State v. Newcomb

• Decision Date: 16 April 2014
• Docket Number: A149495.,110443303
• Citation: 324 P.3d 557,262 Or.App. 256
• Parties: STATE of Oregon, Plaintiff–Respondent, v. Amanda L. NEWCOMB, Defendant–Appellant.
• Court: Oregon Court of Appeals

262 Or.App. 256

324 P.3d 557

STATE of Oregon, Plaintiff–Respondent,

v.Amanda L. NEWCOMB, Defendant–Appellant.

110443303; A149495.

Court of Appeals of Oregon.

Argued and Submitted May 16, 2013.

Decided April 16, 2014.

Andrew D. Robinson, Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Jamie K. Contreras, Assistant Attorney–in–Charge, 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.

SERCOMBE, J.

Defendant appeals her conviction for second-degree animal neglect, arguing that the trial court erred in denying her motion to suppress evidence obtained when an animal control officer seized her dog and a veterinarian then subjected the dog to testing. Defendant contends that the trial court erred in concluding that the officer's seizure of the dog was justified under the “plain view” exception to the warrant requirement. Defendant further argues that, even if the officer lawfully seized the dog, the trial court erred in concluding that the veterinarian did not “search” the dog because the veterinarian's actions—sampling and testing the dog's blood and feces and recording the dog's weight over several days—revealed information that otherwise would have been hidden or concealed and, therefore, violated defendant's protected privacy interests. The state responds that the dog was lawfully seized and, with respect to the veterinarian's actions, that defendant had no protected privacy interest in the dog's “body condition” because, unlike other property, the dog had a right to care and to be free of neglect, and those rights “trump[ed]” defendant's constitutional possessory and privacy rights.

We conclude that the officer lawfully seized the dog under the “plain view” exception to the warrant requirement because his observations of the dog while lawfully in defendant's apartment, together with information he received from defendant and a named informant, provided probable cause to believe that defendant had neglected the dog and the dog was evidence of that neglect. As to whether the veterinarian's actions invaded defendant's protected privacy interests, we reject the state's novel claim that an animal's statutory rights “trump” a defendant's constitutional rights. Under the prevailing principles of Article I, section 9, of the Oregon Constitution governing privacy rights with respect to personal effects, we conclude that the extraction and testing of the dog's blood was a “search,” because those actions constitute a physical invasion of defendant's personal property that revealed otherwise concealed evidence. Accordingly, we reverse and remand.

We describe the facts consistently with the trial court's explicit and implicit findings, which the evidence supports. A named informant reported to the Oregon Humane Society that defendant's “dog was being housed in a kennel for many hours of the day, it was being beaten by * * * defendant, and also wasn't being fed properly.” An officer, working as an animal cruelty investigator, went to defendant's apartment to investigate the complaint. The officer entered the apartment with defendant's consent and saw the dog in the yard behind the home. The officer saw that the dog was “in a near-emaciated condition” and “was kind of eating at random things in the yard, and * * * try [ing] to vomit. Nothing was coming up, but [the dog] was trying to vomit.” The officer asked defendant why the dog was in that condition; defendant told him that she was out of dog food but was going to get more food that night.

The officer concluded that the dog “certainly appeared neglected” and there was a “strong possibility” that the dog needed medical care. He wanted to take the dog into custody and have it tested by a veterinarian “in order to make a determination if [he] was going to pursue this criminally” and to “determine what [was] wrong with [the dog], to get him vet care.” The officer asked defendant to sign a temporary medical release; she refused. The officer then took custody of the dog and brought it to the Humane Society.

At the Humane Society, a veterinarian took samples of the dog's blood and feces and tested those samples. The veterinarian also fed the dog, weighed the dog every three to four days, and charted the change in weight over time. ¹ According to the officer, those tests, taken together, showed that defendant's dog “was a healthy dog and with a basic plan of good quality food, he rapidly began to gain weight. So there basically was nothing wrong with him.” Thus, the evidence was relevant to show that the dog's “near-emaciated” condition resulted from neglect—lack of feeding—rather than sickness or disease.

Defendant filed a motion to suppress evidence derived from the warrantless seizure and search of her dog under Article I, section 9, and the Fourth Amendment to the United States Constitution.² Defendant argued that dogs are personal property and that Article I, section 9, and the Fourth Amendment protected her possessory interest in her dog. Defendant also asserted that she had a privacy interest in her dog, and that the state and federal constitutions protected that interest “with the same force [they] protect[ ] the right to privacy in personal items such as boots and pocket knives.”

As to the warrantless seizure of the dog, defendant argued that the “plain view” exception to the warrant requirement did not apply because the officer lacked probable cause to believe that the dog was evidence of a crime. Specifically, defendant argued that, “at the time [the officer] seized the dog, he did not have probable cause to believe that the reason it was skinny was because of some failure on [defendant's] part.” As a result, defendant argued, all “derivative evidence” of the warrantless seizure should be suppressed.

Further, defendant argued that, even if the seizure were lawful, she “maintained a protected privacy interest [under Article I, section 9,] in information about her dog not otherwise exposed to public view.” Thus, in defendant's view, the “battery of laboratory tests on [the] dog's blood, fecal matter, feeding habits, and pattern of weight gain * * * [were] searches under Article I, Section 9 because the tests invade[d][her] privacy interest in her dog by revealing information not otherwise exposed to public view.” (Internal quotation marks omitted.) Defendant asserted that the test results “reveal[ed] all these intimate details about the dog's body chemistry, about its blood levels, about its feeding habits, all of these things were information that was not otherwise exposed to public view.” Ultimately, she contended that, assuming that the seizure of the dog was lawful, all evidence derived from the veterinarian's warrantless searches of the dog—the test results on the blood and feces and the records of the dog's weight—should be suppressed.

The state responded that the seizure of the dog was justified under the plain view exception to the warrant requirement. The state argued that the officer, having seen the dog in an emaciated state while lawfully in defendant's apartment, had probable cause to believe the dog had been neglected “based on his conversation with [defendant] about [how] she was apparently out of dog food and the citizen report at the outset.” As to the veterinarian's actions once the dog was seized, the state responded that a dog “is one thing itself” and “doesn't contain anything else other than more dog.” With respect to the testing, the state argued that “[s]imply doing testing on an object to confirm it is what law enforcement believes it is, is well recognized to not require a warrant or a separate justification for it.” The state further argued that the state and federal constitutions only prohibit “unreasonable” searches and seizures, and it is reasonable for a veterinarian “to provide medical care to a dog to determine what's wrong with it, to feed a dog, to do all of that.”

The trial court denied defendant's suppression motion. The trial court concluded that defendant consented to the officer entering her residence, and the warrantless seizure of the dog was lawful because the officer had probable cause to believe that defendant had neglected the dog. The trial court determined that the veterinarian's actions—sampling and testing the blood and feces and recording the dog's weight—did not constitute a “search” under Article I, section 9, or the Fourth Amendment. After the court denied defendant's suppression motion, a jury found defendant guilty of animal neglect in the second degree, ORS 167.325(1),³ and the trial court sentenced defendant to one year of bench probation.

On appeal, defendant reprises the arguments she made in the trial court under Article I, section 9, and the Fourth Amendment, challenging the warrantless seizure of the dog and arguing that the subsequent sampling and testing of the dog's blood and feces, as well as the recording of the dog's weight over several days, were warrantless searches. The state responds that there was no violation of either Article I, section 9, or the Fourth Amendment because the seizure was justified under the plain view exception to the warrant requirement, and the veterinarian did not conduct a search when she examined the dog. We review for errors of law. State v. Ehly, 317 Or. 66, 75, 854 P.2d 421 (1993).

We begin with the officer's warrantless seizure of the dog under Article I, section 9. See State v. Kennedy, 295 Or. 260, 262, 666 P.2d 1316 (1983) (court disposes of state constitutional claims before addressing federal constitutional claims). The parties agree that, when the officer removed defendant's dog from her home, he seized her personal property. ⁴ In other words, defendant had a possessory interest in the dog just...