State v. Klager

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, record-keeping, 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 requirement2 violated *50his Fourth Amendment right to 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 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 predecessors 4 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. The sum*51mary 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 “overbag-ging” and illegal possession of game by taxidermists’ customers.

[¶ 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.

*52[¶ 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 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 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, *53777, 25 L.Ed.2d 60 (1970) (same in the liquor industry). The Court explained: “The greater latitude to conduct warrant-less 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 5.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, “[cjertain 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 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 Parks Commission. Licensure authorizes the possession of such birds, animals and fish at the taxidermist’s place of *54business 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, 149 Ill.Dec. 297, 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 General Assembly’s enactment of the licensing procedure.” Taylor, 138 Ill.2d at 215, 149 Ill.Dec. 297, 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

*55[¶ 18.] Burger makes clear that the relevant inquiry examines the “nature of the regulatory statute,” 482 U.S. at 708, 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, recordkeep-ing, 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 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.

[¶ 20.] Burger’s first criterion is satisfied. We have long recognized that wildlife is the property of the State.

*56At 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. 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.

[¶ 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-dismant-ler 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 dismant-ler shall produce such records and permit said agent or police officer to exam*57ine 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.

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 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 *58of 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.”

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, 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 *59records 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 at 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 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.

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, Burger con-*60eluded 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, 119, 650 N.W.2d at 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 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 *61SDCL 32-22-5016 satisfies the Burger requirements in a closely regulated industry); Ritter v. Johnson, 465 N.W.2d 196, 200 (S.D.1991) (same).

[¶ 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 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.] KONENKAMPand SEVERSON, Justices, concur. [¶ 37.] GILBERTSON, Chief Justice, and MEIERHENRY, Justice, dissent.

. 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.

. 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 *50that SDCL 41-6-33 requires licensees to keep and produce. Klager refused and the officer proceeded no further. Klager was subsequently cited for failing to produce the records.

. 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.

. 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.

. 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).

. 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.NJ.2003).

. 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).

. 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 *55inspection for the purpose of determining compliance with the statute and regulations.

. 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).

. 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:

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).

. 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).

. 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.

. 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.

. The dissent’s reliance on State v. Lecanos, 187 Or.App. 105, 107, 66 P.3d 543, 545 (Or. Ct.App.2003) is misplaced. See dissent ¶ 55. The dissent cites Lecanos 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, Lecanos 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. Lecanos 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.

. 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 *60when 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.

. 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.