SCOTUS Approved Warrantless Searches: Open Fields Doctrine

SCOTUS approved warrantless searches nearly one-hundred years ago, and it’s secretly been in effect and practice ever since, with five states rejecting the Open Fields doctrine.

August 17, 2020

By: Bobby Casey, Managing Director GWP

open field SCOTUS The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

What I’m noticing, especially when it comes to privacy, is that the politicians are operating on a totally different understanding of terms than the rest of us.

I read the 4th amendment to the Constitution of the United States, and it’s pretty clear that the government needs a warrant to search you or your property; and that warrant requires probable cause.

I don’t think there’s much disagreement among people about that interpretation… except in the high courts.

We’ve seen exceptions already in the form of sobriety check points and the TSA. No probable cause, no warrant, yet here we are.

Any area within one hundred miles of a US border is considered a “Constitution Free Zone”.

All of this really hollows out an oath to uphold the Constitution, doesn’t it?

Ninety-six years ago, the Supreme Court ruled on a case Hester vs United States of America. The majority opinion stated: “the special protection accorded by the Fourth Amendment to the people in their ‘persons, houses, papers, and effects,’ is not extended to the open fields.”

What does this look like then?

One would expect federal agents roving the paths of private acreage. Nope. In the cases being litigated by Institute for Justice, Tennessee Wildlife Resources Agency (TWRA) planted a couple cameras on their land.

They drove right past the gates, the “No Trespassing” and “Private Property” signs and proceeded to tether the cameras onto their trees.

According to IJ, the TWRA:

“…routinely enter private land on a whim to search for potential hunting violations. They don’t have probable cause to believe a crime is being committed, and they don’t ask permission from either property owners or a court. Instead, they trespass, wander around as they please, and take photos and videos. They even install cameras so they can keep watching the properties 24 hours a day, seven days a week.”

All this to find hunting violations. Terry Rainwater is one of the landowners involved in the case with Institute for Justice and says:

[H]e has encountered armed TWRA agents on his private property on multiple occasions, either crossing his land or hiding in undergrowth during hunting season.

Five states do not practice this as a matter of state constitutionality: Montana, New York, Oregon, Vermont, and Washington. Every other state might practice it, but we know for a fact that Tennessee absolutely practices surveillance under this doctrine.

After the Hester case in 1924, another case followed: Oliver vs the United States. That doubled down on the interpretation of the 4th amendment:

“[O]pen fields do not provide the setting for those intimate activities that the Amendment is intended to shelter from government interference or surveillance. There is no societal interest in protecting the privacy of those activities, such as the cultivation of crops, that occur in open fields.”

In the case of Terry Rainwater, he never got a hold of the cameras. When he went back for them, they’d already been removed.

However, in the case of Hunter Hollingsworth, when he took notice of the cameras, he took them down. Several months later, his house was surrounded by federal and TWRA agents threatening to break his door down. They were armed to the teeth.

They didn’t arrest him over the cameras. They arrested him over what they saw on the cameras: hunting dove over bait. They needed a warrant to arrest him and search his home, but not a warrant for the cameras they put on his land that lead to the charges in the first place.

$5,000 in legal fees, $3,000 fine, one week of missed work, and losing his hunting license for three years was the result of that charge.

The larger issue is all the questions:

  • How often do they place surveillance tools on the land of state residents?

  • Who all is participating in this and knows about the practice?

  • Do they keep track of where the cameras have been as well as where they are?

  • Who is allowed to view the footage? Who owns the footage?

  • How long can they surveille the same place?

This has gone on for nearly one hundred years, undetected by even those directly affected. With technology heading in the direction it is, at the pace that it is, the watchful eye of the state only intensifies.

Without transparency and accountability there’s no telling the extent this goes. If there are no answers, then there’s no end.

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