States May Close the ‘Open Fields’ Exception to the Fourth Amendment

Joshua Windham is an attorney and Elfie Gallun Fellow in Freedom and the Constitution at the Institute for Justice. He represents the plaintiffs in the Tennessee, Louisiana, Virginia, and Pennsylvania cases discussed in this article.

If you ask the average American what the Fourth Amendment means, they’ll probably say something like, If the government wants to enter my property, it has to get a warrant. In general, they would be right. That’s what the U.S. Supreme Court typically says. But there are exceptions, and some of those exceptions are shockingly large — so large that they threaten to swallow the rule. This year marks the 100-year anniversary of one such exception — the “open fields doctrine” — and provides an opportunity to reflect on how state courts may be starting to rein that doctrine in.

The open fields doctrine is easy enough to explain, because the 1924 opinion that announced it, Hester v. United States, is just two paragraphs long and contains only about a sentence of legal reasoning: A warrantless search “upon Hester’s father’s land” was constitutional 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.” Or, as the Court reiterated in 2013 in Florida v. Jardines, “open fields” receive no protection “because such fields are not enumerated in the Amendment’s text.”

Despite its name, the open fields doctrine is not limited to fields or open land. Rather, the doctrine applies to all private land beyond the “curtilage,” the area immediately surrounding the home. Using publicly available data and mapping software, a recent Institute for Justice study found that at least 96 percent of all private land in the country — or about 1.2 billion acres — falls outside the curtilage and is therefore subject to unfettered government searches and surveillance.

That’s a scary thought. Fortunately, there’s reason for hope. The Fourth Amendment sets the minimum level of protection that all government officials must follow. But state officials are also required to follow their own state constitutions, which can provide far more protection against unreasonable searches than the Fourth Amendment, including in the open fields context.

A recent Tennessee appellate decision offers a perfect example. In Rainwaters v. Tennessee Wildlife Resources Agency, two landowners challenged a statute that allowed game wardens to go onto private land without a warrant to look for evidence of hunting violations. Game wardens used that power to repeatedly enter the plaintiffs’ farms (wearing full camouflage outfits) and place cameras — all without consent, a warrant, or even probable cause. Their case would have been dismissed under the Fourth Amendment, but these landowners did not bring a federal claim.

Instead, the plaintiffs invoked Article I, Section 7, of the Tennessee Constitution, which, as the court noted in its opinion, contains “a significant textual variance.” Unlike the Fourth Amendment, Section 7 expressly forbids unreasonable searches of “possessions”— a term the court held (and historical research confirms) includes “property, real or personal, actually possessed or occupied.” Applying that definition, the plaintiffs’ lands qualified as “possessions,” the court said, because they “were secured by gates, accessible only through private drives, and posted with ‘no trespassing’ signs intended to limit access to them,” and the plaintiffs “used and occupied their land by farming, fishing, camping, and hunting.”

Not only were the plaintiffs’ lands protected, but game wardens’ vast warrantless search powers were “unreasonable.” While the agency tried to justify those powers by arguing they were necessary to enforce hunting laws, the court found that argument unavailing: “The [agency’s] contention is a disturbing assertion of power on behalf of the government that stands contrary to the foundations of the search protections against arbitrary governmental intrusions in the American legal tradition, generally, and in Tennessee, specifically.”

“Simply stated, given the purpose of Article I, Section 7 of preventing arbitrary intrusions upon privacy and personal liberty, what the [agency] claims is reasonable is not,” the court said.

The Rainwaters decision squarely rejected the open fields doctrine and exemplified the power of state constitutions to rein in federal doctrines that pay short shift to our most basic rights. And it appears that movement is picking up steam. So far, courts in seven states have rejected the open fields doctrine under their own constitutions: Mississippi, Montana, New York, Oregon, Tennessee, Vermont, and Washington. That includes two states — Mississippi and Vermont — whose constitutions also use the term “possessions,” where courts issued more protective decisions as recently as 2022 and 2018 respectively.

Pending lawsuits could amp these numbers up. In Louisiana, a forester is challenging warrantless intrusions under the Louisiana Constitution, which protects all “property.” In Virginia, a landowner is challenging a warrantless search of his land and seizure of his camera under the Virginia Constitution, which forbids general warrants to search “suspected places.” And in Pennsylvania, hunting clubs are challenging warrantless searches and camera installations under the Pennsylvania Constitution, which — like Tennessee and over a dozen other states — protects “possessions.” This last case is awaiting an argument date before the Pennsylvania Supreme Court.

The bottom line, as we reflect on the 100-year anniversary of the open fields doctrine, is that as entrenched (and wrong) as the doctrine may be as a matter of Fourth Amendment law, state constitutions can and do provide more protection, and could lead to a far more protective landscape in the century to come.