¶1(dissenting).
¶2Without a search warrant, at night, two law enforcement officers entered upon a ranch in Western South Dakota, engaged in quarrelsome and rough language with two ranchers, pushed and shoved these two ranchers, and marched — as they did so, to two butchered, domesticated goats, hanging on a tractor and grapple fork. These two animals were raised for eating and were placed there to cool and cure. These law enforcement officers were 100% trespassers and interlopers. In my opinion, the constitutional rights of these ranchers were violated. Lest any reader believe that this case is not of deep constitutional import, there are thousands of ranches in Western South Dakota (not to mention Central and Eastern South Dakota) where men and women of independent ilk have long believed that their property is sacred. This case goes to the heart of every rural family’s constitutional rights. This rancher, for insisting upon a search warrant, and for ordering these officers off of this ranch, ultimately received two concurrent twelve-year terms in the South Dakota State Penitentiary. Under the instructions given to the jury by the trial judge, this rancher was stripped of his legitimate defenses. Therefore, there is reversible error and these two concurrent twelve-year sentences should be reversed and this rancher be granted a fair trial.
¶3The Fourth Amendment to the United States Constitution and Article VI, § 11, of the South Dakota Constitution ensure the right of every citizen of this state to be secure against unreasonable searches and seizures. In the facts before us, we had an unreasonable search. It was prompted by an informant who thought he spotted illegal deer hanging from the tractor and grapple fork. Even using binoculars, these two officers could not tell if the these animals were goats or deer. So they proceeded, by force, and by armed force, to search the premises to determine if the hanging animals were deer. Obviously, the ranchers were outraged, believing that they lived in a free land and were guaranteed rights under the United States Constitution. It was a reversible error for the trial court to *731make this determination: “Under the circumstances presented in this case, I am ruling, by giving 6A, that the defendant or the officers were not trespassing.” Defense counsel, acting for these ranchers, tendered instruction A defining trespass. The trial judge refused to tell the jury about trespass. In my opinion, it was, at the very least, a question of fact as to whether or not the officers were trespassing. It is a jury question. State v. Brown, 98 N.M. 236, 238, 599 P.2d 389, 391 (1979). A search of private property, except in certain carefully defined classes of cases, is unreasonable absent authorization by a valid search warrant. State v. Jorgenson, 333 N.W.2d 725, 726 (S.D.1983).
¶4Having been unable to determine whether the hanging animals were deer or goats, the law enforcement officers could have applied for a search warrant on the following morning. These officers refused to wait until the following morning. Instead, they made a warrantless search. There were no exigencies which compelled their trespassing and forcing themselves upon this property. These officers, in the State of South Dakota, have made no showing that they are exempt from a warrant requirement. In State v. Max, 263 N.W.2d 685 (S.D.1978), this Court set down seven considerations which are relevant in determining if there is justification for a war-rantless intrusion for search or arrest. They are:
1. That a grave offense is involved, particularly a crime of violence;
2. that the suspect is reasonably believed to be armed;
3. that a clear showing of probable cause exists, including “reasonably trustworthy information,” to believe that the suspect committed the crime involved;
4. that there is a strong reason to believe that the suspect is in the premises being entered;
5. that a likelihood exists that the suspect will escape if not swiftly apprehended;
6. that the entry, though not consented to, is made peaceably; and
7.time of the entry.
¶5Max, 263 N.W.2d at 687. There was no showing or even any type of a belief on the part of the officers that a grave offense was involved, much less a crime of violence. The “grave offense” suspected here was taking deer by unlawful means, or, according to Officer Schmeltzer, failing to properly tag the carcasses. I note that these events occurred during bow-hunting season. There was no probable cause to believe that any crime had, in fact, happened. Lacking probable cause to believe a crime had been committed, the potential armament or escape of any suspect is irrelevant. The entry was unlikely to be peaceable, under the circumstances, and took place at night. On these facts, no exigent circumstances existed to justify the search, and it is patent that these officers acted unlawfully. As their actions were unlawful, the officers cannot shield behind their status as law enforcement agents. Trespass laws may contain an exception for such agents acting in performance of their duty, State v. Cook, 319 N.W.2d 809 (S.D.1982), but the officers here were beyond the bounds of legitimate demands of their duty. This was not legal pursuit of duty. Rather, it was an arrogant abuse of authority. In the context of investigation of two deer/goats, these officials lost all sense of proportion, and the defendant is now to pay the price for their bad judgment. The conduct of these officers violated the settled law of this state. The so-called “tip” was of such a shaky nature that neither the informant nor the law enforcement officers had a reasonable belief that a crime had been committed.
¶6Now, it is desirable to add more factual background for a reader’s better understanding of this case. It may be called disputed evidence, but it was, nevertheless, evidence which this judge and jury heard. As the march by the law enforcement officers up the hill to “Willy” and “Nilly” continued, these animals having pet names, and as the rancher continued to protest the officers’ presence, the defendant/brother, who had heard angry shouting going on, was running up the hill — carrying his shotgun, asking what was going on. Officer *732Schmeltzer reached for his revolver, which was the second time he had done so, and told the defendant/brother/rancher to “watch your hand.” The reason that I mention this fact is that prior to the march up the hill, Officer Schmeltzer had placed a hand on his gun, in a threatening manner, while on the rancher’s property, because Roland Frey (not the defendant) had put both hands in his pockets. It suggests to any fair-minded person the outlandish and outrageous conduct of this officer while trespassing upon the rancher’s land. Fact or disputed fact, but nevertheless the testimony: The defendant/brother saw Officer Schmeltzer push and shove his brother up the hill where “Willy” and “Nilly” were. Everything that is decent and good about this great Nation came crashing down in Perkins County that very late afternoon and evening. Law enforcement zeal beyond the wildest imagination took place, and a man who stood up for his rights, under our federal and state constitutions, ended up with two twelve-year sentences to the State Penitentiary. For what action? Answer: For insisting upon his constitutional rights and for having raised two domesticated goats to eat. Can we realistically claim that this Nation is still “free” when such type of conduct as this takes place, under the disputed evidence, and some of which is not disputed, and then the landowner becomes stripped of his defenses by the trial court’s legal instructions to the jury?
¶7Recently, in State v. Vogel, 428 N.W.2d 272 (S.D.1988), this Court had the occasion to distinguish between the extent of legal protection against trespassing and constitutional protection against unreasonable search and seizure. In Vogel, we upheld police observations under “open fields” doctrine despite claims of trespass because “the general rights of property protected by the common law of trespass have little or no relevance to the applicability of the Fourth Amendment.” Vogel, id.at 276 (quoting Oliver v. United States, 466 U.S. 170, 183-84, 104 S.Ct. 1735, 1744, 80 L.Ed.2d 214, 227-28 (1984)). Vogeland the United States Supreme Court cases relied upon by the majority are totally distinguishable from the present case for one glaring reason: The officers, here, were ordered off the property. The essential analysis which mandates reversal here is provided in United States v. Dunn, 480 U.S. 294, 301, 107 S.Ct. 1134, 1139, 94 L.Ed.2d 326, 335 (1987), in a passage cited in Vogel, id.at 276 n. 2, and, ironically, in Justice Miller’s current writing, at page 722. The DunnCourt observed that the extent of curtilage, and Fourth Amendment protection, is to be resolved “with particular reference to four factors,” the fourth of which is “the steps taken by the resident to protect the area from observation by people passing by.” In Vogel, no protective steps were taken. Here, the warrantless officers were ordered off the property before they could identify the goats, and before the defendant became involved in the fracas. What more emphatic step can one take to shield an area than to order an interloper away, in a face-to-face confrontation? The Dunn/Vogel analysis mandates the following results: 1) The officers were trespassing once they advanced in violation of orders to leave, as they no longer had a right to be there, and 2) Fourth Amendment protection, triggered by the order to leave, was overridden. The “open fields” doctrine does not absolve the officers on these facts as the reach of the Fourth Amendment is adjudged according to the four Dunn/Vogel factors even where a house is located “on a large parcel of property and has no nearby enclosing fence.” See Dunn, 480 U.S. at 301 n. 4, 107 S.Ct. at 1139 n. 4, 94 L.Ed.2d at 335 n. 4. Here, unlike the situation in Vogel, the officers were confronted directly, and ordered off the land. While law enforcement officers may enter one’s land to investigate under the “open fields” doctrine, this ability exists “absent express orders from the person in possession against a possible trespass.” State v. Harris, 671 P.2d 175, 178 (Utah 1983) (quoting United States v. Hersh, 464 F.2d 228, 230 (9th Cir.1972). “What a person seeks to keep private, even in an area accessible to the public, may be constitutionally protected.” Harris, 671 P.2d at 178. It is difficult to imagine a more positive indication of a desire for pri*733vacy than a rancher’s direct face-to-face order for interlopers to leave his property. For this reason, I cannot accept that the majority’s ritual incantation of “open fields” exorcises Fourth Amendment analysis in this case. A search did take place, without a warrant. As the officers had no legitimate justification for staying after being ordered to leave, they were not entitled to the exception to the trespass law which applies to officials in performance of their official duties. Therefore,- this defendant was entitled to a jury instruction regarding trespass. There was sufficient evidence, even from the testimony of officers themselves, let alone that of the defendant and his brother, to justify such an instruction.
¶8Similarly, the testimony in this record justified a “defense of others” instruction to the jury. The defendant, according to he and his brother, observed a loud dispute, accompanied by physical violence. The question of whether he undertook his actions’in defense of his brother, as allowed by SDCL 22-18-4, was a matter for the jury to decide.
¶9This is not a springboard for my personal sense of right or wrong. United States Supreme Court decisions and South Dakota Supreme Court decisions sustain my conviction. It is simply my intent to protect the constitutional rights of farmers and ranchers of this state from unlawful invasions by law enforcement on their property. Unfortunately for the entrepreneurial ranchers and farmers of South Dakota, this decision provides a fertile field for further encroachment on their dwindling rights and adds impetus to the exodus of families from rural life.
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