Open Fields Doctrine

Summary

As with many Constitutional protections, the court system has created carve-outs and exceptions to the Fourth Amendment, one being the Open Fields Doctrine. This doctrine holds that the expectation of privacy provided by the Fourth Amendment does not extend to “open fields” or other wooded properties, regardless of whether a property is posted with “No Trespassing” signs. Evidence obtained by law enforcement authorities, including game wardens, through such a search is admissible even if no warrant has been issued. Some states have rejected the Open Fields Doctrine, holding that the guarantees of their respective state constitutions provide for increased protection from unreasonable searches than what is guaranteed by the Federal Constitution.

Introduction

The Open Fields Doctrine originated from the prohibition-era Supreme Court decision Hester v. United States, where the court held that “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.” More than a half a century later, in 1984, the Supreme Court re-examined the doctrine in Oliver v. United States, and held that warrantless searches conducted by officers on private property were permissible, even when the property is posted with “No Trespassing” signs. The doctrine “permits police officers to enter and search a field without any warrants.”

Issue

State wildlife management agencies grant conservation officers, often dubbed “game wardens,” the same powers as police officers and other law enforcement entities. Therefore, the same Fourth Amendment protections that apply to searches conducted by police officers also apply to searches conducted by game wardens. Given the 4^th Amendment exception of the Open Fields Doctrine, the ability to conduct warrantless searches of privately owned property is concerning to some hunters and anglers. Nevertheless, because fish and wildlife are public trust resources, the Open Fields Doctrine is a balance between private property rights and the 4^th Amendment and the public trust responsibilities that state and federal fish and wildlife management agencies have to conserve the resources and enforce fish and game laws.

While state law may grant game wardens the same powers as state peace officers, including the power to search upon reasonable suspicion and probable cause, some sportsmen find that the Open Fields Doctrine normalizes trespassing by government officials. While some hunters feel that their homes extend beyond the four walls of their houses to the land on which they harvest their food and find their solace, others understand the importance of the Open Field Doctrine for enforcing fish and game laws. Fish and wildlife do not recognize property lines, and game wardens also often need to act quickly to catch lawbreakers.

While the Fourth Amendment provides citizens a baseline level of protection against warrantless searches, individual states may interpret their own state constitutions or implement statutes to provide for heightened protections. This means that the supreme court in a particular state may reject the Open Fields Doctrine on the grounds that its state constitution offers its citizens more protections than the U.S. Constitution does, which was the case in Mississippi, Montana, New York, Oregon, Vermont, Tennessee and Washington.¹⁵ Similarly, a state legislature could pass a law that restricts game wardens’ ability to enter private lands, as South Dakota did in 2021.

The Supreme Court’s initial 1924 adoption of the Open Fields Doctrine came amidst rampant prohibition-era prosecution for concealing spirits, and in succeeding case law, the doctrine was used to convict marijuana growers as part of the War on Drugs.² Further, modern technologies such as trail cameras and unmanned drones have raised questions regarding whether the Open Fields Doctrine reflects modern privacy concerns.

Advocates of the doctrine view it as a means to enforce fish and wildlife laws. Other advocates that support the doctrine contend that there is difference between a person’s house and a person’s visible open space outside of that house. Although a few states have rejected the Open Fields Doctrine, most states have accepted the Supreme Court’s 1924 decision.

Points of Interest

• Kentucky has adopted the Open Fields Doctrine, and codified wide-ranging powers for conservation officers. KY Rev Stat § 150.090 grants state conservation officers full rights as ordinary peace officers, including the right to, “go upon the land of any person or persons whether private or public for the purpose of the enforcement of laws or orders of the department relating to game or fish.” They may arrest on sight and without warrant any person detected by them in the act of violating any of the provisions of the state code pertaining to wildlife offenses, on any lands.
• In Florida, state code Stat. § 379.3311 allows all Fish and Wildlife Conservation officers full police powers and statewide jurisdiction. They have the right to go on any and all property, “posted or otherwise”, according to state code.
• Minnesota allows conversation officers to conduct warrantless entrance and searches on “any land” under Stat. § 97A.205(2), and New Hampshire statute N.H. Rev. Stat. § 206:26 VII allows conservation officers, with reasonable suspicion, to enter “any lands” to conduct warrantless searches.
• The states of Montana, New York, Oregon, Vermont, and Washington have rejected the decision of the Supreme Court and add protection from warrantless searches on private posted land. Each of these states has their own state supreme court decision overruling the Open Field Doctrine. (See State v. Bullock, State v. Dixson, State v. Kirchoff, People v. Scott, State v. Johnson.
• In 2021, South Dakota passed HB 1140, which restricts conservation officers’ ability to enter private lands in the performance of their duties without a warrant. Under the law, officers may still enter private lands, even without a warrant, with reasonable suspicion or probable cause of a crime, if the officer observes crippled or distressed wildlife on the land, or to respond to emergency situations.
• In 2022, a Tennessee Circuit Court held a warrantless search conducted by the Tennessee Wildlife Resources Agency to be unconstitutional under the Tennessee Constitution.

Moving Forward

Policymakers are encouraged to work with their sporting community and respective state fish and wildlife agency to better understand the state-specific concerns and nuances of the Open Fields Doctrine. Should changes in statute be pursued, legislators are encouraged to strike a balance between the privacy interests of the state’s sportsmen and women and the ability of that state’s law enforcement to enforce fish and game laws within the confines of the 4^th Amendment and the state constitution.