“We’re challenging the Open Fields Doctrine altogether,” Gay said. “One of the things that’s surprising to people is that the Open Fields Doctrine applies to land you’re living on, that you’re using to spend time with your family, to have conversations with your wife, to play with your children. It’s the kinds of places where you expect privacy, and you’d expect that you’d have the power to keep out unwanted intruders, but the way that the government applies the doctrine is that it only extends to the small area around your house called the ‘curtilage,’ not all the space you’re using on a day-to-day basis.”
Gay and Highlander are challenging that in their court case, in part because the camera in this case was located on property that Highlander and his family live on.
“These game wardens and other officials can kind of go onto most land whenever they want, for whatever reason they want, and they don’t have to get a warrant, and there’s no neutral magistrate or judge providing any kind of check on their behavior,” Gay said. He added that he is challenging the Open Fields doctrine specifically under the Virginia Constitution, which establishes a narrower Open Fields doctrine than federal law does. “We think that the camera’s seizure here is an entirely separate and additional level of egregious. What we’ve found is that wardens in this country won’t just enter people’s land, they will sometimes put cameras there to spy on that land, and, as you saw here, they will actually take other people’s cameras and look through it for evidence.”