What 4th Amendment?
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Government Cameras Hidden on Private Property? Welcome to Open Fields
Seated at his kitchen table, finishing off the remains of a Saturday breakfast, Hunter Hollingsworth’s world was rocked by footsteps on his front porch and pounding at the door, punctuated by an aggressive order: “Open up or we’ll kick the door down.”
Surrounded on all sides of his house, and the driveway blocked, Hollingsworth was the target of approximately 10 federal and state wildlife officials packing pistols, shotguns and rifles. And what was Hollingsworth’s crime? Drugs, armed robbery, assault, money laundering? Not quite.
Months prior, in 2018, the Tennessee landowner removed a game camera secretly strapped to a tree on his private land by wildlife officials in order to monitor his activity without apparent sanction or probable cause. Repeat: Hollingsworth’s residence was searched by U.S. government and state officials, dressed to the nines in assault gear, seeking to regain possession of a trail camera—the precise camera they had surreptitiously placed on his private acreage after sneaking onto his property at night, loading the camera with active SD and SIM cards, and zip-tying the device roughly 10’ high up a tree—all without a warrant.
Can the government place cameras and monitoring equipment on a private citizen’s land at will, or conduct surveillance and stakeouts on private land, without probable cause or a search warrant? Indeed, according to the U.S. Supreme Court’s (SCOTUS) interpretation of the Fourth Amendment. Welcome to Open Fields.
The vast majority of Americans assume law enforcement needs a warrant to carry out surveillance, but for roughly a century, SCOTUS has ruled that private land—is not private. Fourth Amendment protections against “unreasonable searches and seizures” expressed in the Bill of Rights only apply to an individual’s immediate dwelling area, according to SCOTUS.
The vast majority of Americans assume law enforcement needs a warrant to carry out surveillance, but for roughly a century, the U.S. Supreme Court (SCOTUS) has ruled that private land—is not so private. Fourth Amendment protections against “unreasonable searches and seizures” expressed in the Bill of Rights only apply to an individual’s immediate dwelling and curtilage, according to SCOTUS. Curtilage is an arcane term loosely translated as the area directly around a home, or the yard.
In 1924, Hester v. United States set up the Open Fields framework and said the U.S. Constitution does not extend to most land: “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.” Significantly, Open Fields is translated beyond its literal sense, and basically is defined as general acreage: woods, fields, farmland, barren ground, and more.
Further, in 1984, SCOTUS gave additional strength to Open Fields in Oliver v. United States: “open fields do not provide the setting for those intimate activities that the Amendment is intended to shelter from government interference or surveillance. There is no societal interest in protecting the privacy of those activities, such as the cultivation of crops, that occur in open fields.”
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Cameras, telescopes, and zoom microphones are getting cheaper and better. The cost and logistical impediment to surveilling ever larger number of citizens keep getting lower. Quite simply, we have surveillance technologies that the original framers of the US Constitution did not anticipate.
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In the article;
“I’m surprised we haven’t already heard more about Open Fields,” says Stephen Mutnick, a criminal defense attorney with Winslow & McCurry, PLLC in Midlothian, Va. “For right now, landowners have to remember that Fourth Amendment protections only extend to the home, personal effects and the curtilage. If you post your property no trespassing, private citizens have to stay away, but that doesn’t apply to government officials who don’t even need probable cause .”
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Sounds like a bad law - what's the argument for keeping it?
I was only joking
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Sounds like a bad law - what's the argument for keeping it?
@Doctor-Phibes said in What 4th Amendment?:
Sounds like a bad law - what's the argument for keeping it?
The key to this is open fields vs curtilage. I’m no lawyer but I’m guessing it is akin to if it can be seen in public, there is no expectation of privacy. Like drugs in open view when the cop pulls you over.
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@Doctor-Phibes said in What 4th Amendment?:
Sounds like a bad law - what's the argument for keeping it?
The key to this is open fields vs curtilage. I’m no lawyer but I’m guessing it is akin to if it can be seen in public, there is no expectation of privacy. Like drugs in open view when the cop pulls you over.
@Loki said in What 4th Amendment?:
@Doctor-Phibes said in What 4th Amendment?:
Sounds like a bad law - what's the argument for keeping it?
The key to this is open fields vs curtilage. I’m no lawyer but I’m guessing it is akin to if it can be seen in public, there is no expectation of privacy. Like drugs in open view when the cop pulls you over.
The difference is that the Feds have to enter your property to deposit a piece of equipment. I would think that anything on your land belongs to you, not the gummint.
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He could have had fun with this, like putting up a big obstacle in front of the camera, or maybe put up a really large sign advertising something exceptionally gross, or with a yo' momma joke written on it. Or maybe deciding to do some painting in the vicinity and accidentally spraying paint over the lens.
I was only joking
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He could have had fun with this, like putting up a big obstacle in front of the camera, or maybe put up a really large sign advertising something exceptionally gross, or with a yo' momma joke written on it. Or maybe deciding to do some painting in the vicinity and accidentally spraying paint over the lens.
@Doctor-Phibes said in What 4th Amendment?:
He could have had fun with this, like putting up a big obstacle in front of the camera, or maybe put up a really large sign advertising something exceptionally gross, or with a yo' momma joke written on it. Or maybe deciding to do some painting in the vicinity and accidentally spraying paint over the lens.
That's perfect. A yuge "MAGA" sign in front of the camera, about 12 inches away, so that's all that it could see.
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He could have had fun with this, like putting up a big obstacle in front of the camera, or maybe put up a really large sign advertising something exceptionally gross, or with a yo' momma joke written on it. Or maybe deciding to do some painting in the vicinity and accidentally spraying paint over the lens.
@Doctor-Phibes said in What 4th Amendment?:
He could have had fun with this, like putting up a big obstacle in front of the camera, or maybe put up a really large sign advertising something exceptionally gross, or with a yo' momma joke written on it. Or maybe deciding to do some painting in the vicinity and accidentally spraying paint over the lens.
Yes, that would have been the fun way to handle it. I would have absolutely loved doing that if I found one on my land. Change the sign every couple days as part of a hike. Fun and exercise. Winning!
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Sounds like a bad law - what's the argument for keeping it?
@Doctor-Phibes said in What 4th Amendment?:
Sounds like a bad law - what's the argument for keeping it?
No good argument at all.
It is quite reasonable to require law enforcement to get a court warrant to install surveillance equipment on private land. It is quite reasonable to require law enforcement from one jurisdiction (e.g., the federal government) to get a court warrant to install surveillance equipment in land belonging to another jurisdiction (e.g., state land).
The legislature could have passed a law to that effect. They have not.
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@Doctor-Phibes said in What 4th Amendment?:
Sounds like a bad law - what's the argument for keeping it?
No good argument at all.
It is quite reasonable to require law enforcement to get a court warrant to install surveillance equipment on private land. It is quite reasonable to require law enforcement from one jurisdiction (e.g., the federal government) to get a court warrant to install surveillance equipment in land belonging to another jurisdiction (e.g., state land).
The legislature could have passed a law to that effect. They have not.
@Axtremus said in What 4th Amendment?:
The legislature could have passed a law to that effect. They have not.
As a point of fact, state legislatures have passed laws and constitutional amendments to prohibit it.
At the most basic, the question is simple: By what right does the gummint claim to be able to come onto private property?
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An old farmer was out in his front yard when a car pulled up and a little chubby guy wearing a suit got out and said "I'm from the federal government and we suspect that you're growing illegal substances on your property. I'm going to walk around your property and have a look."
The farmer said "sure, go ahead. But don't go in that field over there." The chubby little guy in a suit flashed a big badge at the farmer and said "listen, you hillbilly! I am with the federal government and this badge says I can go anywhere I want to! So that field is the first place I WILL go!"
The old farmer said "Okey dokey, then... go ahead." And the chubby little man in a suit climbed over the fence and went walking through the field, finally disappearing over a hill.
A bit later, here came the chubby little government man, running as fast as he could run, a huge black Angus bull gaining on him, and the bull was mad. The chubby little government man yelled to the farmer., "HELP ME!! HELP ME!!!"
The old farmer ran over to the fence and yelled... "Show him your badge!!"...
