In 2018, Hunter Hollingsworth was startled from his breakfast when armed U.S. Fish and Wildlife agents accompanied by a bevy of Tennessee state wildlife officers surrounded his home and pounded on his front door, threatening to break it down if he didn’t open up.

Months earlier, Hunter had been out on his 91+ acre property hunting when he noticed a trail camera strapped to a tree about 10 feet off the ground. There were no identifying markings on it, and Hollingsworth had no idea how it got there. Furthermore, branches had been cut in order to give the camera an unobstructed view of the only entry/exit to his posted private property, and an antenna was actively transmitting over 1000 images of him and his family and friends somewhere into ‘the cloud’. Obviously, someone had been trespassing, so Hunter did what any property owner would do: he removed the unauthorized camera from his property.

It turns out that the camera had been placed there by the U.S. Fish and Wildlife in coordination with the Tennessee Wildlife Resource Agency, and their show of force was simply to retrieve their camera. Hunter Hollingsworth was charged with baiting dove and camera theft.

CAMERA THEFT

Removing an unmarked unauthorized camera that had been placed on his posted private property by an unknown trespasser constituted a charge of theft and an armed intrusion into his home by Federal government agents.

More and more, we are learning that as citizens of the United States of America, we are merely living under an illusion of being free. Most of us are able to do what we want when we want on a regular day-to-day basis as long as we remain within the confines of the law. And so we take our freedom for granted.

The problem is that most of us do not really know the laws or understand their ramifications. We are familiar with the statutes that affect us here and now. We are all aware that we can’t drive faster than the posted speed limit. We know we can’t perform acts of physical violence against other people. Most of us think that our right to privacy shall not be infringed upon.

But, most Americans really aren’t aware of some of the laws that are buried deep within the bowels of our justice system; laws that completely trample upon and negate many of the things we think we have “certain unalienable Rights” to.

Our Fourth Amendment Rights

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Ask any red blooded American out on the streets of their hometown what this means, and almost all of them would give you the same answer: ”The government can’t come onto my property and perform a search without a warrant.” However, almost all of those red blooded Americans would be wrong.

Granted, as far as their day-to-day experiences go, that is an adequate interpretation of their Fourth Amendment rights. The vast majority of Americans live in apartments or have houses in neighborhoods with fairly small yards. But, what about citizens who own acreage? undeveloped fields? forest land? Is their private property protected against ”unreasonable searches and seizures”?

A Closer Examination of Our Protection Against Search & Seizure

Let’s take a look at what the Fourth Amendment specifically protects. Note that the first sentence grants “The right of the people to be secure in their persons, houses, papers, and effects…”. To a layperson, that reads out as “property”. However, to a lawyer or a judge, there is room in there to wiggle; and we are learning more and more that our government will take advantage of every loophole they can find in order to seize and enact power over its citizens.

“Where is the wiggle room?”, you ask. Notice that the wording of the Fourth Amendment never specifically mentions ’property’. To many of us “common folk”, it seems asinine that anyone would read “their persons, houses, papers, and effects” and not immediately infer that to include all property. However, it seems that our government specializes in the asinine and apparently has for nearly a century.

History of The Open Fields Doctrine

Though you may not have heard of it, the open fields doctrine has been around for a long time. The idea first presented itself in a 1924 Supreme Court opinion and has been bolstered and expanded through several different rulings since then. If we take a look at some of these rulings on an individual basis, they generally make sense. However, with each court opinion comes new unforeseen consequences. It seems to me that the way the open fields doctrine is currently being utilized by our government is a gross overreach built by cherry picking which precedents can be packaged together to give them the maximum amount of authority possible. Let’s take a look at some of these cases and how they have affected the open fields doctrine.

Hester v. United States

In 1924, the case of Hester v. United States was presented to the U.S. Supreme Court. Hester, the plaintiff in the case, had been convicted of moonshining liquor in a district court case. However, he claimed that the two key witnesses against him in the case were both police officers who were trespassing on his property when they ascertained their evidence against him.

The two officers had received a tip that Hester was running an illegal still on his property. They entered Hester’s property on foot and began approaching his house. At some point, while they were still somewhere between 50 and 100 yards away, a truck pulled up close to the house. The officers concealed themselves and watched as Hester came out with a bottle and handed it to a person in the truck. After the officers alerted the men to their presence, Hester grabbed a jug from his car and fled. The officers took chase, with one even drawing and firing his gun. While running, Hester dropped his jug, which the officers investigated and found to contain moonshine whiskey. Hester was eventually arrested, charged, and convicted of making illegal alcohol.

The conviction was challenged in the U.S. Supreme Court on the grounds that the Fourth Amendment protected Hester from warrantless searches or seizures on his property. However, in a ruling passed down by Justice Oliver Wendell Holmes, the court ruled against Hester’s claim on the grounds that the incident took place on the Hesters’ land, and, “as to that, it is enough to say that, apart from the justification, 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.”

The Open Fields Doctrine was born.

Katz v. United States

On the surface, this case seems to have very little to do with the open fields doctrine. Charles Katz was a California based gambler in the 1960s. His specialty was placing bets for other people who lived outside of California and keeping a commission on their winnings. His practice was to communicate with his ’business partners ‘ via a public payphone booth located in the city. Unfortunately for Mr. Katz, interstate gambling was a federal crime. When the feds got wind of what he was doing, they wiretapped the payphone by placing a listening device on a nearby telephone pole. Of course, they picked up all the evidence they needed to convict him. But, Katz would go on to challenge the decision, asking for clarification on the following questions:

'A. Whether a public telephone booth is a constitutionally protected area so that evidence obtained by attaching an electronic listening recording device to the top of such a booth is obtained in violation of the right to privacy of the user of the booth.

'B. Whether physical penetration of a constitutionally protected area is necessary before a search and seizure can be said to be violative of the Fourth Amendment to the United States Constitution.'

In October of 1967, his case reached the highest court in the land. Things didn’t look good for Katz. Previous court precedent set in the 1920s by Olmstead v. United States held that ”the protection given thereby [by the Fourth Amendment] cannot properly be held to include a telephone conversation.” Furthermore, the government claimed that, since Katz was in a public phone booth when the surveillance occurred, he shouldn’t have had any reasonable expectation to privacy. They argued that the see-through glass walls of the phone booth made it a public space and therefore not protected by the Fourth Amendment.

Surprisingly, The Court ruled in a 7-1 decision in favor of Katz with the opinion that ”...the Fourth Amendment protects people, not places.” In other words, the purpose of the phone booth was not to protect a person from prying eyes, but rather from prying ears; so, the fact that the glass walls of the booth were see-through was inconsequential.

Not only did the ruling reverse the precedent set by Olmstead v. United States, but it also clarified and expanded what would be considered private in the eyes of the law:

For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.

...

But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.

For his part, Justice John Marshall Harlan, Jr. added further clarification by setting forth a two part test for determining whether or not a person has a ”...reasonable expectation of privacy” in a given situation:

My understanding of the rule that has emerged from prior decisions is that there is a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as 'reasonable.'

Any citizen concerned about protecting personal rights from the grasp of an overreaching government would consider this Court decision to be a huge win. But, even in this case, the Court reinforced the open fields doctrine by making a specific distinction between a place where a person could reasonably expect privacy (whether on private or public property) and an open field. In his concurrence statement, Justice Harlan Jr. stated the following:

I join the opinion of the Court, which I read to hold only (a) that an enclosed telephone booth is an area where, like a home, Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652, and unlike a field, Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898, a person has a constitutionally protected reasonable expectation of privacy;

Oliver v. United States

OIiver v. United States was another Supreme Court case that held up the already-established open fields doctrine at the federal level. Decided in 1984, the opinion that was passed down Contains some wording that we need to consider when deciding whether or not the open fields doctrine should apply to a given situation.

In this light, the rule of Hester v. United States, supra, that we reaffirm today, may be understood as providing that an individual may not legitimately demand privacy for activities conducted out of doors in fields, except in the area immediately surrounding the home. (emphasis added)

This brings up the question of what is legally considered to be an open field.

Curtilage

Curtilage is an area of land attached to a house and forming one enclosure with it. For our purposes, it the part of your private property that is not considered to be an open field.

Cornell Law School explains curtilage as follows:

Curtilage includes the area immediately surrounding a dwelling, and it counts as part of the home for many legal purposes, including searches and many self-defense laws. When considering whether something is in a dwelling's curtilage, courts consider four factors:
The proximity of the thing to the dwelling;
Whether the thing is within an enclosure surrounding the home;
What the thing is used for.
What steps, if any, the resident took to protect the thing from observation/ access by people passing by.

If the description seems a little vague, it’s because it is. When the open fields doctrine clashes with a person’s Fourth Amendment rights, the courts must make a case by case determination as to whether the search/seizure in question occurred in an open field or on curtilage. In many cases, the distinction is obvious. Plenty of lower court decisions have been reversed on the grounds that police collected evidence or made unwarranted arrests on a citizen’s curtilage. Chances are, the area immediately surrounding your home, the fenced in area around your home, and even nearby garages and sheds that can be completely closed off from the public all qualify as your private curtilage. But what about your barn out in your pasture, or the woods behind your house, or the private trail that leads into your hunting spot?

That brings us back around to Hunter Hollingsworth. Should the government have had the right to cross the boundaries onto his posted private property? Should it have been legal for them to place a camera on his property with the explicit intent to surveil him? Should any evidence gained from such actions be admissible in court? These are fights that Hollingsworth and other Tennessee landowners are taking to their state. And, while it most certainly will be an uphill fight for them, there is hope.

States Bucking The System

Although the precedent for open fields has been set and upheld on the federal level, individual states have the sovereignty to grant their citizens more liberties than those required by the federal government; just not fewer. And so, several states have interpreted their constitutions in a manner where the open fields doctrine does not apply. So far, the list consists of Montana, New York, Oregon, Vermont, and Washington State. If Hollingsworth has his way, Tennessee will soon be added to that list; and those in favor of more personal liberties with less government overreach will be rooting for him. Perhaps a win in Tennessee will motivate residents of other states to fight for their right to have truly private property..

Sources

• CaseText.com - Hollingsworth v. Tenn. Wildlife Res. Agency
• Forbes - Is Your Land Really Yours If The Government Can Watch You Whenever It Wants?
• AgWeb Farm|Journal
• Courthouse News
• Institute For Justice - Hunter Hollingsworth
• Institute For Justice - Tennessee Open Fields
• Cornell Law School - Open Field Doctrine
• Bill of Rights Institute
• Cornell Law School - Hester v. United States
• Cornell Law Schools - Katz v. United States
• Constitution Daily - Katz v. United States: The Fourth Amendment adapts to new technology
• Cornell Law School - Olmstead v. United States