Rep. Luke Simons, R-Dickinson, a rancher, said during a committee hearing that he was targeted by a “busybody” who called the sheriff multiple times with accusations of animal neglect. Simons said he got fed up with the calls and told the sheriff to get a warrant.
“He said, ‘We don’t need a search warrant. This (outbuilding) is clearly over 60 feet from that house,’” Simons said, who was surprised to learn that the Fourth Amendment didn’t protect outbuildings on his property.
Simons introduced House Bill 1290 to require law enforcement to get permission from a landowner or have a warrant to go onto property and search barns and other outbuildings unless they were responding to an emergency or otherwise had probable cause. The bill passed the North Dakota House 64-29 on Feb. 19.
Reports on suspected animal neglect and abuse are common in Stark County, Sheriff Corey Lee said.
“We deal with that quite often,” Lee said. “We were out investigating one today, as a matter of fact. Week before last, I was out in a rural area investigating malnourished horses, which turned out to be a false report. Sometimes they’re exaggerated or completely false altogether and sometimes they’re reality.”
A well-publicized animal neglect case in 2017 showed how significant the consequences of one phone call can be. Gary Dassinger, of Gladstone, was charged with animal neglect after the sheriff at the time, Terry Oestreich, conducted a warrantless search of property based on a call to his office. Dassinger, after over a yearlong court battle, ended up pleading guilty in North Dakota District Court in Dickinson to six counts of animal neglect after he ran out of money.
The Fourth Amendment protects citizens from unreasonable search and seizure of their persons, houses, papers and effects. Tom Murtha, who was Dassinger’s defense attorney, explained that the Fourth Amendment doesn’t apply to open land.
“The United States Supreme Court has said your land is not an effect,” Murtha said, referring to the open fields doctrine. It states that "warrantless search of the area outside a property owner's curtilage" does not violate the Fourth Amendment. Curtilage is the area of land that immediately surrounds a dwelling.
In Dassinger’s case, the horses were kept in a stable outside of the curtilage zone, allowing law enforcement to use the open fields doctrine as grounds to search his property. Murtha argued in court that an illegal search was performed and pushed for a dismissal of evidence, which was denied.
Except when responding to an emergency, House Bill 1290 would require law enforcement to get landowner permission to enter private land. Without permission, they’d need probable cause or a search warrant. Otherwise, any evidence gathered during the unauthorized search would be inadmissible in court.
Simons, who was called as a witness during the Dassinger trial, says that he and other ranchers were surprised to learn that the open fields doctrine applied to their outbuildings.
“Most ranchers, farmers, people who just bought a little homestead, you don’t know that. You just assume,” Simons said.
“Everybody I’ve talked to is pretty flabbergasted when they find out they have no Fourth Amendment protection for their open fields, or what you would call their land,” Murtha said. “They discover that law enforcement, with no reason whatsoever, with no probable cause can just go through your stuff. People are really uncomfortable with that.”
Law enforcement has mixed feelings about the bill. Morton County Sheriff Kyle Kirchmeier said the wording of HB 1290 could restrict other duties such as performing civil services and welfare checks or delivering other papers. It could also hinder law enforcement’s ability to perform an investigation, Kirchmeier said.
“If we want to have an investigation, we can’t even go on to the property and ask you questions,” Kirchmeier said in an interview.
However, he doesn’t mind the idea of the bill. “It’s not an issue for law enforcement to go out and get a search warrant,” Kirchmeier said.
Stark County Sheriff Corey Lee agrees.
“If we’ve dotted our i’s and crossed our t’s and we have reason to get the search warrant, they’re typically not hard to get,” Lee said. However, timeliness is an issue in some situations, Lee said.