A man’s home is his castle. His acreage? That’s a different story, thanks to the U.S. Supreme Court.
In 1924, justices staged an appalling assault on a sacred civil liberty. They unanimously established the open-fields doctrine, ruling
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.
You read that right. As a law student pithily summarized, “government officials can enter [landowners’] fields without a warrant, even though an ordinary citizen could be arrested for doing the exact same thing.”
The Institute for Justice is trying to do something about the atrocity that is Hester v. United States. In Tennessee, the public-interest law firm, indefatigable as ever, represents “two property owners who found that the government had secretly and without a warrant placed cameras on their land.” The snooping was clearly a violation of the Volunteer State’s constitution, which protects “possessions,” not merely “effects,” from warrantless searches.
In the fall of 2022, IJ and its clients prevailed before the Benton County Circuit Court. Two of three judges concluded that the “longstanding practice of conducting warrantless searches on private property by officers with the Tennessee Wildlife Resources Agency is unconstitutional.” Predictably, the bureaucracy refused to concede, and the matter is now under consideration by the Tennessee Court of Appeals.
That’s an example of a battle over the open-fields doctrine in one state. How much potential for similar conflicts is there, in the entire nation?
The IJ’s Joshua Windham and David Warren recently attempted to measure the scope of the bitter fruit of Hester v. United States. They accessed two datasets produced by the U.S. Geological Survey, as well as “Microsoft’s database of buildings for all 50 states and Washington, DC, which captures the size and location of nearly 130 million structures.”
Windham and Warren then used the mapping software ArcGIS Pro to exclude “areas whose ownership or regulatory status was either unknown or too variable to classify in a uniform manner across all states,” and placed “a buffer around each building to represent the protected curtilage area.” Their research “made conservative assumptions to avoid overcounting private land,” such as ignoring “all waters … because water rights work differently in each state and because the data did not distinguish between waters based on legal status.” (Roads were excluded as well.) A curtilage area of “100 feet in every direction, plus the building footprint” was assumed.
When the digital surveying was complete, the results weren’t pretty:
Our findings show that the open‐fields doctrine’s scope is massive. Even under a generous definition of curtilage, only about 4 percent of all private land qualifies for Fourth Amendment protection under current law. In other words, nearly 96 percent of all private land in the country — about 1.2 billion acres — is exposed to warrantless searches.
Our findings also show that the doctrine has an outsized effect on rural land. Compare 98 percent rural Vermont to its 63 percent rural neighbor, Massachusetts. Because Vermont has a greater share of private land on larger parcels, a far smaller portion of its land is eligible for Fourth Amendment protection — only about 5 percent compared to 24 percent in Massachusetts.
Here’s a bit of hope: “[C]ourts in seven states — Mississippi, Montana, New York, Oregon, Tennessee, Vermont, and Washington — have rejected the open‐fields doctrine under their state constitutions,” making “a massive difference, at least when it comes to abusive searches by state officials.”
Lawfare in the laboratories of democracy is one way to fight for the Fourth. A additional tool
to protect private land is … legislative reform. State legislatures can pass laws that hold state officials to a higher standard than the federal open‐fields doctrine. The Institute for Justice has a model bill, the Protecting Real Property from Warrantless Searches Act, that requires state officials to obtain a warrant based on probable cause before searching private land without consent except in a few limited circumstances like responding to a life‐threatening emergency or other threats to public safety.
It’s certain that Hester v. United States won’t get a mention on the presidential stump this year. Too bad. For a century, the decision has gutted the spirit, if not the wording, of the Bill of Rights. One hundred years of the open-fields doctrine is enough. Policymakers and judges, whether left or right, should embrace its demise.
Learned something new today. Thank you.