Lawsuit Challenges Open Fields Doctrine:

An interview with Institute for Justice Attorney Josh Windham

Arecent case in Tennessee has reopened a discussion on warrantless surveillance on private land. The case has prompted RLI and NAR to participate in an amicus brief on behalf of the landowners. RLI CEO, Aubrie Kobernus, interviews attorney Josh Windham to understand the issue and its impact on landowners.

What is the Open Fields Doctrine and how does it impact landowners?

Simply put, the Open Fields Doctrine says that private land gets zero protection from warrantless searches under the Fourth Amendment to the U.S. Constitution. The only exception is the tiny ring of land around your home called the “curtilage.” Other than that tiny ring—which extends only a few hundred feet out from your home at most—private land is entirely unprotected from warrantless searches.

The Open Fields Doctrine dates back to a terrible U.S. Supreme Court decision called Hester v. United States (1924). The question in Hester was whether police violated the Fourth Amendment when they entered a private farm without a warrant to see if they could catch somebody selling alcohol during Prohibition. To jog your memory, the Fourth Amendment protects “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches.” Hester held that, because private land is not specifically listed in that language, it gets no protection.

By “no protection,” I mean no protection. You could put up No Trespassing signs, locked gates, and fencing. You could cultivate your land, farming every acre or neatly landscaping it. You could use the land for private purposes, like camping with family, going on walks with your kids, or spending time alone in nature. None of these things would matter. The Open Fields Doctrine would allow government officials to enter, to wander around as they pleased, and to spy on you to see if they can catch you doing something wrong. All without your consent or a warrant.

Why is the Institute for Justice (IJ) concerned about the Open Fields Doctrine?

At its core, the Open Fields Doctrine allows government officials to treat your private land like public property. That’s outrageous.

In a case called United States v. Dunn (1987), for example, the U.S. Supreme Court held that the Fourth Amendment did not apply when police went to a private farm, jumped over a perimeter fence, walked over a half-mile into the farm, jumped over another fence, and then shined a flashlight into a barn window—three nights in a row. In a more recent case, United States v. Vankesteren (2009), the Fourth Circuit Court of Appeals held that the Fourth Amendment did not apply when officials installed a surveillance camera on a private farm, explaining that “just as one would not have a reasonable expectation of privacy in a national forest,” the farm owner had no right to expect privacy on his own land.

In a way, I think these cases speak for themselves. If government officials can trespass on your land, jump your fences and snoop around, and place surveillance cameras on your property to spy on you, what can’t they do?

Another way to think about this is that the whole point of having private property is that you get to say who enters and on what terms. It’s not open to the public—and that includes the government’s sneaking boots and prying eyes. The Open Fields Doctrine turns that idea on its head.

Some argue the Open Fields Doctrine is necessary to catch poachers and to protect wildlife. What do you think?

I think this argument conflates “necessary” with “easier.” It’s of course true that if you give the government unlimited power to invade private land, it will be easier to enforce wildlife laws (and all other laws). But the Fourth Amendment wasn’t adopted to make life easier to law enforcement officers. It was adopted to make us “secure” in our property. The Open Fields Doctrine makes that impossible.

I’ve heard some say that wildlife laws are special because people can violate them deep within private lands. I just don’t buy it. Consider: There are all sorts of laws that you can violate in the privacy of your home—making drugs, committing cybercrimes, etc. But nobody thinks police should be allowed to burst into people’s homes without a warrant just because those crimes are hard to detect. Instead, our legal system requires police to establish probable cause, get a warrant from a judge, and then enter the home through a constitutional process. It’s hard to see why we should treat private land any differently.

Moreover, as I mention below, several states have rejected the Open Fields Doctrine under their own state constitutions, and I’m not aware of any evidence that wildlife law enforcement is any less effective in these states that in the rest of the country. And that’s hardly surprising, because rejecting the Doctrine doesn’t mean officials can’t enforce wildlife laws on private land. It just means they must follow a constitutional process by either getting consent to enter or a warrant based on probable cause. That’s not too much to ask.

Since the Open Fields Doctrine is a federal rule, does it always apply at the state level?

The short answer is that federal officials only have to follow the Fourth Amendment, but state officials also have to follow their own state constitutions, which can provide more protection for private land. The following states’ supreme courts have held that their state constitutions reject the Open Fields Doctrine: Mississippi, Montana, New York, Oregon, Tennessee, Washington, and Vermont. So, officials in these states must get consent or a warrant to enter private land. But federal officials can still rely on the Open Fields Doctrine—at least until the U.S. Supreme Court overrules Hester.

IJ recently helped landowners Terry Rainwaters and Hunter Hollingsworth secure a major constitutional victory over the Open Fields Doctrine in Tennessee. Tell us about that case and about the trial court’s decision.

Right! Terry Rainwaters and Hunters Hollingsworth own farms in rural Tennessee. Their properties are posted with No Trespassing signs and have locked gates at the entrances to keep out intruders. But for years, Tennessee Wildlife Resources Agency officers have entered their properties and conducted warrantless “patrols” to search for potential hunting violations. And, in 2017, the officers even installed cameras in their trees to spy on them.

We filed a lawsuit back in 2020 asking Tennessee courts to hold that these warrantless intrusions violated Article I, Section 7 of the Tennessee Constitution. That provision, unlike the Fourth Amendment, protects “possessions” from warrantless searches. Our argument is simple: You can “possess” land by using it or taking steps to mark it as private. So, it deserves constitutional protection.

Earlier this year, a special three-judge trial court panel agreed with us. It held that warrantless “patrols” of private, posted farmland violate Article I, Section 7 of the Tennessee Constitution, and that state wildlife officers therefore need to get consent or a warrant before they can snoop around for violations.

Tennessee has filed an appeal from the trial court’s decision. The REALTORS® Land Institute and the National Association of REALTORS® are filing an amicus brief in the Tennessee Court of Appeals to defend the landowners’ victory. Can you explain the stakes of this appeal and why it was important for RLI and NAR to get involved?

The stakes of the appeal are huge. The trial court’s decision was a major victory for property rights that protects millions of Tennessee landowners from abuse. The Court of Appeals’ decision could undermine these important protections. RLI and NAR are uniquely positioned to speak to the value of private land, how people use that land for private purposes, and why it’s dangerous for the government to have unfettered power to intrude on that land. We’re delighted to have RLI’s and NAR’s support in defending the trial court’s important decision.

What’s the best possible outcome of the Tennessee case?

The best immediate outcome is that the Court of Appeals affirms the trial court’s decision and continues to recognize that the Tennessee Constitution rejects the Open Fields Doctrine. We’re confident that the trial court got it right and we’re optimistic about our chances on appeal. Should we lose, though, the next best outcome would be an appeal to the Tennessee Supreme Court and a decision from the state’s highest court rejecting the Open Fields Doctrine once and for all.

Is there anything else people should know about the issues we’ve discussed?

Just one more point. It’s easy see opponents of the Open Fields Doctrine as anti-law enforcement. But that’s not how I see it. The Constitution is the supreme law of the land. So, if you think, as I do, that the Fourth Amendment really ought to protect private land, then it’s not a “pro-law enforcement” position to say that police should be able to invade private land without following the Constitution. Put another way, opposing the Open Fields Doctrine isn’t anti-law enforcement—it’s pro-Constitution.

Josh Windham is an attorney at the Institute for Justice, a national non-profit law firm that defends property rights, including the right to be free from warrantless searches. Josh currently represents landowners Terry Rainwaters and Hunter Hollingsworth in a lawsuit challenging Tennessee game wardens’ warrantless surveillance of their land. He also represents two private hunting clubs in a similar lawsuit challenging Pennsylvania game wardens’ warrantless surveillance of their land.

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