The Open Fields Doctrine and the Text of the Fourth Amendment

What is a "house"?

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 person's home and the "curtilage"—the area immediately surrounding the home—receive full Fourth Amendment protection, while the rest of one's property does not.

Holmes' decision is less than three pages long, but the damage it's caused to personal liberty and the right to be free from government intrusion has been huge.

The proposal, as I understand it, would be to extend the curtilage protection to all land. Any entry onto a person's land would require a warrant under the Fourth Amendment.  The essay also argues that there should be state constitutional protections or statutory protections to have the same effect.

I want to focus on the Fourth Amendment part of the argument.  There seems to me a problem with eliminating the open fields doctrine: How do you square that with the Fourth Amendment's text?

The text of the Fourth Amendment text does not impose a ban on unreasonable searches in some general or abstract sense.  The language is more specific: the protection is against unreasonable searches and seizures of "their persons, houses, papers, and effects[.]"  To be protected by the Fourth Amendment, the thing searched has to be a person, house, paper, or effect.

The idea of the open fields doctrine is that an open field is not a person, not a house, not a paper, and not effects (which means movable personal property). Following the text, you don't get protection on the land itself—unless you have your person, house, paper, or effects there.

What about the "curtilage"?  The idea of curtilage is that there are some spaces so close to the house that they are functionally part of it, even if technically outside the house. You need to protect those spaces as a sort of penumbra around the house to fully protect the house. That prevents an officer from hanging out on your front porch all day, or walking right right up to your kitchen window and just staying there watching you inside. To protect the home, the law treats the area right around the home as the home. It gets called the "curtilage," a common law concept for the area right around the home that (in the old days) was treated as the home for some purposes.  See Jacob Giles, A New Law Dictionary (1732) (defining "curtilage" as a "Court, Yard, Backside, or Piece of Ground lying near and belonging to a Dwelling-house").

Some might object, textually, that using an emanations-and-penumbras-type argument to extend the "house" to the curtilage area technically outside the house is a bit of a stretch. Others might think it's textually fair, as "searching" a "house" shouldn't require physical entry inside it if outside space is used as an extension of it. Either way, I think it's challenging, at least if you take text seriously, to argue that any land a person owns fits within the categories of "persons, houses, papers, [or] effects" even if it's just an open field not near a house.

Of course, you can endorse or oppose the open fields doctrine as a matter of policy.  But at least for those focused on the text, it seems to me a pretty sound way to interpret the Fourth Amendment.