State v. Klager: the slippery slope of warrantless administrative inspections in South Dakota.

• Author: Cleveringa, Eric J.

In 2011 the South Dakota Supreme Court in State v. Klager expanded the reach of warrantless searches by holding that an administrative inspection of a taxidermy business did not violate the Fourth Amendment's restriction against unreasonable searches and seizures. In a 3-2 decision, the court held that (1) a business owner had no reasonable expectation of privacy in his taxidermy business, (2) taxidermy is closely regulated in South Dakota, and (3) the regulatory scheme of taxidermy provides an adequate substitute for a warrant. The majority relied on the United States Supreme Court decision, New York v. Burger, which expanded the administrative inspection exception to the Fourth Amendment. The South Dakota Supreme Court should not have applied the administrative inspection exception because taxidermy in South Dakota is sparsely regulated and the inspection requirement was rarely and inconsistently enforced. Furthermore, what little enforcement occurred was at the complete discretion of untrained officials, a blatant violation of constitutional principles. Individuals working in industries subject to administrative regulation now face an imbalance; the scope of the Fourth Amendment diminishes as the power of governmental regulation increases. The Fourth Amendment demands heightened respect, not lowered to offset the intrusive expansion of governmental regulation.

1. INTRODUCTION

   The Fourth Amendment provides, [t]he 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. (1) The warrant requirement and prohibition against unreasonable searches contained in the Fourth Amendment apply not only to residences, but to commercial premises as well. (2) However, the expectation of privacy in commercial premises is less than the expectation of privacy in residential premises. (3) With respect to closely regulated industries the expectation of privacy is even further attenuated. (4) Certain industries have historically been subject to such extensive government oversight that they retain no reasonable expectation of privacy. (5) Regardless, the United States Supreme Court has repeatedly pointed out that a warrantless administrative inspection based on a reduced expectation of privacy is the exception, not the rule. (6) An exception that has been limited to industries that possessed a "long tradition of close government supervision," (7) or that involved an "inherent and immediate danger to health or life." (8)

   The United States Supreme Court expanded the warrantless administrative inspection exception in New York v. Burger. (9) In Burger, the Court held that a New York statute authorizing warrantless inspections of vehicle-dismantling businesses fell within the exception to a warrant requirement for administrative inspections of closely regulated businesses. (10) Following the Burger Court's lead, the South Dakota Supreme Court moved away from the general rule in State v. Klager. (11) In Klager, the court applied the exception finding that taxidermy is closely regulated, and that a warrantless inspection of records was reasonable within the limits of the Fourth Amendment. (12) The Klager dissent, authored by Chief Justice Gilbertson, contended that taxidermy is not pervasively regulated because of the minimal regulations in the industry. (13) Furthermore, the Chief Justice argued that the regulatory scheme did not provide an adequate substitute for a warrant because the regulations were minimal and carried out at the exclusive discretion of the inspectors. (14) Therefore, the dissent concluded that the South Dakota statute allowing for warrantless administrative inspections, as enforced, was unconstitutional. (15)

   This note will discuss the facts and litigation history of State v. Klager, (16) followed by an in-depth examination of the historical development of warrantless administrative inspections. (17) Next, this note will analyze whether Klager had a reasonable, subjective expectation of privacy, (18) whether taxidermy should be considered a closely regulated industry, (19) and whether the regulatory scheme and enforcement of S.D.C.L. section 41-6-33 is an adequate substitute for a warrant, as required by Burger. (20) Lastly, this note will propose alternatives to warrantless administrative inspections that will achieve the ultimate goal of properly monitoring taxidermy in South Dakota to deter poaching, while preserving the constitutional rights of South Dakota citizens. (21)

2. FACTS AND PROCEDURE

   William Klager Jr. owned and operated a taxidermy business in South Dakota. (22) Klager obtained and continuously maintained a license from the South Dakota Game, Fish, and Parks ("SDGFP") Commission in accordance with S.D.C.L. section 41-6-33. (23) A clause in the license application stated that the taxidermist is expected to maintain records and to make those records and specimens available for inspection. (24)

   SDGFP is the organization charged with performing the inspections provided within S.D.C.L. section 41-6-33. (25) The inspection procedures, however, lacked guidance as to whom to inspect, or when to inspect. (26) In fact, a former law enforcement program administrator testified that due to the absence of a set schedule, he believed that a taxidermist might never be inspected under the statute due to the discretion available to SDGFP Officers. (27) If an inspection was performed, SDGFP kept limited records as to who was inspected and when the inspections were made. (28) Additionally, the officers received minimal to no training on how to conduct inspections. (29) The conservation officer attempting to inspect Klager testified that he did not receive any training on how to conduct inspections. (30)

   On March 4, 2009, at approximately ten in the morning, Officer Brown, a conservation officer with SDGFP, entered Klager's property and proceeded to the front door of the residence. (31) Due to the lack of records or record-keeping requirements, Officer Brown was unaware if any other conservation officer had previously inspected Klager's business. (32) Prior to the attempted inspection, Officer Brown observed a sign on Klager's residential door stating that Klager was in his shop at the end of the driveway. (33) Without a warrant and unaware of Klager's normal business hours, Officer Brown entered a restricted area of Klager's business and demanded to inspect records in accordance with S.D.C.L. section 41-6-33. (34) Klager asked the reason for the visit, and Officer Brown stated that it was "a general inspection." (35) Klager then refused to Produce the requested records and asked Officer Brown to leave his premises. (36) Officer Brown refused. (37) Instead, Officer Brown repeatedly asked to see Klager's records. (38) The standoff culminated in Klager calling "911" and other law enforcement officials arriving on scene at which time Klager was issued a citation by Officer Brown for failure to produce taxidermy records. (39)

   The State subsequently charged Klager with failure to allow inspection of his taxidermist records in violation of S.D.C.L. section 41-6-33, a Class 2 misdemeanor. (40) The case began in magistrate court with Klager moving to dismiss the complaint, alleging S.D.C.L. section 41-6-33 and its implementation violated the Fourth Amendment of the United States Constitution and Article VI, Section 11, of the South Dakota Constitution. (41) The magistrate court held that warrantless inspections of taxidermists' records and customers' specimens authorized by S.D.C.L. section 41-6-33 were permissible under both the Fourth Amendment of the United States Constitution and Article VI, Section 11, of the South Dakota Constitution. (42) Klager's motion to dismiss was denied. (43) At trial, Klager was found guilty. (44) Klager appealed to the circuit court, but the decision was affirmed. (45) On April 16, 2010, Klager filed an appeal to the South Dakota Supreme Court. (46)

   In a 3-2 decision, the South Dakota Supreme Court, citing New York v. Burger, affirmed both the magistrate and the circuit court decisions by holding that there was no Fourth Amendment violation. (47) First, the majority held that Klager had no subjective expectation of privacy in his business records because he had a license, he knew of the requirement to produce the records, he advocated publicly for frequent inspection, and he expressly consented to inspections through licensure. (48) Supporting his knowledge of the records production requirement, Klager conceded that he had received a copy of the South Dakota laws governing taxidermy and that he was familiar with the governing laws and rules. (49) The court stated that because Klager had no subjective expectation of privacy, it must affirm the conviction on that ground alone. (50) The court continued its analysis into whether the records inspection was objectively reasonable under S.D.C.L. section 41-6-33. (51)

   In analyzing whether a warrantless administrative inspection is objectively reasonable, the court applied the Burger framework to the taxidermy industry. (52) Burger required that the business be closely regulated and that the statute satisfy three criteria. (53) The majority found the statutory provisions of S.D.C.L. section 41-6-33 to be "extensive" and "in effect for a substantial period of time," holding that taxidermy was a closely regulated business. (54) Furthermore, the majority held that Burger's three criteria were met because wildlife is a substantial government interest, the warrantless inspection was necessary to further the regulatory scheme, and lastly, the statute's inspection program provided a constitutionally adequate substitute for a warrant. (55)

   The dissent found that taxidermy is not...