State V. Klager: The Slippery Slope of Warrantless Administrative Inspections in South Dakota
Cleveringa, Eric J., South Dakota Law Review
In 2011 the South Dakota Supreme Court in State v. Klager expanded the reach of warrantless searches by holding that an administrative inspection of a taxidermy business did not violate the Fourth Amendment's restriction against unreasonable searches and seizures. In a 3-2 decision, the court held that (1) a business owner had no reasonable expectation of privacy in his taxidermy business, (2) taxidermy is closely regulated in South Dakota, and (3) the regulatory scheme of taxidermy provides an adequate substitute for a warrant. The majority relied on the United States Supreme Court decision, New York v. Burger, which expanded the administrative inspection exception to the Fourth Amendment. The South Dakota Supreme Court should not have applied the administrative inspection exception because taxidermy in South Dakota is sparsely regulated and the inspection requirement was rarely and inconsistently enforced. Furthermore, what little enforcement occurred was at the complete discretion of untrained officials, a blatant violation of constitutional principles. Individuals working in industries subject to administrative regulation now face an imbalance; the scope of the Fourth Amendment diminishes as the power of governmental regulation increases. The Fourth Amendment demands heightened respect, not lowered to offset the intrusive expansion of governmental regulation.
The Fourth Amendment provides, [t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. (1)
The warrant requirement and prohibition against unreasonable searches contained in the Fourth Amendment apply not only to residences, but to commercial premises as well. (2) However, the expectation of privacy in commercial premises is less than the expectation of privacy in residential premises. (3) With respect to closely regulated industries the expectation of privacy is even further attenuated. (4) Certain industries have historically been subject to such extensive government oversight that they retain no reasonable expectation of privacy. (5) Regardless, the United States Supreme Court has repeatedly pointed out that a warrantless administrative inspection based on a reduced expectation of privacy is the exception, not the rule. (6) An exception that has been limited to industries that possessed a "long tradition of close government supervision," (7) or that involved an "inherent and immediate danger to health or life." (8)
The United States Supreme Court expanded the warrantless administrative inspection exception in New York v. Burger. (9) In Burger, the Court held that a New York statute authorizing warrantless inspections of vehicle-dismantling businesses fell within the exception to a warrant requirement for administrative inspections of closely regulated businesses. (10) Following the Burger Court's lead, the South Dakota Supreme Court moved away from the general rule in State v. Klager. (11) In Klager, the court applied the exception finding that taxidermy is closely regulated, and that a warrantless inspection of records was reasonable within the limits of the Fourth Amendment. (12) The Klager dissent, authored by Chief Justice Gilbertson, contended that taxidermy is not pervasively regulated because of the minimal regulations in the industry. (13) Furthermore, the Chief Justice argued that the regulatory scheme did not provide an adequate substitute for a warrant because the regulations were minimal and carried out at the exclusive discretion of the inspectors. (14) Therefore, the dissent concluded that the South Dakota statute allowing for warrantless administrative inspections, as enforced, was unconstitutional. …