In 1984, at the height of the Reagan-era war on drugs, the Supreme Court created a bright-line exception to Fourth Amendment protection by declaring that no person had a reasonable expectation of privacy in an area defined as an open field. When it created the exception, the Court ignored positive law and its own jurisprudence that the Fourth Amendment protects people, not places. The open fields doctrine allows law enforcement officers to enter posted, private areas that are not part of a house or its curtilage for brief surveillance. The Supreme Court has never “extended the open fields doctrine to anything beyond observation searches,” nor has the Court ever authorized hidden video surveillance on private property without prior authorization by warrant or consent. The Fourth Circuit, however, recently extended the open fields doctrine to authorize sustained video surveillance. This new extension of a constitutionally authorized intrusion has resulted in a significant diminution in the rights of property owners to exclude government agents from their property and to be free from the probing eye and constant videotaping of the government on private property.
Big Brother IS Watching: The Reality Show You Didn't Audition For, 63 Okla. L. Rev. 461 (2011)