As the cool air permeates the morning hours of late summer, I begin to mentally make preparations to head into the wilderness for another year of hunting adventures. As most of my readers know, I own some property in Meriwether County. This is where we primarily hunt for deer in the fall and turkeys in the spring. It is a place of peace and serenity. At the hunting camp, I feel as protected as I do in my own home.
However, I should not fell quite as protected upon intrusion by trespassers as I have in the past. This is because when analyzing human intrusion upon your lands, you are not as protected as you might think.
Obviously, non-law enforcement trespassers are subject to civil and criminal penalties. But, what about agents of the State?
I would suppose that most people think that in order for a law enforcement officer to enter upon your land, he or she must have a warrant. This is not true in all cases. This is particularly not true when your land consists of open fields, woods, or undeveloped countryside. Surprisingly, a law enforcement officer can walk right onto your property and search for anything that is located on your land. No warrant needed. This is because the United States Supreme Court has held that the 4th Amendment’s prohibition against unreasonable searches protects people, not places.
This issue of open fields goes all the way back to English common law. However, open fields came into the forefront of American jurisprudence during the moonshining days. The ole moonshiner would have to hide his still in a pretty secluded spot on his land in order to protect his investment from prying eyes.
Many a man was arrested in those days by an officer on his own land without a warrant. The officer would simply enter upon the lands of private property owners, follow the trail to the still, and wait for the man with the untaxed whiskey.
Law enforcement officers still enter upon private lands today. However, this “open fields doctrine” is not without exceptions. If a landowner has his home on a piece of property, the home and the immediate area around the home (the curtilage) is protected from warrantless searches by law enforcement officers.
Additionally, structures such as barns, outbuildings, and commercial buildings are protected under the 4th Amendment if the structures are currently being used for business purposes (such as farming or industrial purposes). However, based on years of federal and state case law, the courts have held that commercial type structures enjoy a different and somewhat less than, a similar expectation of privacy than an individual’s home.
But, the Constitutional protections are clearly established for commercial structures. Additionally, an abandoned piece of property would probably not receive any protections afforded by the 4th Amendment.
As a landowner, I disagree with the “open fields doctrine.” Even though federal courts have held that the 4th Amendment only protects people as opposed to places, the history of our country seems to be at odds with allowing agents from the government to have unfettered access to private property under some circumstances.
I hope that the United States Supreme Court will take the time to re-analyze this important issue for private property owners.