"Open Fields" in Indiana: Can the Government Secretly Record Your Property?

Here in Indiana, can the government secretly record you and your family while you’re in the fields? A recent Farm Journal article on the “Open Fields” doctrine shines a light on this very practice in Tennessee.

In short, several men noticed game cameras zip-tied to trees on their private property. The property was used for farming or hunting, and was clearly marked “NO TRESPASSING.” The cameras were unmarked, but the men learned the cameras had been secretly placed there by the Tennessee Wildlife Resources Agency (the TWRA). The cameras had been recording their families and their property for months, unnoticed. When one of the men removed a camera, law enforcement officials surrounded his house, guns drawn, to get their camera back. Farm Journal’s article details the lawsuit the men filed against the TWRA (which is ongoing). The shocking story got me thinking: could this happen in Indiana?

The short answer is probably not. The long answer starts with the U.S. Constitution. The 4th Amendment protects us against unreasonable search and seizure by the government. The analysis turns on whether a person has a legitimate expectation of privacy. More particularly, the amendment protects persons, houses, papers, and effects. It does not, however, prevent all investigations conducted on private property. In a prohibition-era case, the Supreme Court of the United States ruled that the 4th Amendment did not extend to the “open fields.” Hester v. U.S. While the area immediately surrounding and associated with the home (the “curtilage,” to use Supreme Court language) is regarded as part of the home itself, this protection does not reach the fields outside the curtilage. This is the justification for the Tennessee agents—there is no 4th Amendment protection for “open fields,” and therefore the agents were justified in secretly recording activity there, even if on private property. Recent Supreme Court cases might call that conclusion into question: the Court has ruled that placing an electronic tracking device on a car constitutes a “search,” as does using a drug-sniffing dog on a person’s porch, as does forcing a person to wear an electronic tracking device for the rest of their life. US v. Jones, Florida v. Jardines, and Grady v. North Carolina. The 4th Amendment simply is not black and white.

Open field? Or protected private property?

But state law plays a part here too. Article 1, Section 11 of the Indiana Constitution—like the federal 4th Amendment—protects us against unreasonable search and seizure without a warrant. Despite this similarly, interpretation of Section 11 differs from the 4th Amendment. When a court looks at Section 11, it considers: (1) the degree of concern, suspicion, or knowledge that a violation has occurred; (2) the degree of intrusion the method of the search or seizure imposes on the citizen's ordinary activities; and (3) the extent of law enforcement needs. Holder v. State. These factors can lead to a similar or different outcome than the 4th Amendment analysis. The burden is on the state to show its intrusion was reasonable. Unlike the 4th Amendment analysis, consideration of searches under the Indiana Constitution does not focus on reasonable expectations of privacy. The concept of “open fields” is still a consideration for Indiana courts in assessing the degree of intrusion a search makes on a citizen. Baxter v. State. Using that analysis, I would argue the hidden cameras were a significant intrusion on the Tennessee men, without any real law enforcement needs, and such behavior would likely violate the Indiana Constitution. (Our courts haven’t said as much, but this is my own prediction.)

We have another layer of protection in Indiana. Here, a statute prohibits a person from placing any electronic surveillance equipment on the private property of another person without the consent of the owner or tenant of the private property. I.C. 35-46-8.5-1(b). The statute was just added in 2014 and amended in 2016—there is no case law yet that interprets the statute.

The way I read the law, while the federal Fourth Amendment may or may not protect Indiana farmers and landowners from secret surveillance in their “open fields,” the Indiana Constitution gives us a higher level of protection. The Indiana electronic surveillance statute is icing on the cake—I don’t think what has happened in Tennessee could happen here in Indiana. Or at least it shouldn’t.