If you are a landowner and are not familiar with the open fields doctrine, you should be. Open fields is the doctrine that allows the government to enter and search the vast majority of private lands for any reason and whenever they wish in many states. Those that think this cannot happen today in the United States need to read further. This concern grows as it now includes digital surveillance too.
The Fourth Amendment to the U.S. Constitution protects us against unreasonable “searches and seizures”. However, Robert Frommer, Senior Attorney for the Institute for Justice shared at the National Land Conference 2021 that Prohibition in 1920 modified the Fourth Amendment interpretation. Government agencies were allowed to enter onto people’s private land in search of alcohol, stills, etc. The U.S. Supreme Court ruled pertaining to the Fourth Amendment 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.” The war on drugs that our nation has been battling the past few decades allowed this interpretation to remain on the national level.
Today, government agencies in the U.S. can and do utilize this doctrine to monitor properties in some states for various reasons. Rather than people personally searching or staking out a property, government agencies use and install digital technology to monitor a property. This allows them to watch you and your property from another location. To summarize one such incident, a family in December 2017 in Tennessee found a couple of cameras monitoring their farm property that they used for farming and hunting. The family learned that the cameras had been placed on their property by the
Tennessee Wildlife Resources Agency. When the family began removing the cameras, law enforcement officials surrounded their house with guns drawn. They learned that other families encountered similar events. Two of these families proceeded with a suit challenging the open fields doctrine in Tennessee. This case remains open today.
Some states made more progress on the open fields doctrine than others. Mr. Frommer indicates that litigation is an excellent way to determine each state’s stance on this issue. States where litigation indicates open fields are not protected by the Fourth Amendment include Montana, New York, Oregon, Vermont, and Washington. Brianna J. Schroeder indicates in her blog dated August 11, 2020 that Indiana is a state that passed legislation providing some protections for Indiana landowners, but this has yet to be challenged in a court of law. Mr. Frommer indicated that we can anticipate a court challenge to Ohio’s open fields doctrine soon to clarify that state’s stance.
Initially, you may feel that the open fields doctrine is not much of a concern to you. I had felt that way until recently when I found a trail camera monitoring a pathway on an individually owned property. No adjoining landowners claimed the camera as theirs, nor did the conservation officer that hunts adjoining land. I am aware of other landowners that have had similar challenges. With that in mind, this doctrine could suddenly become remarkably interesting to you.
With each state approaching this doctrine in different degrees and approaches. You should check on the open fields status in your state(s). Following are links for additional information.
Brianna J. Schroeder Open Fields Blog: "Open Fields" in Indiana: Can the Government Secretly Record Your Property? — Janzen Ag Law
Robert Frommer, Tennessee Open Fields Case: Tennessee Open Fields - Institute for Justice (ij.org)
Halderman Area Representative
