Ashanti Jones '26
Features Editor
“When it comes to private trespassers, the law is pretty straightforward,” Robert Frommer said. “Somebody trespasses you can call the police and say ‘Hey, I’m having a problem here,’ and they’ll come. But what about when it’s not a private person that wants to trespass on your land, but a government official themselves? That’s a completely different story.”
On Thursday, September 12, the Federalist Society at the University of Virginia School of Law hosted UVA Law’s own Professor Barbara Armacost ’76, J.D. ’89 and senior attorney for the Institute of Justice, Robert Frommer for their event titled “Reforming the Fourth Amendment.” The event focused on the Fourth Amendment open fields doctrine—a doctrine that allows law enforcement officials to search and seize on open land, including public and private property, without a warrant.
The Federalist Society’s Vice President for Speakers, Andrew Odell ’26, opened the discussion by welcoming attendees and introducing the day’s speakers. Professor Armacost specializes in criminal procedure and policing and the law. She has written several articles on both topics. Frommer serves as the Director for the Institute of Justice’s Fourth Amendment Project and has litigated several search and seizure cases, including the ongoing 9th Circuit case Snitko v. FBI.
Frommer began by describing the open fields doctrine and framing its effect on American society. Despite its name, the open fields doctrine does not just apply to what the average person would consider an open field. In simple terms, the doctrine allows law enforcement officials to inspect, search, and seize without a warrant any outside area except curtilage, or the area “immediately surrounding the home,” reasoning there is no expectation of privacy in these areas.[1]
Historically, courts have interpreted curtilage very narrowly with fenced-in areas and areas marked with “no trespass” signs considered open fields, which Frommer found particularly troubling. Frommer shared with the audience, that according to a study conducted by the Institute for Justice, an estimated 96 percent of private property in the United States would be considered open fields under the existing doctrine.[2]
“In many places, officers can enter private property without it even being considered a search,” Frommer said. “[With open field searches,] you’re not in the Fourth Amendment bucket at all, it is completely unregulated. The open fields doctrine . . . privileges officials over private citizens . . . and the property owner themselves.”
Frommer believes the open fields doctrine is directly opposed to the origins of the Fourth Amendment and the Framers’ intentions for the scope of its protection. He described the Fourth Amendment as a continuation of the British common law ideal of “a man’s home is his castle” in the colonies, and a rejection of the use of British general warrant searches leading up to the American Revolutionary War.
“[General warrant searches were] a blank check given to these officials to allow them to go where they want, to search, and to root through things without judicial authorization and without any evidence of a crime being committed,” Frommer said.
Frommer argued that the Fourth Amendment was created to combat these types of searches and should be construed more broadly to respect the Framers’ intent. Frommer stated judicial constitutional interpretation should not boil down to a game of semantics but should consider the text in light of traditional American values.
“We’re supposed to put in our general principles and values, and then work out the details through legislation,” Frommer said.
Frommer shared some previous and current litigation the Institute of Justice’s Fourth Amendment Project has taken on regarding the open field doctrine. Frommer emphasized that these cases rest on individual state constitutions instead of the federal Constitution, which he credits as the source of their success in a recent Tennessee case, Rainwaters, et al. v. TN Wildlife Resources Agency.
In Rainwaters, game wardens from the Tennessee Wildlife Resources Agency would regularly enter the plaintiff’s private land to search for possible hunting violations and also installed cameras for twenty-four-hour surveillance. Frommer and his team argued since the Tennessee Constitution gives citizens the right to be secure in “possessions,” the Tennessee Constitution covers beyond just the curtilage. The Tennessee Court of Appeals agreed that “possessions should be interpreted as covering real and personal property and confined the authority of the Tennessee Wildlife Resources Agency to search without a warrant to ‘wilds and wastelands,’” i.e. unowned or unkept/unenclosed land.
Following Frommer’s presentation, Professor Armacost asked Frommer follow-up questions about his opinions on public policy surrounding the Fourth Amendment and possible movement of the open field doctrine at the federal level.
Professor Armacost opened her questioning by remarking on the delicate balance with Fourth Amendment jurisprudence between giving law enforcement officials the ability to do their job and protecting citizen’s right to privacy.
“We’re all on both sides of any debate on the reach of the Fourth Amendment,” Armacost said. “On the one hand, we want the level of protection from surveillance by law enforcement that guarantees a robust level of privacy for the activities we want to do in private. On the other hand, we want law enforcement to secure some level of safety so we can live without high risk of crime that would make our lives less secure.”
Professor Armacost asked Frommer if he has any suggestions on balancing both of these needs, especially in the context of investigating hunting violations since a majority of land used for hunting is private land and it is substantially harder to obtain evidence to create probable cause for a warrant for hunting violations due to the nature of the crime.
Frommer responded that he believes the need to balance is a false dichotomy—several states with big hunting populations such as Montana, Washington, New York, Vermont, and Mississippi, have rejected the open-field doctrine. Frommer also feels like the balance is already instilled into the Fourth Amendment.
“The Framers when they created the Fourth Amendment, they already struck that balance,” Frommer said. “When they said that searches and seizures can’t be unreasonable as violating the spirit of the common law. You can use your powers under the common law to investigate . . . regular police work, you can talk to people, you can drive down the street.”
Next, Professor Armacost asked Frommer his level of optimism on changes to the federal open field doctrine under Jones and Carpenter in light of law enforcement using twenty-four-hour video surveillance without obtaining warrants. Frommer shared he was not that optimistic.
“Possibly, but unlikely,” Frommer said. “[The] key thing for Carpenter and the Fourth Circuit . . . was able to create a comprehensive picture of your movements—follow you from one place to another—but a static camera here would [only] catch you when you were going by. Maybe if [the static camera] was at an entryway where it captures every time you come or leave.”
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alj3emz@virginia.edu
[1] “Amdt 4.3.5 Open Fields Doctrine” Legal Information Institute, Cornell Law School. <https://www.law.cornell.edu/constitution-conan/amendment-4/open-fields-doctrine>
[2] “Good Fences? Good Luck” Windham, Joshua and David Warren, Ph.D. Institute for Justice, March 13, 2024. <https://ij.org/report/good-fences-good-luck/>