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.
