Open Lands: A Century-Old Doctrine & Your Property Rights

People just want to get away from it all.  Interest in owning land out in the country comes from the desire to hunt, fish, or farm in peace and solitude.  Big lots combined with few neighbors give people the privacy and security that they crave. 

Or so they might think.  Though landowners can keep private people off their land using trespassing laws, in many states the government may search the vast majority of private lands whenever they wish, and for any reason.  It doesn’t matter how many locked fences and “No Trespassing” signs the owner might put out.  

The reason?  A century-old legal rule called the “open fields” doctrine This constitutional error weakens every Americanproperty rights, but disproportionately hurts rural landowners.  Reform—whether through the courts or the legislature—is desperately needed to restore our basic right to be left alone.  

So how did it get to be this way? 

Many people know that the Fourth Amendment to the U.S. Constitution protects against “unreasonable searches and seizures,” as do all the constitutions of our 50 states.  When the Framers drafted the Fourth Amendment, they wanted to guarantee our right to be secure in, and on, our own property.   

And for a while that was how it worked.  Early Fourth Amendment decisions from the U.S. Supreme Court interpreted the amendment broadly so that it could achieve its important purpose.  Moreover, government officials rarely had to traipse across private property to enforce the laws, making constitutional conflicts few and far between. 

But that all changed in 1920 with Prohibition.  As the manufacture and sale of alcohol became illegal, government agents started prowling around for illicit hooch and stills, including on private lands.  In one such case called 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.   

The son argued that the agents’ actions violated the Constitution.  But in a cursory opinion, the U.S. Supreme Court rejected that argument, holding that “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 stroke, the Court categorically eliminated all constitutional protections for most of the private land owned in the United States.   

Hester’s narrow view of what the Fourth Amendment protects 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 (if you read it) was actually about when private individuals could be charged with burglary, not about when government officers could intrude on private property.  Still, the damage was done. 

Hope sprang anew sixty years later, when the Supreme Court heard a case called Oliver v. United States, which asked whether Hester was still good law.  There was good reason to be optimistic:  In the years since Hesterthe Court had developed a new Fourth Amendment test that broke from Hester’s narrow approach.   

But bad facts make for bad law, and the 1980s had their own Prohibition—the War on Drugs.  So it was little surprise that, in 1984, the Court reaffirmed Hester, holdingin service of the War on Drugs and with disregard for the Constitution—that private property owners have no “reasonable expectation of privacy” on any private lands the Court deems to be an “open field.”  

So, what’s the problem? 

The “open fields” doctrine has been widely criticized, and for good reason.  Its narrow reading of the Fourth Amendment undercuts the amendment’s broad purpose, which is to make us secure in our own property.  Its statement that the common law justifies that narrow reading lacks historical support.  And ultimately, the doctrine makes it hard for anyone to feel secure, since it means agents could be snooping around unannounced at any point. 

These concerns have only grown more pointed in modern times.  In the old days, if the government wanted to search your land, it had to hire and 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 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 surveillance camera to a strategically placed tree trunk, and then sit back as it automatically takes and stores pictures of any activityany time of day.   

Sound creepy?  That’s what Terry Rainwaters thought.  Terry is a lifelong resident of Camden, Tennessee who owns 136 acres of land along the Big Sandy River. He lives there with his son, with whom he spends time hunting. Terry also farms the land and rents out a separate house on the property to a long-time tenant. Terry values his privacy, so he keeps his gates locked and posted with “No Trespassing” sign. 

In December 2017, Terry’s son was driving around the property when he saw an unmarked camera hanging from a string in one of Terry’s trees.  From its vantage point, the camera was able to capture images of people and cars moving past, of Terry and his son’s private activities, and even of the back of Terry’s tenant’s home.  They found a second camera set up nearby, with a tree branch cut to provide the camera with a clear view of the property.  A few days later, both cameras suddenly disappeared. 

It turned out that officers from the Tennessee Wildlife Resources Agency (TWRA) had surreptitiously snuck onto Terry’s land.  As part of their mandate to “[e]nforce all laws relating to wildlife,” Tennessee law gives TWRA’s Executive Director (and, through him, TWRA officers) the power to “go upon any property, outside of buildings, posted or otherwise” to search for hunting violations.   

Terry has had a Tennessee hunting license for decades and has seen TWRA officers wandering around his property without permission several times in the past but had never encountered cameras before. Rattled, Terry spoke to other hunters in Camden, who told him that TWRA officers had trespassed on their land and installed cameras as well. 

What can be done? 

Terry and another Camden resident, Hunter Hollingsworth, grew sick and tired of TWRA’s warrantless snooping.  So, they joined forces with the Institute for Justice to sue TWRA in state court to bring it to an end.  Their lawsuit contends that, even if the federal “open fields” doctrine means TWRA agents could enter their property without violating the Fourth Amendment, they cannot do so under the Tennessee Constitution. 

This position has a lot of support behind it.  The Tennessee Supreme Court has rejected the “open fields” doctrine on several occasions as inconsistent with a free society that respects private property and privacy.  And so have other states.  The Mississippi Supreme Court, for instance, saw the decision in Hester and immediately rejected its reasoning on state constitutional grounds.  In more recent years several other states, including Montana, New York, Oregon, Vermont, and Washington, reached the same conclusion. 

That’s good for the citizens of those states, whose land would otherwise largely be without any constitutional protection. Sure, it means that officials have to get a warrant, but that’s what they are supposed to do.  And the lack of any horror stories coming out of New York, Montana, or elsewhere shows that respecting people’s property and constitutional rights need not come at the public’s expense.   

Terry’s case is a wake-up call, both to Tennessee courts and the nation more generally.  It asks the Tennessee Supreme Court to remind TWRA officials that, in the Volunteer State, “No Trespassing” signs apply to the government too.  And it is part of a larger campaign by the Institute for Justice to persuade courts around the nation, including the U.S. Supreme Court, to repudiate the “open fields” doctrine and restore the Fourth Amendment’s broad protections for all Americans. 

But the courts aren’t the only way we can restore our constitutional rights.  Legislatures can also help rein in out-of-control officials.  That is the objective behind the Institute’s model legislation, which requires that, absent a real emergency, officials either get owners’ permission or a search warrant before searching private property.  And to give that requirement real teeth, the legislation allows owners to sue government officials for any offense or damage that results from their illegal entry. 

Of course, no single case or single bill can fix the damage caused by Hester and the open fields doctrine, which has plagued us for almost an entire century.  But the fact that a mistake is long-lived does not make that mistake right.  Whether through litigation or legislation, it is long past time to restore our right to be secure on our own land.  Finally closing the door on the open fields doctrine will give us all the freedom to once again get away from it all. 

This article originally appeared as “Open Lands: A Century-Old Doctrine and Your Property Rights” in the Winter 2021 edition of Terra Firma Magazine.

About the Author

Robert Frommer is a Senior Attorney at the Institute for Justice, a nonprofit, public-interest law firm dedicated to strengthening Americans’ right to be secure in their persons and property. Robert has a Juris Doctorate from the University of Michigan and a Master’s degree in Economics from George Mason University.

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