State v. Ferguson

Citation2020 VT 39
Decision Date29 May 2020
Docket NumberNo. 2019-190,No. 2018-067,No. 2018-061,No. 2019-196,2018-061,2019-190,2018-067,2019-196
CourtUnited States State Supreme Court of Vermont
PartiesState of Vermont v. Thomas Ferguson & Katherine A. Ferguson

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal revision before publication in the Vermont Reports. Readers are requested to notify the Reporter of Decisions by email at: or by mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made before this opinion goes to press.

On Appeal from Superior Court, Addison Unit, Criminal Division

Helen M. Toor, J. (motion for animal forfeiture)

Alison S. Arms, J. (motion to suppress evidence and dismiss, and final judgment)

David Tartter, Deputy State's Attorney, Montpelier, for Plaintiff-Appellee.

Matthew Valerio, Defender General, and Dawn Matthews, Appellate Defender, Montpelier, for T. Ferguson, and Allison N. Fulcher of Martin & Delaney Law Group, Barre, for K. Ferguson, Defendants-Appellants.

PRESENT: Reiber, C.J., Robinson, Eaton, Carroll and Cohen, JJ.

¶ 1. ROBINSON, J. Defendants appeal their respective convictions for animal cruelty and a judgment for animal forfeiture, both arising from the conditions in which they kept over twenty animals in their care. They challenge their convictions on the basis that the affidavit prepared by a police officer in support of the search warrant that led to the charges relied on information obtained from a prior illegal search, and therefore the court should have excluded all evidence obtained as a result of the warrant. They challenge the forfeiture order on the ground that the court improperly admitted hearsay statements in the forfeiture hearing. We affirm as to the criminal convictions because even if the information from the challenged prior search is stricken, the remaining portions of the affidavit are sufficient to support the search warrant that led to the charges. We agree that the court improperly allowed hearsay evidence in the forfeiture proceeding, and remand for the court to reconsider its ruling without the objectionable evidence.

¶ 2. Except where otherwise noted, the court found the following facts by a preponderance of the evidence in its order denying defendant's motion to suppress evidence and dismiss. In September 2017, defendants' landlord entered their trailer to check the smoke detectors. He found the interior of the residence smelled strongly of urine and ammonia, and he observed more than two dozen animals in "questionable living conditions." Numerous dogs were crowded into small crates and lacked access to food and water, including a nursing mother and her puppies. Birds were kept in dirty cages and their water was viscous and filled with feces, food, and feathers. Landlord took photographs and a video of some of the animals, including three dogs sharing one travel crate. Landlord, his family, and other contractors continued to do maintenance work on the property for the next month, during which time the animals remained in similar conditions.

¶ 3. One of landlord's contractors eventually contacted the police on September 27, 2017 regarding the animals' conditions. Trooper Jacqueline June met with landlord outside the residence on or about September 29. Landlord told her about the conditions in the home and that the dogs had gone without water for a minimum of nine hours at a time on at least three to four occasions. He showed her the video he took. She testified that based on landlord's descriptions and the video, she was concerned that the puppies may not survive one day to the next. Trooper June did not enter the residence at that time; landlord told Trooper June that he would contact her when he had permission to enter the home.

¶ 4. At some point between September 30 and October 4, 2017, Trooper June entered the residence with landlord and without the knowledge or permission of defendants. She photographed the animals and confirmed what contractor and landlord had told her regarding the smell of urine, the cramped crates, and the birds' water. She subsequently requested a warrant to search the property and seize the animals and other related evidence.

¶ 5. Trooper June got the warrant and executed it in early October. Police seized a total of twenty-eight animals, including twelve dogs, nine birds, one cat, two ferrets, two guinea pigs, one hamster, and one bearded dragon. The State charged each defendant with twelve counts of animal cruelty for depriving the animals of food, water, shelter, rest, sanitation, or necessary medical attention in violation of 13 V.S.A. § 352(4). It also moved for forfeiture of the animals under 13 V.S.A. § 354(d).

¶ 6. Defendants moved to suppress evidence and dismiss the criminal charges, arguing that the search warrant was based on Trooper June's initial search of their home and that the search had been illegal. The trial court denied the motions, concluding that landlord could not consent to the search on defendants' behalf, but that exigent circumstances permitted Trooper June's initial entry. Defendants each entered conditional pleas of no contest to four counts of cruelty to animals, reserving the right to appeal the court's denial of their motions. The court deferred sentencing Katherine Ferguson for a period of three years and sentenced Thomas Ferguson to six to twelve months, suspended with a two-year period of probation.

¶ 7. In separate dockets, the trial court granted the State's forfeiture motions. The State presented, among other evidence, the affidavit Trooper June wrote in support of the warrant. Defendants objected to the admission of hearsay statements from landlord and contractor contained in the affidavit. The court ultimately admitted the hearsay statements and granted the State's forfeiture motions.

¶ 8. Defendants' appeals of their convictions have been consolidated with their appeals of the forfeiture order. We consider each in turn.

I. Suppression of Evidence

¶ 9. Defendants argue that Trooper June's warrantless search of their home while accompanying the landlord was unconstitutional, and that all evidence obtained as a result of that search—including evidence she relied on in her subsequent application for a search warrant—must be suppressed. Accordingly, they argue that the evidence Trooper June subsequently gatheredpursuant to the warrant should be suppressed, and the charges should be dismissed. The State does not argue that Trooper June's initial entry into defendants' home was lawful. It contends that even assuming that initial warrantless search was unconstitutional, Trooper June's affidavit in support of the search warrant included sufficient other evidence to establish probable cause, even without her personal observations from her initial entry into the home. Therefore, the State argues, there is no reason to suppress the results of the search warrant or dismiss the charges.

¶ 10. When reviewing a trial court's decision on a motion to suppress, we review the court's legal conclusions without deference and its factual findings for clear error. State v. Nagel, 2020 VT 31, ¶ 6, ___ Vt. ___, ___ A.3d ___. For purposes of our analysis, we assume without deciding that Trooper June's initial warrantless search of the home was unconstitutional.1 We conclude that, even excluding the observations Trooper June made during that search, the other evidence presented in Trooper June's application for a warrant—in particular, the reports from landlord and the contractor—was sufficient to support a finding of probable cause.2

¶ 11. "A search warrant is not invalid merely because it is supported in part by an affidavit containing unlawfully obtained information." State v. Lizotte, 2018 VT 92, ¶ 37, 208 Vt.240, 197 A.3d 362 (quoting State v. Moran, 141 Vt. 10, 16, 444 A.2d 879, 882 (1982)). "Where the affidavit includes allegations based on illegally obtained evidence as well as independent and lawfully obtained information, a valid search may issue if the lawfully obtained information, considered by itself, is sufficient to establish probable cause." Id. ¶ 37 (quoting Moran, 141 Vt. at 16, 444 A.2d at 882). "Probable cause to search exists when the facts and circumstances set forth in the affidavit are such that a judicial officer may reasonably conclude that the evidence sought is connected to the crime and located at the place indicated." Moran, 141 Vt. at 16, 444 A.2d at 882.

¶ 12. In considering whether probable cause existed, "we must take the animals' welfare into consideration." State v. Sheperd, 2017 VT 39, ¶¶ 19-20, 204 Vt. 592, 170 A.3d 616 (stating that "exceptionally neglected condition of the dog on the porch reasonably supported a probable cause finding to support a search for and seizure of not only that dog, but also the others reasonably believed to be at the home"). In the context of searches and seizures, "the treatment of animals is different from that of other types of property," because "animals are living, sentient beings to which the law may provide protections in their own right." Id. ¶¶ 17-18.

¶ 13. After excluding the results of her initial search, Trooper June's affidavit contains the following paragraphs regarding the animals:

4) On September 29, 2017 at approximately 0913 hours, I was dispatched to [defendants' residence] for a reported concern for animal welfare.
5) Prior to my arrival at the residence I . . . contacted [contractor] via telephone. [Contractor] advised that while doing construction work at the aforementioned residence, he observed multiple dogs together in small crates that were in their own feces and urine. [Contractor] advised that one of the dogs was missing a lot of fur on its backside. [Contractor] advised that he observed multiple birds and other small animals in stacked crates. [Contractor] advised that the animals were kept in these conditions for over nine hours at a time. [Contractor]

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