A quick discussion of curtilage and open fields before we get to the case
An area is curtilage if it harbors the intimate activity associated with the sanctity of a man’s home and the privacies of life. Courts make this determination by examining the proximity of the area claimed to be curtilage to the home, whether the area is included within an enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation by people passing by.
Simple example: A man owns a contiguous 100 acres of land. On one acre, there is a house with a garage and the entire acre is fenced. This acre is regularly mowed. The other 99 acres are not fenced and not mowed. The one acre of land would likely be found to be curtilage to the home. The other 99 acres would likely be considered an open field.
A code enforcement officer (CO) in Starkville, MS, went onto Walter Okhuysen‘s vacant property, an open field, without a warrant and took photos of alleged code violations (abandoned truck, debris, etc.) A municipal Judge found Okhuysen guilty and fined him $1,000.
On appeal, Okhuysen obtained a copy of the photos. Okhuysen then argued that the CO violated the Mississippi Constitution by trespassing on his property without a warrant to take the photos. The Board of Alderman affirmed the decision noting that there was a city ordinance that allowed the CO to enter the property. The circuit court affirmed for the same reason. The Mississippi Court of Appeals reversed and stated that the CO had violated the Mississippi Constitution by trespassing onto Okhuysen’s property.
Article 3, Section 23 of the Mississippi Constitution states, “the people shall be secure in their persons, houses, and possessions, from unreasonable seizure or search; and no warrant shall be issued without probable cause, supported by oath or affirmation, specially designating the place to be searched and the person or thing to be seized.” (U.S. constitution says persons, houses, papers, and effects)
The Mississippi Supreme Court has held that the protection afforded by Section 23 “is somewhat broader than” the Fourth Amendment to the United States Constitution because Section 23 protects all of the people’s “possessions,” not just their “papers” and “effects.” The term “possessions” is a very comprehensive term, and includes practically everything which may be owned, and over which a person may exercise control. Mississippi court cases have interpreted open fields owned by individuals to be part of their possessions and thus protected by the Mississippi Constitution.
In Mississippi, a law enforcement officer cannot trespass onto open fields owned by an individual to gather evidence (without a warrant or a valid exception to the warrant). This is true even if you had a good faith belief that you had the right to enter the property. Also, a city ordinance does not trump the Mississippi Constitution.
It is important to note a big distinction. If you are not the owner of the land but rather a guest, there are other Mississippi cases (Tullos) which hold that you might have an expectation of privacy in the dwelling and the curtilage but not in any open fields at that property.
The U.S. Constitution does not consider open fields to be an “effect” under the U.S. 4th amendment. Thus, warrantless searches by law enforcement officers of open fields are not a violation of the U.S. Constitution.
A Mississippi law enforcement officer must be aware of the Mississippi Constitution and the difference with respect to open fields.