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The open fields doctrine is an exceptionally troubling aspect of our Fourth Amendment case law. Basically, any land or part of real estate outside of your home or the “curtilage” to your home is subject to a search without first obtaining a search warrant. Yes, under the current state of our law, law enforcement officers can trespass upon your property to perform a search and we cannot complain that a violation of the 4th Amendment occurred.

Many of our state appellate court judges has complained about the application of the open fields doctrine:

The primary genesis for Oliver lies in Hester v. United States, an extremely abbreviated decision that approved government entry onto private land by stating, without supporting analysis, 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.” The only citation for this statement is a vague reference to Blackstone. While Blackstone enjoys a hallowed position in English jurisprudence, he should not govern Fourth Amendment reasoning; our history is different.

After citing Hester’s “open fields” doctrine, the Oliver Court further expanded the concept to property on which a landowner has taken steps to ensure privacy, broadly concluding that “an individual may not legitimately demand privacy for activities conducted out of doors in fields, except in the area immediately surrounding the home.” What is the basis for Oliver’s limited view of privacy? What has deeper roots in our tradition of privacy than private ownership? Indeed, respect for private property is so ingrained in our jurisprudence that it enjoys special protections.

Morse v. State, 288 Ga. App. 725, 728, 655 S.E.2d 217, 219 (2007) (citations omitted).


Of course, as with most exceptions to the 4th amendment, once it was established as an exception, the government has inevitably sought to expand the application of the open fields doctrine. Morse v. State is one of the worst examples of this expansion. In Morse, the defendant unsuccessfully challenged a search of his unfinished home (!) based upon the open fields doctrine:

In this case, Morse took extensive steps to keep others from the property he owned. The right to own is the right to exclude.20 To *729 conclude-as we must under Oliver-that he had no reasonable “ expectation of privacy” strains credulity. Our Fourth Amendment analysis should focus on protecting against unwanted governmental intrusion. As explained by the Oliver dissenters, “[t]he Fourth Amendment, properly construed, embodies and gives effect to our collective sense **220 of the degree to which men and women, in civilized society, are entitled ‘to be let alone’ by their governments.”21

The far-reaching “open fields” doctrine threatens the integrity of the Fourth Amendment22 and turns the concept of reasonable privacy expectation on its head. Nevertheless, stare decisis compels us to apply the doctrine in this case. The record shows that the Henry County property consisted not of Morse’s dwelling, but of the area surrounding new, unfinished, and uninhabited construction. While the structure may have been on its way to becoming a constitutionally protected home, it was not a “dwelling” under the Fourth Amendment, nor did it have protected curtilage.23 And under governing case law, Morse’s efforts to maintain his privacy through fences and signs did not afford the property Fourth Amendment protection.24 Pursuant to Oliver, the property fell within the “open fields” doctrine, and the officers’ entry was authorized.25

Morse v. State, 288 Ga. App. 725, 728-29, 655 S.E.2d 217, 219-20 (2007)

If you have question about the legality of a search in a Georgia drug charge case or other criminal case, contact The Sessions Law Firm at (470) 225-7710.



About the Author

Ben Sessions, Attorney at Sessions Law Group
Ben Sessions

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