SJ
Well-known member
I don't know if any of you attended the Stockgrower quarterly but I did. Bob Mayer, the assistant attorney General, and GF&P used two South Dakota cases (and others) to justify the open fields for compliance checks. Bob Mayer stated that neither of the two South Dakota cases had probable cause. Now I know that Bob Mayer, being an attorney, may have us at a disadvantage but I can still read. The two South Dakota cases are State v. Frey and State v. Vogel and both had probable cause. Below is the overview of the Vogel case and the Frey case was a TIPS call, which is probable cause, and the CO himself was able to observe something hanging from a tractor out in the open, resembling deer, from a public road. The Vogel case is interesting, if in fact he did see the plant from 500 feet with the naked eye on the first flight, gave him probable cause. Further more before entering the house he had a no knock warrant.
There is NOT ONE case that specifically speaks to compliance checks. All the cases that they have brought out to justify the (compliance checks) have been against the actual owner of the land, NOT a third party as the hunter would be.
OVERVIEW: A police officer noticed green leafy plants which appeared to be marijuana in defendant's house while flying over the residence. Without seeking a search warrant, the officer took pictures of the plants through a zoom lens during a second flight. The officer also took pictures from a neighbor's ridge. Defendant argued that the officer's actions were unreasonable searches and seizures. Holding that defendant's reasonable expectation of privacy was not violated, the court affirmed. The officer's naked eye sighting of the plants during the first flight was merely fortuitous. The officer was not required to shield his eyes while passing the residence. The aerial photography was also permissible because the use of zoom lens photography did not change defendant's expectation of privacy. The third observation was also constitutionally firm. Defendant did not shield his plants from the officer's view from the hillside. Further, the hilltop was not within defendant's curtilage, that is, the area associated with the sanctity of a man's home and the privacies of life. Warrantless police observations from an open field did not present a Fourth Amendment violation.
The other interesting fact that came from the panel discussion was John Cooper stating that they need the open field because only 10% of the people are law abiding, 10 % are not and the other 80% could go either way. I looked around and it was hard for me to believe that only 10% of the people in that room could be trusted and the other 90% couldn't be trusted. I don't know if he was just referring to landowners and hunters. If he wasn't, it's kind of scary to think that we only have 56 CO's and only 10% are law abiding, 10% are not, and the other 80% could go either way and they have the right to enter our land without permission to do what they want.
Rick Fox did question John on his statement and he said he didn't mean it that way!
Another interesting statement John Cooper made was that he would not compromise on the open fields for compliance checks. In his next breathe said that we, the landowners, had drawn a line in the sand and weren't going to compromise and we all needed to compromise. Isn't compromise a two way deal or maybe it is as I have said: communication is GF&P telling you what to do and cooperation is us doing it.
Cooper was also questioned on that statement and claimed that isn't what he said. I don't know as I didn't tape it but some people were taking notes and that is how they wrote it down. Maybe they were all wrong.
John Cooper never once acknowledged that the landowner played a big part in the existence of the wildlife, but the sportsmen's dollar was mentioned.
The landowners and Legislator on the panel acknowledged that GF&P had done some changes and also the need for GF&P.
One of the GF&P employees was asked what GF&P does for the landowner and he said we manage the wildlife for them. The landowner asked if he meant like I manage my livestock and he said yes. The landowner said, "Well, when my livestock gets in some one's field and does damage I have to pay for the damage." The GF&P employee had no answer. Right now the only game management seems to be from cars on the highways and GF&P doesn't pay for that damage either.
I don't believe 90% of the landowners and hunters are not trustworthy but if that is true, the hunting recreation needs to stop. If the hunters want to hunt, they should only be allowed to hunt the public land and be subject to search and seizure. I don't want to be involved in this highly criminal activity, landowners have to much to lose by allowing hunting. Most law enforcement, even though they too can use the open fields to enter land, don't because they respect people's rights unless it puts people in imminent danger. All law enforcement has the right to enter private property with probable cause and reasonable suspicion, and none of us in the lockout have ever thought that was wrong or a violation of rights, but we do believe we have the right to know who is on our land and why. Just coming on our land because someone is wearing orange, carrying a gun, or is driving a suburban, for a compliance check without permission if no crime is visibly being committed, is a violation.
Search warrants are issued with great caution, first that they be not granted without oath made before a justice that a crime has been committed, and that the complainant has probable cause to suspect that the evidence is in such a house or place, and the reason for such suspicion. Hunting is not a crime, standing out in the field is not a crime, and would be a stretch as far a probable cause that a crime was being or had been committed. A man in a field would be a flimsy reasonable suspicion, but the main reason is that a license violation is a misdemeanor not a felony. GF&P couldn't get a search warrant to check a license so they have chosen to use the open fields for a compliance check on private land that has never been tested in court.
I will say it again, the only reason that some have a right to privacy is because other law enforcement agencies hold their right to privacy at a higher standard than GF&P law enforcement with the open fields doctrine. If GF&P were to hold the landowner's rights to a higher standard as other law enforcement agencies have and do, we would not be here today. South Dakota Legislature can hold people's right to privacy to a higher standard as some states have done just that.
There is NOT ONE case that specifically speaks to compliance checks. All the cases that they have brought out to justify the (compliance checks) have been against the actual owner of the land, NOT a third party as the hunter would be.
OVERVIEW: A police officer noticed green leafy plants which appeared to be marijuana in defendant's house while flying over the residence. Without seeking a search warrant, the officer took pictures of the plants through a zoom lens during a second flight. The officer also took pictures from a neighbor's ridge. Defendant argued that the officer's actions were unreasonable searches and seizures. Holding that defendant's reasonable expectation of privacy was not violated, the court affirmed. The officer's naked eye sighting of the plants during the first flight was merely fortuitous. The officer was not required to shield his eyes while passing the residence. The aerial photography was also permissible because the use of zoom lens photography did not change defendant's expectation of privacy. The third observation was also constitutionally firm. Defendant did not shield his plants from the officer's view from the hillside. Further, the hilltop was not within defendant's curtilage, that is, the area associated with the sanctity of a man's home and the privacies of life. Warrantless police observations from an open field did not present a Fourth Amendment violation.
The other interesting fact that came from the panel discussion was John Cooper stating that they need the open field because only 10% of the people are law abiding, 10 % are not and the other 80% could go either way. I looked around and it was hard for me to believe that only 10% of the people in that room could be trusted and the other 90% couldn't be trusted. I don't know if he was just referring to landowners and hunters. If he wasn't, it's kind of scary to think that we only have 56 CO's and only 10% are law abiding, 10% are not, and the other 80% could go either way and they have the right to enter our land without permission to do what they want.
Rick Fox did question John on his statement and he said he didn't mean it that way!
Another interesting statement John Cooper made was that he would not compromise on the open fields for compliance checks. In his next breathe said that we, the landowners, had drawn a line in the sand and weren't going to compromise and we all needed to compromise. Isn't compromise a two way deal or maybe it is as I have said: communication is GF&P telling you what to do and cooperation is us doing it.
Cooper was also questioned on that statement and claimed that isn't what he said. I don't know as I didn't tape it but some people were taking notes and that is how they wrote it down. Maybe they were all wrong.
John Cooper never once acknowledged that the landowner played a big part in the existence of the wildlife, but the sportsmen's dollar was mentioned.
The landowners and Legislator on the panel acknowledged that GF&P had done some changes and also the need for GF&P.
One of the GF&P employees was asked what GF&P does for the landowner and he said we manage the wildlife for them. The landowner asked if he meant like I manage my livestock and he said yes. The landowner said, "Well, when my livestock gets in some one's field and does damage I have to pay for the damage." The GF&P employee had no answer. Right now the only game management seems to be from cars on the highways and GF&P doesn't pay for that damage either.
I don't believe 90% of the landowners and hunters are not trustworthy but if that is true, the hunting recreation needs to stop. If the hunters want to hunt, they should only be allowed to hunt the public land and be subject to search and seizure. I don't want to be involved in this highly criminal activity, landowners have to much to lose by allowing hunting. Most law enforcement, even though they too can use the open fields to enter land, don't because they respect people's rights unless it puts people in imminent danger. All law enforcement has the right to enter private property with probable cause and reasonable suspicion, and none of us in the lockout have ever thought that was wrong or a violation of rights, but we do believe we have the right to know who is on our land and why. Just coming on our land because someone is wearing orange, carrying a gun, or is driving a suburban, for a compliance check without permission if no crime is visibly being committed, is a violation.
Search warrants are issued with great caution, first that they be not granted without oath made before a justice that a crime has been committed, and that the complainant has probable cause to suspect that the evidence is in such a house or place, and the reason for such suspicion. Hunting is not a crime, standing out in the field is not a crime, and would be a stretch as far a probable cause that a crime was being or had been committed. A man in a field would be a flimsy reasonable suspicion, but the main reason is that a license violation is a misdemeanor not a felony. GF&P couldn't get a search warrant to check a license so they have chosen to use the open fields for a compliance check on private land that has never been tested in court.
I will say it again, the only reason that some have a right to privacy is because other law enforcement agencies hold their right to privacy at a higher standard than GF&P law enforcement with the open fields doctrine. If GF&P were to hold the landowner's rights to a higher standard as other law enforcement agencies have and do, we would not be here today. South Dakota Legislature can hold people's right to privacy to a higher standard as some states have done just that.
