WI: Are “open fields” on private property “public places” for officers committing a trespass?

WI holds that defendant as entitled to a self-defense instruction when he encountered two game officers on his property and thought they were trespassers. The concurring opinion concentrates on the intrusion into “open fields” and whether the state can treat defendant’s private property as a “public place.” State v. Stietz, 2017 WI 58, 2017 Wisc. LEXIS 303 (June 13, 2017). Not much precedental value, but thought provoking:

[*P82] At oral argument in this case, the State could not identify any law authorizing the wardens to be on Stietz’s land. There is none. The State asserted only that the “open fields” doctrine justified the wardens’ intrusion on private property, reasoning that the doctrine made Stietz’s secluded, remote land a “public place” on which the wardens were privileged to traverse. The State is wrong. The open fields doctrine does not transform private fields into public places that anyone is free to enter uninvited or without reason. Nor does it convert the act of trespassing into a lawful intrusion. See Oliver v. United States, 466 U.S. 170, 183, 104 S. Ct. 1735, 80 L. Ed. 2d 214 (1984) (“The law of trespass … forbids intrusions upon land that the Fourth Amendment would not proscribe.”) Rather, the open fields doctrine only prevents suppression of evidence gathered by law enforcement officers who enter an open field without a warrant. The open fields doctrine does not sanction the seizure of a person, nor does it create the requisite constitutional basis for seizing a person acting lawfully simply because the person is standing in an open field. Significantly, the open fields cases arose after law enforcement officers observed evidence of suspected illegal activity conducted upon the land either directly or indirectly, through an informant or tipster. See id. at 173-77 (police investigating a tip of marijuana farm saw illegal plants in field; suppression not required); Hester v. United States, 265 U.S. 57, 57, 44 S. Ct. 445, 68 L. Ed. 898 (1924) (police investigating a tip of illegal activity chased suspects who ran when police arrived; suppression of evidence tossed in open field not required); State v. Martwick, 2000 WI 5, ¶¶9, 10, 12, 32, 37, 43, 231 Wis. 2d 801, 604 N.W.2d 552 (evidence admissible where informant reports marijuana plants, police see plants in open area beyond curtilage that is not fenced in or posted “no trespassing,” police take a leaf to test, and police later obtain warrant).

[*P83] The DNR wardens did not receive a tip or make a direct observation that Stietz was engaged in illegal activity on his property. When the wardens observed the property before entering, they saw no evidence of illegal activity. Warden Frost testified that they drove completely around the area surrounding Stietz’s private property and used binoculars to look for hunters, but they “didn’t see any evidence that anybody was out in the field at the time.” Importantly, Stietz is not seeking to suppress evidence taken from his property to be used against him in a criminal prosecution. The open fields exception to the Fourth Amendment’s warrant requirement was not intended to eliminate property owners’ rights by sanctioning entry onto open land at any time for any reason, or no reason at all.

[*P84] The State’s bald assertion in its brief that “wardens do not need reasonable suspicion to believe that a crime has been committed before they enter private land” is erroneous. The State has not cited and I cannot locate any authority permitting DNR wardens to traverse privately owned lands without any legal justification. As already noted, the reasonable suspicion standard applies to public places, not an individual’s remote, secluded, fenced, and posted private land. Even if we applied the reasonable suspicion standard to private land, the only information the DNR wardens possessed before intruding onto private property was a legally parked car. This falls far short of satisfying the reasonable suspicion standard.

[*P85] The State also asserts that Stietz lacks standing to invoke trespass as a defense because the physical confrontation with the wardens occurred on his easement just outside his private property. Stietz has not sued the wardens for trespass; rather, he argues, in defense of his actions, that he did not know these two men were wardens but believed them to be trespassers on private property where Stietz was lawfully present (unlike the wardens). Whether the wardens confronted and seized Stietz on the easement instead of Stietz’s private property does not change the fact that the wardens seized Stietz on private property rather than in a public place, absent consent, a warrant, probable cause, exigent circumstances, or any other lawful basis to intrude.

[*P86] The circuit court’s ruling on self-defense and trespass denied Stietz the right to tell the jury his version of events and therefore substantially impaired his right to present a defense. It appears the circuit court’s reason for refusing to instruct the jury on trespass arose from the court’s mistaken belief that the wardens had authority to be on the private land and therefore could not be trespassers. The circuit court erred. Based on this record, there was no legal basis for the wardens to be on Stietz’s (or his uncle’s) private property. By entering it merely on a hunch, the wardens exceeded their authority under the law and should be treated as trespassers: “[W]here an authority given by law is exceeded, the officer loses the benefit of his justification, and the law holds him a trespasser ab initio although to a certain extent he acted under the authority given.” Wallner v. Fidelity & Deposit Co. of Maryland, 253 Wis. 66, 70, 33 N.W.2d 215 (1948). Stietz had the right to present evidence and to argue that these two men—who exceeded their lawful authority by entering private land uninvited, demanding he relinquish his rifle, grabbing him, and forcibly wresting the rifle out of his hands—were trespassers.