In a decision handed down at the dawn of Prohibition, the Supreme Court quietly gutted a freedom guaranteed in the Bill of Rights: protection against unwarranted searches and seizures. The 100th anniversary of this decision is the perfect time to end the open fields doctrine.

In 1919, revenue agents spotted Charlie Hester selling a quart of moonshine outside her South Carolina home. When confronted, Hester and the buyer each dropped their jugs, which shattered but retained some of their contents. This allowed officers to determine that the jugs contained illegally distilled whiskey.

Hester challenged his arrest as a violation of the Fourth Amendment: the officers had jumped a fence and crossed a pasture, without a warrant, to reach him. In 1924, the Supreme Court ruled in favor of the government. Hester v. United States. Justice Oliver Wendell Holmes wrote for the majority that “the special protection afforded by the Fourth Amendment to people in their ‘persons, houses, papers, and effects’ is not extended to open fields.” Apparently, Holmes’ open field doctrine held that a person’s home and the “curtilage”—the area immediately surrounding the home—enjoy the full protection of the Fourth Amendment, while the rest of the property does not.

Holmes’ decision is less than three pages long, but the damage it did to personal liberty and the right to be free from government intrusion was enormous.

The court affirmed Hester in the years 1984 Oliver v. United StatesJustice Lewis F. Powell Jr. writing that “in the case of open fields, the general property rights protected by the common law of trespass have little or no relevance to the applicability of the Fourth Amendment.” Powell then went even further: “It is clear,” he wrote in a footnote, “that the term ‘open fields’ can include any unoccupied or undeveloped area outside the courttiage.” field’ as these terms are used in common parlance.” Powell argues that any land that is not directly adjoining your primary residence is ripe land for government agents to enter at will.

In practice, the open field doctrine allows wildlife officers to enter private property looking for violations, and in some cases officers have even installed cameras on private land, all without a warrant. “When Service agents enter open (non-curtilage) fields, their observations are reasonable under the Fourth Amendment,” the U.S. Fish and Wildlife Service document reads. policy manual.

The measures taken to guarantee confidentiality are not enough. Powell wrote that “because fences or ‘No Trespassing’ signs do not effectively prevent the public from viewing open fields, the asserted expectation of privacy in open fields is not that which society recognizes as reasonable. In fact, research in Olive involved Kentucky State Police officers driving on private land until they reached a locked gate with a “No Trespassing” sign, then getting out and walking more than a mile on a trail until they found a marijuana field – actions the court upheld.

Fortunately, some states offer their citizens greater protections than the Fourth Amendment. In May 2024, the Western Section of the Tennessee Court of Appeals ruled against the state after wildlife officers installed cameras on private property to look for hunting violations, without a warrant. The court unanimously considered that the spying constituted “a disturbing assertion of power”. Other courts have also determined over the years that each state’s constitutions are more protective than the Fourth Amendment and have rejected certain unwarranted intrusions that the open fields doctrine might have permitted.

But this doctrine subjects all American property owners to potential intrusion unless their state provides them with greater protection – and even then, without any protection from the federal government. Absent this doctrine, the Fourth Amendment would provide a level of protection against legally unjustified searches, even on undeveloped land. Congress should abolish, or the Supreme Court should strike down, the open fields doctrine and give Americans leeway on their own properties.

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