Nelson A. Pryor: Guest Columnist
A hunter fights the right of wildlife agents to freely roam over his clearly designated and marked “private land, do not enter.” Tom Manuel, owner of a 243 acre farm in Covington, La., for now 21 years, ran into a problem. Returning to his homestead, after hunting on his own property, a warden jumped out from the brush and asked him for his gun.
After answering the warden’s questions and proving he hadn’t violated any game laws, Manuel asked the officer what probable cause he had to enter clearly posted private property.
Open Fields Doctrine
Manuel was thus introduced to the doctrine called the “open fields doctrine,” also known as the “Curtilage” doctrine. This allows a warden, or other government official, the right to enter a person’s property, regardless of how it is used. Under the doctrine, private property owners lose their Fourth Amendment rights once they are outside the “curtilage” of any structure on their property.
According to legal experts, curtilage is a vaguely-defined area adjacent to houses, barns and other buildings on private property.
Curtilage
The open fields doctrine, which covers about 1.2 billion acres, or about 96 percents of the nation’s land mass, has no Bill of Rights, Fourth Amendment protection.
Charlie Hester
On Feb. 2, 1919, 17-year-old Charlie Hester, of Traveler’s Rest, S.C., kicked over a hornet’s nest. He had sold a quart of untaxed whiskey, known as “moonshine,” to a neighbor. Unbeknownst to Charlie, two federal internal revenue agents had jumped a fence, crossed a pasture and observed the transaction from the woods near the house Hester shared with his father.
The resulting raid included a foot chase, a gunshot, searches of the house, a vehicle and up to 10 individuals. In the end, Hester was convicted of selling the whiskey.
Momentous Subject
The design of the Constitution, and the Bill of Rights, was to protect the people, the source of power, against the government. In the appeal to the U.S. Supreme Court, law officials wanted to stretch their power. Setting aside Constitutional obligations, on May 5, 1924, Justice Oliver Wendell Holmes wrote: “The protection accorded to the Fourth Amendment to the people in their persons, houses, papers and effects is not extended to the open fields.”
Louisiana law
Manuel met with the Institute of Justice over a Louisiana State Supreme Court decision. On May 22, 1978, in the case of State vs. Byers, the Louisiana court ruled that the State Constitution requires law enforcement to have a warrant to enter private property. With the aid of the Institute, a public interest law firm, focused on reigning government power in and securing individuals’ Constitutional rights, Manuel sought to prove that wildlife officers were still being taught to trespass, which violates the State Constitution. They just needed to obtain a warrant based on probable cause.
Louisiana not alone
Seven states: Mississippi, Montana, New York, Oregon, Vermont, Tennessee and South Dakota, are now on board in the movement to restore the Bill of Rights.