LANSING, MI — Four House Democrats voted with the Republicans majority to require that state environmental and conservation officers get a warrant or property-owner consent before entering private land.
House Bills 4073 and 4421 each passed 63–37 on Tuesday, Nov. 4, with unified Republican support. The bills would overturn the long-standing “open fields” doctrine that allows officers to check for violations on property outside a home’s immediate area.
The doctrine legally undergirds the ability of state conservation officers to widely patrol across private land.
Republicans advanced the bills from committee in September without Democratic support, arguing that the change is needed to strengthen private property rights.
A substitute adopted Tuesday removed probable cause and emergency-based exceptions approved at the committee level.
Bill sponsors call them an effort to rein-in bureaucratic “overreach” at the Department of Natural Resources, which Republicans have targeted this year with escalating rhetoric, hearings and budget cuts.
Opponents argue that curbing the state’s ‘open fields’ authority would unnecessarily handcuff conservation officers and pollution inspectors, delay investigations and hamper law enforcement on the vast majority of wildlife habitat.
Democratic Reps. Samantha Steckloff of Farmington Hills, Angela Witwer of Delta Township, Joey Andrews of St. Joseph and Tullio Liberati of Allen Park voted in support of the bills this week on the House floor.
They now advance to the Democratic-controlled Senate.
Were they to become law, Michigan would join several states which have rejected or are litigating the “open fields” doctrine, a federal rule that allows law enforcement to enter and look around pastures, woods, vacant lots and other privately-owned areas outside the “curtilage,” or immediate area around a home or dwelling.
Since the 1980s, state courts in Montana, New York, Oregon, Vermont, Washington, Mississippi and Tennessee have rejected the doctrine under state constitutions. The open fields doctrine is the subject of pending litigation in Virgina and Pennsylvania.
The DNR and Michigan Department of Environment, Great Lakes and Energy (EGLE) did not testify about the bills or immediately respond to an inquiry for comment this week.
A previous version of the bills made exceptions for an officer in “hot pursuit” of a criminal suspect or who reasonably believes a delay would result in destruction or concealment evidence or that a person would be endangered. They also previously included a carve-out which would allow officers with probable cause to enter non-dwelling or curtilage areas when investigating alleged hunting and fishing violations.
As passed by the House, the legislation states explicitly that “the open fields doctrine does not apply to a search conducted by an agent of the department.” They state that any “agents” of the DNR or EGLE “shall not enter private property without a warrant or the consent of the property owner or occupant.”
