State v. Fessenden, A150065

• Decision Date: 25 September 2013
• Docket Number: A150065
• Parties: STATE OF OREGON, Plaintiff-Respondent, v. LINDA DIANE FESSENDEN, Defendant-Appellant.
• Court: Court of Appeals of Oregon

STATE OF OREGON, Plaintiff-Respondent, v. LINDA DIANE FESSENDEN, Defendant-Appellant.

A150065

COURT OF APPEALS OF THE STATE OF OREGON

Argued and submitted on June 18, 2013

FILED: September 25, 2013

Douglas County Circuit Court

10CR2252MI

George William Ambrosini, Judge.

Elizabeth G. Daily, Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Pamela J. Walsh, Assistant Attorney General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

Before Ortega, Presiding Judge, and Sercombe, Judge, and Hadlock, Judge.

HADLOCK, J.

Affirmed.

HADLOCK, J.

Defendant appeals her conviction for second-degree animal neglect, arguing that the trial court erred by denying her motion to suppress evidence related to the warrantless search and seizure of her emaciated horse. The trial court's denial of that motion was premised, in part, on its conclusion that a deputy sheriff's seizure of the horse was justified under the "emergency aid" doctrine, which permits law enforcement officers to enter property without a warrant when they "have an objectively reasonable belief, based on articulable facts, that a warrantless entry is necessary to either render immediate aid to persons, or to assist persons who have suffered, or who are imminently threatened with suffering, serious physical injury or harm." State v. Baker, 350 Or 641, 649, 260 P3d 476 (2011) (footnotes omitted). Defendant's appeal presents two questions: (1) whether the emergency aid doctrine ever extends to warrantless searches or seizures that law enforcement officers reasonably believe are necessary to render immediate aid or assistance to animals and (2) if so, whether the deputy's warrantless seizure of the starving horse was lawful in the circumstances presented by this case. As explained below, we conclude that the answer to both of those questions is "yes."

We describe the facts consistently with the trial court's explicit and implicit findings, which the evidence supports. Defendant and her codefendant, Dicke, together owned an "older" horse that they kept on Dicke's property. In August 2010, Deputy Sheriff Bartholomew responded to a call from Dicke's neighbors, the Kemplens, who hadreported that the horse was "very skinny."¹ Bartholomew, who works in the Animal Control Unit at the Douglas County Sheriff's Office, has a bachelor's degree in animal science, has graduated from the National Animal Control Academy, and is trained to investigate animal cruelty. He has worked at the Sheriff's Office for 22 years and investigates animal-control issues on a daily basis. Bartholomew has specific expertise in evaluating the weight of horses using the "Henneke Scoring Method," which he described as a method for determining whether "the animal's okay or if it's emaciated or thin," taking into account the amount of fatty tissue on specific areas of the horse's body. Bartholomew evaluates about 100 to 200 horses, including some older horses, every year.

In responding to the Kemplens' call, Bartholomew drove up a "common driveway" that the Kemplens shared with codefendant Dicke. Bartholomew contacted the Kemplens, who told him that the horse looked bad and had been out loose. Bartholomew went further down the driveway to see if the horse was still loose, but she was not; rather, she was "in a little fenced in area" about 100 feet from Dicke's residence. Bartholomew could see from his car that the horse's "backbone was protruding up way more than it should have," which is a sign of emaciation. The horse was "swaying a little bit" and her neck looked thin. "The withers stood way up as well as the backbone," which Bartholomew explained are "signs of emaciation." Bartholomew could see each ofthe horse's ribs as well as her tail bones; "you could see every bone protrusion, and there was no fatty tissue in the shoulder area you could see." Bartholomew made all of those observations before he touched the horse. He also saw the horse straining to urinate, "having a hard time." Such difficulty in urination can be "an issue of kidney failure."

Before touching the horse or going onto Dicke's property, Bartholomew gave the horse a Henneke body score of one out of nine on a scale where one represents emaciation, "two is very thin, three is thin" up to "seven, eight and nine" which can represent being "too fat." Bartholomew believed that the horse was suffering from a medical emergency:

"Yeah, anytime you get a horse this skinny internal organs start shutting down. This literally was the thinnest horse I've seen that was still on its feet. It was, of course, wavering. I was afraid it was going to fall over and not be able to get back up."

If a horse that thin falls down, Bartholomew explained, "a lot of times we can't get them back up and then they end up having to be put down." He explained further:

"[T]he uniqueness is a horse, if it goes down because it's too weak, it sometimes can't get back up and then you have problems with breathing and problems with if they roll they can flip their stomachs.

"* * * * *

"* * * Their stomachs get flipped over their intestines on the inside and so it constricts it off, and the only way to fix that is by surgery, and a horse in that kind of condition wouldn't be able to survive a surgery."

Given the horse's condition, Bartholomew believed that the crime of first-degree animal neglect had been committed. He told a man who lived in a nearby trailer that he was going to take the horse to a veterinarian because he was worried that thehorse would fall down and not be able to get back up. Bartholomew then reached over the fence and touched the horse for the first time, again performing the steps to develop a Henneke body score. After that physical evaluation, Bartholomew again gave the horse a score of one, which is "the lowest score [that he had] ever given a horse that was still on its feet."

Bartholomew believed that the horse "was suffering," that its emaciation constituted a serious physical injury, and that the horse "was in immediate danger." Accordingly, Bartholomew contacted volunteers to bring a trailer to the area so he could transport the horse to a veterinarian for evaluation. The volunteers arrived about a half-hour later. As the horse was being loaded into the trailer, Bartholomew spoke with Dicke by telephone and informed her that he was taking the horse because he was worried about its immediate welfare. He said that he would return the horse if the veterinarian found nothing wrong with it. The horse was transported to a veterinary hospital, which took about half an hour. Bartholomew and the volunteers did their best "to get it done as quick as possible."

The horse was still standing when it arrived at the veterinary hospital, but veterinarian Giri, who evaluated the horse, gave it a body score of 0.5. Giri reported that the horse was the skinniest that she had seen. Using a stethoscope, Giri determined that the horse had a "really, really bad" heart murmur, which often is "related to being starved." Giri also ran blood tests "to make sure there was no organ failure." Bartholomew explained that sometimes, if a horse's organs "have already started to failthere's really no being able to bring the horse back," making it more likely that the horse would "have to be put down."² Giri did not end up needing to give the horse an IV or perform any surgery.

Giri told Bartholomew that the horse "was definitely in immediate need of care" and Bartholomew took the horse to "Saving Grace" for water, food, and monitoring. He testified that caring for an emaciated horse involves "a very slow process of feeding it small amounts and gradually * * * getting the amounts up to a normal size." The next day, Bartholomew took the horse to a rehabilitation center run by Strawberry Mountain Mustang Rescue to see if the director of that organization, Clark, "could bring it back." A month later, Clark reported, the horse had gained about 100 pounds. Clark had provided the horse "with a simple, normal diet for older horses." By the end of the year, the horse's heart murmur had disappeared.

Defendant called Bartholomew the day after he took the horse and informed him that the horse belonged to her as well as to Dicke. Bartholomew and defendant met the next day; at that time, she was "very emotionally upset about the condition of the horse."

Defendant was charged with second-degree animal neglect under ORS 167.325.³ She later moved to suppress evidence derived from Bartholomew's search andseizure of the horse, including "any examination of the horse, photographs, body condition score, other observations of and statements about the condition of the horse," as well as her own statements about the horse's condition. Defendant argued that the warrantless search and seizure had violated Article I, section 9, of the Oregon Constitution,⁴ and she specifically contended that neither the emergency aid doctrine nor any other exigency justified Bartholomew's conduct.⁵

Bartholomew explained at the suppression hearing why he had not applied for and obtained a search warrant before he seized the horse. As noted above, Bartholomew had given this horse a body score of one--the lowest score that he would ever give. He testified that he usually starts "getting real nervous" about animals that have a body score of two or three; in those cases, he usually will give the animals' owners suggestions about how to feed the animals to help them gain weight, or he might ask a veterinarian to do so. It is "rare" for Bartholomew to seize an animal without first takingsuch other steps. Although he investigates animal-related cases daily, Bartholomew will "seize the animal right away" at most only two to three times a year.

In this case, Bartholomew seized the horse without first applying for a warrant because he "was afraid [the horse] was...