Americans who believe the Fourth Amendment protects them from warrantless government searches may be surprised to learn that this protection only applies to about 4% of privately owned land in the United States.
A 1924 ruling by the Supreme Court in Hester v. United States established what is known as the “Open Fields Doctrine,” which states that Constitutional protections regarding real estate only apply to a person’s home and “curtilage” (meaning a yard or garden), but did not apply to “open fields” (meaning any other property a person owns). In 2024, the nonprofit Institute for Justice conducted a study to determine how much of Americans’ private land fell into the “open fields” category that government could search without a warrant.
The answer, it found, was 96%.
“The ‘Open Fields Doctrine’ blows a massive hole in Fourth Amendment protections for Americans,” Joshua Windham, an Institute for Justice senior attorney, told The Daily Signal. “What that means is that the government can enter and roam around and surveil all of the property entirely without Constitutional limits, and that presents a grave threat to our most basic Fourth Amendment rights–our right to be secure in our property, our right to privacy from unreasonable government intrusion.”
This is not simply a question of legal theory, he said, it affects “everyday Americans who are going about their lives, running farms, walking nature trails on their properties, camping on their properties, doing all sorts of things that Americans across the country do every day on their private land, and all of that is subject, not just to government intrusion, but unlimited government intrusion.”
One case involves Tom Manuel, who owns timberland in East Feliciana Parish, Louisiana, and says he was hunting on his property in 2023 when a game warden approached him, looking for violations.
“I asked him if he’d wait for me at the [roadside] gate, and he didn’t want to do that,” Manuel said. “He said that would make their job harder and they’d never catch anybody.”
The official asked Manuel to hand over his rifle, which he refused. He was questioned but no charges were filed and no citation was issued. Weeks later two state game wardens entered and searched his property again.
“I told them a good bit about private lands, about getting warrants, but that kind of fell on deaf ears,” Manuel said. “None of them particularly liked having their authority questioned.”
Represented by Institute for Justice attorneys, Manuel brought suit in Louisiana courts, where state law offers more protection for private land than federal law–at least regarding what state officials can do without a warrant.
In addition, the Institute for Justice currently has cases moving through the courts in Pennsylvania, Louisiana, and Virginia, but these cases also only apply to state agencies. Federal agents continue to have free rein on private lands due to the ruling in Hester and subsequent Supreme Court decisions that reaffirmed it.
The Supreme Court decisions focus on the specific items listed as protected under the Fourth Amendment. These include “persons, houses, papers, and effects,” for which court warrants and probable cause of a crime are required for government searches to occur.
“The Supreme Court has always looked at that phrasing and said, ‘Well, land is not a person; land is not a house; land is not a paper; land is not an effect,’” Windham said.
For this reason, many states, like Tennessee, have replaced the word “effects” with “possessions” in their state constitutions, to also protect land from warrantless searches. The Institute for Justice won a case in Tennessee last year against state wildlife officials putting surveillance cameras on private land without probable cause.
Windham argues that America’s Founders always intended for land to be protected under the Fourth Amendment.
“When the country was founded, it was illegal for any individual to trespass on closed private land, which is private land that is marked or fenced so as to exclude intruders,” he said. “That was true of government officials as well, and the only way that government officials could indemnify themselves against trespass liability was to have a valid warrant to enter the property.”
The Institute for Justice calculated that the percentage of private land considered “open fields” and subject to warrantless searches was about 1.2 billion acres across the United States. Using sophisticated mapping software, the Institute for Justice analyzed the number of acres of land in each state that is privately owned and not in the immediate “curtilage” of a home or building.
“We made very conservative assumptions and just assumed that 100 feet in every direction from every building in that data set would be afforded protection from warrantless searches,” David Warren, who conducted the analysis for the nonprofit public interest law firm, told The Daily Signal. “That’s where we came up with the figure that just 4% of private land is afforded these protections.”
Because what the government deems curtilage might not actually extend that far from homes, he said, the amount of land protected from government surveillance is likely less than 4%.
Beyond the physical possessions that courts have decided are not protected by the Fourth Amendment, Americans’ personal data have also been ruled to be outside the scope of constitutional protection.
In addition to the “Open Fields Doctrine,” another Supreme Court decision spawned the “Third Party Doctrine,” which ruled that when Americans share information with a third party such as a bank, they surrender their Constitutional right to privacy from warrantless government searches.
Under the Third Party Doctrine, “the government has essentially unfettered access to all your financial information that is shared with your bank and your other financial services providers,” Jennifer Schulp, director of financial regulation studies at the Cato Institute, told The Daily Signal.
The 1970 Bank Secrecy Act and subsequent financial surveillance laws effectively eliminated Americans’ rights against warrantless searches of their bank accounts by requiring banks to routinely report to a Treasury Department agency called FinCEN any transactions over $10,000 or any other activity they deem “suspicious.” These laws were challenged for violating the Fourth Amendment, but the Supreme Court upheld the Bank Secrecy Act in 1976 in the case of United States v. Miller, which established the Third Party Doctrine as precedent.
Initially enacted to fight money laundering and detect particularly large money transfers, the Bank Secrecy Act now tracks fairly routine financial activity by everyday Americans.
A 2023 study by Thomson Reuters reported that banks delivered more than 3.6 million “Suspicious Activity Reports” to the government in 2022 under the Bank Secrecy Act. Americans who are among these millions would not know it, however, because federal regulations prohibit banks from informing customers that their information has been handed over to the government.
Those who advocate for allowing law enforcement to search without warrants say the cumbersome process of showing probable cause and getting court approvals impedes their ability to fight crime and makes Americans less safe. But critics of this point of view argue that the Fourth Amendment strikes a proper compromise between fighting crime and protecting citizens from “unreasonable searches and seizures.”
“Law enforcement is an important interest, but so is protection of peoples’ information from the government, and the Fourth Amendment balances that by requiring law enforcement to have a warrant in order to access that information,” Schulp said. “That’s how the framers determined we would be protected from crime.”
More recently, courts are beginning to show more support for the Fourth Amendment. In 2018, the Supreme Court ruled in Carpenter v. United States that the government should not have unfettered access to Americans’ cell phone activity.
Despite the courts’ view that handing over personal data to a third party is voluntary and therefore not entitled to Fourth Amendment protections, many legal experts are now coming around to the realization that it is virtually impossible to function in modern society without sharing personal information with a bank, a stock broker, a phone company, a credit card company, an internet service provider, or any number of apps, Schulp said.
In his opinion on the Carpenter case, Justice Neil Gorsuch wrote that “the use of technology is functionally compelled by the demands of modern life,” and “just because you haveto entrust a third party with your data doesn’t necessarily mean that you should lose all Fourth Amendment protections in it.”
This potential reevaluation of Fourth Amendment decisions comes at a time when government officials are increasingly intent on surveilling ever more aspects of peoples’ private lives.
In addition to government’s warrantless surveillance of Americans’ banking activity under the Bank Secrecy Act, the Securities and Exchange Commission in 2023 ordered stock brokerages to hand over “every order, cancellation, modification and trade execution for all exchange-listed equities and options across all U.S. markets,” allowing it to collect data on Americans’ stock investments.
In 2024, credit card companies Visa, Mastercard, and American Express jointly agreed to track firearm and ammunition purchases and report them to law enforcement, in order to comply with a newly enacted California law. Previously the card companies had announced they would do so nationwide, but paused the effort when numerous Republican-led state legislatures banned it.
In addition, federal intelligence agencies were recently found to be buying Americans’ private online data from data brokers–companies that comb the internet and assemble databases on peoples’ online activity.
“This data also finds its way into exhaustive dossiers, compiled by data brokers, that reveal the most intimate details of our lives: our movements, habits, associations, health conditions, and ideologies,” Emile Ayoub and Elizabeth Goitein, attorneys with New York University’s Brennan Center for Justice, stated in a 2024 report.
Asked why the government should be so fixated on gathering information on its citizens’ most intimate activities, Windham said, “I think it probably goes back to the old adage of knowledge is power; the more the government knows about us, the more power it has over us.”
This article was originally published at www.dailysignal.com
Author
