A doctrine established by the Supreme Court of the United States in Hester v. United States
and reaffirmed in Oliver v. United States
. It (the open fields doctrine
), provides that the protection against unreasonable searches and seizures protected by the Fourth Amendment of the United States Constitution
does not extend to unoccupied lands, except immediately surrounding a home, where the right to privacy
may reasonably be expected.
"Simply put, one cannot entertain the same reasonable expectation of privacy in an open field as one does in a private dwelling. One may take steps to reduce the likelihood of trespassers by fencing and posting notices, as did the accused, but the expectation of privacy is not the reasonable expectation that one would expect in the case of a dwelling house or other similar structure.
"In practical terms, the doctrine carves out certain constitutional free zones, such as privately-owned farmlands or woodlots, within which the police are permitted to search out and gather evidence unconstrained by the probable cause and warrant requirements associated with the Fourth Amendment.
"For constitutional purposes, it matters not that entry onto the lands by the police constitutes an unlawful trespass, nor does it matter what steps lawful owners or occupants may have taken to protect their property against intrusions by the public."1
In US v Pace, Justice King of the United States Court of Appeals wrote of the open fields doctrine as:
"... a distinction for Fourth Amendment purposes between open fields and the curtilage of the home. Open fields are protected neither under the text of the Fourth Amendment nor under the conception of the Amendment ... as protecting those areas in which individuals have a reasonable expectation of privacy.
"The curtilage of the home, on the other hand, was distinguished from open fields in the common law, a distinction the Court in Oliver took to mean that only the curtilage, not the neighboring open fields, warrants the Fourth Amendment protections that attach to the home.
The extent of the curtilage to which Fourth Amendment protection attaches is not unlimited.... The inquiry is guided by factors that bear upon whether an individual reasonably may expect that the area in question should be treated as the home itself, with the central consideration the question whether the area harbors the intimate activity associated with the sanctity of a man's home and privacies of life."
A well-worn example of the open fields doctrine is US v Ishmael in which evidence obtrained as a result of a warrantless thermal scan of an outbuilding located some 200 yards from a home was upheld because the structure was in an open field.
The doctrine has attracted some judicial attention in Canada, for example, being noted in R. v Kelly and endorsed by the Nova Scotia Court of Appeal in R. v. Patriquen.
In R v Lauda, Justice Muldaver of the Ontario Court of Appeal wrote:
"The principal issue in this appeal is whether the open fields doctrine, now firmly embedded in the constitutional landscape of the United States, can be transplanted into Canadian soil without offending the provisions of s. 8 of the Charter of Rights and Freedoms. Simply stated, the doctrine holds that the protection of the Fourth Amendment of the United States Constitution against unreasonable search and seizure does not extend to unoccupied or undeveloped lands beyond those immediately surrounding the home.
"I am of the view that the doctrine cannot withstand §8 Charter scrutiny and does not form part of the law of Canada."