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32 George Mason L. Rev. F. 1 (2024-2025)

handle is hein.journals/gemslw32 and id is 1 raw text is: GEORGE MASON LAW REVIEW FORUM VOL. 32 DECEMBER 2024 1-26 ARTICLE The Open Fields Doctrine Is Wrong Joshua Windham* Abstract. This year marks the centennial of the Fourth Amendment open fields doctrine. That doctrine holds that the vast majority of private land in the United States receives zero Fourth Amendment protection-and thus government officials can enter any land they please and conduct unfettered surveillance. The Supreme Court has given two main justifications for the doctrine: the Fourth Amendment's text does not mention land, and nobody can reasonably expect privacy on their land. This Article will argue that neither justification holds up. Even if open land deserves no protection, a contextual reading of the Fourth Amendment's text and a proper application of the privacy test show that closed land-land people use and mark as private-does deserve protection. The open fields doctrine should be overruled. * Senior Attorney, Institute for Justice. J.D. 2016, University of North Carolina School of Law. Thanks to the Institute for Justice for the opportunity, to our donors for the resources, to our clients for the inspiration, and to my colleague Robert Frommer for the brainstorming.

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