2024 marks the 100th anniversary of the “open fields doctrine,” the judge-made exception to the Fourth Amendment. With it government officials, including the police, can trespass on 96% of private land in the United States without committing a “search.” Created by Justice Oliver Wendell Holmes in the Prohibition-era case Hester v. United States, the doctrine was turbo-charged in 1984 at the height of the War on Drugs, and openly runs wild today. Under it, any land outside of a structure and a home’s ambiguous “curtilage” receives zero protection under the Fourth Amendment, allowing the government to roam with no constitutional restraints.

Yet, things might be changing. Several states have rejected the doctrine under their own constitutions and recent developments at the Supreme Court itself could be harbingers for a reassessment.

To observe this century and the possibility that the next 100 years will be different, on May 10, 2024 the Institute for Justice hosted a conference examining the history of the doctrine and its future. We brought together IJ attorneys who have litigated open fields matters with several nationally recognized Fourth Amendment scholars to discuss this often-overlooked exception to Americans’ “right to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures.” Speakers included: Professor Laura Donohue (Georgetown Law) (keynote speaker), Professor Maureen Brady (Harvard Law School), Bob Cunha (Massachusetts Defender LLC), Professor Daniel Epps (Washington University School of Law), Professor Luke Milligan (Louis D. Brandeis School of Law), Professor James Y. Stern (William & Mary Law School), and Josh Windham (IJ attorney and Elfie Gallun Fellow in Freedom and the Constitution).


Introduction and Keynote Address

Laura Donohue, Georgetown Law School; Joshua Windham, Institute for Justice.

The Open Fields Doctrine Is Wrong

Joshua Windham, Institute for Justice

Open Fields and Fourth Amendment Values

Maureen Brady, Harvard Law School; Bob Cunha, Massachusetts Defender, LLC; Luke Milligan, Brandeis Law; Robert Frommer, Institute for Justice (moderator)

Open Fields and Positive Law

Daniel Epps, Washington University School of Law; James Stern, William and Mary Law School; Anthony Sanders, Institute for Justice (moderator)

Conference Speakers

Joshua Windham
Attorney and Elfie Gallun Fellow in Freedom and the Constitution, Institute for Justice
Laura Donohue
Professor of Law, Georgetown Law; Director, Georgetown Center on Law and National Security; Director, Georgetown Center on Privacy & Technology
Robert Frommer
Senior Attorney, Institute for Justice
Maureen Brady
Deputy Dean and Louis D. Brandeis Professor of Law, Harvard Law School
Bob Cunha
Founder of Massachusetts Defender LLC and an adjunct professor at Suffolk University Law School
Luke Milligan
Professor of Law and Co-Director, Ordered Liberty Program, Brandeis Law
Anthony Sanders
Director of the Center for Judicial Engagement, Institute for Justice
Daniel Epps
Professor of Law, Washington University in St. Louis
James Y. Stern
Professor of Law, William & Mary Law School