State v. Fay
| Decision Date | 02 December 2020 |
| Docket Number | No. 2018-0402,2018-0402 |
| Citation | 173 N.H. 740,248 A.3d 1191 |
| Parties | The STATE of New Hampshire v. Christina FAY |
| Court | New Hampshire Supreme Court |
Gordon J. MacDonald, attorney general (Susan P. McGinnis, senior assistant attorney general, on the brief and orally), for the State.
Lothstein Guerriero, PLLC, of Concord (Theodore Lothstein on the brief and orally), for the defendant.
The defendant, Christina Fay, appeals her convictions on seventeen counts of cruelty to animals. See RSA 644:8 (2016) (amended 2018, 2019). The Wolfeboro Police Department executed a search warrant at the defendant's residence in June 2017 with the aid of the Humane Society of the United States (HSUS) and others, pursuant to which over seventy Great Danes were seized. The defendant argues that the Superior Court (Ignatius, J.) erred by denying her motion to suppress the evidence seized as a result of that search. We affirm.
The following relevant facts are drawn from the trial court's order on the defendant's suppression motion and the suppression record. See State v. Pseudae, 154 N.H. 196, 200, 908 A.2d 809 (2006). In 2017, the Wolfeboro Police Department was conducting an investigation of the defendant and her residence in Wolfeboro. During this time, two of the defendant's former employees provided information to the police. One employee informed the police that there were seventy-eight dogs living at the residence. She stated that the dogs rarely went outside and were not housebroken, and that the residence was covered in animal waste. She reported that the dogs only received water when they were let outside, but that it was not uncommon for the dogs to remain inside for an entire weekend. She also stated that the dogs were fed spoiled meat, and that many vomited often, were underweight, and had liquid stool. In addition, the employee stated that there were riding crops located throughout the house to break up fights among the dogs, and that one dog would bite anyone other than the defendant who got near it.
The defendant's other employee told the police that there was a thick layer of urine and feces covering the floors throughout the residence, and that there were maggots and bugs covering the floor where some of the dogs were living. This employee reported that the dogs were fed a diet of raw chicken that was prepared in unsanitary conditions, and that there were maggots in a box of chicken in the refrigerator. In addition to their eyewitness accounts, each employee provided the police with photographs of the inside of the residence. The photographs depicted "dogs with injuries," raw chicken meat, dog kennels in various parts of the house and garage, the floor covered in a brown substance resembling dog feces, and maggots in a refrigerator and on the ground.
Officer Strauch of the Wolfeboro Police Department, who led the department's investigation, visited the defendant's property in May to serve a civil dog nuisance summons. While there, Strauch observed a large number of dogs barking inside the residence, as well as strong odors of feces, urine, and "something rotting" coming from an open door along the side of the building. Strauch also saw several large dogs in kennels, the floors of which were "thick with feces." Veterinarians who examined dogs that had been rehomed by the defendant informed the police that the dogs were underweight and suffered from various diseases.
Strauch applied for and obtained a search warrant for the defendant's residence. However, the police department did not have the resources to transport, or provide shelter for, the roughly seventy-eight dogs they expected to recover from the residence. Strauch also testified that even if the dogs could be spread out among all of the animal shelters in the state, there was a risk that the dogs would spread disease to other animals in the shelters. Conversely, HSUS had the resources to handle large-scale animal seizures, including access to large trailers with air conditioning to transport the dogs, and could provide them with adequate housing. Thus, Strauch asked the organization to assist with the execution of the search warrant. Strauch did not include in his affidavit supporting the search warrant's issuance that HSUS would be assisting the police, and the warrant itself did not explicitly state that HSUS was permitted to assist in its execution.
Strauch, along with every member of the police department, the Wolfeboro Fire Department, members of the ambulance team, employees from other town agencies, and staff from HSUS and the Pope Memorial SPCA, executed the warrant on June 16, 2017. Even with the number of persons assisting, Strauch testified that it took the entire day to execute the warrant. HSUS assisted with seizing and inventorying all of the dogs, and with evidence collection. Specifically, HSUS kept track of each dog, took photographs of where the dogs were kept, recorded videos, made a map of the rooms, photographed the dogs exiting the residence, and placed them in crates and into HSUS trailers for transportation. HSUS took possession of the dogs after they were removed from the house, providing them with housing and food at the organization's expense. HSUS later publicized its involvement in the search, as well as photographs from the search, in connection with fundraising efforts.
The defendant moved to suppress the evidence seized as a result of the search, arguing, among other things, that HSUS's involvement violated her right to be free from unreasonable searches and seizures. After a hearing, the trial court denied the defendant's motion. The defendant was subsequently brought to trial on eighteen counts of cruelty to animals.1 See RSA 644:8, III. The State entered a nolle prosequi on one count during trial, and a jury convicted the defendant on the remaining seventeen counts. This appeal followed.
On appeal, the defendant argues that the trial court erred in denying her motion to suppress. When reviewing a trial court's ruling on a motion to suppress, we accept the trial court's factual findings unless they lack support in the record or are clearly erroneous. State v. Folds, 172 N.H. 513, 516, 216 A.3d 58 (2019). Our review of the trial court's legal conclusions, however, is de novo. Id. The defendant raises arguments under both the State and Federal Constitutions. We first address her arguments under the State Constitution and rely upon federal law only to aid our analysis. State v. Ball, 124 N.H. 226, 231-33, 471 A.2d 347 (1983).
The defendant contends that the trial court erred in denying her motion to suppress because the State violated two of her constitutional rights: her right to be free from unreasonable searches and seizures and her right to privacy. We begin with the defendant's argument regarding her right to privacy.
We understand the defendant to ground her right-to-privacy argument in the recently enacted amendment to our State Constitution, Part I, Article 2-b. N.H. CONST. pt. I, art. 2-b (effective December 5, 2018). To the extent the defendant argues that, irrespective of the enactment of Part I, Article 2-b, her right to privacy, under the State and Federal Constitutions, was violated by, inter alia, HSUS's involvement in executing the search of her home and its subsequent "media and fundraising campaign," she failed to raise any right-to-privacy argument to the trial court, and we decline to consider any such arguments on appeal. See State v. Blackmer, 149 N.H. 47, 48, 816 A.2d 1014 (2003). Accordingly, we limit our review of her right-to-privacy argument to Part I, Article 2-b of the State Constitution.
The defendant argues that Part I, Article 2-b, which was enacted after the relevant events in her case, applies to her case retroactively. We have not had occasion to decide the proper means of determining whether a constitutional amendment has retroactive effect. Cf., e.g., State v. Brawley, 171 N.H. 333, 341, 195 A.3d 113 (2018) (); State v. Tierney, 150 N.H. 339, 342-45, 839 A.2d 38 (2003) (). The defendant asserts that "[t]hree considerations compel the conclusion that [Part I,] Article 2-b applies to this case."
The first consideration she raises is, "The language of the amendment supports a finding of retroactive application." Part I, Article 2-b states, "An individual's right to live free from governmental intrusion in private or personal information is natural, essential, and inherent." N.H. CONST. pt. I, art. 2-b. The defendant acknowledges that "the amendment does not expressly address the issue of retroactive application," but points to the language "natural, essential, and inherent" as indicative of "[t]he choice by the citizens to characterize the right to privacy as pre-existing rather than newly-created." (Citing Burrows v. City of Keene, 121 N.H. 590, 596, 432 A.2d 15 (1981) ()). Consequently, she argues, the use of the phrase "natural, essential, and inherent" also "manifests the[ ] intent to apply the amendment retroactively."
The general rule employed by a majority of jurisdictions presumes that constitutional amendments operate prospectively unless the intent to apply the amendment retroactively is clear. See, e.g., Evans v. Utah, 21 F. Supp. 3d 1192, 1204-05 (D.Utah 2014) (applying Utah law) ; State v. Merritt, 467 S.W.3d 808, 812 (Mo. 2015) (per curiam ); People v. Dean, 175 Ill.2d 244, 222 Ill.Dec. 413, 677 N.E.2d 947, 952 (1997) ; Kneip v. Herseth, 87 S.D. 642, 214 N.W.2d 93, 101-02 (1974) ; see also 16 C.J.S. Constitutional Law § 116, Westlaw (database updated ...
To continue reading
Request your trial