SD Open Fields Doctrine soon to be gone.

3car

Member
From today's Watertown Paper, make sure you check out the Mitchell Republic's article on Open Fields also. Please write your Rep. and ask them to vote No on Hb 1140 Open Fields!
Freedom only extends so far
Gov. Kristi Noem loves to talk about how South Dakota is the land of freedom and constitutional protections.
Except, of course, unless you work in a state agency under her supervision.
It is no secret among legislators and other observers that employees of at least two major departments, Game, Fish and Parks, and Environment and Natural Resources are forced to cower in silence or openly support Noem’s actions many believe are not in the state’s best interest.
The merger of DENR and the Department of Agriculture is one action which is designed largely to stymie enforcement of environmental laws, particularly those related to agriculture.
Most of our state’s conservation organizations, lakes and river associations oppose this merger but are being ignored in this power play.
Having served 16 years on a key DENR board, I am certain an anonymous survey of employees would find significant opposition to the merger. But jobs are at stake, so silence.
Over at GF&P, Noem’s pressure to make the agency support her legislation has damaged the agency’s credibility and cratered morale.
One participant in a legislative briefing said in an email to his conservation group, “What I got out of yesterday’s briefing...is that we can no longer trust the GF&P to give us sound information and decisions based on science.
“They are supporting the merger of Ag and DENR because it’s an executive proposal. They are supporting changes to forfeiture. They are supporting changes to benefit non-residents They are no doubt supporting the 2021 predator bounty. We don’t need to ask why. We know. Everyone is fearful of losing their jobs.”
The most important wildlife bill conservation groups are working to defeat is HB 1140, entitled Open Fields. It is a “Governor’s bill” introduced by Noem and would prevent Conservation Officers from doing compliance checks on private lands. Currently, conservation officers can enter private land without a warrant if hunting or fishing is occurring.
Sen. Lee Schoenbeck, R-Watertown, called it the “Poachers Bill.”
In a press release Noem makes it sound like it is GF&P’s idea, saying it builds on GF&P’s “excellent work to protect property rights and promote trust between conservation officers and South Dakotans.”
The force behind the legislation really is Lt. Gov. Larry Rhoden who had proposed a similar bill when he was in the legislature.
“It’s important that we close the open fields loophole to ensure that our private property rights are protected just as the Fourth Amendment protects our homes from unreasonable search and seizure,” Rhoden said in the press release.
Schoenbeck fought the bill in 2005. He said the issue arose because a buddy of several legislators got busted for running a poaching operation on private property.
At the time Schoenbeck said the legislation “is certainly designed to be an anti-sportsmen piece of legislation,” according to a Rapid City Journal article.
“It still is today,” he said Wednesday. “The only people this bill protects are poachers and people who are stealing from the state.”
Opponents include the South Dakota Wildlife Federation and the Izaak Walton League who say the proposed law hurts the average sportsman.
Former GF&P Secretary John Cooper said the “ability to have compliance checks are crucial to the officers’ mission. You bet it is a poachers bill.”
Cooper, along with former Secretary Jeff Vonk, who succeeded him, are expected to testify against the bill.
“It doesn’t make any sense to do anything like this,” Cooper said. “If it was a Fourth Amendment issue then it would apply to all law enforcement, but this only targets Conservation Officers.”
He said it is a political issue.
Ironically, Interim GF&P Secretary Kelly Robling is promoting the bill. “This is going to strengthen relationships between producers of this great state and our conservation officers, and our department as a whole,” Robling said in a press release.
“He is the first GF&P Secretary to ever take that position,” Schoenbeck said.
In Robling’s defense, no GF&P secretary likely has ever been pressured so hard by a governor to say things they don’t believe.
He is probably familiar with the Queen of Hearts in Alice in Wonderland who had only one way of dealing with difficulties – “Off with his head.”
Brad Johnson is a Watertown businessman and journalist who is active in state and local affairs.
 

Labs

Active member
I retired from nearly 40 years in law enforcement in 2017 at the rank of Deputy Chief. Suffice to say I have a fair understanding of the Open Fields & Plain View Doctrines. I have never understood the probable cause exception granted to Conservation Officers regarding Open Fields. I understand why they do it, but not the justification. Here's the difference as it relates to a conservation officer as opposed to a police officer.

A Conservation Officer sees a guy with a shotgun, dog, and wearing orange in a privately owned and legally posted field. It is a reasonable assumption the guy is hunting, however he is not doing anything overtly illegal. Without additional, articulable probable cause that the subject is breaking the law, the G&F Officer can go on the private property, approach the subject, and perform a field interview to include asking for ID, checking his license, checking his bag, shotgun, shells, ect. Should the CO discover evidence of a violation, he can arrest/cite the subject and that evidence will be allowed in court.

Conversely, a Police Officer or Sheriff's Deputy is on patrol and notices a group of people in a residential back yard having a barbeque. He has not been dispatched to that location for any report of suspicious or illegal activity. Some are drinking beer, but none appear underage nor are any doing anything overtly illegal. That officer cannot go onto that privately owned back yard and start checking IDs without additional, articulable probable cause to believe that a law(s) is being broken. If the officer does so, finds evidence of a crime, and makes an arrest/cites a subject, that evidence will be thrown out as fruit of the poisoned tree.

This has never made a lot of sense to me.
 

matto

Member
I retired from nearly 40 years in law enforcement in 2017 at the rank of Deputy Chief. Suffice to say I have a fair understanding of the Open Fields & Plain View Doctrines. I have never understood the probable cause exception granted to Conservation Officers regarding Open Fields. I understand why they do it, but not the justification. Here's the difference as it relates to a conservation officer as opposed to a police officer.

A Conservation Officer sees a guy with a shotgun, dog, and wearing orange in a privately owned and legally posted field. It is a reasonable assumption the guy is hunting, however he is not doing anything overtly illegal. Without additional, articulable probable cause that the subject is breaking the law, the G&F Officer can go on the private property, approach the subject, and perform a field interview to include asking for ID, checking his license, checking his bag, shotgun, shells, ect. Should the CO discover evidence of a violation, he can arrest/cite the subject and that evidence will be allowed in court.

Conversely, a Police Officer or Sheriff's Deputy is on patrol and notices a group of people in a residential back yard having a barbeque. He has not been dispatched to that location for any report of suspicious or illegal activity. Some are drinking beer, but none appear underage nor are any doing anything overtly illegal. That officer cannot go onto that privately owned back yard and start checking IDs without additional, articulable probable cause to believe that a law(s) is being broken. If the officer does so, finds evidence of a crime, and makes an arrest/cites a subject, that evidence will be thrown out as fruit of the poisoned tree.

This has never made a lot of sense to me.
Thanks for this info. I've been curious recently how the concept of probable cause applied to COs checking licenses, bags, permission, etc.. I've been checked probably 5-6 times in total and most of them occurred on a public road or on a public hunting area. Without the "Open Fields & Plain View" doctrines a CO's job would be even tougher than it already is. Does every state subscribe to these doctrines (pending the outcome of this bill in SD)?
 

david0311

Active member
OK I CAN SEE THIS TURNING IN TO A #%&& STORM-
LABS—How large was the department that you worked for?
The example you gave of the back yard —Would fall under the legal definition of CURTILAGE which is defiantly protected by the Fourth Amendment!
Versus the open field doctrine
‘Afraid that your example Is not even close to the same thing legally or reasonable
‘Would have thought a 40 year officer —especially a assistant chief would know the difference

OK—FIRE AWAY-
 

Labs

Active member
I should have prefaced the above with that I have no issue with Conservation Officers, and was more than happy to work with & assist them. They have a difficult & dangerous job and I've always given them props for doing it. That being said, the Constitution is the law of the land and I prided myself on making constitutionally sound cases, and making sure my officers did as well.

Not to get too deep in the weeds on search & seizure, but the State's position in State vs Larson (Minn Supreme Court, 2002) is interesting as it illustrates how G&F looked at this subject until the early 2000s. The short version of this case was a CO knocked & entered an ice house w/o permission or a warrant to check the occupant's license. This was common practice for G&F agencies across the country at the time. The CO subsequently nabbed the occupant for possession of dope and fishing 3 lines. The defendant appealed based on a 4th Amendment violation, and the Minnesota Supremes threw the case out.

The State argued that the statute and regulatory inspections conducted pursuant to it are constitutional and that despite whatever comforts may be added, occupants of a fish house have no greater an expectation of privacy than occupants of a commercial business.   The court of appeals disagreed and affirmed the district court's ruling.  State v. Larsen, 637 N.W.2d 315, 316, 325 (Minn.App.2001).2The court rejected the State's argument that to effectively enforce conservation laws conservation officers must have broader powers than other law enforcement officers and that the Minnesota Legislature authorized those broader powers in Minn.Stat. § 97A.215. Id. at 323-25.   The court did not declare the statute unconstitutional, but concluded that the authority of a conservation officer to search a person or place, like that of all other law enforcement officers, is subject to and limited by the Minnesota Constitution and the Fourth Amendment of the United States Constitution.  

CO's I knew here in ND were very unhappy with this ruling, to put it mildly, as it set a precedence. They would tell you they HAD to be able to do this to do their job effectively. As a then Police Patrol Sergeant, the belief that CO's needed broader powers of search & seizure than other types of LE agencies were allowed by the 4th Amendment didn't pass the smell test with me.

I suspect that the SD situation is much like this case. Up until the Larson case, CO's could just open an ice house door and go in, where any other LEO would need permission, a warrant, or had to be able to articulate exigent circumstances that required emergency entry. For whatever reason, the way the SD COs were conducting/utilizing Open Fields was brought to the attention of people who had the authority to rein it in...
 

Labs

Active member
OK I CAN SEE THIS TURNING IN TO A #%&& STORM-
LABS—How large was the department that you worked for?
The example you gave of the back yard —Would fall under the legal definition of CURTILAGE which is defiantly protected by the Fourth Amendment!
Versus the open field doctrine
‘Afraid that your example Is not even close to the same thing legally or reasonable
‘Would have thought a 40 year officer —especially a assistant chief would know the difference

OK—FIRE AWAY-
The size of my agency is irrelevant, we all have to abide by the Constitution and in this case specifically, the 4th Amendment. Somewhere along the line G&F agencies decided they needed & should have broader powers regarding search & seizure than other LE agencies had to work within (see State Vs Larson above). That doesn't hold water...
 

PeteRevvv

Active member
I've read many articles from states with Open Fields & Plain View type statutes where GFPs get anonymous reports of game violations about individuals. They then proceed to setup game cams on private roads/trails and do officer stakeouts in the bush near hunting stands on any private or family owned property of that individual. There is no court supervision or approval needed. There is no redress for property owners to have this activity stopped. GFP can continue busting their hunts and surveilling their activities even if there is little to no probable cause. It can be used by local governments for harassment and pressuring on unrelated land use issues.

American liberties for privacy and property rights have always been given the greater weight than the need of law enforcement to be more effective at catching illegal activity. There is less protection in these states for landowners than there is for police entering your house, backyard or even a traffic stop to search your car. I think most people would be upset by surveillance equipment in your house or yard or a GPS tracker stuck on your cause without probable cause. Why would you not afford someone with a bigger back yard the same rights?

Rather than see how much power we can give governments in pursuit of perfect enforcement, I'd rather see how little in size and power we can give them while still maintaining law and order. I'd rather trust the majority of fellow Americans to follow the laws on their private property than give up my rights to privacy and property.
 

david0311

Active member
I’m quite familiar with that case—To summarize-it was found to be a illegal search based on the court looking on the fish house as lodging-living area at the time -which many have become-and that was the basic reason for it being considered a illegal search-
No relation to the open field doctrine
See Curtilage

Why do you hesitate to answer my question-was just curious
 

KSnative

Active member
See also "Freedom". Our rights are not yet limited to what the federal, state and local governments and their agencies "allow" us, for now. I hope.
This from a person (me) who could not possibly be more "pro" law enforcement, God bless them each and every one. (OK if I say "God" here?).

Any thoughts IRT the stuffed deer and turkey targets they sometimes set out to nab road shooters? Pot shooting from the road isn't a practice I could ever condone - but isn't that entrapment? Likewise, aren't surveillance cameras planted without landowner permission, or a warrant, invasive? Not sure I like the idea of anyone watching me answer nature's call, unaware - and I doubt she'd care for it much either!

Fish and Wildlife folks definitely have a very tough job. Not looking to make it harder. But what's left of our freedom tops my personal priority list.
 
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Chestle

Active member
I admit I'm sarcastic and non-serious here a lot of the time but I do have a truly serious question.

I don't get the Open Field Doctrine relationship to probable cause.

Is the mere fact of standing in a field with a shotgun in November sufficient probable cause for a CO to stop and search you?
 

goldenboy

Well-known member
Motive is always behind the scenes in my opinion. Some people are bad and their motive is to poach. They should be stopped. Sometimes the motive of the officer is wrong and they need to be kept in check. Case in point. https://www.spokesman.com/blogs/out...nges-big-game-tagging-law-after-hunter-cited/
I don't like when an officer ruins my deer hunt because he shows up at the base of my stand asking me accusing questions. Yes on my private property! I know why I didn't see any deer that day. He was very accusing and asking me questions about what my neighbor does on his property and asking me to have my neighbor call him. I didn't like his motives or his accusing tone of questioning. Bad motives. I have had officers question me and ask for my license as a routine stop, I have no problem showing my license and answering a few questions. BUt if they have a cameraman over their shoulder beware of motive!
 

KSnative

Active member
I'd add to Chestle's question - are COs somehow exempted from standard legal probable cause/search and seizure requirements?

I'd hope I'm wrong but believe that in KS COs are at liberty to enter private property (including land, vehicles, and homes) at any time, with no legal basis whatsoever. Including, to set up warrantless surveillance cameras if they suspect (with or without cause beyond intuition) that illegal game harvesting is being attempted.

Hailing Prairie Drifter - is that so?
 

KSnative

Active member
From today's Watertown Paper, make sure you check out the Mitchell Republic's article on Open Fields also. Please write your Rep. and ask them to vote No on Hb 1140 Open Fields!
Freedom only extends so far
Gov. Kristi Noem loves to talk about how South Dakota is the land of freedom and constitutional protections.
Except, of course, unless you work in a state agency under her supervision.
It is no secret among legislators and other observers that employees of at least two major departments, Game, Fish and Parks, and Environment and Natural Resources are forced to cower in silence or openly support Noem’s actions many believe are not in the state’s best interest.
The merger of DENR and the Department of Agriculture is one action which is designed largely to stymie enforcement of environmental laws, particularly those related to agriculture.
Most of our state’s conservation organizations, lakes and river associations oppose this merger but are being ignored in this power play.
Having served 16 years on a key DENR board, I am certain an anonymous survey of employees would find significant opposition to the merger. But jobs are at stake, so silence.
Over at GF&P, Noem’s pressure to make the agency support her legislation has damaged the agency’s credibility and cratered morale.
One participant in a legislative briefing said in an email to his conservation group, “What I got out of yesterday’s briefing...is that we can no longer trust the GF&P to give us sound information and decisions based on science.
“They are supporting the merger of Ag and DENR because it’s an executive proposal. They are supporting changes to forfeiture. They are supporting changes to benefit non-residents They are no doubt supporting the 2021 predator bounty. We don’t need to ask why. We know. Everyone is fearful of losing their jobs.”
The most important wildlife bill conservation groups are working to defeat is HB 1140, entitled Open Fields. It is a “Governor’s bill” introduced by Noem and would prevent Conservation Officers from doing compliance checks on private lands. Currently, conservation officers can enter private land without a warrant if hunting or fishing is occurring.
Sen. Lee Schoenbeck, R-Watertown, called it the “Poachers Bill.”
In a press release Noem makes it sound like it is GF&P’s idea, saying it builds on GF&P’s “excellent work to protect property rights and promote trust between conservation officers and South Dakotans.”
The force behind the legislation really is Lt. Gov. Larry Rhoden who had proposed a similar bill when he was in the legislature.
“It’s important that we close the open fields loophole to ensure that our private property rights are protected just as the Fourth Amendment protects our homes from unreasonable search and seizure,” Rhoden said in the press release.
Schoenbeck fought the bill in 2005. He said the issue arose because a buddy of several legislators got busted for running a poaching operation on private property.
At the time Schoenbeck said the legislation “is certainly designed to be an anti-sportsmen piece of legislation,” according to a Rapid City Journal article.
“It still is today,” he said Wednesday. “The only people this bill protects are poachers and people who are stealing from the state.”
Opponents include the South Dakota Wildlife Federation and the Izaak Walton League who say the proposed law hurts the average sportsman.
Former GF&P Secretary John Cooper said the “ability to have compliance checks are crucial to the officers’ mission. You bet it is a poachers bill.”
Cooper, along with former Secretary Jeff Vonk, who succeeded him, are expected to testify against the bill.
“It doesn’t make any sense to do anything like this,” Cooper said. “If it was a Fourth Amendment issue then it would apply to all law enforcement, but this only targets Conservation Officers.”
He said it is a political issue.
Ironically, Interim GF&P Secretary Kelly Robling is promoting the bill. “This is going to strengthen relationships between producers of this great state and our conservation officers, and our department as a whole,” Robling said in a press release.
“He is the first GF&P Secretary to ever take that position,” Schoenbeck said.
In Robling’s defense, no GF&P secretary likely has ever been pressured so hard by a governor to say things they don’t believe.
He is probably familiar with the Queen of Hearts in Alice in Wonderland who had only one way of dealing with difficulties – “Off with his head.”
Brad Johnson is a Watertown businessman and journalist who is active in state and local affairs.
Do I understand you to say that DNR employees and various interest groups that meet with your personal approval - not the Governor they work for (and who, unlike them, stood for election) - should set policy? Yikes!
 

3car

Member
Do I understand you to say that DNR employees and various interest groups that meet with your personal approval - not the Governor they work for (and who, unlike them, stood for election) - should set policy? Yikes!
Huh?? thats a copy/paste article. I have not stated my opinion. I am curious what others think is why i posted it. Noem has an article about it too but cant find it now. Will post when I do.
 
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3car

Member
By KEVN Staff
Published: Jan. 27, 2021 at 4:30 PM CST





RAPID CITY, S.D. (KEVN) Wednesday, Governor Kristi Noem introduced two bills to the South Dakota State Legislature aimed at clarifying the jurisdiction of Game, Fish and Parks officers.
In a press release, Noem said the bills are designed to strengthen private property rights. GFP officials tell Black Hills Fox News they are in support of the changes.
The first bill restricts the entry of conservation officers onto certain private lands without permission. Under current precedent, conservation officers could enter into open fields without a warrant, though GFP’s department policy prevents this.
“This is going to strengthen relationships between producers of this great state and our conservation officers, and our department as a whole,” GFP Interim Sec. Kevin Robling said.
Robling said the bill includes exceptions, including if the officer has probable cause that a crime is being committed; if an officer needs to dispatch an animal under distress; or other emergency situations.
The second bill revises provisions regarding inspections, seizures and forfeitures involving GFP. This legislation aims to protect property rights in the enforcement of game and fish laws by stopping conservation officers from taking or keeping the private property of hunters and fishermen who break laws.
“We want to make sure that the punishment fits the crime,” Noem said. “When someone violates a game and fish law, they should be fined and punished as per current law. But they shouldn’t lose their boat, truck, gun, or dog as a result. Our conservation officers understand the need to strike the right balance between enforcement efforts and property rights.”
Robling said he supported the change, though he noted that officers haven’t used the forfeiture statute “in a long, long time.”
“We are a private land state, 80% of South Dakota is privately owned,” Robling said. “We need our landowners, they are the ones raising a majority of the wildlife that our constituency, our hunters, our anglers, enjoy.”
Robling said the department is working toward other goals this legislative session, including simplifying youth hunting rules. He also noted the department is looking into a virtual e-tagging system down the road that would make getting licenses easier.
 

KSnative

Active member
Huh?? thats a copy/paste article. I have not stated my opinion. I am curious what others think is why i posted it. Noem has an article about it too but cant find it now. Will post when I do.
Thanks for the clarification. Posting without comment suggested concurrence, but that might just be me. When do you expect to form an opinion - now I'm sort of anxious to see it!
 

Miforester

Active member
We have similar legislation being proposed in Michigan as well, must have been a topic at a national meeting. would be interesting to see if other states are seeing the same thing and who is introducing the bills.
 

david0311

Active member
I'd add to Chestle's question - are COs somehow exempted from standard legal probable cause/search and seizure requirements?

I'd hope I'm wrong but believe that in KS COs are at liberty to enter private property (including land, vehicles, and homes) at any time, with no legal basis whatsoever. Including, to set up warrantless surveillance cameras if they suspect (with or without cause beyond intuition) that illegal game harvesting is being attempted.

Hailing Prairie Drifter - is that so?
KS—
Sorry but the old idea or belief that C.O./warden ect. Can enter your home with out a warrant or for some other very very specific reasons is wrong.
No matter what some state may say that is specifically prohibited—protected buy the Fourth Amendment
 

KSnative

Active member
KS—
Sorry but the old idea or belief that C.O./warden ect. Can enter your home with out a warrant or for some other very very specific reasons is wrong.
No matter what some state may say that is specifically prohibited—protected buy the Fourth Amendment
You and I agree - that is unconstitutional. For that matter, I'd think that no-warrant spy cameras placed on your property with neither knowledge nor consent, and unrestricted access to private vehicles/any property should and would be covered under that same blanket.

But what "guidelines" are KS COs actually given in this regard? Is it a general understanding, documented in internal handbooks/regs, embodied in KS law - or something else?

Not sure everyone gets the word!
 

Golden Hour

Active member
The biggest issue that distinguishes Open Fields from other 4A protections in these discussions (related to SD's House bills) is the fact that wildlife are publicly owned. To me, there is a difference between doing something illicit within the confines of my home versus wantonly killing 17 deer in my field. Whether they are standing in Joe's cornfield or bedding in a Waterfowl Production Area, the CO's responsibility (should be, anyway) is to the wildlife.

While in my experience the old days of running and gunning from a truck have dissipated, I have seen some disgustingly egregious "hunting" violations over the years. I would not want to see those violations go unpunished simply because they occurred on private land.

I do want to note that I am not fervently against this legislation. I am concerned that it opens the door to violations against wildlife, but at the end of the day, I don't know how prevalent it would be.
 
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