#25609-a-SLZ

2011 S.D. 12

                           IN THE SUPREME COURT
                                   OF THE
                          STATE OF SOUTH DAKOTA

                                     * * * *

STATE OF SOUTH DAKOTA,                             Plaintiff and Appellee,

v.

WILLIAM C. KLAGER, JR.,                            Defendant and Appellant.

                                     * * * *

                   APPEAL FROM THE CIRCUIT COURT OF
                      THE FIFTH JUDICIAL CIRCUIT
                     BROWN COUNTY, SOUTH DAKOTA

                                     * * * *

                      HONORABLE JACK R. VON WALD
                                Judge

                                     * * * *

MARTY J. JACKLEY
Attorney General

CRAIG M. EICHSTADT
Assistant Attorney General
and
RICHARD J. NEILL
Special Assistant Attorney General                 Attorneys for plaintiff
Pierre, South Dakota                               and appellee.

H.I. KING of
Tonner, Tobin & King, LLP                          Attorneys for defendant
Aberdeen, South Dakota                             and appellant.

                                     * * * *
                                               ARGUED NOVEMBER 16, 2010
                                               REASSIGNED FEBRUARY 1, 2011

                                           OPINION FILED 03/30/11
#25609

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



1.      SDCL 41-6-33 provides:

                     It is a Class 2 misdemeanor for a person to preserve or
              mount birds, animals, or fish that such person does not own
              without a taxidermist’s license or in violation of the conditions
              of the license or the rules of the Game, Fish and Parks
              Commission.
                      A taxidermist’s license permits the licensee to have in
              possession at the taxidermist’s place of business, birds, animals,
              or fish, lawfully caught, taken, or killed, for the sole purpose of
              preserving or mounting them. Birds, animals, or fish or any
              part thereof may be transported by anyone having them legally
              in possession to a licensee for preserving or mounting only and
              for return by the licensee to the owner thereof.
                      The Game, Fish and Parks Commission shall approve
              each taxidermist’s license. The commission shall promulgate
              rules pursuant to chapter 1-26 setting the requirements for a
              taxidermist’s license. Each licensee shall keep a written record
              of all birds, animals, and fish received by the licensee. The
              record shall include the name and address of each specimen’s
              owner, the number and species, and the dates of receipt and
              delivery of each specimen. The record and customers’ specimens
              shall be made available for inspection by any representative of
              the Department of Game, Fish and Parks during normal
              business hours.

2.      The dissent repeatedly describes this case as one involving the search of
        Klager’s records. There was no search of Klager’s records, specimens, or
        premises. A conservation officer merely asked Klager to produce the records
        that SDCL 41-6-33 requires licensees to keep and produce. Klager refused
                                                                   (continued . . .)
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#25609

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


_________________________
(. . . continued)
         and the officer proceeded no further. Klager was subsequently cited for
         failing to produce the records.

3.      Klager also alleged that SDCL 41-6-33 was unconstitutional under Article VI,
        Section 11 of the South Dakota Constitution. Because Klager has not
        pursued a separate state constitutional argument, we only address the
        matter under the Fourth Amendment.

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#25609

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 predecessors4 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.



4.      See S.D. Sess. Laws 1925, ch. 181. The 1939 and 2003 revisions made no
        material changes in the 1925 requirements. See SDC § 25.0302(11); S.D.
        Sess. Laws 2003, ch. 222, § 1. The 1925 version made violations a
        misdemeanor. This penalty was omitted in 1939 but reinstated in 1991. See
        S.D. Sess. Laws 1991, ch. 337, § 25. The 1991 revision limited inspections to
        normal business hours.

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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.




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[¶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.




5.      The dissent states that we “should be careful in expanding the ‘consent’ in
        this case, because it was made in order to obtain a license, which amounts to
        holding a taxidermist’s livelihood hostage.” Dissent note 24. It is not clear
        what is intended by this statement. What is clear, is that the dissent has not
        contended that the consent was invalid (involuntary). This of course it
        cannot do as Klager has not contended that his written consent was
        involuntary. Moreover, the Supreme Court has consistently described the
        matter as a business person’s choice to engage in a business requiring
        licensure. Burger, 482 U.S. at 701, 107 S. Ct. at 2643; U.S. v. Biswell, 406
        U.S. 311, 316, 92 S. Ct. 1593, 1596, 32 L. Ed. 2d 87 (1972).

                                          -5-
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[¶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




                                          -6-
#25609

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 Burger, 482 U.S. at 703-704, 107 S. Ct. at 2644-45 (same in the

vehicle-dismantling and automobile junkyard industry); Donovan v. Dewey, 452


                                            -7-
#25609

U.S. 594, 602-05, 101 S. Ct. 2534, 2539-41, 69 L. Ed. 2d 262 (1981) (same in coal

mines); Colonnade Catering Corp. v. United States, 397 U.S. 72, 76-77, 90 S. Ct.

774, 777, 25 L. Ed. 2d 60 (1970) (same in the liquor industry). The Court explained:

“The greater latitude to conduct warrantless inspections of commercial property

reflects the fact that the expectation of privacy that the owner of commercial

property enjoys in such property differs significantly from the sanctity accorded an

individual’s home, and that his privacy interest may, in certain circumstances, be

adequately protected by regulatory schemes authorizing warrantless inspections.”

Donovan, 452 U.S. at 598-99, 101 S. Ct. at 2538. 6

[¶13.]         To find a warrantless administrative inspection reasonable under the

Supreme Court’s regulated business framework, the business must be closely

regulated and the statute must satisfy three criteria. Burger, 482 U.S. at 702, 107

S. Ct. at 2644. Closely regulated industry status is an important threshold test

because, as previously noted, “[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. at 700, 107 S. Ct. at 2642.

Moreover, “[t]he businessman in a regulated industry in effect consents to the

restrictions placed upon him.” Marshall, 436 U.S. at 313, 98 S. Ct. at 1821 (quoting

Almeida-Sanchez v. United States, 413 U.S. 266, 271, 93 S. Ct. 2535, 2538, 37 L. Ed.

2d 596 (1973)). Finally, closely regulated industry status is an important

consideration in cases like this because it often informs the question whether the


6.       This summary of the Supreme Court’s business inspection jurisprudence is
         taken from In re Establishment Inspection of: Wedgewood Village Pharmacy,
         Inc., 270 F.Supp.2d 525, 534-35 (D.N.J. 2003).

                                          -8-
#25609

statutory language satisfies Burger’s third criterion by providing a constitutionally

adequate substitute for a warrant. See, e.g., State v. Rechtenbach, 2002 S.D. 96, ¶¶

12, 17-20, 650 N.W.2d 290, 293-95 (relying on the fact that the defendant was

engaged in a “closely regulated industry” to conclude that two much less specific

statutes satisfied Burger’s third criterion).

[¶14.]       A closely regulated business is one in which the regulation “is

sufficiently pervasive and defined that the owner of such facility cannot help but be

aware that he ‘will be subject to effective inspection.’” Donovan, 452 U.S. at 603,

101 S. Ct. at 2540 (quoting Biswell, 406 U.S. at 316, 92 S. Ct. at 1596). The

duration of a regulatory scheme is an “important factor” in determining whether an

industry is closely regulated. Burger, 482 U.S. at 701, 107 S. Ct. at 2643. If the

statutory provisions regulating the business are extensive and have been in effect

for a substantial period of time, courts will find that the business is closely

regulated. Id. at 704-07, 107 S. Ct. at 2644-46. Burger instructs that a regulatory

scheme is deemed “extensive” and the business is “closely regulated” if the

regulations require acquisition of a license; maintenance of records that are open to

inspection; assessment of civil fines, loss of license or a criminal penalty for

regulatory violations; and, there is similarly extensive regulation in other states.

Id. at 704-05, 107 S. Ct. at 2644-45. South Dakota’s taxidermy regulatory

provisions meet these requirements.

[¶15.]       SDCL 41-6-33, in effect for over eighty-five years, makes it a criminal

offense to preserve or mount birds, animals, or fish that a person does not own (the

business of taxidermy) unless that person has been licensed by the Game, Fish and


                                           -9-
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Parks Commission. Licensure authorizes the possession of such birds, animals and

fish at the taxidermist’s place of business for the sole purpose of preserving or

mounting. Id. Such specimens or parts thereof may be transported only to a

licensee for preserving and mounting and for return to the owner. Id. And as is

particularly relevant here, the statute directs how and when taxidermists will be

inspected. The statute informs the licensee that he or she must keep specifically

enumerated records of customers’ specimens and make those records and specimens

available for inspection by Department representatives any time7 during normal

business hours.

               Each licensee shall keep a written record of all birds, animals,
               and fish received by the licensee. The record shall include the
               name and address of each specimen’s owner, the number and
               species, and the dates of receipt and delivery of each specimen.
               The record and customers’ specimens shall be made available for
               inspection by any representative of the Department of Game,
               Fish and Parks during normal business hours.

SDCL 41-6-33. A review of reported decisions reflects that this type of regulation of

taxidermy is not uncommon in other states. See People v. Taylor, 138 Ill.2d 204,

214-15, 561 N.E.2d 667, 672 (1990). See also infra note 10.

[¶16.]         Administrative rules impose further regulatory detail. ARSD

41:09:11:02 sets the license fee at $15. This minimal fee is significant. As the

Illinois Supreme Court explained, a minimal fee (in that case $25) “demonstrates

that police regulation, rather than revenue raising, was the motive behind the



7.       We have held that statutes authorizing administrative inspections “any time”
         provide sufficient specificity to satisfy Burger if the business is closely
         regulated. See infra ¶¶ 30-31 (discussing Rechtenbach, 2002 S.D. 96, 650
         N.W.2d 290).

                                          -10-
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General Assembly’s enactment of the licensing procedure.” Taylor, 138 Ill.2d at

215, 561 N.E.2d at 672 (discussing the regulation of taxidermy).

[¶17.]         The administrative rules also define terms, set forth requirements for

tagging and receipt of specimens, set forth requirements for transferring specimens,

and provide for civil license revocation for violations of the statute or rules. ARSD

§§ 41:09:11:04 to :06. With respect to records, the administrative rules require that

the records specified in SDCL 41-6-33 be kept separately for each customer. ARSD

41:09:11:03. That regulation also requires that the records be kept for five years, a

timeframe within the Department’s horizon for performing taxidermy inspections.

See supra ¶ 6. 8




8.       The dissent concludes that “two pages” of regulations are insufficient.
         Dissent ¶ 41. But Burger pointed out that the number of pages of regulations
         is not the determining factor in deciding whether a business is closely
         regulated. 482 U.S. at 705 n.16, 107 S. Ct. at 2645 n.16.

               Although the number of regulations certainly is a factor in the
               determination whether a particular business is “closely regulated,” the
               sheer quantity of pages of statutory material is not dispositive of this
               question. Rather, the proper focus is whether the “regulatory presence
               is sufficiently comprehensive and defined that the owner of commercial
               property cannot help but be aware that his property will be subject to
               periodic inspections undertaken for specific purposes.”

         Id. (citing Donovan, 452 U.S. at 600, 101 S. Ct. at 2539). As detailed above,
         SDCL 41-6-33 and these implementing regulations govern virtually all
         aspects of the business of taxidermy; i.e., the receipt, possession, transfer,
         and recordkeeping required to process a customer's specimens. Considering
         these requirements together with the requirement of state and federal
         licensure and the fact that inspections may be conducted any time during
         normal business hours, it is difficult to imagine how any licensed taxidermist
         would not be aware that his or her records were subject to inspection for the
         purpose of determining compliance with the statute and regulations.

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[¶18.]         Burger makes clear that the relevant inquiry examines the “nature of

the regulatory statute,” 482 U.S. at 703, 107 S. Ct. at 2644, and the “duration of

[this] particular regulatory scheme.” Id. at 705, 107 S. Ct. at 2645. South Dakota’s

regulatory statute contains the same regulatory components as the New York

statute that satisfied Burger’s requirements for a closely regulated industry. 9

Considering South Dakota’s eighty-five year history of statutorily required

licensure, recordkeeping, and records production, taxidermists must certainly be

aware that their specimens and records are subject to governmental oversight and

inspection. See Burger, 482 U.S. at 703-04, 107 S. Ct. at 2644; Donovan, 452 U.S. at

603, 101 S. Ct. at 2540. Indeed, the only two reported cases applying Burger to

taxidermy statutes 10 like SDCL 41-6-33 have stated that taxidermy is a closely



9.       The dissent would not find closely regulated business status without
         requiring additional agent “training,” “written” policies and directives
         reflecting agency “priority,” and agency recordkeeping of the results of
         inspections. Dissent ¶ 46. Even if these internal agency matters were
         worthy of consideration by those executive officers charged with managing
         the Department, they are not necessary to establish a closely regulated
         business. Burger is clear. The relevant consideration is “the regulatory
         framework governing [the] business and the history of regulation. . . .”
         Burger, 482 U.S. at 707, 107 S. Ct. at 2646 (emphasis added).

10.      The Wyoming statute provided:

               The owner or operator of any commercial operation or business
               permitted under this act shall upon request of any department
               personnel exhibit the records required to be maintained by the
               commission and permit inspection of the premises pertaining to
               the business or operation, during reasonable business hours.

         Wyo. Stat. Ann. § 23-6-111 (1977).

         The Pennsylvania statute provided:

                                                                   (continued . . .)
                                          -12-
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regulated business. See United States v. Johnson, 994 F.2d 740, 742 (10th Cir.

1993) (stating that “[defendant], as the owner of a closely regulated business [a

taxidermy shop], was subject to regulatory inspections”) (citing Burger, 482 U.S. at

699-701, 107 S. Ct. at 2642-43); Showers v. Spangler, 957 F.Supp. 584, 591 n.5

(M.D. Pa. 1997) (stating “that the closely regulated industry exception does apply to

taxidermists as a general matter”), rev’d on other grounds, 182 F.3d 165 (3rd Cir.

1999). In accordance with Burger, we conclude that Klager was operating a closely

regulated business.

[¶19.]         Because owners of closely regulated businesses have “a reduced

expectation of privacy,” Burger, 482 U.S. at 707, 107 S. Ct. at 2646, a warrantless

inspection is deemed reasonable within the meaning of the Fourth Amendment if

three criteria are met. First, there must be a substantial government interest that

informs the regulatory scheme pursuant to which the inspection is made. Id. at

702, 107 S. Ct. at 2644. Second, the warrantless inspection must be necessary to

further the regulatory scheme. Id. Third, “the statute’s inspection program, in

terms of the certainty and regularity of its application, [must] provid[e] a

constitutionally adequate substitute for a warrant.” Id. at 703, 107 S. Ct. at 2644.

_________________________
(. . . continued)
               Each permit holder shall keep accurate records of all
               transactions carried out under authority of the permit issued
               and any other information required by the director. The records
               must be kept for a period of three years and shall be open to
               inspection by any officer of the commission during normal
               business hours and shall be the basis of any reports required by
               the commission.

         34 Pa. Cons. Stat. Ann. § 2907 (1993).


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[¶20.]       Burger’s first criterion is satisfied. We have long recognized that

wildlife is the property of the State.

             At common law, wild game was deemed to be the property of the
             sovereign or state and not of the private real property owner.
             State v. Pollock, 42 S.D. 360, 365, 175 N.W.2d 557, 558 (1919). .
             . . This common law doctrine was reinforced in 1899 by the
             passage of what is now SDCL 41-1-2, which provides in part,
             that “any game bird, game animal, or game fish . . . shall always
             and under all circumstances be and remain the property of the
             state[.]”

Reis v. Miller, 1996 S.D. 75, ¶ 29, 550 N.W.2d 78, 84 (Gilbertson, J., concurring).

Therefore, we have held that “[t]he citizens of this state have an interest in the

management of wildlife so that it can be effectively conserved.” State v. Halverson,

277 N.W.2d 723, 724 (S.D. 1979). See also SDCL title 41 (containing the statutes

that manage, protect and conserve wildlife resources); State v. Morrison, 341

N.W.2d 635, 637 (S.D. 1983); State v. Pollock, 42 S.D. 360, 175 N.W. 557 (1919).

[¶21.]       With respect to the second criterion, at oral argument, Klager conceded

that warrantless inspections are necessary to further taxidermy regulation. He

must concede the point as the record reflects that because of illegal harvesting,

trafficking, and possession of wildlife, unannounced inspections are crucial to

effective enforcement of the regulatory scheme.

[¶22.]       Klager, however, argues that the third criterion has not been satisfied.

Klager contends that SDCL 41-6-33 has insufficient standards limiting the officer’s

discretion in the frequency and procedures of inspections. This argument fails to

recognize that Burger approved enforcement of an analytically identical New York

statute that contained the same standards (or lack of standards) as SDCL 41-6-33.

See Burger, 482 U.S. at 694, 711, 107 S. Ct. at 2639, 2648.

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[¶23.]        To satisfy the third Burger criterion, “the regulatory statute must

perform the two basic functions of a warrant”: i.e., (1), it “must advise the owner of

the commercial premises that the search is being made pursuant to the law and has

a properly defined scope”; and (2), it “must limit the discretion of the inspecting

officers.” Id. at 703, 107 S. Ct. at 2644. To fulfill the first function, “the statute

must be ‘sufficiently comprehensive and defined that the owner of commercial

property cannot help but be aware that his property will be subject to periodic

inspections undertaken for specific purposes.’” Id. (quoting Donovan, 452 U.S. at

600, 101 S. Ct. at 2539). To fulfill the second function, the statute must be

“carefully limited in time, place, and scope.” Id. (quoting Biswell, 406 U.S. at 315,

92 S. Ct. at 1596).

[¶24.]        Burger held that both functions of a warrant are satisfied by statutory

language containing the standards found in SDCL 41-6-33. The Supreme Court

began its analysis by identifying the provisions of the New York vehicle-dismantler

statute that were “pertinent” to the Fourth Amendment inquiry. Burger, 482 U.S.

at 694 n.1, 107 S. Ct. at 2639 n.1. Like SDCL 41-6-33, the pertinent provisions of

the New York statute only required licensure, recordkeeping, and production of

enumerated records during normal business hours. The New York statute provided:

              Every person required to be registered pursuant to this section
              shall maintain a record of all motor vehicles, trailers, and major
              component parts thereof. . . . Such records shall be maintained
              in a manner and form prescribed by the commissioner. . . . Upon
              request of an agent of the commissioner or of any police officer
              and during his regular and usual business hours, a vehicle
              dismantler shall produce such records and permit said agent or
              police officer to examine them and any vehicles or parts of
              vehicles which are subject to the record keeping requirements of
              this section and which are on the premises.

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Burger, 482 U.S. at 694 n.1, 107 S. Ct. at 2639 n.1 (citing N.Y. Veh. & Traf. Law §

415-a5 (McKinney 1986)). Although the New York statute was silent on the

frequency and procedure of inspections, Burger concluded that it satisfied both

warrant requirements making such statutory language a “constitutionally adequate

substitute for a warrant.” Id. at 711, 107 S. Ct. at 2648.

[¶25.]         With respect to the first warrant requirement, Burger explained that

such statutory language “informs [the business owner] that inspections will be

made on a regular basis” 11 and provides notice “that the inspections to which [the

licensee] is subject do not constitute discretionary acts by a government official but

are conducted pursuant to statute.” Id. The Court concluded that such language

satisfied the first warrant requirement because it “sets forth the scope of the

inspection,” “places the operator on notice as to how to comply with the statute,”

and “notifies the operator who is authorized to conduct an inspection.” Id. SDCL

41-6-33 satisfies these requirements because it contains the same pertinent

provisions: they set forth the scope of the inspection (the inspection of records and

specimens during normal business hours), notify the taxidermist how to comply



11.      As the Massachusetts Supreme Court observed in a similar case:

               If the Supreme Court was able to find that the New York statute
               informed licensees that there would be regular inspections
               (although that statute says nothing explicitly to that effect), the
               Supreme Court would presumably reach the same conclusion as
               to the Massachusetts statutes, which are equally silent on this
               point.

         Com. v. Eagleton, 402 Mass. 199, 205 n.10, 521 N.E.2d 1363, 1366
         n.10 (1988).

                                           -16-
#25609

with the statute, and notify the taxidermist who is authorized to conduct the

inspection. 12 There is no dispute that Klager had such knowledge. He helped the

Department write the regulations and the latest version of the statute.

[¶26.]         With respect to the second warrant requirement, Burger concluded

that the New York statute adequately limited the discretion of the inspecting

officers. Although there were no frequency of inspection standards, the New York

statute adequately limited the discretion of the inspecting officers because:

               [T]he “time, place, and scope” of the inspection is limited to place
               appropriate restraints upon the discretion of the inspecting
               officers. The officers are allowed to conduct an inspection only
               “during [the] regular and usual business hours.” The
               inspections can be made only of vehicle-dismantling and related
               industries. And the permissible scope of these searches is
               narrowly defined: the inspectors may examine the records, as
               well as “any vehicles or parts of vehicles which are subject to the
               record keeping requirements of this section and which are on the
               premises.”




12.      The dissent claims that the scope of the statute is too broad because it would
         permit a conservation officer to go into a private home “searching for a
         taxidermist’s records and specimens.” Dissent ¶ 51. The dissent claims that
         “there is no required place where those items shall be kept.” Id. The dissent
         is incorrect. The statute plainly requires that the specimens may only be
         possessed “at the taxidermist’s place of business.” SDCL 41-6-33. Further,
         the administrative rules require immediate tagging upon receipt of the
         specimen. The written tag must also remain with the specimen at all times.
         Finally, the customers’ specimens (which must be kept in the licensee’s place
         of business) shall be made available for inspection only “during normal
         business hours.” Id. This regulatory framework contemplates inspection
         requests at the business premises. More importantly, the dissent misreads
         what is authorized by the statute. SDCL 41-6-33 does not purport to
         authorize searches in any locations. The statute only provides that the
         taxidermist must make specimens and records “available” for inspection or
         face a misdemeanor penalty.

                                           -17-
#25609

Burger, 482 U.S. at 711-12, 107 S. Ct. at 2648 (citations and footnotes omitted).

Because SDCL 41-6-33 contains these same limitations on a conservation officer’s

discretion, the South Dakota language adequately limits an inspector’s discretion.

[¶27.]         Ultimately, because there is no material difference in the pertinent

provisions of the New York and South Dakota statutes, SDCL 41-6-33 contains the

standards necessary to satisfy both substitute warrant requirements of the third

Burger criterion. 13 The language of SDCL 41-6-33 comfortably fits within Burger’s

holding regarding substitute warrant requirements. As the Supreme Court noted,


13.      The dissent’s reliance on Showers, 957 F.Supp. 584, is misplaced. The
         dissent correctly cites Showers for the proposition that a taxidermy
         regulation was “unconstitutional because it failed to limit the officer’s
         discretion through careful limitations of place and scope.” See dissent ¶ 53.
         But the administrative regulation in Showers exceeded the scope of the
         underlying inspection statute, and the court found no constitutional problem
         with the statute, which is analogous to SDCL 41-6-33. See supra note 10.
         More specifically, the court found that while the statute only authorized the
         inspection of business records, the regulation expanded the statute to include
         “premises inspections,” which was not authorized by statute. Showers, 957
         F.Supp. at 591. The court further concluded that the premises search
         regulation did not satisfy Burger because the regulation did not “make clear
         what premises [could] be inspected, or what [could] be examined on those
         premises.” Showers, 957 F.Supp. at 592. In contrast, SDCL 41-6-33 limits
         inspections to the taxidermist’s statutorily enumerated records and
         specimens that may only be possessed at the taxidermist’s place of business.
         Therefore, Showers provides no support for the dissent’s claim that SDCL 41-
         6-33 fails to satisfy Burger’s third criterion.

         Additionally, Showers rejected the dissent’s view that frequency standards
         are necessary in addition to the limiting language in statutes like SDCL 41-6-
         33. That court specifically held that “[w]hile the Inspection Regulation does
         not specify when inspections may be conducted, [Pennsylvania’s] Inspection
         Statute authorizes inspections only during ‘normal business hours.’ Such a
         limitation is sufficient under Burger. 482 U.S. at 711, 107 S. Ct. at 2648, 96
         L. Ed. 2d at 619.” Showers, 957 F.Supp. at 592 (internal citation omitted).
         Because the Pennsylvania and South Dakota statutes are so similar, Showers
         fully supports this writing.


                                           -18-
#25609

when “[e]ach licensee is annually furnished with a revised compilation of ordinances

that describe his obligations and define the inspector’s authority[, the business

owner] is not left to wonder about the purposes of the inspector or the limits of his

task.” Biswell, 406 U.S. at 316, 92 S. Ct. at 1596.

[¶28.]         It must be emphasized that Burger specifically rejected the dissent’s

view that additional standards regarding the frequency of, and procedures for,

inspections are required. 14 The Supreme Court held it was enough that the New

York statute restricted the administrative inspection to regular business hours and

to the regulation’s limited subject-matter and records thereof. Burger, 482 U.S. at

711, 107 S. Ct. at 2648. Concededly, frequent enforcement activities may play a role

in regulatory inspection cases involving statutes that contain fewer or no guidelines

regarding the time, place and purpose of the inspection. See, e.g., infra ¶ 31

(discussing Rechtenbach, 2002 S.D. 96, ¶ 9, 650 N.W.2d 292-93; State v. Barton,

2001 S.D. 52, ¶ 12, 625 N.W.2d 275, 279; and Ritter v. Johnson, 465 N.W.2d 196,

200 (S.D. 1991)). But the Burger analysis of the New York statute did not rely on

the extent of enforcement activities to conclude that the warrant substitute



14.      The dissent’s reliance on State v. Lecarros, 187 Or. App. 105, 107, 66 P.3d
         543, 545 (Or. Ct. App. 2003) is misplaced. See dissent ¶ 55. The dissent cites
         Lecarros for the proposition that administrative “searches” are
         unconstitutional under the third Burger criterion unless the government
         creates rules to guide an officer’s discretion. Id. Although this general
         proposition is correct, Lecarros did not involve the lesser expectation of
         privacy recognized in the operation of a closely regulated business. It
         involved the higher expectation of privacy accorded a private citizen who was
         operating his recreational boat on a public waterway. 187 Or. App. at 107, 66
         P.3d at 545. Lecarros has no application to an administrative request to
         produce business records of a licensee who had agreed to produce the records
         as a condition of licensure.

                                          -19-
#25609

requirement of the third criterion was satisfied. Burger looked solely to statutory

language like SDCL 41-6-33, concluding that it alone contained sufficient standards

to make it “clearly fall within the well-established exception to the warrant

requirement for administrative inspections of ‘closely regulated’ businesses.” See

Burger, 482 U.S. at 712, 107 S. Ct. at 2649. The dissent’s view that the similarities

in the New York and South Dakota statutes are “beside the point,” dissent ¶ 57,

highlights its error. Burger clearly stated that to provide the warrant substitute

under the third criterion, “the regulatory statute must perform the two functions of

a warrant.” 482 U.S. at 703, 107 S. Ct. at 2644 (emphasis added). See also

Donovan, 452 U.S. at 605, 101 S. Ct. at 2540 (noting that the “act itself” contains

sufficient standards).

[¶29.]       Were there any question about the need for additional standards

concerning the frequency and procedures of inspections, the matter was laid to rest

by the majority’s rejection of Justice Brennan’s dissent calling for additional

standards. Exactly like today’s dissent, see dissent ¶ 54, Justice Brennan argued

that additional standards regarding the frequency of inspection were necessary

because:

             The statute does not inform the operator of a [] business that
             inspections will be made on a regular basis; in fact, there is no
             assurance that any inspections at all will occur. There is neither
             an upper nor a lower limit on the number of searches that may
             be conducted at any given operator’s establishment in any given
             time period. Neither the statute, nor any regulations, nor any
             regulatory body, provides limits or guidance on the selection of
             [the business] for inspection. In fact, the State could not explain
             why Burger’s operation was selected for inspection.




                                         -20-
#25609

Id. at 722-723, 107 S. Ct. at 2654 (Brennan, J., dissenting). But the Burger

majority rejected this view of statutory language like SDCL 41-6-33. 15 In fact,



15.   The Burger majority did not overlook the dissent’s concern regarding
      procedures for how to conduct inspections under similar statutory language.
      On the contrary, Burger rejected the same argument the dissent raises today.
      Burger stated:

             With respect to the adequacy of the statutory procedures, this
             case is indistinguishable from United States v. Biswell. . . . The
             Court held that the statute gave a firearms dealer adequate
             notice of “the purposes of the inspector [and] the limits of his
             task.” Id. at 316, 92 S. Ct. at 1596.

      482 U.S. at 712 n.22, 107 S. Ct. at 2648 n.22.

      The Burger majority did not overlook the dissent’s concern regarding
      standards on when inspections will be conducted. On the contrary, Burger
      rejected the dissent’s view. Burger stated:

             Respondent contends that § 415-a5 is unconstitutional because
             it fails to limit the number of searches that may be conducted of
             a particular business during any given period. While such
             limitations, or the absence thereof, are a factor in an analysis of
             the adequacy of a particular statute, they are not determinative
             of the result so long as the statute, as a whole, places adequate
             limits upon the discretion of the inspecting officers. Indeed, we
             have approved statutes authorizing warrantless inspections even
             when such statutes did not establish a fixed number of
             inspections for a particular time period. And we have suggested
             that, in some situations, inspections must be conducted
             frequently to achieve the purposes of the statutory scheme.

      Id. at 712 n.21, 107 S. Ct. at 2648 n.21 (emphasis added).

      Donovan further explained that the frequency and timing of inspections is
      not the test. The frequency and timing of the inspections helps determine
      whether, under the language of the legislative enactment, the business owner
      “is not left to wonder about the purposes of the inspector or the limits of his
      task.” Donovan, 452 U.S. at 604, 101 S. Ct. at 2541 (emphasis added) (citing
      Biswell, 406 U.S. at 316, 92 S. Ct. at 1596). SDCL 41-6-33 and the
      administrative regulations leave no doubt about the purpose of the inspector
      and the limits of the inspector’s task.

                                         -21-
#25609

Burger concluded that language like that in SDCL 41-6-33 meets the substitute

warrant requirements even though New York could not explain why that vehicle

dismantler had been targeted for inspection. Burger, 482 U.S. at 694 n.2, 107 S. Ct.

at 2639 n.2. In light of the Burger majority, we have no authority to apply today’s

dissent adopting Justice Brennan dissenting view of language like that found in

SDCL 41-6-33. We are bound to follow the Burger majority on issues of federal

constitutional law.

[¶30.]       The dissent’s desire to require additional enforcement standards and

procedures is also at odds with our own jurisprudence. In Rechtenbach, 2002 S.D.

96, 650 N.W.2d 290, this Court applied the third Burger criterion to two statutes

authorizing the inspection of commercial trucks. Both statutes had far fewer

standards than SDCL 41-6-33. One statute broadly authorized “any law

enforcement officer [to] require the driver of a commercial vehicle to stop a vehicle

at any time for inspection to determine whether the provisions of this chapter are

being complied with.” Rechtenbach, 2002 S.D. 96, ¶ 9, 650 N.W.2d 292-93 (quoting

SDCL 49-28-66) (emphasis added). The other authorized stopping “any vehicle or

carrier to examine, measure, or weigh the vehicle. . . . The agents, patrol officers,

motor carrier enforcement officers, and motor carrier inspectors may examine any

bill-of-lading, registration, license, or permit to determine if the motor carrier is

properly registered, licensed, or permitted. . . .” Id. (quoting SDCL 32-2-7)

(emphasis added).

[¶31.]       In reviewing these substantially more standardless inspection

statutes, this Court rejected the dissent’s view that administrative inspections


                                          -22-
#25609

under such language fail to satisfy Burger’s third criterion. We did so because

trucking is a closely regulated industry. Id. ¶¶ 7, 12-13, 17-18. “Truck drivers

know they may be stopped for inspections at any time. Not only is this the practice

nationwide, but South Dakota state law clearly states that a commercial vehicle

may be stopped at ‘any time.’” Id. ¶ 14. Thus, we specifically rejected the dissent’s

view that statutes allowing administrative inspections of closely regulated

businesses at “any time” grant too much discretion. We concluded that “if stops

cannot be made at ‘any time’ truck drivers would be free to violate the law and

regulations with impunity.” Id. ¶ 16. This Court ultimately concluded that in the

case of closely regulated businesses, statutory language containing far fewer

standards and guidelines than SDCL 41-6-33 “provide[s] adequate limits on what is

to be inspected, and on when and where the inspection is to take place” thus

satisfying all three Burger criteria. Rechtenbach, 2002 S.D. 96, ¶ 20, 650 N.W.2d at

295. We have also reached the same conclusion under other broad regulatory

language on two additional occasions. See State v. Barton, 2001 S.D. 52, ¶ 12, 625

N.W.2d 275, 279 (concluding that SDCL 32-22-50 16 satisfies the Burger

requirements in a closely regulated industry); Ritter v. Johnson, 465 N.W.2d 196,

200 (S.D. 1991) (same).


16.   That statute merely provided:

             Any peace officer having reason to believe that the weight of a
             vehicle and load is unlawful is authorized to weigh the same
             either by means of portable or stationary scales and may require
             that such vehicle be driven to the nearest scales in the event
             such scales are within five miles.

      SDCL 32-22-50.

                                         -23-
#25609

[¶32.]       In sum, Klager had no actual subjective expectation of privacy

regarding the records he was required to produce as a condition of his licensure. He

knew he was subject to warrantless inspections as a condition of his licensure and

he gave his written consent for the inspection. This is fatal to Klager’s challenge,

and his conviction must be affirmed on this ground alone. Additionally, considering

the absence of any actual subjective expectation of privacy, Klager presents a far

stronger case for the statutory requirement of production from business licensees

than the search approved in Burger: a premises search of a vehicle dismantler who

was not licensed and who had not given his consent to the inspection.

[¶33.]       Klager also misapplies the law regarding the reasonableness of

administrative inspections of taxidermists’ records. Klager fails to acknowledge the

significance of the fact that taxidermists engage in a business that has been

regulated and required to produce these records for eighty-five years. Klager

ultimately fails to recognize that Burger upheld administrative enforcement of

statutory language that is analytically identical to SDCL 41-6-33. Similarly, the

dissent fails to acknowledge that Burger approved enforcement of the same

pertinent statutory provisions that contained none of the additional standards,

agency priority statements, agency training requirements, and agency

recordkeeping requirements that the dissent desires the Department to adopt. See

Burger, 482 U.S. at 694, 711, 107 S. Ct. at 2639, 2648.

[¶34.]       The Tenth Circuit Court of Appeals succinctly captured the essence of

the inquiry in administrative inspections of taxidermy businesses: “Such

warrantless inspections are deemed reasonable under the Fourth Amendment when


                                         -24-
#25609

performed pursuant to a plan which incorporates specific and neutral criteria.”

Johnson, 994 F.2d at 742 (citing Burger, 482 U.S. at 702-03, 107 S. Ct. at 2643-44).

SDCL 41-6-33’s inspection criteria are specific and neutral. The inspections are

limited to statutorily enumerated records required to be kept and produced as a

condition of licensure. Further, the records are only subject to inspection on the

business premises by Department representatives during normal business hours.

Under Burger, such specific and neutral criteria constitute the required standards.

As Burger reiterated: “When a [business person] chooses to engage in [a]

pervasively regulated business and to accept a [business] license, he does so with

the knowledge that his business records [and property] will be subject to effective

inspection.” 482 U.S. at 700-01, 107 S. Ct. at 2643 (citing Biswell, 406 U.S. at 316,

92 S. Ct. at 1596).

[¶35.]       Affirmed.

[¶36.]       KONENKAMP and SEVERSON, Justices, concur.

[¶37.]       GILBERTSON, Chief Justice, and MEIERHENRY, Justice, dissent.



GILBERTSON, Chief Justice (dissenting).

[¶38.]       I respectfully dissent. I would conclude that taxidermy is not a

pervasively regulated business in South Dakota. The actual regulation of

taxidermy consists of a single statute with minimal administrative regulations, no

specific direction to game officials on when and how to implement inspections, a

minimal number of actual inspections, and no organized records of when inspections

were conducted or their results. The majority opinion’s holding establishes a


                                         -25-
#25609

dangerous basis to conclude pervasive regulation exists every time the Legislature

passes a single statute concerning regulation of an occupation, profession or

business enterprise. Moreover, even if taxidermy were pervasively regulated, the

regulatory scheme established by Game, Fish and Parks does not comply with all

three prongs of the Burger test. Specifically, SDCL 41-6-33 and its minimal

regulations do not provide constitutionally adequate protections substituting for the

protections afforded by the Fourth Amendment warrant requirement. Therefore, I

disagree with the majority opinion and circuit court. I would conclude that SDCL

41-6-33, as enforced, is unconstitutional.

Taxidermy Not Pervasively Regulated

[¶39.]       The focus of this case is not the overall regulation of wild game in

South Dakota; it is the regulation of the taxidermy business. I would conclude that

taxidermy is not a pervasively regulated industry in South Dakota. What is

significant about the pervasively regulated requirement is that it informs a

business owner that he has a reduced, not a non-existent, expectation of privacy.

Marshall v. Barlow’s, Inc., 436 U.S. 307, 312, 98 S. Ct. 1816, 1820, 56 L. Ed. 2d 305

(1978). It is not enough that an industry is pervasively regulated if those

regulations do not inform a business owner that his property will be subject to

periodic inspections undertaken for specific purposes. New York v. Burger, 482 U.S.

691, 703, 107 S. Ct. 2636, 2644, 96 L. Ed. 2d 601 (1987). Furthermore, the Supreme

Court has stated that closely regulated industries are an exception rather than the

rule, and has rejected an expansion of such an exception. Marshall, 436 U.S. at

313, 98 S. Ct. at 1820.


                                         -26-
#25609

[¶40.]         The Supreme Court of the United States has made clear that whether

an industry is pervasively regulated is a threshold test for applying the three

Burger prongs. See Burger, 482 U.S. at 702, 107 S. Ct. at 2643-44. The majority

opinion asserts that “closely regulated industry status is an important consideration

in cases like this because it often informs the question whether the statutory

language satisfies Burger’s third criterion by providing a constitutionally adequate

substitute for a warrant.” Majority opinion ¶ 13. However, it is important to

remember that this threshold test is not a prong itself. Burger, 482 U.S. at 702, 107

S. Ct. at 2644. To lose this distinction is to lose the constitutional foundation for the

warrant exception. Marshall, 436 U.S. at 311-12, 98 S. Ct. at 1819-20.

[¶41.]         Using the authority provided by SDCL 41-2-18(24), Game, Fish and

Parks adopted two pages of regulations governing taxidermy which, as part of the

contents, includes a reproduction of SDCL 41-6-33. The balance of the two-page

document contains the following headings: “Definitions”; “Records”; “Immediate

tagging of specimen”; “Transfer of specimens to another taxidermist”; “Buying,

Selling, Trading”; and, “Violation is cause for revocation of license.” 17 Thus, a

taxidermist in South Dakota must adhere to less than two pages of regulations.

These two pages hardly establish a “regulatory presence [that] is sufficiently

comprehensive and defined that the owner of commercial property cannot help but

be aware that his property will be subject to periodic inspections undertaken for

specific purposes.” Burger, 482 U.S. at 705 n.16, 107 S. Ct. at 2645 n.16 (citing



17.      The “Laws and Regulations for Taxidermists” document is appended to this
         decision.

                                          -27-
#25609

Donovan v. Dewey, 452 U.S. 594, 600, 101 S. Ct. 2534, 2539, 69 L. Ed. 2d 262

(1981)). Even though a taxidermist is told that his or her business records are

subject to inspection, this statement alone does not reasonably lead to an

expectation that he or she is entering into a business where there is going to be

extensive government oversight. While the relevant laws and regulations are

provided to taxidermists, they do not indicate how or when they are enforced, if at

all. Furthermore, neither the statute nor the taxidermist’s application provide a

“specific purpose” for why the search is being conducted. See Donovan, 452 U.S. at

600, 101 S. Ct. at 2539. Without this information, it is difficult to understand how

mere regulation of taxidermy has reached a “pervasive” level.

[¶42.]         The circuit court found taxidermy was a pervasively regulated

business because taxidermists are required to file an application, 18 pay a fee, 19



18.      The application Klager filled out consisted of his name and address. This
         minimal information is in contrast to the application in Burger that required
         the operator of a vehicle dismantling business to provide “a listing of all
         felony convictions and all other convictions relating to the illegal sale or
         possession of a motor vehicle or motor vehicle parts, and a listing of all
         arrests for any such violations by the applicant and any other person
         required to be named in the application.” Burger, 482 U.S. at 704 n.15, 107
         S. Ct. at 2645 n.15. The application also required the place of business to
         conform to code provisions and that “all persons having a financial interest in
         the business have been determined . . . to be fit persons to engage in such
         business.” Id. Also in contrast to Burger, SDCL 41-6-33 provides that “[t]he
         Game, Fish and Parks Commission shall approve each taxidermist’s license.”
         As noted at oral argument, the statute does not grant Game, Fish and Parks
         the ability to deny any applicant a license. Unlike most regulated
         professions, any citizen can get a taxidermist’s license, regardless of
         qualifications or training.

19.      The majority opinion argues that the $15 fee for a taxidermist license is
         significant because it “demonstrates that police regulation, rather than
         revenue raising, was the motive behind the [Legislature’s] enactment of the
                                                                    (continued . . .)
                                           -28-
#25609

keep records of specimens they receive, make their records available for inspection,

and be subject to criminal punishment for failure to comply. These factors are

based on a list found in Burger. 482 U.S. at 704-05, 107 S. Ct. at 2645. There is no

indication that this list was meant to be exhaustive. Furthermore, neither the

State nor the majority opinion is able to provide any case law from any other

jurisdiction which, after actually analyzing this issue, has construed taxidermy as a

pervasively regulated business. 20


_________________________
(. . . continued)
         licensing procedure.” Majority opinion ¶ 16. As support, the majority opinion
         cites People v. Taylor, 561 N.E.2d 667, 672 (Ill. 1990). This quote, however, is
         taken out of context. The Supreme Court of Illinois analyzed whether a
         criminal statute that prohibited engaging in the business of taxidermy was
         unconstitutionally vague. To assume that the fee in this case was to
         facilitate police regulation is to assume legislative intent without any
         support.

20.   The majority opinion relies on United States v. Johnson, 994 F.2d 740 (10th
      Cir. 1993), to support its position that taxidermy is a closely regulated
      business. Majority opinion ¶ 18. In that case, the defendant owned a
      taxidermy shop that was searched as part of an investigation of illegal
      transportation of animal parts. He was prosecuted under federal felony
      statutes concerning protected game. The court stated that “Mr. Johnson, as
      the owner of a closely regulated business, was subject to regulatory
      inspections.” Johnson, 994 F.2d at 742 (citing Burger, 482 U.S. at 699-701,
      107 S. Ct. at 2642-43). We do not find this opinion persuasive as the court
      did not analyze whether taxidermy is closely regulated, rather it merely
      assumed so. Of interest, however, is the testimony of a conservation officer
      who worked for the State of Wyoming that he routinely checked taxidermy
      shops in his area once or twice a year. Id. at 743. Additionally, the majority
      opinion relies on Showers v. Spangler, 957 F. Supp. 584, 591 n.5 (M.D.Pa.
      1997), rev’d on other grounds, 182 F.3d 165 (3rd Cir. 1999), as support that
      taxidermy is closely regulated. Majority opinion ¶ 18. The footnote in
      Showers concedes that although the plaintiffs in that case suggested that
      taxidermy was not a closely regulated business under Burger, they did “not
      pursue this argument.” We can only conclude from the court’s language that
      the plaintiffs did not fully brief and argue the issue and therefore the court
      did not conduct an analysis. Although the district court stated it did “believe
                                                                   (continued . . .)
                                           -29-
#25609

[¶43.]         The majority opinion relies on the fact that taxidermy has been in the

South Dakota Code since 1925. Majority opinion ¶ 5. It is not enough, however, to

rely solely on the length of time because it is the substance of the statute that is

significant. South Dakota’s history of taxidermy regulation is minimal. SDCL 41-6-

33 was adopted in 1925 and has been revised several times. S.D. Sess. Laws 1925

ch. 181. 21 Significantly, the statute as enacted in 1925 required that, to obtain a


_________________________
(. . . continued)
         that the closely regulated industry exception does apply to taxidermists as a
         general matter,” the court relied on Johnson as support. Therefore, the
         majority opinion has failed to provide any authority resulting from actual
         analysis that taxidermy is a closely regulated industry.

21.      The revisions have been minor. Regarding inspections, the original statute,
         adopted in 1925 (S.D. Sess. Laws 1925, ch. 181), was amended in the 1939
         codification although the scope of the statute remained basically the same.
         The 1939 revision provided, “Each such licensee must keep a written record
         of all birds, animals, and fish received by him, and the books, offices, or
         buildings in which such records and such specimens are kept must at all
         times be open for inspection by any representative of the Commission.” SDC
         § 25.0302(11) (1939). The language regarding inspections remained
         unchanged until 2003, when the Legislature amended the statute:

                Each licensee shall keep a written record of all birds, animals,
                and fish received by him the licensee. The record shall include
                the name and address of each specimen’s owner, the number
                and species, and the dates of receipt and delivery of each
                specimen. The books, offices, or buildings in which records and
                specimens are kept shall at all times record and customers’
                specimens shall be open made available for inspection by any
                representative of the Department of Game, Fish and Parks
                during normal business hours.

         S.D. Sess. Laws 2003, ch. 222, § 1.

         The 1925 statute declared violations to be a misdemeanor with a fine of not
         less than $10 or more than $100. The 1939 revision set forth no explicit
         criminal or civil penalties for a violation. The clause providing criminal
         penalties was not reinstated until 1991. S.D. Sess. Laws 1991, ch. 337, § 25.
                                                                      (continued . . .)
                                              -30-
#25609

license for taxidermy, the applicant must be a “properly accredited person.”

Moreover, the licensee must “prove to the satisfaction of the state game warden that

he is a fit person to be entrusted with such a privilege[.]” S.D. Sess. Laws 1925, ch.

181, § 1. However, the portion of SDCL 41-6-34, which related to proof of fitness

required for a taxidermist’s license and existed from 1925 to 1991, was repealed by

the Legislature in 1991. This indicates a legislative intent for less, not more,

regulation of the taxidermy industry. There are no other statutes related to

taxidermy, with the exception of SDCL 41-2-18. While the history of the statute

may date back to 1925, the substance has been relatively unchanged and the extent

of statutory oversight diminished for substantial periods of time.

[¶44.]       Next, the enforcement of the statute by Game, Fish and Parks does not

demonstrate that taxidermy is being pervasively regulated by that agency. This

Court cannot look at what state officers are supposed to do in a vacuum. When the

record is available, we must also look at what they actually do. Officer Brown

testified that he had only done four inspections in eight years. Despite being in

Brown County for eight years and actually driving by the Klager premises, he had

never previously inspected it. Officer Cochran testified to conducting four

inspections in three-and-a-half years. Klager testified he had never been inspected

in the eight-and-a-half years he had been in the business. The Law Enforcement

Program Administrator for Game, Fish and Parks, Andy Alban, estimated that one

hundred inspections were done every year. He also stated that there are

_________________________
(. . . continued)
         Thus, between 1939 and 1991, there was no penalty for failing to comply with
         the statute.

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approximately 200 licensed taxidermists in South Dakota. However, additional

testimony revealed that Game, Fish and Parks does not keep records of whether or

when a business is inspected. Thus, when officers report that they conducted an

inspection of a taxidermist, that information is not connected to the individual

taxidermist’s record. It is therefore impossible to know how often or how many

taxidermists have been actually inspected. There is no requirement that every

taxidermist ever be inspected.

[¶45.]         Furthermore, there is conflicting testimony about whether officers

receive any training regarding administrative searches. The majority opinion fails

to recognize the dispute in the record regarding training of Game, Fish and Parks

officers in conducting inspections. Majority opinion ¶ 6. Shon Eide testified that he

used to be the Training Coordinator for Game, Fish and Parks before becoming the

Licensing Supervisor. He stated that new officers are “given a general knowledge

base of how to do inspections . . . and which items or which areas that we need to do

inspections in.” However, Eide never testified specifically to Officer Brown’s

training. He also did not state what constituted a “general knowledge base” or

during what time period that type of training was conducted. Officer Brown was

unequivocal in testifying that he had not received any training on conducting

inspections.

[¶46.]         The evidentiary conflict is between no training and “a general

knowledge base of how to do inspections.” Certainly if this was a pervasively

regulated area, then officers would need guidance on how to conduct their searches

appropriately. There is no conflict, however, that whether and how often the


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searches should be conducted is completely at the discretion of individual officers.

According to Officer Cochran, “I am just working on still getting around to all of [the

taxidermists] with all of our other inspections that we do. That’s like I said, usually

go and visit with them when we get a chance.” There is no agency policy or

regulation regarding the frequency of the searches, which demonstrates that such

searches are not an agency priority. If taxidermy was pervasively regulated, there

would be some written policy or directive regarding the frequency of the searches

and a record of the results. In examining taxidermy’s regulatory scheme as a whole,

the history, language, and enforcement do not indicate that it is a pervasively

regulated business. 22

[¶47.]         Because the State has not proven that taxidermy is a pervasively

regulated business in South Dakota and thus failed to fulfill the threshold

requirement, the three prongs of the Burger test need not be applied. But even if

taxidermy were pervasively regulated in South Dakota, the search of Klager’s




22.      The regulation of attorneys makes an interesting subject for comparison. The
         regulation is mandated by the South Dakota Constitution, art. V, § 12. The
         licensing and regulation of attorneys fills four chapters of the Code. SDCL
         chs. 16-16, 16-17, 16-18 and 16-19. A chapter is dedicated to a single subject
         – the discipline of attorneys. SDCL ch. 16-19. Attorneys are also subject to
         the South Dakota Rules of Professional Conduct found in the appendix to
         SDCL ch. 16-18 which takes up an additional 142 pages in the Code. The
         rules are enforced by the Disciplinary Board of the State Bar of South Dakota
         and ultimately the South Dakota Supreme Court. The substantial case law
         that exists also establishes a long term enforcement of the rules for the
         protection of the public and removal of those who commit serious violations.

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records would still be unconstitutional because the enforcement of SDCL 41-6-33

fails to satisfy the Burger’s third prong. 23

Burger’s Third Prong Not Satisfied

[¶48.]         The third prong of Burger requires that “the statute’s inspection

program, in terms of the certainty and regularity of its application, must provide a

constitutionally adequate substitute for a warrant.” 482 U.S. at 703, 107 S. Ct. at

2644. “In other words, the regulatory statute must perform the two basic functions

of a warrant: [1] it must advise the owner of the commercial premises that the

search is being made pursuant to the law and has a properly defined scope, and [2]

it must limit the discretion of the inspecting officers.” Id. We now address the

scope of a search under SDCL 41-6-33 and the discretion of officers in conducting

such a search. 24




23.      I agree with the majority opinion that prong one of the Burger test is
         satisfied. Because Klager conceded prong two at oral argument, I do not
         analyze the issue here.

24.      The majority opinion notes that “the businessman in a regulated industry in
         effect consents to the restrictions placed upon him.” Majority opinion ¶ 13
         (citing Marshall, 436 U.S. at 313, 98 S. Ct. at 1821). Immediately above the
         signature line, the application for a taxidermy license states, “I will keep a
         record of all specimens received for mounting or 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. Specimens will be tagged according to
         regulation.” It is significant that taxidermists must consent to searches
         under SDCL 41-6-33 before they can obtain a license. We should be careful
         in expanding the “consent” in this case, because it was made in order to
         obtain a license, which amounts to holding a taxidermist’s livelihood hostage.

                                           -34-
#25609

Defined Scope

[¶49.]       To advise business owners that a “search is being made pursuant to

the law and has a properly defined scope . . . the statute must be ‘sufficiently

comprehensive and defined that the owner of commercial property cannot help but

be aware that his property will be subject to periodic inspections undertaken for

specific purposes.’” Id. (citing Donovan, 452 U.S. at 600, 101 S. Ct. at 2539).

Normally, the scope of a search is confined by a warrant. U.S. Const. amend. IV (a

warrant must state with particularity the place to be searched and the things to be

seized). The scope of warrantless administrative searches must be confined by the

controlling statutes and regulations.

[¶50.]       The scope of SDCL 41-6-33 is very broad, as it allows inspection of

“customer specimens” and customer records – basically all that would be of interest

to officials charged with enforcement of the game laws in this State concerning

inspection of a taxidermy business. While the relevant laws and regulations are

provided to taxidermists and conservation officers, they do not limit the scope other

than to business hours and to records from the last five years. Nor do the

regulations provide any limitations to the scope of the officers’ discretionary

searches of taxidermists.

[¶51.]       In reading SDCL 41-6-33 and the corresponding regulations, the

requirement is that records “shall be made available,” but there is no required place

where those items shall be kept. They could be at a taxidermist’s business, but also

at a home or other location not open to the public. A taxidermist’s business could be

located in his home. Without proper training on what is an acceptable location to


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search or manner to demand “production” of the records, this could result in a

situation where an officer is in a home searching for a taxidermist’s records and

specimens. See Warrington Twp. v. Powell, 796 A.2d 1061, 1069-70 (Pa. Commw.

Ct., 2002) (holding that warrantless administrative periodic fire safety inspections

of portions of business that are not open to public were not allowed if entry had

been refused by owner because there was no evidence to show business was closely

regulated). Because conservation officers are not effectively trained on how to

conduct searches and there are only vague regulations on where they can go to

inspect the records or specimens, the scope of this statute is too broad to provide an

adequate substitute for the warrant requirement.

Limit on Inspecting Officers’ Discretion

[¶52.]       We now turn to the second basic function that a regulatory statute

must perform as required by Burger – that it limit the discretion of Game, Fish and

Parks officers to search under SDCL 41-6-33. Burger, 482 U.S. at 703, 107 S. Ct. at

2644. “[I]n defining how a statute limits the discretion of the inspectors, we have

observed that it must be ‘carefully limited in time, place, and scope.’” Id. (citing

United States v. Biswell, 406 U.S. 311, 315, 92 S. Ct. 1593, 1596, 32 L. Ed. 2d 87

(1972)). The Supreme Court has stated that “[t]he authority to make warrantless

searches devolves almost unbridled discretion upon executive and administrative

officers, particularly those in the field, as to when to search and whom to search.”

Marshall, 436 U.S. at 323, 98 S. Ct. at 1825-26. Although the Court went on to say

in Burger that “[i]f inspection is to be effective and serve as a credible deterrent,

unannounced, even frequent, inspections are essential,” Burger, 482 U.S. at 710,


                                           -36-
#25609

107 S. Ct. at 2648 (citing Biswell, 406 U.S. at 316, 92 S. Ct. at 1596), the Court also

stated that “warrantless inspections of commercial property may be constitutionally

objectionable if their occurrence is so random, infrequent, or unpredictable that the

owner, for all practical purposes, has no real expectation that his property will from

time to time be inspected by government officials.” Donovan, 452 U.S. at 599, 101 S.

Ct. at 2538 (emphasis added) (citing Marshall, 436 U.S. at 323, 98 S. Ct. at 1826).

[¶53.]       The case of Showers v. Spangler, 957 F.Supp. 584 (M.D.Pa. 1997), rev’d

on other grounds, 182 F.3d 165 (3rd Cir. 1999), provides analysis of Burger’s third

prong. Pennsylvania Wildlife Conservation officers conducted a warrantless search

of Showers’ taxidermy shop under Pennsylvania statute and regulations to examine

his records, animals, and their parts. Two mounted animals were seized. Showers

attacked the regulation, claiming it did not sufficiently limit the discretion of the

inspecting officers and therefore did not provide a constitutionally adequate

substitute for a warrant. The Showers Court concluded that the search and seizure

was unconstitutional because it failed to limit the officer’s discretion through

careful limitations of place and scope. 957 F.Supp. at 591-92 (citing Burger, 482

U.S. at 703, 107 S. Ct. at 2644). See also Showers, 182 F.3d at 168 n.1 (upon appeal

on other issues, the Third Circuit concluded, “we leave this portion of the District

Court’s order and its thoughtful analysis, undisturbed”).

[¶54.]       After a review of the testimonial record, there is no dispute that

administrative searches of taxidermists are done completely at the discretion of

individual Game, Fish and Parks officers as long as they are done during business

hours. There is no regulatory limit on the discretion of the individual officers in


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choosing whether and how often to conduct a search. See Burger, 482 U.S. at 711,

107 S. Ct. at 2648 (stating that “the vehicle dismantler knows that the inspections

to which he is subject do not constitute discretionary acts by a government official

but are conducted pursuant to statute.”). Inspections could go from non-existent to

daily events. The enforcement by Game, Fish and Parks is so “random, infrequent,

[and] unpredictable” that, in reality, taxidermists have no real expectation that

their business will be searched. See Donovan, 452 U.S. at 599, 101 S. Ct. at 2538

(citing Marshall, 436 U.S. at 323, 98 S. Ct. at 1826). This is supported by Klager’s

testimony that he was not searched in eight years and Officer Brown’s testimony

that he only conducted four inspections in eight years. Infrequency of inspection

dilutes the justification for upholding warrantless searches. Unlike the gun dealer

in Biswell, 406 U.S. at 311, 92 S. Ct. at 1594, or the mine operator in Donovan, 452

U.S. at 604, 101 S. Ct. at 2541, the taxidermist who is receiving his first inspection

in his eight years of business will be “left to wonder about the purposes of the

inspector or the limits of his task.” Biswell, 406 U.S. at 316, 92 S. Ct. at 1596.

[¶55.]       In order to ensure that discretion to conduct administrative searches is

not abused by an officer, it is necessary that Game, Fish and Parks establish

statutory or regulatory standards to provide adequate protections in lieu of the

Fourth Amendment warrant requirement as required by Burger’s third prong. See

State v. Lecarros, 66 P.3d 543, 547 (Or. Ct. App. 2003) (court found that

administrative search of boat by officers violated defendant’s rights because no

“governmental entity ha[d] created rules to limit the discretion of . . . officers in

carrying out boat searches or seizures, nor could the officers articulate any such


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rules. Indeed, their uncontradicted testimony establishes that the decision to seize

or not to seize any particular craft was entirely within their discretion.”).

Otherwise, “[w]here [the Legislature] has authorized inspection but made no rules

governing the procedures that inspectors must follow, the Fourth Amendment and

its various restrictive rules apply.” Colonnade Catering Corp. v. United States, 397

U.S. 72, 77, 90 S. Ct. 774, 777, 25 L. Ed. 2d 60 (1970). In other words, if there are

no standards, then a warrant is necessary. The statutory or regulatory standards

called for by Burger’s third prong function like a warrant, which assures an owner

that “reasonable legislative or administrative standards for conducting an . . .

inspection are satisfied with respect to a particular establishment.” Donovan, 452

U.S. at 599, 101 S. Ct. at 2538 (citing Camara v. Mun. Ct. of City & Cnty. of S.F.,

387 U.S. 523, 538, 87 S. Ct. 1727, 1735, 18 L. Ed. 2d 930 (1967)). This assumes that

such standards have been enacted, which is not the case here.

[¶56.]       In addition to limiting an officer’s discretion as to whom to search,

statutory or regulatory standards should also address how often searches must be

conducted. In Donovan, the Supreme Court upheld the Federal Mine Safety and

Health Act of 1977 as not offending the Fourth Amendment in part because the Act

required inspection of all mines, and specifically defined the frequency of inspection.

Donovan, 452 U.S. at 603-04, 101 S. Ct. at 2540-41. The Court stated that:

             the Act itself clearly notifies the operator that inspections will be
             performed on a regular basis. Moreover, the Act and the
             regulations issued pursuant to it inform the operator of what . . .
             standards must be met in order to be in compliance with the
             statute. The discretion of Government officials to determine
             what facilities to search and what violations to search for is thus
             directly curtailed by the regulatory scheme.


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#25609

Id., 452 U.S. at 605, 101 S. Ct. at 2540 (emphasis added).

[¶57.]         The majority opinion repeatedly alleges that SDCL 41-6-33 is

analytically similar to the statute at issue in Burger. 25 Majority opinion ¶¶ 24, 25,

27, and 33. While similarities may exist, it is beside the point. It is the haphazard

enforcement of SDCL 41-6-33 that makes it unconstitutional, not the language of

the statute itself. The enforcement of the statute in Burger differs significantly

from the enforcement of SDCL 41-6-33. In Burger, the Supreme Court noted that

members of the New York City Police Department’s Auto Crimes Division

conducted five to ten inspections per day. 482 U.S. at 693-94, 107 S. Ct. at 2639.

This consistent and prevalent enforcement is at the opposite end of the spectrum

from the rare, random, and discretionary enforcement of SDCL 41-6-33 in South

Dakota. The enforcement of a statute must be examined because the language of a

statute cannot be analyzed in isolation.

[¶58.]         SDCL 41-6-33 and its regulations do not effectively limit the scope or

discretion of a search conducted under this statute. These constitutional

flaws in the regulatory scheme are demonstrated through the testimony of the

conservation officers. As previously noted, Officer Brown testified that he only

conducted four inspections in eight years. He candidly admitted whether a

taxidermist’s records are checked is completely at his discretion. Officer Cochran



25.      The majority opinion argues that this view is adopted from Justice Brennan’s
         dissent in Burger. Majority opinion ¶ 29. However, this dissent does not
         include a single citation to Justice Brennan’s writing. While the majority
         opinion may perceive some similarities to his writing, this opinion is an
         application of the Burger majority and Fourth Amendment warrant
         requirement.

                                           -40-
#25609

testified to conducting four inspections in three-and-a-half years. Klager testified

that he had never been inspected in the eight-and-a-half years he had been in the

business. The Law Enforcement Program Administrator for Game, Fish and Parks,

Andy Alban, estimated that 100 inspections were done every year. He also stated

that there are approximately 200 licensed taxidermists in South Dakota.

Significantly, additional testimony revealed that Game, Fish and Parks does not

keep records of whether or when a business is inspected. Thus, when officers report

that they conducted an inspection of a taxidermist, that information is not

connected to the individual taxidermist’s record. It is therefore impossible to know

how often or how many taxidermists have been inspected. There is no requirement

that any taxidermist ever be inspected. Nor is there a requirement that

taxidermists submit any records or other information to Game, Fish and Parks on a

regular basis. The only time Game, Fish and Parks will see any reference to the

records is if an inspection is conducted, and even then only if there is a search of the

officer’s daily activity logs. Finally, there is still the problem of the officers’ lack of

training on how to properly conduct searches. See supra ¶ 7. 26

[¶59.]         If taxidermy was regulated so that it provided a “constitutionally

adequate substitute to the warrant requirement,” there would be some written


26.      This lack of training could result in unintended and dangerous consequences.
         Although Officer Brown testified that he acted with appropriate demeanor
         during the confrontation, at trial he conceded that although armed, he had
         received no training on what to do during an inspection in the event that
         someone refused to comply with his request to produce records. Klager
         disputes how Officer Brown acted. Officer Brown testified that during the
         confrontation he was “pretty emotional” and that Klager was “quite angry”
         with him. Klager testified, however, that it was a “scary situation . . . I was
         terrified.”

                                            -41-
#25609

policy or directive regarding the frequency and method of the searches, as well as a

record of the results. This manner of unorganized enforcement does not comport

with the dictates of Burger “in defining how a statute limits the discretion of the

inspectors . . . it must be carefully limited in time, place and scope.” 482 U.S. at

703, 107 S. Ct. at 2644. In examining the regulatory scheme of taxidermists under

the facts of this case, this Court should have concluded that this scheme does not

adequately protect Fourth Amendment rights so that a constitutional search of a

business can be conducted.

[¶60.]       In conclusion, the State has failed to show that taxidermy is a

pervasively regulated business in South Dakota. Furthermore, even if taxidermy

were pervasively regulated, the search under SDCL 41-6-33 and its regulatory

scheme fails Burger’s third prong. I would conclude that SDCL 41-6-33, as enforced,

is unconstitutional and reverse.

[¶61.]       MEIERHENRY, Justice, joins this dissent.




                                          -42-
