A New Open Fields Doctrine Study: Good Fence? Good Luck

IJ Attorney Josh Windham and Senior Research Analyst David Warren co-wrote the first study quantifying the amount of land without protection from warrantless searches under the open fields doctrine.

As IJ continues pushing back against abuses enabled by the open fields doctrine, one of our attorneys came to the strategic research team with an ambitious question: Is there a way to measure just how muchprivate land the doctrine exposes to warrantless searches? The answer: Yes! And the results were stunning.

By using mapping software and three publicly available datasets, we were able to estimate—for all 50 states and D.C.—the amount of private land unprotected by the Fourth Amendment. The numbers are eye-popping. Across the country, only about 4% of private land is eligible for protection from warrantless searches by federal officials, leaving over a billion acres open to the sorts of intrusions experienced by Tom Manuel.

These first-of-their-kind numbers, included in “Good Fences? Good Luck,” our recent article in the Cato Institute’s Regulation magazine, reveal the vast scale of private property open to warrantless snooping. But there is a solution. Courts in Mississippi, Montana, New York, Oregon, Vermont, Washington, and—thanks to IJ—Tennessee have rejected the open fields doctrine, increasing the amount of land that property owners in those states can protect from state officials from 4.2% to 100%, a difference of 160 million acres. And states don’t have to wait for litigation to turn the tide. In fact, IJ has a model bill for state legislators who want to act—the Protecting Real Property from Warrantless Searches Act. 

Whether through courts or legislatures, IJ is here to help empower people to prevent warrantless intrusions on their land, because a billion unprotected private acres is a billion too many.

Read the article published by the Cato Institute at iam.ij.org/GoodFences

Josh Windham is an IJ Attorney and David Warren is a Senior Research Analyst.