Textualist Reasoning and the Open Fields Doctrine: A Survey of State-Constitutional Decisions

Authors

Ariel Krogue

Abstract

State constitutions can, and often do, provide more extensive individual rights than the Federal Constitution affords. When this occurs, state courts frequently cite textual differences between the Federal Constitution and their own state constitutions to explain their departures from federal norms. But do textual differences between the Federal Constitution and state constitutions actually explain why some states offer more constitutional protection than the federal government does? When it comes to the Fourth Amendment’s open fields doctrine, the answer is no.

This Note provides a fifty-state survey of state-constitutional search and seizure provisions; it also identifies those states that have rejected or adopted the federal open fields doctrine on state-constitutional grounds. From a textualist perspective, one might expect meaningful differences between the Federal Fourth Amendment and the wording of a state’s search and seizure protections to correspond with a state’s decision to reject the open fields doctrine. However, a closer analysis reveals that textual differences in constitutional language fail to explain why some states reject the open fields doctrine under their own constitutions and others do not. Thus, at least for the open fields doctrine, the text of a state’s constitution has little bearing on whether that state will depart from federal constitutional precedent.

Rights

© 2025 Brigham Young University Law Review

Recommended Citation

Ariel Krogue, Textualist Reasoning and the Open Fields Doctrine: A Survey of State-Constitutional Decisions, 51 BYU L. Rev. 211 (2025).
Available at: https://digitalcommons.law.byu.edu/lawreview/vol51/iss1/9