Tony Dean apologizes?

[Liberty Belle]

[Southdakotahunter]

i think this says it all

The open fields doctrine was first articulated by the U.S. Supreme Court in Hester v. United States[1], which stated that “the special protection accorded by the Fourth Amendment to the people in their ‘persons, houses, papers, and effects,’ is not extended to the open fields."[2] This opinion appears to be decided on the basis that "open fields are not a "constitutionally protected area" because they cannot be construed as "persons, houses, papers, [or] effects."
This method of reasoning gave way with the arrival of the landmark case Katz v. U.S.,[3] which established a two-part test for what constitutes a search within the meaning of the Fourth Amendment. The relevant criteria are "first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as reasonable."[4] Under this new analysis of the Fourth Amendment, a search of an object or area where a person has no reasonable expectation of privacy is, in a legal sense, not a search at all. That search, therefore, does not trigger the protections of the Fourth Amendment.

[Liberty Belle]

[Southdakotahunter]

."[4] Under this new analysis of the Fourth Amendment, a search of an object or area where a person has no reasonable expectation of privacy is, in a legal sense, not a search at all. That search, therefore, does not trigger the protections of the Fourth Amendment.[b]

i guess if you want to play those games LB, where does it say they cant?

What this is saying is they do NOT need a search warrent.[/b]

[P Joe]

[publichunter]

LB there is not going to be anything specific that states conservation officers, it is called "interpetation" of the law, and what has been given to you bymyself, and SD hunter clearly shows in the interpetation of the law that law enforcement can enter open fields without your permission wether you like it or not.....So you just keep putting your Harding Co spin on it and say it doesnt....

[western SD]

Been doing some looking into this matter and found the official opinion of the ag's office on this matter. this is just part of it and I put the link there for all to read. It clearly states that the state supreme court has ruled that all law enforcment officers, not just wardens, can go onto private open fields without probable cause, resonable suspicion, consent, etc. Just thought I would clear some of the mud. There is also several other cases that have went to supreme court dealing with game wardens on the federal and state mentioned in this ruling.

http://www.state.sd.us/attorney/applications/documents/oneDocument.asp?DocumentID=636

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.

[Happy go lucky]

lets see how LB will try and spin this news LOL!

[Liberty Belle]

No need to spin it. Here you have it folks - the official GF&P position that is keeping you guys from hunting on our land. We might be a bunch of redneck ranchers, but we’re not stupid and allowing hunting to subject our ranches to trespass by GF&P would be incredibly idiotic.

Sorry guys. This has been a lot of fun, but you haven’t convinced any of us that hosting hunters again is something we want to do. Do any of you think that by posting excerpts from the opinions that caused us to lock our land to start with is going to change our minds? Dream on!

I’m going to post some URLs for you to further your research. Hopefully by reading these over and attempting to look at this from the landowners perspective (a stretch, I know!) you will be able to understand our problems with GF&P and the Open Fields Doctrine:

First, the Attorney General’s opinion. Western SD posted excerpts for this. I will point out two things:
1.This is only Long’s opinion, not fact and not a court case.

2.Our opinion and the opinions of our attorneys are diametrically opposed to his opinion and the opinion of GF&P, which incidentally doesn’t have any bearing on how landowners conduct our affairs. http://www.state.sd.us/attorney/applications/documents/oneDocument.asp?DocumentID=636

Second, this URL is GF&P’s take on the Open Fields Doctrine – “Background Information and Legal Issues Pertaining to the Open Fields Doctrine and Conservation Officers Conducting Compliance Checks on Private Lands”. It will come as no surprise to any of you that we disagree.
http://www.sdgfp.info/Wildlife/hunting/Info/OpenFieldsQandA.pdf

Third, I’m posting GF&P’s policy requirements for entry onto private land in it’s entirety. If this policy was written into law without clause #4 that I’ve highlighted, the lockout would be over today. I’ve also posted the URL for you so you can read it all for yourselves:

POLICY REQUIREMENTS RELATED TO ENTRY ONTO PRIVATE LANDS

A. While working in their official capacity, agency employees may not enter private land, without first seeking permission from the landowner or operator, for any purposes other than to make personal contact or gain permission for work related access to private land, with the exceptions listed in Sections B and C below.

B. In situations such as car-deer collisions, where the injured animal is located on private land but near to the road right-of-way, agency employees may enter upon private land without landowner or operator permission in order to humanely dispatch injured or sick wildlife, provided such entry is made on foot. In situations where sick, injured or diseased animals are located a greater distance onto private land, agency employees shall make a reasonable attempt to gain permission from the landowner or operator prior to entering. If the employee is unable to secure permission from the landowner or operator, and the employee is compelled to take more immediate action, they may enter private land and shall notify the landowner/operator of the cause for the entry as soon as possible. Reasonable precautions should be taken so that any use of a motor vehicle on private lands does not cause damage to crops, pastures or other property.

C. Conservation officers and other agency employees, whose duty is the enforcement of the game, fish, parks, boating and criminal laws of this state, shall follow the guidelines offered under the “Open Fields Doctrine”, as summarized in Official Opinion Number 04- 01 from the South Dakota Office of the Attorney General, when entering open fields on private land for the purposes of:

1. Investigating reports of crimes and the enforcement of statutes as authorized under SDCL 41-15-10 and SDCL 41-15-10.1;

2. Rendering assistance to other law enforcement agencies in responding to emergencies, accidents, various requests for assistance or other matters pertaining to the protection of public safety;

3. Acting in the performance of his/her duty as a law enforcement officer; and

4. Conducting compliance checks of hunters, trappers, anglers and boaters.

Prior to entering private land to conduct a compliance check, officers must personally observe or be able to reasonably articulate that hunting, fishing, trapping, boating or other such activities regulated by the Department of Game, Fish and Parks are taking place on the property at the time.
http://www.sdgfp.info/Wildlife/hunting/Info/PolicyforEmployeeEntryontoPrivateLands.pdf

More reading for you - this is a copy of the bill I introduced in the 2006. It was taken almost exactly from the bills that were introduced in twice before. It was written by some very good attorneys and does not restrict law enforcement in any way. Read it over and tell me what you think is wrong with it?

HOUSE BILL NO. 1148

Introduced by: Representatives Olson (Betty), Dennert, Engels, Hanks, and Howie and Senators Napoli, Maher, McNenny, and Schmidt (Dennis)

FOR AN ACT ENTITLED, An Act to restrict the entry of conservation officers onto certain private land without permission.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF SOUTH DAKOTA:
Section 1. That chapter 41-2 be amended by adding thereto a NEW SECTION to read as follows:

No conservation officer may, in the course of performing the ordinary duties of a conservation officer, enter any private land unless the conservation officer has the permission of the landowner or the lessee. However, any conservation officer may enter any private land without permission:

(1) If reasonable suspicion or probable cause exists that a violation of a law that the conservation officer is authorized to enforce has been, is being, or is about to be committed;

(2) To investigate a report of illegal hunting, fishing, or trapping activity;

(3) To dispatch crippled or distressed wildlife;

(4) To respond to emergency situations, accidents, or other threats to public safety.

[publichunter]

you keep saying us but we only hear from you and sj........

[P Joe]

[Liberty Belle]