State Dakota v. Klager

797 N.W.2d 47

2011 S.D. 12

STATE of South Dakota, Plaintiff and Appellee,

v.William C. KLAGER, Jr., Defendant and Appellant.

No. 25609.

Supreme Court of South Dakota.

Argued Nov. 16, 2010.Reassigned Feb. 1, 2011.Decided March 30, 2011.

Marty J. Jackley, Attorney General, Craig M. Eichstadt, Assistant Attorney General and Richard J. Neill, Special Assistant Attorney General, Pierre, SD, Attorneys for plaintiff and appellee.H.I. King of Tonner, Tobin & King, LLP, Aberdeen, SD, Attorneys for defendant and appellant.ZINTER, Justice (on reassignment).

[¶ 1.] For more than eighty-five years, South Dakota has regulated the business of taxidermy. The regulatory scheme has consistently required licensure, recordkeeping, and the production of statutorily enumerated records during normal business hours. A licensed taxidermist was convicted of refusing to produce the required records, a violation of SDCL 41–6–33.¹ He challenged his conviction alleging that the production requirement ² violated his Fourth Amendment right to be free from unreasonable searches. Both the magistrate court and the circuit court concluded that under the holding in New York v. Burger, 482 U.S. 691, 107 S.Ct. 2636, 96 L.Ed.2d 601 (1987), there was no Fourth Amendment violation. We affirm.

Facts and Procedural History

[¶ 2.] William Klager Jr. operated a taxidermy business in Stratford, South Dakota, called “The Taxidermy Man.” He obtained the license necessary to conduct that business from the South Dakota Game, Fish and Parks Commission in accordance with SDCL 41–6–33. On March 4, 2009, during normal business hours, a Game Fish and Parks Wildlife Conservation Officer stopped at Klager's business to inspect the records required to be kept and produced as a condition of Klager's licensure. A sign on the door of Klager's home indicated he was in his workshop at the end of the driveway. The conservation officer drove to the workshop and walked into the business premises. The officer introduced himself to Klager and requested to see Klager's taxidermy records. Klager refused.

[¶ 3.] Klager was charged with refusing to produce the statutorily required business records, a violation of SDCL 41–6–33. Klager moved to dismiss on the ground that production of the records violated his Fourth Amendment rights. ³ The magistrate court denied the motion and found Klager guilty of the class 2 misdemeanor. Klager received a thirty-day suspended jail sentence and a $151 fine. On appeal, the circuit court affirmed. Like the magistrate court, the circuit court concluded that the statutorily required production was constitutional.

[¶ 4.] On appeal to this Court, Klager contends that under Burger, taxidermists are not engaged in closely regulated businesses, and SDCL 41–6–33 does not contain equivalent guarantees of a warrant to satisfy the Fourth Amendment's exception for warrantless regulatory inspections. We review such challenges under the Fourth Amendment de novo. State v. Bowker, 2008 S.D. 61, ¶ 17, 754 N.W.2d 56, 62.

Decision

[¶ 5.] Since 1925, SDCL 41–6–33 and its predecessors ⁴ have regulated the business of taxidermy. These laws have consistently required taxidermists to be licensed, to keep specifically enumerated records of their customers and their specimens, and to make those records available for inspection during normal business hours. Id. The Department of Game, Fish and Parks (the Department) has also enacted administrative rules further regulating taxidermy businesses. See infra ¶¶ 16–17. The Department provides each licensee with a summary of the statutory and administrative regulations each year when taxidermists are licensed. The summary also includes a number of the federal laws that further regulate taxidermy businesses, including the additional requirement of federal licensure by the United States Fish and Wildlife Service.

[¶ 6.] The record reflects that Department wildlife conservation officers are provided “a general knowledge base” on how to conduct the inspections authorized under this regulatory scheme. This includes the “items” and “areas” of inspection. Although officers do not have a set schedule for conducting inspections, the Department's program administrator testified that there are approximately 200 licensed taxidermists in South Dakota, and the Department “average[s] around 100 inspections a year of taxidermists.” When asked whether there were taxidermists that would not have been inspected for years, the program administrator testified: “On a given year I would say that is, is true. When you take it out over a number of years, I can't say that that would be a true statement.”

[¶ 7.] Unannounced inspections are conducted at the licensee's place of business during normal business hours. The inspections are unannounced because poachers are known to take illegally harvested wildlife to taxidermists for mounting, and the specimens can easily be destroyed or secreted. The inspections are intended to: protect wildlife, including wildlife under federal protection; ensure that taxidermists are in possession of only those specimens they are legally authorized to possess; ensure that specimens in the taxidermist's possession have been legally harvested; and prevent “overbagging” and illegal possession of game by taxidermists' customers.

[¶ 8.] In this case, there is no dispute that at the time the conservation officer requested to see Klager's records, Klager was licensed and engaged full-time in the taxidermy business. Further, Klager does not contend that the officer's physical entry into his business premises during normal business hours violated his Fourth Amendment right to privacy. Finally, the officer conducted no search or inspection of Klager's premises to look for the records. He simply requested that Klager produce the records that SDCL 41–6–33 requires taxidermists to keep and produce. Klager refused.

[¶ 9.] Klager refused even though he had given his written consent to produce the records without a warrant. In his license application immediately preceding this incident, Klager waived his Fourth Amendment rights and consented to make the records available for inspection by Department representatives any time during normal business hours.⁵ Klager's written consent stated:

I will keep a record of all specimens received for mounting and preserving. These records and specimens shall be made available for inspection by any authorized representative of the South Dakota Department of Game Fish and Parks during normal business hours.

[¶ 10.] Klager had also received the printout of the South Dakota laws requiring the keeping and producing of records, and he conceded that he was very familiar with the laws and rules governing taxidermists. Klager even disclosed that: he was “quite extensively” involved in the development of the taxidermy regulation statute; he helped write the statutory amendments and regulations in 2003; he was aware that a taxidermist's records were required to be made available for inspection by any representative of the Department during normal business hours; and he had testified on behalf of the South Dakota Taxidermist's Association (as their vice-president) encouraging frequent inspections.

[¶ 11.] “An individual must have a reasonable expectation of privacy in the place searched or the article seized before the Fourth Amendment will apply.” State v. Thunder, 2010 S.D. 3, ¶ 16, 777 N.W.2d 373, 378. An expectation of privacy “is determined by a two-prong test: (1) whether the defendant has exhibited an actual subjective expectation of privacy and (2) whether society is willing to honor this expectation as being reasonable.” State v. Lowther, 434 N.W.2d 747, 754 (S.D.1989) (citing Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 516, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring)). Considering Klager's licensure, his knowledge of the records production requirement, his public advocacy for frequent inspections, and his express written consent to this inspection, he had no actual subjective expectation of privacy in the records. Because Klager cannot satisfy the subjective expectation of privacy prong, his conviction must be affirmed on this ground alone. The parties, however, briefed the second prong, and we have elected to also address the question whether the records inspection authorized by SDCL 41–6–33 is objectively reasonable.

[¶ 12.] The Supreme Court has long held that a warrant is required for a search to be considered reasonable under the Fourth Amendment. See, e.g., See v. City of Seattle, 387 U.S. 541, 543, 87 S.Ct. 1737, 1739, 18 L.Ed.2d 943 (1967). However, in the business context the Court has relaxed the warrant clause of the Fourth Amendment to account for the exigencies of administrative inspections “designed to enforce regulatory statutes.” Burger, 482 U.S. at 700, 107 S.Ct. at 2642. This is because “[a]n expectation of privacy in commercial premises ... is different from, and indeed less than, a similar expectation in an individual's home.” Id. The Court has gone so far as to hold that “[c]ertain industries have such a history of government oversight that no reasonable expectation of privacy ... could exist for a proprietor over the stock of such an enterprise.” Id. (quoting Marshall v. Barlow's, Inc., 436 U.S. 307, 313, 98 S.Ct. 1816, 1821, 56 L.Ed.2d 305 (1978) (internal citation omitted)). “ ‘When a dealer chooses to engage in [a] pervasively regulated business and to accept a ... license, he does so with the knowledge that his business records ... will be subject to effective inspection.’ ” Id. at 701, 107 S.Ct. at 2643 (quoting Biswell, 406 U.S. at 316, 92 S.Ct. at 1596). So significant is the necessity for effective inspection that in such “pervasively regulated” industries, the Court has dispensed with the need for a warrant at all. Biswell, 406 U.S. at 316–17, 92 S.Ct. at 1596–97 (permitting warrantless inspections in the gun selling industry). See also Bu...