South Dakota conservation officers (the GF&P uniformed wildlife law enforcement officers) routinely walk onto private farms and ranches to check licenses and look for game violations, without first getting a warrant and without the landowner's permission. Is that constitutional? Is it criminal trespass? The GF&P Secretary wanted a definitive answer.

Plain-English summary

Game wardens in South Dakota walk onto farms and ranches all the time. They check hunting licenses, look for over-the-limit bags, look for poached or out-of-season game. They do this without first getting a warrant. They do this without asking the landowner. They do this even when the property is posted "No Trespassing." In 2004, Game, Fish and Parks Secretary John Cooper wanted to confirm the practice was legal under both the U.S. and South Dakota Constitutions, and that it was not state-law trespass.

AG Larry Long answered yes on both counts.

The constitutional question turns on the open fields doctrine. The Fourth Amendment, by its text, protects "persons, houses, papers, and effects" from unreasonable searches. It does not say "land." The U.S. Supreme Court read that omission deliberately. Hester v. United States (1924) held that the special protection of the Fourth Amendment does not extend to open fields. Oliver v. United States (1984) reaffirmed Hester in two cases where narcotics agents entered farmland (in one case walking past a locked gate and a No Trespassing sign) to find marijuana fields more than a mile from the residence. The Court held that an "open field" can be any unoccupied or undeveloped area outside the curtilage of a home. The field need not be open or a field as those words are commonly used. A thick woods can be an open field for Fourth Amendment purposes. The Framers, the Court reasoned, would have understood "effects" to be limited to personal property, not real property. An expectation of privacy in open fields is not the kind of expectation that society recognizes as reasonable. Open fields are usually accessible to the public and to police in ways that a home is not. Open fields do not provide the setting for the intimate activities the Fourth Amendment was designed to shelter. Erecting fences and posting signs does not change the analysis, because those steps don't actually bar the public from viewing the field in rural areas.

United States v. Dunn (1987) extended the analysis. Dunn focused on the extent of curtilage (the area immediately surrounding a home that does receive Fourth Amendment protection), using a four-factor test: (1) proximity to the home, (2) inclusion in an enclosure around the home, (3) the nature and use of the area, (4) steps taken to protect the area from observation. Outside the curtilage, the open-fields doctrine controlled.

Federal courts of appeals have applied the doctrine to wildlife law enforcement specifically. United States v. McDowell (8th Cir. 1967) held that search of open fields without a warrant was not constitutionally unreasonable, even if the field is part of a commercial enterprise. United States v. Wylder (D. Or. 1984) upheld a US Fish and Wildlife agent stopping a vehicle leaving a private hunting club to check licenses. United States v. Cain (7th Cir. 1972) upheld a federal agent's warrantless entry onto a private hunting club for routine inspection. United States v. Swann (D. Md. 1974) held that the open fields around barns are not constitutionally protected against warrantless search.

State courts have followed. Peruzzi v. State (Ga. 2002) (Department of Natural Resources rangers stopping boats for safety inspection without articulable suspicion), North Carolina v. Pike (2000), Schenekl v. Texas (1999), and Maine v. Giles (1996) all upheld wildlife-officer entries on similar reasoning. State v. Sorenson (Minn. 1989) and State v. Colosimo (Minn. 2003) applied the same doctrine to Minnesota conservation officers.

The South Dakota analysis follows the federal model. Article VI, § 11 of the SD Constitution mirrors the Fourth Amendment text. The SD Supreme Court has consistently adopted the federal open-fields framework as its own. State v. Vogel (1988) upheld a law enforcement officer's search through the windows of a house from 225 to 500 feet, aided with a zoom lens, on open-fields grounds. State v. Frey (1989) directly involved a conservation officer: the officer and a deputy sheriff observed animal carcasses with a 20-power scope from an adjacent road and then entered the property to investigate. The Court held the entry did not violate any expectation of privacy. The Court said "the constitutional protection against unlawful searches and seizures . . . does not extend to open fields." State v. Halverson (1979), a highway game-check case, supported the result by noting that probable-cause stops would not satisfy the purposes of game laws given the size of the hunting population versus the number of officers. Wild animals are the state's property and the citizens have an interest in conserving the wildlife.

The state trespass question runs through SDCL 22-35-6. The statute makes it a Class 2 misdemeanor for a person to enter or remain on a property knowing he is not privileged to do so, when notice against trespass has been given by actual communication, posted notice, or fencing. The privileged-to-enter exception is express in the statute. A law enforcement officer carrying out statutory duties is privileged to enter. State v. Cook (1982) adopted that principle, citing the general rule that "an officer of the law acting in the performance of his duty" is privileged to enter even when the entry would otherwise be a trespass. Swedlund v. Foster (2003) confirmed it: an officer of the law may ordinarily trespass when acting in the scope of his duty. Frey (1989) cited Cook for the same principle.

The opinion's conclusion: a conservation officer who has been duly sworn, certified or probationary, has the authority to enter privately owned open fields without suspicion, probable cause, consent, permission, or a search warrant to perform license checks and enforce wildlife laws. Such entry is not an unreasonable search under the Fourth Amendment or Article VI, § 11. Such entry is not a state-law trespass.

The opinion noted but did not resolve the Montana counter-example. State v. Bullock (Mont. 1995) and State v. Romain (Mont. 1999) interpreted Montana's unique constitutional privacy provision more protectively than the federal open-fields doctrine. Because South Dakota does not have that distinctive provision and has not interpreted Article VI, § 11 to provide greater protection than the Fourth Amendment, the Montana approach was deemed irrelevant.

Currency note

This opinion was issued in 2004. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. Open-fields doctrine remains the established federal rule, but state constitutional decisions and statutory tweaks can affect how it applies in particular factual settings. The use of drones and other technology has also added new wrinkles to the doctrine since 2004. Anyone considering the scope of a conservation officer's warrantless entry today should check the current text of SDCL ch. 41-15 and recent SD Supreme Court decisions.

What the opinion meant at the time

For South Dakota conservation officers in 2004, the opinion ratified their existing field practice. They could enter privately owned open fields to perform license checks and look for game violations without first obtaining a warrant or consent. They needed to be acting within the scope of their statutory duties (SDCL 41-3-8, 41-15-10.1) and to be certified law enforcement officers (SDCL 41-2-11), but those preconditions were already satisfied in the routine case.

For landowners who had posted "No Trespassing" signs and built fences to keep the public out, the opinion clarified that those steps did not exclude conservation officers from open-field portions of the property. They did exclude the public, and they did affect curtilage analysis as to areas closer to the home (per Dunn's four-factor test), but they did not bar conservation-officer entry to open fields.

For hunters and anglers, the opinion confirmed that license checks could happen anywhere on private land they were on, not just at vehicle stops or at established check stations. The officer could walk up in the field and request the license under SDCL 41-6-63.

For state's attorneys advising local law enforcement, the opinion was a clear template for handling open-fields questions in non-wildlife contexts too. The doctrine is not unique to conservation officers; it applies across law enforcement. Vogel (1988) was not a wildlife case but applied the same doctrine.

For landowner-rights attorneys considering challenges to conservation-officer entries, the opinion forecast a likely losing path under existing SD doctrine. Vogel and Frey had embraced the federal framework, and the AG predicted continued adherence. The Montana approach (which is more protective of land-based privacy) is a possible alternative model but would require the SD Supreme Court to reconsider Vogel and Frey. As of 2004 there was no indication the court was inclined to do that.

For curtilage-specific questions (where Fourth Amendment protection does apply), the opinion did not change the analysis. A conservation officer entering the area immediately surrounding a home (the yard within a fence, the area used for the intimate activities of the household) still needed probable cause, a warrant, or consent. The four Dunn factors continued to govern the line between open field and curtilage.

For the criminal trespass statute (SDCL 22-35-6), the opinion confirmed that the "privileged to enter" exception covered all law enforcement officers acting within the scope of their duties. The exception was not narrow.

Common questions

Q: What is an "open field"?
A: Per Oliver (1984) and Dunn (1987), any unoccupied or undeveloped area outside the curtilage of a home. It need not be a literal field. Thick woods can be open fields. Posted and fenced land outside the curtilage is still open fields.

Q: What is "curtilage"?
A: The area immediately surrounding a home that is intimately tied to the home's use. The Dunn four-factor test considers proximity to the home, enclosure around the home, nature of the use, and steps taken to protect from observation.

Q: Do No Trespassing signs help?
A: For open-fields purposes, no. Oliver (1984) specifically held that fences and No Trespassing signs do not create a reasonable expectation of privacy in open fields.

Q: Does this apply only to conservation officers?
A: No. The open-fields doctrine applies to law enforcement officers generally. The 2004 opinion focused on conservation officers because that was the question asked, but State v. Vogel (1988) and many federal cases involved non-wildlife law enforcement.

Q: Is entry to open fields a state-law trespass?
A: No, when the officer is acting in the scope of statutory duties. SDCL 22-35-6 expressly excludes persons privileged to enter, and law enforcement officers acting within their lawful authority are privileged per Cook (1982), Frey (1989), and Swedlund (2003).

Q: Does the SD Supreme Court interpret Article VI, § 11 the same as the U.S. Supreme Court interprets the Fourth Amendment?
A: The SD Supreme Court is not required to follow the U.S. Supreme Court, but in Vogel (1988) and Frey (1989) it adopted the federal open-fields framework as its own interpretation of Article VI, § 11.

Q: What about Montana's contrary approach?
A: Montana's State Constitution contains a unique privacy provision (different from South Dakota's). State v. Bullock (1995) and State v. Romain (1999) read that Montana provision to require warrants in some open-fields contexts. South Dakota does not have that distinctive provision, so the Montana approach does not transfer.

Q: What if the conservation officer is wrong about whether the area is open field versus curtilage?
A: The four-factor Dunn test controls. A reasonable mistake about the boundary may be tested under Fourth Amendment doctrine, but a clearly-within-curtilage entry without consent or a warrant remains subject to Fourth Amendment scrutiny.

Background and statutory framework

South Dakota's wildlife management is a public trust. Wild animals belong to the state, in trust for the people. Citizens have an interest in conserving wildlife. The Department of Game, Fish and Parks is charged with the protection and propagation of all game animals, game birds, fish, and harmless birds and animals (SDCL 41-3-8). The Department employs conservation officers (SDCL 41-2-11) who are certified law enforcement officers under SDCL 41-2-11 and 41-15-10.1.

Conservation officers have the same authority as other law enforcement officers, including the authority to arrest (SDCL 41-15-10). They enforce every state statute pertaining to game, fish, parks, forestry, or boating (SDCL 41-15-10.1(2)). They have specific authority to check licenses at any time (SDCL 41-6-63 requires the licensee to exhibit the license at any time upon request).

The constitutional framework rests on the Fourth Amendment to the U.S. Constitution and Article VI, § 11 of the SD Constitution. Both protect persons, houses, papers, and effects from unreasonable searches and seizures. Both require warrants supported by probable cause and particular description. Neither, by its text, protects land.

The open-fields doctrine is a centerpiece of Fourth Amendment land-use jurisprudence. Hester v. United States (1924) established it. Oliver v. United States (1984) reaffirmed it in detail. United States v. Dunn (1987) extended it. The U.S. Supreme Court has held it consistently for nearly a century. The South Dakota Supreme Court adopted the federal framework in State v. Vogel (1988) and State v. Frey (1989).

The state-law trespass framework is SDCL 22-35-6, which makes it a Class 2 misdemeanor (Class 1 if continuing after a personal order to leave) to enter or remain on property knowing one is not privileged to do so, when notice against trespass has been given. The "privileged" exception is express in the statute. The South Dakota Supreme Court has consistently read law enforcement officers acting within their statutory duties as privileged: State v. Cook (1982), State v. Frey (1989), Swedlund v. Foster (2003).

The opinion thus rested on two independent grounds. Constitutionally, the open-fields doctrine puts the conservation officer's entry outside Fourth Amendment and Article VI, § 11 protection. Statutorily, the law enforcement privilege exempts the officer from criminal trespass liability under SDCL 22-35-6.

The opinion noted but did not resolve potential differences in approach in other states. The Montana approach (more protective of land-based privacy) requires a different constitutional text and approach that South Dakota does not share. The Nevada Attorney General had reached the same conclusion as the 2004 SD AG (Nevada Op. Att'y Gen. 14 (1992)). The cross-state consensus among states with Fourth-Amendment-like provisions was that open-fields entries by law enforcement (including conservation officers) did not require warrants.

Citations and references

Constitutional and statutory:
- U.S. Const. amend. IV
- S.D. Const. art. VI, § 11
- SDCL 22-35-6 (criminal trespass)
- SDCL 41-2-11 (officer employment authority)
- SDCL 41-3-8 (GF&P enforcement duty)
- SDCL 41-6-63 (license exhibition)
- SDCL 41-15-10 (arrest authority)
- SDCL 41-15-10.1 (officer certification and scope)

Cases:
- Hester v. United States, 265 U.S. 57 (1924)
- Oliver v. United States, 466 U.S. 170 (1984)
- United States v. Dunn, 480 U.S. 294 (1987)
- United States v. McDowell, 383 F.2d 599 (8th Cir. 1967)
- United States v. Wylder, 590 F.Supp. 926 (D. Or. 1984)
- United States v. Cain, 454 F.2d 1285 (7th Cir. 1972)
- United States v. Swann, 377 F.Supp. 1305 (D. Md. 1974)
- Delaware v. Prouse, 440 U.S. 648 (1979)
- Peruzzi v. State, 567 S.E.2d 15 (Ga. 2002)
- North Carolina v. Pike, 532 S.E.2d 543 (N.C. 2000)
- Schenekl v. Texas, 996 S.W.2d 305 (Tex. App. 1999)
- Maine v. Giles, 669 A.2d 192 (Me. 1996)
- State v. Sorenson, 441 N.W.2d 455 (Minn. 1989)
- State v. Colosimo, 669 N.W.2d 1 (Minn. 2003)
- State v. Vogel, 428 N.W.2d 272 (S.D. 1988)
- State v. Frey, 440 N.W.2d 721 (S.D. 1989)
- State v. Halverson, 277 N.W.2d 723 (S.D. 1979)
- State v. Cook, 319 N.W.2d 809 (S.D. 1982)
- Swedlund v. Foster, 2003 S.D. 8, 657 N.W.2d 39
- State v. Opperman, 247 N.W.2d 673 (S.D. 1976)
- State v. Hejal, 438 N.W.2d 820 (S.D. 1989)
- State v. Bullock, 901 P.2d 61 (Mont. 1995)
- State v. Romain, 983 P.2d 322 (Mont. 1999)

Out-of-state AG opinions:
- Nevada Op. Att'y Gen. 14 (1992)

Source

• Landing page: https://atg.sd.gov/OurOffice/OfficialOpinions/opinions.aspx
• Original PDF: https://atg.sd.gov/OfficialOpinions/Official%20Opinion%2004-01.pdf

Original opinion text

OFFICIAL OPINION NO. 04-01, Conservation Officer's Entry Upon Private Land

January 15, 2004

John Cooper, Secretary
South Dakota Department of Game, Fish and Parks
523 East Capitol Avenue
Pierre, South Dakota 57501-3182

OFFICIAL OPINION NO. 04-01

Conservation Officer's Entry Upon Private Land

Dear Mr. Cooper:

You have requested an official opinion from this Office regarding the following factual situation:

FACTS:

Currently, conservation officers enter privately owned open fields to conduct license checks and enforce other wildlife laws. They do so under the legal premise of the open fields doctrine.

Based upon the foregoing you have posed the following questions:

QUESTIONS:

1. Does a conservation officer's entry on privately owned land in the performance of wildlife law enforcement duties, without probable cause, reasonable suspicion, consent or permission from the landowner, or a search warrant, violate the Fourth Amendment to the United States Constitution or Article VI, Section 11 of the South Dakota Constitution?

2. Does such entry without probable cause, reasonable suspicion, consent of landowner or a search warrant constitute a trespass?

IN RE QUESTIONS:

Before answering your questions, I will discuss a conservation officer's statutory responsibilities and authority to act. The Department of Game, Fish and Parks (GF&P) "shall enforce the laws of this state involving the protection and propagation of all game animals, game birds, fish, and harmless birds and animals." SDCL 41-3-8. To do so, GF&P has the "authority to employ an adequate force of conservation officers." SDCL 41-2-11. The conservation officers are required to meet the education and training requirements of other South Dakota law enforcement officers, and be certified as such. SDCL §§ 41-2-11, 41-15-10.1. Conservation officers are responsible for enforcing, inter alia, every state statute which pertains to game, fish, parks, forestry or boating. SDCL 41-15-10.1(2). One such statute requires all licensees to exhibit their license "at any time upon request of any person." SDCL 41-6-63. While enforcing this and other statutes identified in SDCL 41-15-10.1, conservation officers are law enforcement officers with the "same authority as any other law enforcement officer" (id.) including arrest. SDCL 41-15-10. In light thereof, it is my opinion that: (1) GF&P has statutory authority to manage and regulate hunting, fishing and trapping in South Dakota; and (2) conservation officers have a statutory mandate to enforce the state's wildlife laws and regulations.

IN RE QUESTION 1:

The Fourth Amendment to the United States Constitution says:

The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated; and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The constitutional issues your questions present were first addressed by the United States Supreme Court in Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924). In that case, the Supreme Court found, "[T]he special protection accorded by the 4th Amendment to the people in their 'persons, houses, papers and effects' is not extended to the open fields." Id. at 446. This is commonly referred to as the "open fields" doctrine.

Sixty years later, the Supreme Court reaffirmed this position in Oliver v. United States, 466 U.S. 170, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984). The Oliver court upheld searches under the open fields doctrine involving the following two factual situations: The first situation involved two narcotics agents going to a farm after receiving reports that marijuana was being raised. Arriving at the farm, the agents drove past the farmhouse to a locked gate with a "No Trespassing" sign. The agents walked around the gate and continued their investigation, finding a field of marijuana over a mile from the farmhouse. Oliver, 466 U.S. at 173. The second situation involved two police officers responding to an anonymous tip that marijuana was being grown in the woods behind a house. The officers entered the woods by a path between residences which they followed until reaching two marijuana patches fenced with chicken wire. Oliver, 466 U.S. at 174.

In upholding the searches, the Oliver court noted that

the term "open fields" may include any unoccupied or undeveloped area outside of the curtilage. An open field need be neither "open" nor a "field" as those terms are used in common speech. For example . . . a thickly wooded area nonetheless may be an open field as that term is used in construing the Fourth Amendment.

Oliver, 466 U.S. at 180 n.11 (citations omitted). Importantly, the Oliver court also noted that the Framers of the Constitution "would have understood the term 'effects' to be limited to personal, rather than real, property." Oliver at 177 n.7 (citation omitted). Relying on Hester, the Court ultimately concluded that the expectation of privacy in open fields is not an expectation that "'society recognizes as reasonable.'" Id. at 179. This, for one reason, is that "these lands usually are accessible to the public and the police in ways that a home, an office, or commercial structure would not be." Id. In addition, "open fields do not provide the setting for those intimate activities that the Amendment is intended to shelter from government interference or surveillance." Id. The Court concluded, "In this light, the rule of Hester v. United States, supra, that we reaffirm today, may be understood as providing that an individual may not legitimately demand privacy for activities conducted out of doors in fields, except in the area immediately surrounding the home." Oliver, 466 U.S. at 178.

Furthermore, the Oliver court also rejected the suggestion that when one takes steps to protect privacy, that this action will somehow create or establish legitimate expectations of privacy in an open field. Thus, erecting fences and posting "No Trespassing" signs around the property made no difference. This is because those steps usually do not totally bar the public from viewing into the open field in rural areas. Oliver, 466 U.S. at 179.

The test of legitimacy is not whether the individual chooses to conceal assertedly "private" activity. Rather, the correct inquiry is whether the government's intrusion infringes upon the personal and societal values protected by the Fourth Amendment. As we have explained, we find no basis for concluding that a police inspection of open fields accomplishes such an infringement.

Oliver, 466 U.S. at 182-183.

Finally, the Supreme Court in Oliver refused to create a legitimate expectation of privacy based upon the common law tort of trespass. Finding that trespass extends to instances where the exercise of the right to exclude vindicates no legitimate privacy interests, the Court held, "Thus, in the case of open fields, the general rights of property protected by the common law of trespass have little or no relevance to the applicability of the Fourth Amendment." Oliver, 466 U.S. at 183-184.

Three years after Oliver, United States v. Dunn, 480 U.S. 294, 107 S.Ct. 1134, 94 L.Ed.2d 326 (1987) again addressed the issue. Dunn noted that "Oliver reaffirmed the precept, established in Hester, that an open field is neither a 'house' nor an 'effect,'" and, therefore, "the government's intrusion upon the open fields is not one of those 'unreasonable searches' proscribed by the text of the Fourth Amendment." Id. at 304 (citation omitted). While Dunn focused on the extent of a home's curtilage, the Court noted, "Under Oliver and Hester, there is no constitutional difference between police observations conducted while in a public place and while standing in the open fields." Id. at 304.

In sum, the United States Supreme Court has consistently and repeatedly found that open fields are not entitled to protections afforded by the Fourth Amendment.

The Eighth Circuit Court of Appeals applied the "open fields" doctrine in United States v. McDowell, 383 F.2d 599 (8th Cir. 1967). The court held, "Under federal law the search of open fields without a search warrant is not constitutionally 'unreasonable,'" and found the same to be true even if the fields are construed to be part of a commercial enterprise. Id. at 603.

Other jurisdictions are in accord. A United States Fish and Wildlife (USFW) Agent did not violate the Fourth Amendment by stopping a vehicle as it left a private hunting club and requesting to see hunting licenses. United States v. Wylder, 590 F.Supp. 926 (D. Or. 1984). A federal agent's entry without a warrant onto grounds of a private hunting club for routine inspection was held not invalid. United States v. Cain, 454 F.2d 1285 (7th Cir. 1972). A USFW Agent did not violate the Fourth Amendment by entering a field without a warrant to gain access to a pond.

Under the 'open fields' doctrine of Hester v. United States [citations omitted], a trespass does not, of itself, constitute an illegal search. The open fields around the barns not being an area constitutionally protected against a warrantless search, there was no 'search' in this case within the meaning of the Fourth Amendment.

United States v. Swann, 377 F.Supp. 1305, 1306-1307 (D. Md. 1974).

A Georgia statute that authorizes Department of Natural Resources rangers to stop boats for safety inspections without any articulable suspicion of illegal action did not violate the Fourth Amendment or limitations on suspicionless searches laid down by the United States Supreme Court in Delaware v. Prouse, 440 U.S. 648, 654-655, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979). Peruzzi v. State, 567 S.E.2d 15 (Ga. 2002) (citing North Carolina v. Pike, 532 S.E.2d 543 (N.C. 2000); Schenekl v. Texas, 996 S.W.2d 305 (Tx. App. 1999); Maine v. Giles, 669 A.2d 192 (Me. 1996)). Closer to home, a Minnesota state conservation officer's warrantless entry into a hunting camp did not violate the Fourth Amendment regardless of probable cause. "If police or other law enforcement officers enter land which is found to be an open field, then the existence of probable cause is irrelevant and unnecessary." State v. Sorenson, 441 N.W.2d 455, 458 (Minn. 1989). More recently, the Minnesota Supreme Court held that a fisherman had no reasonable expectation of privacy in the areas of his open boat used to typically store or transport fish, and thus statutes allowing inspection without probable cause did not violate the Fourth Amendment. State v. Colosimo, 669 N.W.2d 1 (Minn. 2003).

Article VI Section 11 of the South Dakota Constitution is the state constitutional counterpart to the Fourth Amendment. Article VI Section 11 says:

The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures shall not be violated, and no warrant shall issue but upon probable cause supported by affidavit, particularly describing the place to be searched and the person or thing to be seized.

Our state Supreme Court is not required to follow the United States Supreme Court when deciding whether a search or seizure offends our state constitution. However, the South Dakota Supreme Court has relied upon and adopted the federal open fields doctrine principles set forth in Hester, Oliver, and Dunn in applying South Dakota's constitutional counterpart to the Fourth Amendment. In State v. Vogel, 428 N.W.2d 272 (S.D. 1988), relying on the open fields doctrine, the Court upheld a law enforcement officer's search through the windows of a house from 225 to 500 feet, aided with a zoom lens. In State v. Frey, 440 N.W.2d 721 (S.D. 1989), a deputy sheriff and conservation officer viewed animal carcasses for possible game violations with the aid of a twenty-power scope from an adjacent road. Their subsequent entry onto private property did not violate any expectation of privacy. The Court stated: "The constitutional protection against unlawful searches and seizures . . . does not extend to open fields." Id. at 726 (emphasis in original).

The decisions in Vogel and Frey strongly suggest that the South Dakota Supreme Court will continue to embrace the open fields doctrine when applying our state constitutional provisions under the factual situation you raised. In fact, in the context of a highway game check, the South Dakota Supreme Court has pointed out that "[s]tops [based upon] probable cause would not satisfy the purpose of the [game] law[s] since the number of hunters is large and game officers few." State v. Halverson, 277 N.W.2d 723, 724 (1979). Wild animals are the state's property and citizens have an interest in conserving their wildlife. Id. Conservation officers have been charged by the Legislature with that task. See prior discussion.

As can be seen from the U.S. Supreme Court cases, the open fields doctrine is not unique to conservation officers or wildlife management. It applies to law enforcement across the board. However, wildlife management IS a unique area of law enforcement.

Therefore, it is my opinion that a conservation officer does not violate the South Dakota Constitution or the United States Constitution by entering privately owned lands, which constitute "open fields," without probable cause, reasonable suspicion, consent or permission, or a search warrant when performing his statutory duties. Such activity does not constitute an unreasonable search or seizure in violation of either the Fourth Amendment of the United States Constitution or Article VI, Section 11 of the South Dakota Constitution.

IN RE QUESTION 2:

You have also asked whether a conservation officer's entry on privately owned open fields, as defined above, in performance of his official duties without probable cause, reasonable suspicion, consent or a search warrant constitutes an illegal trespass under state law. The general answer to that question is NO.

SDCL 22-35-6 provides:

Any person who, knowing that he is not privileged to do so, enters or remains in any place where notice against trespass is given by:
(1) Actual communication to the actor;
(2) Posting in a manner reasonably likely to come to the attention of intruders; or
(3) Fencing or other enclosure which a reasonable person would recognize as being designed to exclude intruders;
is guilty of a Class 2 misdemeanor, but if he defies an order to leave personally communicated to him by the owner of the premises or by any other authorized person, he is guilty of a Class 1 misdemeanor.

By its terms, this statute does not apply to a person who is "privileged" to enter or remain. It is generally accepted:

A duty or authority imposed or created by legislative enactment carries with it the privilege to enter land in the possession of another for the purpose of performing or exercising such duty or authority, in so far as the entry is reasonably necessary to such performance or exercise, only if all the requirements of the enactment are fulfilled.
. . . .
Conduct otherwise a trespass is often justifiable by reason of authority vested in the person who does the act, as, for example, an officer of the law acting in the performance of his duty. Thus, a law enforcement officer is privileged to commit a trespass if he is exercising his lawful authority and if he exercises it in a reasonable manner causing no unnecessary harm.

775 Am. Jur. 2d Trespass § 103 (Westlaw May 2003).

The South Dakota Supreme Court adopted the principles quoted above in State v. Cook, 319 N.W.2d 809 (S.D. 1982). Clearly, a conservation officer conducting game and license checks or investigating crimes within his statutory responsibility is an officer of the law acting in the performance of his duties. The South Dakota Supreme Court has found that "an officer of the law may ordinarily trespass when acting in the scope of his duty." Swedlund v. Foster, 2003 S.D. 8, ¶ 40, 657 N.W.2d 39. The Court has also stated:

The general rule is that: Conduct otherwise a trespass is often justifiable by reason of authority vested in the person who does the act, as, for example, an officer of the law acting in the performance of his duty.

Frey, 440 N.W.2d at 726 (citing Cook, 319 N.W.2d at 812).

Therefore, any law enforcement officer, including a conservation officer, may enter an "open field" in the performance of his statutory duties even though the officer lacks probable cause, reasonable suspicion, consent or permission, or a search warrant without committing a trespass.

CONCLUSION:

In light of all the above, it is my opinion that a duly sworn and certified or probationary conservation officer has the authority to enter privately owned "open fields," without suspicion, probable cause, consent or permission, or a search warrant to perform duties of conducting license checks and enforcing wildlife laws. Furthermore, such entry by a conservation officer does not constitute an illegal trespass.

Very truly yours,

LARRY LONG
ATTORNEY GENERAL

LL/jmm