Open Fields Doctrine

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. 

Do you want IJ to review your potential case?

Have you seen government officials snooping around your private property without permission? IJ may be able to help.

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History of the Open Fields Doctrine

Hester v. United States

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.

Oliver v. United States

The Supreme Court doubled-down on its error 60 years later in Oliver v. United States. In that case, 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.

Modern Surveillance Technology

For most of American history, if the government wanted to search your land, 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 trail 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.”

IJ Fights to Close 4^th Amendment Loopholes

The Punxsutawney Hunting Club found itself at the center of a contentious court case that had far-reaching implications for property rights. The club, nestled in the picturesque countryside of Pennsylvania, had long enjoyed the freedom to pursue their passion for hunting on their expansive grounds. But in recent years, state game wardens have increasingly treated their private land like public property, patrolling around as they please, spying on the club’s members, and even installing a camera to spy on them. This incident sparked a legal battle that raised questions about the constitutionality of the open fields doctrine in Pennsylvania.

Frequently Asked Questions (FAQs) about Open Fields

Which states are impacted by the Open Fields Doctrine?

Every state except New York, Montana, Vermont, Mississippi, Washington, and Oregon. And even in those states, the courts just held that their state constitutions prevent state officers from relying on the open fields doctrine. State constitutions don’t bind federal officials, though, so every federal official in the country can rely on the open fields doctrine in every state.

Can Game Wardens Hang Trail Cameras on Your Private Property?

No. While some courts have held that the government can use cameras to spy on your land without a warrant, that power is not compatible with a proper reading of the Fourth Amendment or any comparable state constitutional provision.