Hester's Dubious Roots and Legacy: Open Fields Doctrine Under Scrutiny

Abstract

For over a century, open fields doctrine has shaped Fourth Amendment law, denying people the right to be secure on their own property. Its application has steadily expanded, with the result that by some estimates, the Government can now engage in warrantless surveillance of some ninety-six percent of private land and buildings regardless of fences, postings, the distance from public roads or byways, or the use to which the property is put. An originalist approach throws the doctrine into disarray: at the time of the Founding, common law protected the curtilage, which extended to the fields, barns, storehouses, and other buildings surrounding the home. Yet Justice Holmes’s ipse dixit in Hester v. United States and Chief Justice Taft’s apparent incorporation of curtilage as a substitute for the “home” in Olmstead v. United States planted a doctrine that took root with such ferocity that even the Court’s ostensible shift in Katz v. United States to protecting “people, not places” could not displace it. Despite the ancient doctrine of ad coelum, naked eye and not-so-naked eye doctrine took root. In an age where pole cameras, drones, aircraft, and satellite technologies make persistent monitoring of private property possible, an originalist understanding proves imperative to reclaiming protections against government overreach.