September 4, 1990

Patricia A. Linard, President
Northern Hills Humane Society
P.O. Box 691
Sturgis, SD 57785

OFFICIAL OPINION NO. 90-38

Search authority of humane societies

Dear Ms. Linard:

You have requested an official opinion from this office based on the following factual situation:

FACTS:

Humane society members or agents, when serving as investigators, need the ability to enter private property to evaluate complaints. An extremely low percentage of reports require further action. However, access to private property is necessary to conduct the investigation.

Based upon the above facts, you asked the following question:

QUESTION:

Do humane society investigators have the same authority as law enforcement officers to enter private property when investigating reported abuse allegations? More specifically, can investigators enter private property when owners are not present or do not give permission?

SDCL 40-2-3 provides:

Any member, officer, or agent of any such society so incorporated who shall by the secretary of such society be authorized in writing and confirmed by the board of directors, and if within a municipal corporation, approved by the mayor or president of the board of such municipality, and if within a county beyond the limits of a municipal corporation, approved by the circuit judge and sworn in the same manner as are peace officers, shall have power lawfully to interfere to prevent the perpetration of any act of cruelty to any dumb animal and may use such force as may be necessary to prevent the same and to that end may summon to his aid any bystander. He may make arrests for the violation of any of the provisions of 40-1-1 to 40-1-17, inclusive, in the same manner as other peace officers and may carry the same weapons that peace officers are authorized to carry. Such member, officer, or agent shall, when making such arrest, exhibit the badge adopted by the society of which he is a member, officer, or agent.

In response, it is my opinion that a duly authorized humane society investigator may enter and search private property to investigate cruelty, abuse or injury to animals provided that the investigator complies with the applicable laws pertaining to search and seizure. The United States Supreme Court has clearly established the "warrant requirement" as a general rule of governing searches and seizures.

In a long line of cases, this court has stressed that 'searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment--subject only to a few specifically established and well delineated exceptions.' [Citation omitted.] . . . in all cases outside the exceptions to the warrant requirement the Fourth Amendment requires the interposition of a neutral and detached magistrate between the police and the 'persons, houses, papers and effects' of the citizen. Thompson v. Louisiana, 469 U.S. 17, 20-21, 105 S.Ct. 409, 93 L.Ed.2d 246, 250 (1984); Katz v. United States, 389 U.S. 347, 88 S.Ct. 507 (1967).

SDCL 40-2-3 specifically gives humane society members and agents some of the same power and authority as peace officers. It is, therefore, required that they perform their duties in a constitutionally acceptable manner and in the same manner as other law enforcement officers. This would include obtaining a search warrant in all situations except those which have been specifically established and well delineated. The entering of private property without a search warrant to investigate complaints is not justified merely because the owner is absent or refuses consent. Exceptions to the warrant requirement may be made on a case-by-case basis with the assistance of legal counsel.

In addition to search authority, SDCL 40-2-3 gives humane society members and agents the power to "lawfully interfere," "use . . . force," "arrest" and "carry . . . weapons" and requires "when making such arrest, exhibit the badge . . . ."

The question then becomes what training is required of humane society members or agents who perform these functions. SDCL 23-3-26 provides:

The Legislature finds that the administration of criminal justice is of state-wide concern, and that law enforcement work is important to the health, safety and welfare of the people of this state and is of such a nature as to require education and training of a professional character. It is in the public interest that such education and training be made available to persons who seek to become law enforcement officers, persons who are serving as such officers in a temporary or probationary capacity, and persons already in regular service.

SDCL 23-3-27 defines a law enforcement officer as:

'Law enforcement officer' means any employee or officer of the state or any political subdivision thereof and who is responsible for the prevention and detection of crime and the enforcement of the criminal or highway traffic laws of this state.

If an individual has been given law enforcement authority by the State, or a political subdivision thereof, the individual would be covered by SDCL 23-3-27 and the requirements of SDCL ch. 23-3, relating to certification. See Report of Attorney General 78-3. Since SDCL 40-2-3 specifically grants humane society members and agents law enforcement powers, SDCL 23-3-27 provides that they are law enforcement officers of the State. Therefore, humane society investigators must be certified pursuant to SDCL ch. 23-3. The findings and policy of the Legislature as set forth in SDCL 23-3-26 support this conclusion. The ability to lawfully arrest, search and seize property, and carry weapons should only be in the hands of those who have been properly trained and certified.

Respectfully submitted,

ROGER A. TELLINGHUISEN
ATTORNEY GENERAL

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