SD Open Fields Doctrine soon to be gone.

[3car]

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!

lol, well there is a lot of misinformation as to game warden authorities. Open fields applys to all LE not just wardens. And the 4rth amendment does not apply to Open fields. There is no expectation of privacy in the open field. The problem I have with this legislation is the GFP is being forced to support it wether they think its a good idea or not. They have had their jobs threatened if they dont support it. That I dont like. The GFP should be science based but of course politics is always invovled. The other issue is there is not CO or incident that has sparked this legislation either. The CO's are already under guidance to not interurpt hunts if they dont have RS to enter the open field. I voted for Kristi and probably will vote for her for president as well. Just dont like the gag order.

 

[KSnative]

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.

So your (our) rights can be waived as long as public property (if you choose to look at wildlife as property) is object of possible theft or misuse? What about just so long as its not your own property being stolen - how does that differ. Hot pursuit and fleeing felons, I understand. Someone thinks, or claims to think, that deer may be getting spotlights in your backyard - roll in heavy?

The logic defies me. I am amazed at just how little some value freedom.

 

[3car]

So your (our) rights can be waived as long as public property (if you choose to look at wildlife as property) is object of possible theft or misuse? What about just so long as its not your own property being stolen - how does that differ. Hot pursuit and fleeing felons, I understand. Someone thinks, or claims to think, that deer may be getting spotlights in your backyard - roll in heavy?

The logic defies me. I am amazed at just how little some value freedom.

You don’t have the same rights in your corn field versus your home. Nobody is giving anything up. It was never their. Wardens are granted inspection authority to check licenses but still need warrants to search a home or freezer or even a cooler unless they have exigency circumstances or consent.

 

[KSnative]

You don’t have the same rights in your corn field versus your home. Nobody is giving anything up. It was never their. Wardens are granted inspection authority to check licenses but still need warrants to search a home or freezer or even a cooler unless they have exigency circumstances or consent.

I don't doubt that wardens need "exigency" coverage to check a cooler in South Dakota. I assure you this is not the case everywhere. Could we see a copy of whatever sets the limits for your COs in this regard, please? It will be interesting to see how it compares with that of other states. Perhaps we can learn something here.

We aren't talking about yelling fire in a crowded theater here; we are talking about a "conservation regulation convenience" clause. That does not exist.

Do you also cede your 2nd Amendment rights when you step into our cornfield? What other Constitutional rights are you willing to concede do not apply in your back yard? What about a barn? A shed? This is not the nuanced argument that you appear to perceive that it is.

No need to "clarify" your intent (or opinion) in posting the "Mitchell Republic" article without comment.

 

[KSnative]

You don’t have the same rights in your corn field versus your home. Nobody is giving anything up. It was never their. Wardens are granted inspection authority to check licenses but still need warrants to search a home or freezer or even a cooler unless they have exigency circumstances or consent.

I missed the "no checking coolers without an exigency" proviso here, perhaps you can find more/better.

Search and Seizure - Special Officers - Kansas :: Association of Fish & Wildlife Agencies

Each special investigator, appointed by the animal health commissioner, pursuant to K.S.A. 47-416, and amendments thereto, shall have the authority to make arrests, conduct searches and seizures and carry firearms while investigating violations of the provisions of article 4 of chapter 47 of the...

www.fishwildlife.org

But before you spend too much time looking for that - come on out of there with your hands up. Based on my training, experience and judgement I think I caught a whiff of weed. Or an out of season species. Or whatever may strike your fancy. We do have standards here.

 

[3car]

This is not my interpretation of the Open Fields doctrine. The guidance for open fields has already been intereted by the SCOTUS. The SD bill will only apply to State game wardens. It will not apply to federal wardens, deputys, troopers or BCI or any other state peace officer. There are only 4 federal wardens in the entire state so seeing one of those guys doesnt happen very often.

Open Fields

: Analysis and Interpretation of the of the US Constitution

law.justia.com

https://scholarship.law.campbell.edu/cgi/viewcontent.cgi?article=1106&context=clr

Pretty sure Montana already has something in place like the SD bill as well.

 

[KSnative]

This is not my interpretation of the Open Fields doctrine. The guidance for open fields has already been intereted by the SCOTUS. The SD bill will only apply to State game wardens. It will not apply to federal wardens, deputys, troopers or BCI or any other state peace officer. There are only 4 federal wardens in the entire state so seeing one of those guys doesnt happen very often.

Open Fields

: Analysis and Interpretation of the of the US Constitution

law.justia.com

https://scholarship.law.campbell.edu/cgi/viewcontent.cgi?article=1106&context=clr

Pretty sure Montana already has something in place like the SD bill as well.

Visual scan of open areas is not search and seizure. How do those surveillance cameras get on one's private property? Some one had to enter the property in order to hang them.

Lots of legislation emerging around the emergence of new technology. Drones, for instance. Sorry about that but yes, your neighbor's stacked daughter does have a reasonable expectation to privacy while basking in her backyard. Dammit. Expect more to follow on that.

Basic issue here is, should COs have more extensive, no probable cause authority than, say, DEA agents. No. They should not.

 

[mutthunt]

I'm generally in favor of more muted police powers, from local on up to federal (and don't even get me started on border patrol/ICE), but this seems like unfair privilege to landowners vs non-landowners. Why should people on private land get to pursue (the people's) game without fear of game checks, yet public land hunters pursuing the same (people's) game are open to unprovoked checks? Game wardens have too much power in general IMO.

On the flip side, ramifications for abusing our game are generally laughable. I'd be happy to see more appropriate punishments for game violations.

 

[david0311]

I'm generally in favor of more muted police powers, from local on up to federal (and don't even get me started on border patrol/ICE), but this seems like unfair privilege to landowners vs non-landowners. Why should people on private land get to pursue (the people's) game without fear of game checks, yet public land hunters pursuing the same (people's) game are open to unprovoked checks? Game wardens have too much power in general IMO.

On the flip side, ramifications for abusing our game are generally laughable. I'd be happy to see more appropriate punishments for game violations.

SOOOO!!
You want more sever punishments for violators—-BUY—not give the officer the ability to enforce the laws??

 

[mutthunt]

SOOOO!!
You want more sever punishments for violators—-BUY—not give the officer the ability to enforce the laws??

Yeah, pretty much.

For example, I had just arrived in SD. I wasn't hunting that day, hadn't even bought my license yet. I got stopped at a mandatory game check. I know I looked like a hunter, but I was at that point just a civilian driving. They still made me pull off the road, get in line, and they searched my whole dang truck. I think that's an abuse of power.

Now if they had spotted me hunting, and had probably cause of me breaking the law, that's something else entirely.

I read the CO reports of egregious poachers, and the short license revocation and minimal fines are laughable.

 

[mlmich@pldi.net]

Deal with it! Just catching violators who would of otherwise gotten away. If you weren't doing anything illegal don't complain about it. "No foul, no harm!"
You should be happy that there is interstate and hiway road block game checks. Just keeping people accountable & ticketing/fining those that that are illegal.
Since you think it is laughable that the fines are minimal, just another way to increase revenue.

 

[Golden Hour]

Just an update, the Open Fields legislation was moved to the 41st day of the session by the Senate Judiciary committee in a 7-0 vote, which is a maneuver that kills the bill. I have not had an opportunity to listen to anything from that committee, but if anyone is interested - https://sdpb.sd.gov/SDPBPodcast/2021/sju30.mp3#t=1232

 

[KSnative]

SOOOO!!
You want more sever punishments for violators—-BUY—not give the officer the ability to enforce the laws??

You don't see a difference between stiff fines levied on those convicted of a crime in a court of law, vs mega search/seizure powers levied against those of us who have not been convicted (because we have committed no crime)?

 

[Golden Hour]

Update again - The SD Senate "smoked out" HB 1140 in a 17 to 18 vote, meaning they overrode the Senate Judiciary (smoke out only needs 1/3 support) and the bill will come before the full senate. Since the vote was less than a majority, I don't believe it will pass, but the bill is still alive.

 

[mutthunt]

You don't see a difference between stiff fines levied on those convicted of a crime in a court of law, vs mega search/seizure powers levied against those of us who have not been convicted (because we have committed no crime)?

Sounds like you get it. A play off of the ole "speak softly but carry a big stick".

 

[4thAmendmentLawyer]

Hello,

My name is Robert Frommer, and I am a senior attorney at the Institute for Justice. IJ and I are litigating the Tennessee case as part of our efforts to roll back the open fields doctrine that allows government officials to “go upon any property, outside of buildings, posted or otherwise.”

The U.S. Supreme Court gutted crucial property and privacy protections in 1924 when it held (contrary to the historical evidence) that the Constitution does not protect any land beyond the home and its immediate surrounding area (known as the “curtilage”).

But states can provide greater protections under their constitutions. That's why we brought suit under the Tennessee Constitution, which protects each individual’s “persons, houses, papers and possessions.” And on the legislative front, we are working with legislators to draft and enact bills to end the practice of warrantless searches on private land.

We want to bring more cases as part of our project, particularly in the following states: Alabama, Connecticut, Massachusetts, Ohio, and Rhode Island. To that end, we are looking for hunters and private property owners who want to exercise their constitutional rights. For more information, check out IJ's lawsuit against the Tennessee Wildlife Resources Agency or go to Report Abuse at https://ij.org/report-abuse.

 

[david0311]

Hello,

My name is Robert Frommer, and I am a senior attorney at the Institute for Justice. IJ and I are litigating the Tennessee case as part of our efforts to roll back the open fields doctrine that allows government officials to “go upon any property, outside of buildings, posted or otherwise.”

The U.S. Supreme Court gutted crucial property and privacy protections in 1924 when it held (contrary to the historical evidence) that the Constitution does not protect any land beyond the home and its immediate surrounding area (known as the “curtilage”).

But states can provide greater protections under their constitutions. That's why we brought suit under the Tennessee Constitution, which protects each individual’s “persons, houses, papers and possessions.” And on the legislative front, we are working with legislators to draft and enact bills to end the practice of warrantless searches on private land.

We want to bring more cases as part of our project, particularly in the following states: Alabama, Connecticut, Massachusetts, Ohio, and Rhode Island. To that end, we are looking for hunters and private property owners who want to exercise their constitutional rights. For more information, check out IJ's lawsuit against the Tennessee Wildlife Resources Agency or go to Report Abuse at https://ij.org/report-abuse.

 

[david0311]

Before anyone gets too excited by the name—
‘Best look up this group and their over all philosophies

 

[4thAmendmentLawyer]

Before anyone gets too excited by the name—
‘Best look up this group and their over all philosophies

Please do! Our website is https://www.ij.org. We litigate in four principal areas: free speech, economic liberty, educational choice, and private property rights. We are the group that brought the challenge in Kelo v. City of New London at the US Supreme Court and the ones at the forefront of challenging civil forfeiture.

 

[KSnative]

Please do! Our website is https://www.ij.org. We litigate in four principal areas: free speech, economic liberty, educational choice, and private property rights. We are the group that brought the challenge in Kelo v. City of New London at the US Supreme Court and the ones at the forefront of challenging civil forfeiture.

Most here like all of the Amendments, not to mention the Constitution itself. Exceptions tend to be more vocal, though.