No Trespassing:  How State Constitutions Can Prevent Warrantless Searches of Private Property

Abstract

Most Americans are unaware that police generally do not need a warrant – or any reason at all – to search private property outside their home.  In fact, police may climb fences and ignore "No Trespassing" signs to enter and investigate backyards, driveways, and woods.  Under the deceptively named "Open Fields Doctrine," the United States Supreme Court has held that the Fourth Amendment prohibition on unreasonable searches simply does not apply to the vast majority of private property in the United States.
This paper provides a roadmap for state supreme courts to reject the Open Fields Doctrine under the authority of state constitutions, and to establish a commonsense rule:  Police must obey the same trespassing laws that they enforce against the public.  Using the Massachusetts Declaration of Rights as a model, the paper analyzes centuries of jurisprudence to establish that a simple "No Trespassing" rule is consistent with the text of state constitutions; respects the history and tradition of citizens' privacy exceptions; has been successfully implemented in several states (including New York and Vermont); and, perhaps most important, provides clear, workable guidelines for police and citizens.