State v. Newcomb

• Decision Date: 16 June 2016
• Docket Number: CA A149495,CC 110443303,SC S062387
• Parties: State of Oregon, Petitioner on Review, v. Amanda L. Newcomb, Respondent on Review.
• Court: Oregon Supreme Court

359 Or. 756

375 P.3d 434

State of Oregon, Petitioner on Review

v.Amanda L. Newcomb, Respondent on Review.

CC 110443303

CA A149495

SC S062387

Supreme Court of Oregon.

Argued and submitted March 10, 2015, at Lewis & Clark Law School, Portland, Oregon.

June 16, 2016

Jamie K. Contreras, Assistant Attorney General, Salem, argued the cause and filed the brief for petitioner on review. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

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

Lora Dunn, Animal Legal Defense Fund, Portland, filed the briefs for amici curiae Animal Legal Defense Fund, Association of Prosecuting Attorneys, National District Attorneys Association, Oregon Humane Society, and Oregon Veterinary Medical Association.

Before Balmer, Chief Justice, and Kistler, Walters, Landau, Baldwin, Brewer, Justices, and Linder, Senior Justice pro tempore.^**

LINDER

, S.J.

Defendant was convicted of second-degree animal neglect (ORS 167.325

)¹ after she failed to adequately feed her dog, Juno, resulting in his malnourishment. Before trial, defendant moved to suppress blood test results showing that Juno had no medical condition that would have caused him to be malnourished, which in turn indicated that Juno was malnourished because he was starving. Defendant argued that the state had violated both Article I, section 9, of the Oregon Constitution

, and the Fourth Amendment to the United States Constitution by failing to obtain a warrant before testing the dog's blood.² The trial court denied the motion and allowed the state to introduce the test results during trial. Defendant appealed to the Court of Appeals, which agreed with defendant that she had a protected privacy interest in her dog's blood that required the state to obtain a search warrant, unless the circumstances fit within an exception to the warrant requirement. State v. Newcomb , 262 Or.App. 256, 271, 324 P.3d 557 (2014). Because the state had failed to obtain a warrant, and because no exception to the warrant requirement applied, the Court of Appeals reversed. Id. at 271–72, 324 P.3d 557. We allowed the state's petition for review to resolve whether defendant had a protected privacy interest in her dog's blood under Article I, section 9, of the Oregon Constitution or the Fourth Amendment to the United States Constitution. As explained below, on these facts, we conclude that she did not. We accordingly reverse the decision of the Court of Appeals and affirm the decision of the trial court.

I. FACTUAL AND PROCEDURAL BACKGROUND

We recite the facts, and all reasonable inferences that they support, in the light most favorable to the trial court's denial of the motion to suppress. See State v. Bailey , 356 Or. 486, 489, 338 P.3d 702 (2014)

(stating standard of review). The Oregon Humane Society received a report that defendant was abusing and neglecting her dog, Juno. In response to that report, Special Agent Austin Wallace, an animal cruelty investigator and certified police officer, went to defendant's apartment to investigate.³ While the officer was speaking with defendant inside her apartment, he could see Juno in defendant's back patio area through the double sliding-glass doors. To the officer, who had seen “hundreds of emaciated animals,” Juno appeared to be in a “near-emaciated condition,” with “no fat on his body.” He also noticed that Juno was “eating at random things in the yard, and * * * trying to vomit.” But Juno was dry heaving and “[n]othing was coming up[.]”

The officer asked defendant why Juno was in that condition—that is, why Juno appeared “near-emaciated.” Defendant responded that she usually gave Juno dog food from WinCo, which she buys in small four-pound quantities, but that she had run out of it and was planning on buying more that evening. At that point, the officer concluded that he had enough evidence to corroborate the citizen report of neglect—Juno was near-emaciated and dry heaving, and defendant had admitted that she had no food for Juno. He therefore concluded that he had probable cause to believe that defendant had neglected Juno. He asked defendant for permission to take the dog in for medical care, but defendant, who thought her dog looked healthy, refused and became irate. The officer therefore took custody of Juno without defendant's consent, both as evidence of the neglect and because of the “strong possibility” that Juno needed medical treatment. He transported Juno to the Humane Society, where Juno would be housed and medically treated as appropriate. From medical tests, the officer expected also to be able to determine whether neglect charges were warranted or whether Juno should be returned to defendant.

Dr. Zarah Hedge, a veterinarian, treated Juno after the dog arrived at the Oregon Humane Society. From an initial examination, Dr. Hedge could identify nothing physically wrong with Juno, other than that “the dog was very thin.” As part of standard practice, Dr. Hedge gave Juno a “body condition score.” That score ranges from one—meaning emaciated—to nine—meaning obese. To score dogs on that scale, veterinarians determine, among other things, whether the dog's ribs and spine are visibly protruding (meaning that the dog is emaciated); or, on the opposite end of the scale, whether the veterinarian must actually touch the dog to be able to locate its ribs and spine (meaning that the dog is obese). After looking at Juno—whose ribs and vertebrae were visible without having to feel for them—Dr. Hedge gave him a body condition score of 1.5. But Dr. Hedge could not be certain, at that point, that Juno was emaciated due to malnourishment. Juno could have had a parasite or an intestinal or organ condition that caused him to be thin. She therefore drew a blood sample from Juno for laboratory testing.⁴

Dr. Hedge's withdrawal of that blood sample, and the subsequent testing of it, is the central focus of this case.⁵ The laboratory tests revealed nothing medically wrong with Juno that would have caused him to be thin; Dr. Hedge therefore concluded that Juno was malnourished and placed him on a special feeding protocol. As a result of that diagnosis, the officer cited defendant for second-degree animal neglect.

Before trial, defendant moved to suppress the laboratory test results, arguing that the officer lacked probable cause to take Juno into custody, and thus had unlawfully seized the dog. Defendant also argued that Dr. Hedge had engaged in an unreasonable search of defendant's property—i.e. , Juno—by drawing and testing Juno's blood without a warrant, in violation of Article I, section 9, of the Oregon Constitution

and the Fourth Amendment to the United States Constitution. In arguing that the blood testing was an unlawful search, defendant emphasized that dogs are personal property under Oregon law; defendant therefore took the position that dogs are “no different than a folder or a stereo or a vehicle or a boot” or other items of personal property. Even if Juno was lawfully taken into custody, defendant urged, the state could examine only the exterior of seized property without seeking a warrant. According to defendant, by withdrawing blood from Juno and testing that blood without a warrant, the state intruded into her personal property and revealed information not otherwise open to view, which violated her constitutionally protected privacy.

The prosecutor countered by first arguing that the officer had probable cause to believe Juno was being neglected, and therefore had lawfully seized Juno and taken him to the Humane Society for care. The prosecutor then turned to the withdrawal and testing of Juno's blood, arguing that a dog, although personal property, is not a container and is not legally analogous to one because, as the prosecutor put it, a dog “doesn't contain anything”; instead, inside a dog is just “more dog.” A more appropriate analogy, the prosecutor urged, was to test-firing a lawfully seized gun to determine if it is operable.⁶ According to the prosecutor, in the same way, testing Juno's blood did not reveal private information concealed inside Juno, but instead confirmed that Juno was what the officer believed that he had seized—a malnourished dog. As an alternative theory justifying the warrantless withdrawal and testing of Juno's blood, the prosecutor urged that it was reasonable to provide medical care to a dog that had been lawfully taken into custody on probable cause to believe that the dog had been neglected.

The trial court denied defendant's motion to suppress. In doing so, the trial court first concluded that the officer had probable cause to believe Juno was neglected and therefore lawfully took Juno into custody. Next, the trial court agreed with the prosecutor that a dog is neither a container nor analogous to one, and stated that the closer analogy would be a medical examination and diagnostic analysis of a child taken into protective custody on suspicion of abuse. The trial court also viewed the testing of Juno's blood as more analogous to confirmatory chemical testing of a substance seized on probable cause that it is an unlawful drug, or to testing a lawfully-seized firearm for fingerprints. For those reasons, the trial court ruled that, once Juno had been lawfully taken into custody, neither Article I, section 9

, or the Fourth Amendment required a warrant to medically test Juno's blood.

The case proceeded to a jury trial, and the jury unanimously returned a guilty verdict on the second-degree animal neglect charge. Defendant appealed, challenging the denial of her motion to suppress. In the Court of Appeals, the parties largely renewed the arguments they had made to the trial court. The Court of Appeals agreed with the trial court that Juno's seizure was lawful, but disagreed that Juno's blood...