Attorney Battles DNR’s Warrantless Land Entries as Michigan Moves Toward Changing the Law
Attorney challenges warrantless property searches in Michigan.
SAGINAW COUNTY, Mich. — A Michigan attorney says state officers, including those with the Department of Natural Resources, are able to enter portions of private property without a warrant under what is known as the “open fields doctrine,” a practice he hopes courts and lawmakers will soon end.
“Yes. In the short answer is yes,” attorney Phillip Ellison said when asked whether the DNR can enter land without a warrant. “Now, not your necessarily your house or your immediate yard, but if you own some acreage, at least the law, as it arguably is today, with the hopes that we’re going to change that, will actually mean that state officers, not just DNR, can go into the back acres of your property without your permission and without a warrant.”
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Ellison said the rule applies outside a homeowner’s “curtilage,” the area immediately surrounding a house. “Where exactly is that line between is it ten feet? Is it 100 feet? Is it 500 feet? The courts haven’t really set a clear line,” he said. “If it’s in your yard where you cut your grass, you’re generally protected. Beyond that is when it starts getting real fuzzy real fast.”
According to Ellison, the practice is most often linked to DNR searches for bait piles on hunting land. “They’ll go on to the hunting areas of people’s property looking for these without the owner’s permission and without a judicial warrant,” he said. “And as of now, as of this moment, they legally can do that and it can be acceptable in court.”
Visit Ellison’s website nowarrant.com to learn more.
Ellison said new legislation moving through the Michigan House aims to curb warrantless searches, but he argues it is incomplete without consequences for violating it. “The biggest problem is there’s no penalty if the DNR or the accused simply say we’re not going to follow it,” he said. “A right without a remedy is no right at all.”
His office currently has “about a dozen federal lawsuits” involving claims of warrantless government searches. Ellison said a recent Sixth Circuit Court of Appeals decision strengthened protections around the curtilage of a home. “Now it is beyond debate that if government officials come into your property, meaning the curtilage part of your property, and they are there without a warrant and without your permission, that violates the Fourth Amendment,” he said. “No more excuses, no more qualified immunity for government officials when they do that.”
Ellison said the issue is broader than the DNR. “You’re talking about your zoning official, your electrical inspector, the health inspector,” he said. “They have no right to be on your property without a warrant and without your permission.”
He said the public often assumes they must allow government officials onto their property. “There’s already this presumption that we’ve been trained as a society sometimes that when you’re from the government and they knock on your front door, you got to let them in,” Ellison said. “That same basic rule also applies to inspectors and DNR officers.”
Ellison urged property owners not to consent to searches. “Any lawyer worth his lick of salt will tell you under no circumstances never to let an agent of the government on your property voluntarily,” he said, quoting a U.S. Supreme Court justice.
Ellison said he continues to hear reports of officials entering property and even cutting locks on gates. “Even on a Sunday, I’m getting a phone call from a client of mine that says, ‘Hey, one DNR officer cut the locks on my gate and came onto the property,’” he said. “Is that constitutional? And of course the answer is, I don’t think so. But in order to answer that question, we got to go to court.”
Ellison’s website, nowarrant.com, provides information about the Fourth Amendment and Michigan constitutional protections. He said lawsuits remain the strongest tool for accountability. “That’s what changes the customary practice of government officials when they know there’s a penalty for violating the constitution,” he said.
He emphasized that Fourth Amendment protections apply across all levels of government. “We shouldn’t be using the Fourth Amendment as a shield to hide illegal activities,” Ellison said. “But in today’s world, the reality is with how many federal, state and local regulations, Dave, I’m guaranteeing somehow in the last five minutes you and I broke some sort of regulation.”
Ellison said the goal is to ensure government power does not go unchecked. “If you can keep the government out your front door, the Fourth Amendment is there to put the lock on it for you,” he said.