The Open Fields Doctrine Is Wrong

23 Pages Posted: 24 Apr 2024 Last revised: 22 May 2024

Date Written: April 23, 2024

Abstract

This year marks the centennial of the Fourth Amendment “open fields” doctrine. That doctrine holds that the vast majority of private land in the United States receives zero Fourth Amendment protection—and thus government officials can enter any land they please and conduct unfettered surveillance. The Supreme Court has given two main justifications for the doctrine: the Fourth Amendment’s text does not mention land, and nobody can reasonably expect privacy on their land. This Article will argue that neither justification holds up. Even if “open” land deserves no Fourth Amendment protection, a contextual reading of the text and a proper application of the privacy test show that “closed” land—land we use and mark as private—deserves protection from arbitrary searches. The open fields doctrine should be overruled.

Keywords: Fourth Amendment, open fields doctrine, open fields, real property, search and seizure, privacy

JEL Classification: K00

Suggested Citation

Windham, Joshua, The Open Fields Doctrine Is Wrong (April 23, 2024). George Mason Law Review, Forthcoming, Available at SSRN: https://ssrn.com/abstract=4804965 or http://dx.doi.org/10.2139/ssrn.4804965

Joshua Windham (Contact Author)

Institute for Justice ( email )

901 N. Glebe Road
Arlington, VA 22203
United States

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