Home » Issues » IJ’s Project on the 4th Amendment » Open Fields Doctrine

One of the first casualties to our Fourth Amendment rights was our land. During Prohibition, government agents started prowling around for illicit alcohol and stills, including on private lands. In Hester v. United States, revenue agents hid on someone’s land to see if they were selling alcohol and gave chase when they saw his son hand someone a bottle. Despite the grave constitutional stakes, the Supreme Court breezily held in a two-paragraph opinion that the Fourth Amendment did not apply to private land because “the special protection accorded by the Fourth Amendment to the people in their ‘persons, houses, papers, and effects,’ is not extended to the open fields.” In one fell stroke, the Court categorically eliminated all Fourth Amendment protections for most privately owned land in the United States.   

Hester’s narrow view of the Fourth Amendment eviscerated Americans’ constitutional rights. Worse, it was based on a false premise: that the “distinction between [open fields] and the house is as old as the common law,” a distinction that was about when private individuals could be charged with burglary, not about when government officers could intrude on private property. Still, the damage was done.  

Hope sprang anew 60 years later, when the Supreme Court heard a case called Oliver v. United States. In Oliver, police officers entered fenced private property posted with “No Trespassing” signs and searched around for marijuana fields without a warrant. Given the Court’s adoption of the “reasonable expectation of privacy” test—which departed from Hester’s narrow focus on the specific items listed in the Fourth Amendment—the question was whether Hester was still good law.   

But the 1980s had their own Prohibition: the War on Drugs. So in 1984, the Court reaffirmed Hester, holding that private property owners have no “reasonable expectation of privacy” on their own land.  

These decisions mean that federal courts simply dismiss Fourth Amendment challenges to government searches of private property unless they occur in the home or in the area immediately surrounding it. And the invasions of our property and privacy that these decisions allow have only grown in modern times. After all, if the government wanted to search your land in the old days, it had send out officers to do the deed. But modern technology has made it cheap and easy for officials to instead run their own digital dragnet.   

One way is through automated surveillance cameras. Hunters often secure these cameras to tree trunks to learn more about nearby fauna. But the government can just as easily use these cameras to learn more about you. With this new technology, officials don’t have to hide in the bushes 24/7. Instead, they can enter someone’s land, attach a surveillance camera to a strategically placed tree trunk, and then sit back as it automatically takes and stores pictures of any activity, any time of day. In a sign of how unmoored reality Fourth Amendment law has become, at least one federal appellate court has held that agents’ installation and monitoring of cameras on private property somehow doesn’t constitute a “search.”  

The open fields doctrine is the product of decades of bad Fourth Amendment judging. History shows that the Framers’ original understanding and purpose for enacting the Fourth Amendment was to secure our persons and property from arbitrary invasions. Indeed, many state constitutions use the term “possessions”—a term widely associated in the 18th and 19th century with land and other real property. IJ’s goal is to persuade courts to reject the open fields doctrine and require the government to get a warrant before it enters and investigates private property.