At Volokh Conspiracy, Orin Kerr: The Open Fields Doctrine and the Text of the Fourth Amendment. From the introduction:
This essay in the print edition of Reason argues that courts should overturn the "open fields" doctrine of the Fourth Amendment:
In a decision issued at the dawn of Prohibition, the Supreme Court quietly gutted a freedom guaranteed in the Bill of Rights: the protection against unwarranted search and seizure. The 100th anniversary of that decision is a perfect time to kill the open fields doctrine.
In 1919, revenue agents spotted Charlie Hester selling a quart of moonshine outside his South Carolina home. When confronted, Hester and the buyer each dropped their jugs, which shattered but retained a portion of their contents. That allowed the agents to determine the jugs contained illegally distilled whiskey.
Hester challenged his arrest as a violation of the Fourth Amendment: The agents had hopped a fence and traipsed across a pasture, without a warrant, to get to him. In 1924, the Supreme Court sided with the government in Hester v. United States. Justice Oliver Wendell Holmes wrote for the majority 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." Ostensibly, Holmes' open fields doctrine held that a person's home and the "curtilage"—the area immediately surrounding the home—receive full Fourth Amendment protection, while the rest of one's property does not.
Holmes' decision is less than three pages long, but the damage it's caused to personal liberty and the right to be free from government intrusion has been huge.
The proposal, as I understand it, would be to extend the curtilage protection to all land. Any entry onto a person's land would require a warrant under the Fourth Amendment. The essay also argues that there should be state constitutional protections or statutory protections to have the same effect.
I want to focus on the Fourth Amendment part of the argument. There seems to me a problem with eliminating the open fields doctrine: How do you square that with the Fourth Amendment's text? …
This seems right to me. Here's the text of the Amendment:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
A field is not a person, house, paper, or effect. So it's not protected. From an originalist perspective, you would need very powerful founding era evidence of a contrary understanding to reach a different conclusion. True, as the quoted article says, this limits the scope of protection in a way that might seem unwise as a policy matter. But the text is the text.
Professor Kerr also take up the issue of the "curtilege," which also seems not to be a "person, house, paper, or effect":
What about the "curtilage"? The idea of curtilage is that there are some spaces so close to the house that they are functionally part of it, even if technically outside the house. You need to protect those spaces as a sort of penumbra around the house to fully protect the house. That prevents an officer from hanging out on your front porch all day, or walking right right up to your kitchen window and just staying there watching you inside. To protect the home, the law treats the area right around the home as the home. It gets called the "curtilage," a common law concept for the area right around the home that (in the old days) was treated as the home for some purposes. See Jacob Giles, A New Law Dictionary (1732) (defining "curtilage" as a "Court, Yard, Backside, or Piece of Ground lying near and belonging to a Dwelling-house").
This suggests an originalist foundation for the curtilage rule, if it's the case that the curtilege was understood in the founding era as part of the "house" for legal purposes.
On this analysis the "open fields doctrine" is a bit of a misnomer, because it sounds like something the court made up rather than a straightforward reading of the text, and also because both "openness" and "fields" are entirely irrelevant to the outcome. The rule is that real property that isn't a house isn't protected. It should be the "not-a-house" rule.
Posted at 6:05 AM