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![handle is hein.sag/sagsd0001 and id is 1 raw text is: 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](ViewImageLocal?handle=hein.sag/sagsd0001&div=1&collection=&method=preview&ext=.png&size=3)