Fourth Amendment a hot topic in open lands, Corporate Transparency Act discussed at 11th Mid-South Conference
At issue is the open fields doctrine, which saw its genesis during Prohibition as authorities sought to purge illegal alcohol production and distribution. The doctrine gives federal and state authorities the ability to search lands without the owner’s permission or warrant.
By Mary Hightower
U of A System Division of Agriculture
June 21, 2024
Fast facts:
- Attorneys discuss 4th Amendment vs open fields doctrine
- 4th Amendment plays role in challenges to Corporate Transparency Act
(806 words)
(Newsrooms: With art)
MEMPHIS, Tenn. — The conflict between the Fourth Amendment and the century-old open fields doctrine boils down to the contemporary definition of “search,” and omission of “land” by the framers of the Constitution, say attorneys from the Institute for Justice.
Robert Frommer and Joshua Windham, both attorneys with the Institute for Justice, presented “Fourth Amendment and Agriculture: Warrantless Access to Ag & Private Rural Lands.” The presentation was part of the National Agricultural Law Center’s 11th annual Mid-South Agricultural and Environmental Law Conference held June 7 in Memphis, Tennessee.
The open fields doctrine was established in 1924’s Hester v. United States in an opinion penned by Oliver Wendell Holmes.
Windham talked about the amendment’s origins, as a way to prevent British authorities from using general warrants as a means to search all of colonist’s property. The amendment wanted to ensure that searches had a well-defined scope.
“The Supreme Court has neutered that standard,” he said, meaning that “broad swaths of American life are exposed to the discretionary power that inspired the Fourth Amendment in the first place.”
At issue is the open fields doctrine, which saw its genesis during Prohibition as authorities sought to purge illegal alcohol production and distribution. The doctrine gives federal and state authorities the ability to search lands without the owner’s permission or warrant.
Another facet of the issue is the “closely regulated industries” exception to the Fourth Amendment, which allows for warrantless searches of businesses operating in strongly regulated industries such as alcohol, firearms and commercial trucking. The pair discussed cases in which this was a factor, including a search of a taxidermy business.
The Institute for Justice has said that nearly 96 percent of all private land in the U.S., and 97 percent of lands in Arkansas, are exposed under the open fields doctrine.
The open fields doctrine has drawn attention from a 2019 case in Tennessee where a landowner found a camera on his property — one that he didn’t install — and removed it.
“The government raided his home and accused him of stealing government property,” Windham said. “The case is dismissed, and in 2024, the U.S. Supreme Court said that the Fourth Amendment doesn’t list ‘land.’ It talks about persons, houses, papers and facts.”
Frommer said, “the Supreme Court has mangled the term ‘search,’ a very basic term,” by defining an illegal search by whether it violates a reasonable expectation of privacy.
“Private land is private and I don’t think SCOTUS got it right,” he said. “Land is not a constitutional stepchild. It is part of our way of life as Americans, and so our goal is to restore the basic protections that I think our founders wanted us to have in our land. We want to restore the original plain meaning of the term search.”
When it comes to aerial surveillance, the courts have said “that’s not a search, because you can’t have a reasonable expectation of privacy on your lands,” Frommer said.
However, the two said landowners are finding some relief under rulings involving state constitutions, which offer more protection.
Corporate Transparency Act
Conference attendees also heard from Kristine Tidgren, director of the Center for Agricultural Law & Taxation and Dolezal adjunct associate professor- agricultural education, Iowa State University discussing details of the Corporate Transparency Act, or CTA, passed in 2021.
The Corporate Transparency Act went into effect on Jan. 1, requiring that many small business entities file with the federal government in 2024.
“It was not something that just barely passed. It was a very popular bill,” she said. “Congress has realized that we have a problem with financial crimes. We have a problem with hidden shell corporations conducting all sorts of business that causes all sorts of ability to do money laundering, and things that is very bad for the country. Congress — for a very long time — has wanted to have some way to identify who it is that owns some of these shell corporations.
“The impact of this thing is so huge,” Tidgren said. “It’s estimated about 32 million
entities will have to file their reports this year to disclose who their beneficial
owners are, then all of the new entitles that are created this year — estimated to
be about 5 million — you’ll have to file those within 90 days of creating the entities.”
On March 1, a federal district court in Alabama ruled that the CTA is unconstitutional.
CTA has “got a lot of people who are up in arms about this,” she said. “There’s the Fourth Amendment arguments on appeal to the 11th Circuit as well, that [the government] is actually extracting information. It’s like an unreasonable search and seizure. And then this case is saying it’s unconstitutionally compelled speech and everyone is arguing that it violates the Commerce Clause.”
However, she said, there’s not a lot of movement about shutting down the CTA.
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Media contact: Mary Hightower
mhightower@uada.edu