The Open Fields Doctrine and the Text of the Fourth Amendment
This essay in the print edition of Reason argues that courts should overturn the “open fields” doctrine of the Fourth Amendment:
In a decision issued at the dawn of Prohibition, the Supreme Court quietly gutted a freedom guaranteed in the Bill of Rights: the protection against unwarranted search and seizure. The 100th anniversary of that decision is a perfect time to kill the open fields doctrine.
In 1919, revenue agents spotted Charlie Hester selling a quart of moonshine outside his South Carolina home. When confronted, Hester and the buyer each dropped their jugs, which shattered but retained a portion of their contents. That allowed the agents to determine the jugs contained illegally distilled whiskey.
Hester challenged his arrest as a violation of the Fourth Amendment: The agents had hopped a fence and traipsed across a pasture, without a warrant, to get to him. In 1924, the Supreme Court sided with the government in Hester v. United States. Justice Oliver Wendell Holmes wrote for the majority 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.” Ostensibly, Holmes’ open fields doctrine held that a per
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