State v. Harris
| Decision Date | 04 December 2014 |
| Docket Number | No. 1 CA-SA 14-0184,1 CA-SA 14-0184 |
| Parties | STATE OF ARIZONA, Petitioner, v. THE HONORABLE MYRA HARRIS, Commissioner of the SUPERIOR COURT OF THE STATE OF ARIZONA, in and for the County of MARICOPA, Respondent Commissioner, HOWARD LEE MITCHELL, III, Real Party in Interest. |
| Court | Arizona Court of Appeals |
NOTICE: NOT FOR PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
The Honorable Myra A. Harris, Commissioner
Scottsdale City Prosecutor's Office, Scottsdale
By Kenneth M. Flint
Howard Lee Mitchell, III, Scottsdale
Judge Kenton D. Jones delivered the decision of the Court, in which Presiding Judge Peter B. Swann and Judge Michael J. Brown joined.
¶1 This matter arises from the Scottsdale City Court's termination of Howard Lee Mitchell III's possessory rights in one dog, thirteen birds and fourteen tortoises, pursuant to Chapter 4, Article 1 of the Scottsdale Revised Code. The City of Scottsdale, a political subdivision of the State of Arizona, petitions for special action review of the superior court's order on appeal (1) reversing the city court's termination and support order for insufficient evidence, and (2) ultimately suppressing evidence the superior court deemed to have been obtained in violation of the Fourth Amendment. For the following reasons, we accept jurisdiction, reverse the superior court's order, and remand with directions to reinstate the city court's order.
¶2 In May 2013, an Arizona Humane Society representative requested the Scottsdale Police Department perform a welfare check on animals reportedly left unattended at Mitchell's home while he was hospitalized. Two officers were dispatched, one of which was an emergency animal medical technician who had received specific training in animal cruelty and neglect investigations. Upon arrival, and prior to proceeding onto the Mitchell property, the officers looked over a wall from an adjoining property into Mitchell's backyard and observed two dead tortoises "in various stages of decomposition." The officers then entered his backyard through an unlocked gate and discovered an additional seven or eight live tortoises in what was perceived by the officers to be the "typical article hoarder backyard." Although the yard was overgrown and there were several puddles of water, there was no fresh food or water for the tortoises. The officers photographed a tortoise eating its own feces, and did not observe any other available food. The backyard contained a pool that was empty and unfenced, such that tortoises could fall in and become trapped.
¶3 When the officers reached the back door of Mitchell's house, they detected a burning or smoldering smell, "like an electrical fire," coming from inside the home. The smell became stronger when the flap of the dog door was opened. The officers then knocked on the front and back doors, which induced barking and bird calls. After receiving no other response, the officers entered the unlocked back door to investigate the source of the "electrical fire" smell.
¶4 Inside Mitchell's home, officers discovered an "animal hoarding house" with narrow pathways, which required officers to turn sideways between piles of debris to navigate the structure. They observed animals throughout the home, including at least three birds living outside their cages. The officers did not see any available dog or bird food, and there was no indication anyone was actively caring for the animals. The residence was littered with spider webs and debris across every available surface, rodent and bird feces covered the walls and furniture, and there were streaks, stains, and burn marks on the kitchen walls. Rat traps and dead mice were present throughout the house. The floors were covered with old birdseed and feces, and it was obvious to the officers that neither the bird cages, nor the toilet, had been cleaned in a long time. Water bowls had been left out, but by then contained only a small amount of water.
¶5 The birds themselves had greasy, tattered, and thinning feathers, overgrown beaks and toenails, and did not appear healthy. One was compared to a Thanksgiving turkey, as it had no feathers on its chest. Some birds had no food in their cages; others had been provided animal crackers and pretzels — items devoid of nutritional value.
¶6 The officers were unable to locate the source of the smell of smoke, and requested the Scottsdale Fire Department respond. Upon arrival, firefighters traced the burning smell to a shorted-out microwave, which they unplugged and removed from the home. They described Mitchell's home as "a deathtrap" and posited it would have caught fire within a couple hours had no one intervened. The City determined the residence was "unsafe to occupy" and condemned the property.
¶7 By this time, Mitchell had been hospitalized for three days. When questioned in the hospital, Mitchell told officers he had made no arrangements for the animals' care during his absence. Mitchell believed he had provided the animals with enough food and water for thirty days.
¶8 The City seized fourteen living tortoises, thirteen birds and one dog from Mitchell's home, and removed five dead tortoises. Aveterinarian examined the animals and testified they were "very stressed, distraught, showing nervous behavior, vocalizing," and exhibiting behavior indicative of psychological damage. The dog was obese and in need of antibiotics. Each bird suffered from some disease or medical condition, was malnourished from a diet of cheese puffs, pretzels and animal crackers, and one bird had tumors. The tortoises were generally healthy, although several had paralyzed back legs. A veterinarian from the Arizona Humane Society testified the tortoises were deprived of fresh water, a proper diet, and a safe environment — one free from dogs, pools and other dangers. The veterinarian described the conditions in Mitchell's home as "deplorable" and further stated she "would not send any animal to those conditions again."
¶9 Although it did not pursue criminal charges for animal cruelty, the City filed a civil action to terminate Mitchell's possessory rights in the animals, pursuant to Scottsdale Revised Code (S.R.C. or Code) section 4-12(a).1 An evidentiary hearing was held, at which Mitchell admitted neglecting his home and yard as a result of his congestive heart failure, but denied neglecting the animals. He testified that he had anticipated his hospitalization, and planned to be gone for approximately one week. Contrary to statements made in the hospital, Mitchell testified he arranged for a neighbor to check on the animals, but acknowledged he did not anticipate the animals' water or food would need to be refilled during that time.
¶10 The neighbor testified the animal crackers were treats rather than part of the animals' regular diet. He blamed the City for emptying the birds' cages onto the floor of Mitchell's home, maintained that what officers described as rodent feces was actually birdseed, and testified Mitchell fed the tortoises a bale of alfalfa every two weeks.
¶11 Mitchell self-identified as an expert on the raising of exotic birds and animal behavior, and testified that the dead and decomposing tortoises were left in the yard to provide the living tortoises with "toys" for jousting, and that some of the tortoises were lame because they were elderly. He stated the dog, a service dog, received recent veterinary care and was losing weight, and, contrary to the witnesses' observations, there was dog food available in the home. He further challenged the testimonyregarding proper care and behavior of birds and tortoises based upon his personal education and experience.
¶12 The city court ultimately found the City had proven by a preponderance of the evidence that Mitchell had neglected the seized animals, entered Judgment for the City, and ordered Mitchell to pay $750.00 for the cost of their care following removal. On appeal, the superior court found, first, that insufficient evidence had been presented to support the city court's findings and resulting forfeiture. It then suppressed all evidence presented by the City, finding it had been illegally obtained because the officers did not obtain a search warrant prior to entering Mitchell's property. The City petitioned this Court for special action review.
¶13 "Whether to accept special action jurisdiction is for this court to decide in the exercise of our discretion," Potter v. Vanderpool ex rel. Cnty. of Pinal, 225 Ariz. 495, 498, ¶ 6, 240 P.3d 1257, 1260 (App. 2010) (citing State v. Campoy, 220 Ariz. 539, 542, ¶ 2, 207 P.3d 792, 795 (App. 2009)), and "[a] primary consideration is whether the petitioner has an equally plain, speedy and adequate remedy by appeal." Am. Family Mut. Ins. Co. v. Grant, 222 Ariz. 507, 511, ¶ 9, 217 P.3d 1212, 1216 (App. 2009). Other considerations include whether the case raises issues of statewide importance, issues of first impression, pure legal questions, or issues that are likely to arise again. Luis A. v. Bayham-Lesselyong ex rel. Cnty. of Maricopa, 197 Ariz. 451, 452-53, ¶ 2, 4 P.3d 994, 995-96 (App. 2000) (citing Andrade v. Superior Court, 183 Ariz. 113, 115, 901 P.2d 461, 463 (App. 1995)).
¶14 Because this case arises from Mitchell's successful appeal of the city court's order to the superior court, the sole avenue for appellate review is through special action. See Ariz. Rev. Stat. § 22-375 (); State v. Superior Court ex rel. Norris, 179 Ariz....
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