The Fourth Amendment protects the right of the people to be secure from government’s unchecked power to search and seize. Ordinarily, courts enforce that right by requiring a warrant before government officials enter private property.
But in 1924, the U.S. Supreme Court held the Fourth Amendment does not protect certain private land—what it called “open fields.” This doctrine was wrong then and is now. All private land must be protected from warrantless intrusions if Americans are to be secure in their persons, houses, papers, effects and property beyond the curtilage of a dwelling.
The damage was done. In the century since the Supreme Court’s decision in Hester v. United States, local, state and federal agencies have integrated the “open fields doctrine” into their procedures. And Congress has failed to remedy the problem.
What can state legislators do?
State legislators do not have to sit idly by waiting for the federal government to act. The Institute for Justice offers model legislation—The Protection of All Property From Warrantless Searches Act. It requires state officials obtain a warrant before entering or seizing any private property.
The Act protects private land the Supreme Court’s misguided “open fields doctrine” excludes. At the same time, the Act incorporates traditional—and sensible—exceptions to the warrant requirement, like consent and emergencies that pose immediate threats to life or public safety.
The bill closes the massive hole in the Fourth Amendment left by the “open fields doctrine” while allowing government officers the latitude to enforce the law and maintain public safety.