Prohibition came and went. The nationwide ban on alcohol manufacturing, storage and consumption was a failed experiment. But timberland owner Tom Manuel feels the aftereffects 100 years later.
He came face-to-face with the problem on Dec. 6, 2023. While lawfully hunting on his 240-acre property in East Feliciana Parish, Louisiana, he found an uninvited guest. A Louisiana Department of Wildlife and Fisheries agent had ignored the “no trespassing” signs and driven his vehicle past a gated entrance onto Manuel’s land to conduct warrantless surveillance.
The agent found nothing. Manuel, a forester and wildlife biologist, has never received any type of citation on his property. Neither has anyone else since he bought the land in 2003. Yet the surveillance continues. Two agents came on Dec. 30, 2023, entering again without a warrant.
Similar intrusions are routine nationwide. The practice started during Prohibition when law enforcement agents roamed private property looking for moonshiners.
Hester v. United States challenged these property rights violations. But instead of upholding the Fourth Amendment, which governs search and seizure, the Supreme Court carved out an exception. As long as agents stay out of private buildings and the “curtilage,” the space immediately surrounding a structure, they can go anywhere without a warrant and stay as long as they want — even if it means crawling through fences and hiding in bushes.
This is the “Open Fields Doctrine,” which turned 100 on May 5, 2024.
To mark the anniversary, the Institute for Justice crunched the numbers and found a startling statistic: Nearly 96 percent of all private property in the United States is open to warrantless searches. The results can be creepy.
Josh Highlander’s 6-year-old son was playing in the yard with his mother in 2023 in Virginia. When their basketball rolled toward the trees on their land, the boy’s mother went to retrieve it and found a stranger standing in the woods, wearing a camouflage jacket. The stranger did not identify himself, but the family later learned he was a game warden.
Frank Stockdale had a similar encounter on Dec. 2, 2019, at a Pennsylvania hunting club. He was driving on a private trail within the club’s boundaries when a game warden stepped into the path and signaled for him to stop. Stockdale was not hunting at the time and was not carrying a gun, but the warden demanded to see his ID and hunting license anyway.
Law enforcement agents used similar tactics during Prohibition. But new surveillance technology creates additional opportunities to snoop — transforming the Open Fields Doctrine into a powerful surveillance tool the Supreme Court could not have imagined in 1924.
Tennessee resident Terry Rainwaters found a wildlife officer roaming his property without permission several times in 2017. But the real shock came when Rainwaters’ adult son discovered two government spy cameras mounted on trees on their land, tracking the family’s movements 24/7.
Agents also placed hidden cameras at Stockdale’s hunting club. Something different happened to Highlander. Agents came onto his land without a warrant and seized his personal cameras, which he had set up to monitor wildlife.
The Pennsylvania hunting club and the landowners in Louisiana, Virginia and Tennessee all fought back with lawsuits. The Institute for Justice represents them.
Rather than directly challenging the Open Fields Doctrine, all four cases make claims under the authority of the various state constitutions, which include provisions that mirror the Fourth Amendment but go further — closing the 1924 loophole.
The state-by-state approach is sometimes the only way to correct injustice. State lawmakers and state courts can step up when their federal counterparts refuse to do the right thing. Mississippi, Montana, New York, Oregon, Vermont and Washington rejected the Open Fields Doctrine years ago, and Tennessee joined the list in 2022, following a state circuit court decision in Rainwaters’ case.
More states should follow. This would be the best way to celebrate the 100th anniversary of a Supreme Court mistake. If government agents want to invade your land, they should have to do what they do in every other context: Get a warrant.
