Commonwealth v. Duncan

• Citation: 467 Mass. 746,7 N.E.3d 469
• Decision Date: 11 April 2014
• Docket Number: SJC–11373.
• Parties: COMMONWEALTH v. Heather M. DUNCAN.
• Court: United States State Supreme Judicial Court of Massachusetts

467 Mass. 746

7 N.E.3d 469

COMMONWEALTH

v.Heather M. DUNCAN.

SJC–11373.

Supreme Judicial Court of Massachusetts,

Essex.

Submitted Dec. 3, 2013.

Decided April 11, 2014.

Paul C. Wagoner, Assistant District Attorney, for the Commonwealth.

Travis J. Jacobs, Boston, for the defendant.

The following submitted briefs for amici curiae:

Virginia F. Coleman for Animal Legal Defense Fund & others.

Michael W. Morrissey, District Attorney, & Tracey A. Cusick, Assistant District Attorney, for the Attorney General & others.

John M. Collins for Massachusetts Chiefs of Police Association, Inc.

Carolyn C. Van Tine for Animal Control Officers Association of Massachusetts.

Kate M. Fitzpatrick, of New York; Jonathan R. Lovvorn, Kimberly D. Ockene, & Aaron D. Green, of the District of Columbia; Elise VanKavage, of Utah; & Michael G. Bongiorno for Humane Society of the United States & another.

Stacy Wolf & Jennifer H. Chin for American Society for the Prevention of Cruelty to Animals.

Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, GANTS, DUFFLY, & LENK, JJ.

LENK, J.

This case presents the question whether the emergency aid exception to the warrant requirement of the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights extends to police action undertaken to render emergency assistance to animals. ¹

After receiving a telephone call from the defendant's neighbor, police entered the defendant's front yard without a warrant and seized three dogs that had been left outside in severely inclement winter weather. Two of the dogs appeared to be dead, and one was extremely emaciated. The defendant was charged with three counts of animal cruelty under G.L. c. 272, § 77. A District Court judge granted the defendant's motion to suppress evidence obtained as a result of the warrantless search but subsequently reported a question of law, pursuant to Mass. R.Crim. P. 34, as amended 442 Mass. 1501 (2004): “Does the ‘pure emergency’ exception to the warrant requirement extend to animals?”

The question is one of first impression for this court. In agreement with a number of courts in other jurisdictions that have considered the issue, we conclude that, in appropriate circumstances, animals, like humans, should be afforded the protection of the emergency aid exception. We therefore answer the reported question in the affirmative.

1. Factual background and prior proceedings. We summarize the facts found by the motion judge. On January 2, 2011, the defendant called police to her home to serve a restraining order on her husband. The home was surrounded by a six-foot tall privacy fence, reinforced by tarps, plastic strips, and plywood. Entry to the property was secured by a padlocked gate in the fence.

While at the defendant's home, police officers noticed dogs in the front yard that were “in bad shape” and “in need of help.” Officers asked the defendant to whom the dogs belonged and whether they were being cared for. The defendant responded that the dogs belonged to “the Duncan[s]” and that she was taking care of them. The officers did not follow up on the state of the dogs at that point, nor did they call an animal control officer to the residence.

On January 8, 2011, the defendant's neighbor telephoned police to report two deceased dogs on the defendant's property and a third “emaciated” dog. In the intervening six days, it had snowed intermittently; the weather on that day was “bleak, snowy, and freezing.” The defendant's neighbor greeted police when they arrived at the defendant's home at approximately 3:15 p.m. The neighbor informed the officers that she had gone to the defendant's home to retrieve a borrowed snow shovel; no one responded to her arrival, but she heard a dog barking and looked through or over the privacy fence and saw what she knew to be the defendant's dogs. Two apparently were deceased.

The officers heard a dog “whimpering and very hoarsely and weakly barking as if it had almost lost its voice, noting that it sounded like an animal in distress.” In order to get a better view into the yard, they stepped on a nearby snowbank that was several feet in height. Inside the yard, they saw two motionless dogs, apparently frozen and leashed to the fence, partially inside and partially outside a doghouse. A third dog, alive but emaciated, was leashed to the fence and barking. The officers did not see any food or water laid out for the dogs.

Due to the padlocked gate, police were unable to access the front door of the house. Instead, they engaged the siren, emergency lights, and air horn of their police cruiser to alert the residents of their presence, to no avail. One officer also directed another at the police station to use the local water and sewer directory to reach the registered owner of the property. These efforts were unsuccessful. Pursuant to police protocol for handling animal-related emergencies, officers then contacted the fire department to remove the padlock on the gate and enter the yard. After police gained entry to the yard, they contacted animal control; an animal control officer arrived and took custody of the three dogs. All of the responders cleared the premises by 4:56 p.m.

On April 19, 2011, a complaint issued in the District Court charging the defendant with three counts of animal cruelty pursuant to G.L. c. 272, § 77. The defendant subsequently filed a motion to suppress observations by police and physical evidence that gave rise to the charges. After an evidentiary hearing, the judge allowed the motion, ruling that “[o]ur courts have not as yet applied the emergency exception to animals.” ² The judge determined also that police had probable cause to believe that the crime of animal cruelty had been committed. However, the judge reported the following question of law, pursuant to Mass. R.Crim. P. 34: “Does the ‘pure emergency’ exception to the warrant requirement extend to animals?” Trial was continued pending resolution of the reported question.

2. Discussion. a. Emergency aid exception to the warrant requirement. “The right of police officers to enter into a home, for whatever purpose, represents a serious governmental intrusion into one's privacy. It was just this sort of intrusion that the Fourth Amendment [to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights] [were] designed to circumscribe by the general requirement of a judicial determination of probable cause.” Commonwealth v. Peters, 453 Mass. 818, 819, 905 N.E.2d 1111 (2009), quoting Commonwealth v. DeJesus, 439 Mass. 616, 619, 790 N.E.2d 231 (2003). The emergency aid doctrine comprises one entry in that “narrow category” of cases where an exception to the warrant requirement is justified. Commonwealth v. Young, 382 Mass. 448, 456, 416 N.E.2d 944 (1981), S.C.399 Mass. 527, 505 N.E.2d 186 (1987). This exception “permits the police to enter a home without a warrant when they have an objectively reasonable basis to believe that there may be someone inside who is injured or in imminent danger of physical harm.” ³Commonwealth v. Peters, supra at 819, 905 N.E.2d 1111, and cases cited. Such scenarios present one type of “exigent circumstance” that obviates the need for a warrant, see Brigham City v. Stuart, 547 U.S. 398, 403, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006), in part because it would be impracticable to obtain a warrant under the circumstances. See Commonwealth v. Forde, 367 Mass. 798, 800–801, 329 N.E.2d 717 (1975). In addition, “[t]he need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal absent an exigency or emergency.” Commonwealth v. Snell, 428 Mass. 766, 774, 705 N.E.2d 236, cert. denied, 527 U.S. 1010, 119 S.Ct. 2351, 144 L.Ed.2d 247 (1999), quoting Mincey v. Arizona, 437 U.S. 385, 392, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978).

Although the broader “exigent circumstances” exception generally requires a showing of probable cause, such a showing is not necessary in emergency aid situations, because the purpose of police entry is not to investigate criminal activity.⁴ See Commonwealth v. Entwistle, 463 Mass. 205, 214–215, 973 N.E.2d 115 (2012), cert. denied, ––– U.S. ––––, 133 S.Ct. 945, 184 L.Ed.2d 736 (2013); J.A. Grasso, Jr., & C.M. McEvoy, Suppression Matters Under Massachusetts Law §§ 14–1[a], 14–1[c][3][vi] (2012–2013). Instead, a warrantless entry “must meet two strict requirements. First, there must be objectively reasonable grounds to believe that an emergency exists.... Second, the conduct of the police following the entry must be reasonable under the circumstances....” (Citations omitted.) Commonwealth v. Peters, supra at 823, 905 N.E.2d 1111. Where these two conditions have been satisfied, warrantless entry into a home is permissible.

b. Warrantless searches or seizures to protect nonhuman animal life. We turn to the question whether warrantless searches of a home are permissible where they are intended to render emergency assistance to protect nonhuman animal life. Stated differently, the question is whether the public interest underlying the emergency aid exception, in facilitating immediate first aid response to those in danger of harm or physical injury, applies with equal force to animals.

The scope and nature of any such public interest can be discerned from “legislative enactments and the policies reflected in them,” which are “relevant as we consider the boundaries of the judicially established exceptions to the warrant requirement.” State v. Fessenden, 258 Or.App. 639, 648–649, 310 P.3d 1163, review granted, 354 Or. 597, 318 P.3d 749 (2013). Our statutes evince a focus on the prevention of both intentional and neglectful animal cruelty.⁵ See, e.g., G.L. c. 272, § 77. In addition to outlawing intentional acts of cruelty against animals, such as torture, mutilation, and overworking, G.L. c. 272, § 77, makes it a crime for the custodian of an animal to “unnecessarily fail[ ] to provide...