The Curtilage? What’s That?

On Thursday, Paul Jacob discussed a Tennessee case where the prospects look good: “Unconstitutional searches of private property by a renegade Tennessee government agency may be coming to an end.” Specifically, “Tennessee Wildlife Resources Agency employees have no right to ignore No Trespassing signs on private land — not even to enter it, let alone install cameras there in search of a crime.”

Government agents had trampled on private land thinking they needed no permission at all. They thought it was somehow American and hunky dory to even sneak onto private land and set up surveillance systems, the better to catch the land owner doing something “wrong.”

But the reader may have been asking the burning question: what the heck is going on here? How could governments just blithely ignore one of the core American principles of law, the limitation on government not to spy on us and trespass on our property?

Well, something called “the Open Fields Doctrine” is at play here.

In “Good Fences? Good Luck,” Joshua Windham and David Warren (Regulation, Spring 2024) explain how a 1924 Supreme Court case upheld a warrantless search of private property on the grounds 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.”

But it gets worse, for “the term ‘open fields’ is a misnomer. The doctrine isn’t limited to fields or other open areas. Instead, it applies to all private land except for the small but ill-​​defined ring immediately surrounding the home, called the ‘curtilage.’”

Even under a generous definition of curtilage, only about 4 percent of all private land qualifies for Fourth Amendment protection under current law. In other words, nearly 96 percent of all private land in the country — about 1.2 billion acres — is exposed to warrantless searches.

The whole paper is worth reading, for it provides big clues about how government employees — including judges — concoct ways to get around our basic rights. Is there anything they won’t push to expand their power?