling stated that due to there being no reasonable expectation of privacy it's not legally a 'search', meaning no warrant is required.
All of this was fallout from the market hunters and their ilk devesatating our wildlife and the public demand for putting an end to their activities.
Not saying I agree, just clarifying where they're coming from on this.
Txs, you idiot, what are you doing bringing legal and historical knowledge, facts, and reason to a Gunbroker General Discussion argument? You've dragged this discussion up to a much higher level. Damn you!
Its a hassle but their intentions are in the interest of the game. Unfortunately this has not prevented the State of Pa for overselling doe permits and over culled the herd.
In PA you will be arrested on your own property by the PA Game Commission if you go looking for a lost calf at night during the deer season. "Casting a light at night during an active big game season"
How about - casting a light at night NOT during an active big game season? Any problems with them during those times then???
No laws for that other than illegal shooting or taking of game.
Rules of evidentiary procedure do not apply to them. Neither does your "intent". Neither does standard test of "proof".
They allege it, Judge rubber stamps it. You pay.
quote:Originally posted by gunpaq
In PA you will be arrested on your own property by the PA Game Commission if you go looking for a lost calf at night during the deer season. "Casting a light at night during an active big game season"
Even here in WV they do not need a search warrant to search your car, home or land.
Total BS.
Total BS.
They would have a field day with me and my neighbors who have firearms in/on their tractors as well as our trucks.
Fortunately, other than one incident of the lost calf, we have not had much harassment.
I have always found it to be quite confusing in PA where most everyone tries to be law abiding and supportive of the Game Commission and it's wardens but are always treated like potential law breakers and felons by wardens. To be fair there are a few wardens and deputies who are not brown shirts.
So what can't they do?
NRA Lifetime Benefactor Member.
In Ohio the fin and feather fellows can just about do or go anywhere they please, even if no evidence of a crime was observed.
Same way in Virginia, there isn't much more powerful a LEO than a Game Warden (Conservation Police)
Does Maryland have a nuisiance animal law? Where if the deer are damaging crops, fruit trees, and such, one can get a permission to kill the nuisiance animal in or out of season..
In Kentucky the Game Wardens could go on private property, I for one was glad as they kept the unauthorized hunters and poachers off my property..I guess it is all in ones perspective , Violation of ones rights????? or protection from poachers and unauthorized hunters??
Yes, Maryland issues crop damage permits/deer management permits which can be filled anytime of the year for antlerless deer only. I hunt different sections of private land in Allegany/Garrett County Maryland and have run into the Game Warden many times. Everytime has been while coming out of the woods after a day afield never while actually hunting out of my treestand or ground blind. If I was on a four wheeler he checked to make sure I was not carrying a loaded weapon while on the ATV, if I harvested a deer he made sure I had a harvest tag on the deer and checked off my big game harvest record,made sure I had written permission to bu hunting where I was at and always checked to make sure I had a hunting license. Landowners are not required to have a hunting license, but must have a Big Game harvest record and are still subject to all State and Federal laws and regulations relative to hunting and trapping. Everytime I have ran into one they have always been respectful and had many questions. Seen many deer this year? Any problems with Coyotes? Seeing alot of bears? How many fawns on average have you seen with an adult doe? Have any problems with trespassers? Myself I like seeing a Game Warden out in the field doing what we as the taxpayers pay him to do, enforcing the laws and regulations designed to protect and conserve fish and wildlife. Just because I own land or hunt on another landowners ground with permission doesn't give me the right to ride around on an ATV with a loaded rifle or shoot as many deer as I want every year. The NRP/Game Wardens are a great deterrent for poachers/trespassers on private land without them doing their job there would be alot less deer and alot more poaching, neither of which would be beneficial to private landowners. In this case Lepore broke the law and had a loaded firearm on his ATV. If the weapon would have been unloaded he may have not been cited with hunting deer with a rifle during muzzleloader season. Unloaded rifle he may have been going target shooting. Coyote season is in year round and being a landowner he does not need a hunting license, he still would have needed a furbearer permit to hunt Coyotes just couldn't have a loaded weapon on the ATV while doing it, Private land or not.
Does Maryland have a nuisiance animal law? Where if the deer are damaging crops, fruit trees, and such, one can get a permission to kill the nuisiance animal in or out of season..
In Kentucky the Game Wardens could go on private property, I for one was glad as they kept the unauthorized hunters and poachers off my property..I guess it is all in ones perspective , Violation of ones rights????? or protection from poachers and unauthorized hunters??
YES, they are called "crop damage" permits
Most people do not know that in most states the DNR has more authority than the state police.
Even here in WV they do not need a search warrant to search your car, home or land.
This is a common misconception. They cannot just walk into your house or search your car without probable cause or your land. For a Conservation cop to come into your home he needs a warrant or exigent circumstances. He legally cannot walk or break into your home and start searching. That would be blatanty UnConstitutional. I am amazed at the people in this state that believe wha a "game warden" can do.
This is a common misconception. They cannot just walk into your house or search your car without probable cause or your land. For a Conservation cop to come into your home he needs a warrant or exigent circumstances. He legally cannot walk or break into your home and start searching. That would be blatanty UnConstitutional. I am amazed at the people in this state that believe wha a "game warden" can do.
Correct. Myths about a game warden's 'power' abound.
What leads to a lot of this is the fact that these wardens often conduct probable cause searches based upon laws where most people are ignorant of their details.
Something which constitutes probable cause for a search to a game warden is meaningless to other types of cops who - by most state's laws - aren't allowed to enforce game laws.