4th Amendment Project
Open Fields Doctrine

Protecting Real Property From Warrantless Searches Act

A State Solution to the Open Fields Doctrine under the Fourth Amendment

The Fourth Amendment protects the right to be secure from government’s unchecked power to search and seize. Ordinarily, courts enforce that right by requiring a warrant before government officials enter private property.

But in 1924, the U.S. Supreme Court held the Fourth Amendment does not protect certain private land—what it called “open fields.” This doctrine was wrong then and is now.  All private land must be protected from warrantless intrusions if Americans are to be secure in their persons, houses, papers, effects and property.

Since the Supreme Court’s decision a century ago in Hester v. United States, state and local agencies unfortunately have integrated the “open fields doctrine” into their statutes, ordinances, and procedures. 

What can state legislators do?

State legislators do not have wait for the Supreme Court or Congress to act. The Institute for Justice offers state legislators model legislation. The Protecting Real Property from Warrantless Searches Act requires state officials obtain a warrant before they enter any private property.

The Act protects private land the Supreme Court excludes in its misguided “open fields doctrine.” At the same time, the Act incorporates traditional—and sensible—exceptions to the warrant requirement, like consent and for emergencies that pose immediate threats to life or public safety.

The Act closes the massive hole in the Fourth Amendment left by the “open fields doctrine” while allowing government officials the latitude to maintain public safety.