Case Information
*1 No. 49 August 7, 2014 IN THE SUPREME COURT OF THE STATE OF OREGON STATE OF OREGON, Respondent on Review, v.
LINDA DIANE FESSENDEN, Petitioner on Review.
(CC 10CR2252MI; CA A150065; SC S061740 (Control)) STATE OF OREGON, Respondent on Review, v.
TERESA ANN DICKE, Petitioner on Review.
(CC 10CR2251MI; CA A150092; SC S061770) En Banc
On review from the Court of Appeals.* Argued and submitted May 6, 2014.
Elizabeth Daily, Deputy Public Defender, Salem, argued the cause and filed the briefs for petitioner Fessenden. With her on the briefs was Peter Gartlan, Chief Defender.
Rankin Johnson IV, Law Office of Rankin Johnson IV, LLC, Portland, argued the cause and filed the briefs for peti- tioner Dicke.
Pamela Walsh, Assistant Attorney General, Salem, argued the cause for respondent on review. With her on the briefs were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Lora Dunn, Animal Legal Defense Fund, Portland, filed a brief for amici curiae Animal Legal Defense Fund, ______________ * Appeals from Douglas County Circuit Court, George William Ambrosini,
Judge. 258 Or App 639, 310 P3d 1163 (2013). 258 Or App 678, 310 P3d 1170 (2013). National District Attorneys Association, and Association of Prosecuting Attorneys.
WALTERS, J.
The decisions of the Court of Appeals and the judgments of the circuit court are affirmed. *2 In this consolidated case, defendants petitioned for review of two Court of
Appeals’ decisions affirming the trial court’s denial of defendants’ motions to sup- press evidence obtained during a warrantless entry and seizure of defendants’ horse. Held : The trial court correctly denied defendants’ motions to suppress. The exigent circumstances exception to the warrant requirement of both the Oregon and federal constitutions permits warrantless action when officers have prob- able cause to believe that a crime involving animals is in progress and, based on specific, articulable facts, determine that warrantless action is necessary to prevent an ongoing criminal act from causing further serious imminent harm to the animal. The decisions of the Court of Appeals are affirmed. The judgments of the circuit court are affirmed. WALTERS, J.
In these consolidated criminal appeals, we consider
whether an officer violated Article I, section 9, of the Oregon
Constitution or the Fourth Amendment to the United States
Constitution when, without a warrant, he entered private
property, seized an emaciated horse, and took the horse to
a veterinarian. We conclude that the officer acted lawfully
because he had probable cause to believe that defendants
were committing the crime of animal neglect and reasonably
believed, based on specific articulable facts, that immediate
action was necessary to prevent further imminent harm to
and the death of the horse. We affirm the decisions of the
Court of Appeals.
State v. Fessenden
,
Because the jury convicted defendants, we recite
the facts in the light most favorable to the state.
State v.
Lewis
,
From the driveway, the officer observed that the horse’s backbone protruded, her withers stood up, her neck was thin, all of her ribs were visible, she had no visible fatty tissue in her shoulders, and she was “swaying a little bit,” all of which the officer recognized as signs of emaciation. The horse also was straining to urinate, which the officer recognized as a sign of kidney failure (a potential result of starvation). At that point, before entering defendant’s prop- erty, the officer believed that the horse was suffering from malnourishment and presented a medical emergency. The officer testified that the horse was “literally * * * the thin- nest horse I’ve seen that was still on its feet,” that the horse was at risk of her “internal organs * * * shutting down,” and that the officer was “afraid it was going to fall over and not be able to get back up.” The officer knew that when emaci- ated horses fall, they frequently have to be euthanized.
Given the horse’s condition, the officer believed that defendants were committing the crime of first-degree ani- mal neglect. He also believed that it would take between four and eight hours to obtain a warrant to go onto defen- dant’s property and that, during that interval, the horse might fall, resulting in its death. He therefore entered the property, seized the horse, and immediately took her to a veterinarian. The veterinarian determined that the horse was starving and needed immediate medical treatment.
Defendant Dicke was charged with first-degree ani- mal neglect, ORS 167.330, and first-degree animal abuse, ORS 167.320. [1] Defendant Fessenden was charged with second-degree animal neglect, ORS 167.325.
Defendants’ trials were consolidated, and both defen- dants moved to suppress evidence obtained as a result of the officer’s seizure of the horse. [3] They argued that the officer’s acts violated the warrant requirements of Article I, section 9, 2013. revisions, we cite to the 2009 versions of the relevant statutes in discussing the Or Laws 2013, ch 719. Because defendants were charged before those See elements of the crimes with which defendants were charged. The legislature revised the animal welfare statutes, ORS chapter 167, in
In 2009, ORS 167.330 provided, in part: “(1) A person commits the crime of animal neglect in the first degree if, except as otherwise authorized by law, the person intentionally, know- ingly, recklessly or with criminal negligence fails to provide minimum care for an animal in the person’s custody or control and the failure to provide care results in serious physical injury or death to the animal.” ORS 167.320 provided, in part: “(1) A person commits the crime of animal abuse in the first degree if,
except as otherwise authorized by law, the person intentionally, knowingly or recklessly:
“(a) Causes serious physical injury to an animal; or “(b) Cruelly causes the death of an animal.” In 2009, ORS 167.325 provided, in part: *4 “(1) A person commits the crime of animal neglect in the second degree if, except as otherwise authorized by law, the person intentionally, know- ingly, recklessly or with criminal negligence fails to provide minimum care for an animal in such person’s custody or control.” Fessenden moved to suppress “all fruits of said search and seizure including any tified the evidence to be suppressed as “all observations of the horse.” Defendant information, material or knowledge gained * * * includ[ing] any examination of Each defendant filed a separate motion to suppress. Defendant Dicke iden- of the Oregon Constitution and the Fourth Amendment to the United States Constitution. In response to the state’s argument that two exceptions to that requirement—the emergency aid and the exigent circumstances exceptions— permitted the officer’s entry and seizure, defendants con- tended that neither exception permits an officer to act with- out a warrant to provide aid to an animal. Further, defen- dants argued, even if one of the cited exceptions applied, the state had not proved that the horse was in imminent danger.
The trial court denied defendants’ motions to sup- press, concluding that both exceptions to the warrant requirement permitted the officer’s acts. The jury convicted both defendants of the charged crimes, and the court entered separate judgments against each defendant. Defendants separately appealed, reprising their trial court arguments, and, in both cases, the Court of Appeals affirmed.
In
Fessenden
, the Court of Appeals held that the
officer’s warrantless entry and seizure were lawful under
the emergency aid exception to the warrant requirement
of Article I, section 9. 258 Or App at 640. The court cited
this court’s decision in
State v. Baker
,
“[T]he societal interest in protecting nonhuman animals from unnecessary pain, injury, trauma, and cruel death can justify * * * a warrantless search or seizure aimed at preventing or alleviating that suffering. * * * [W]e hold that a warrantless search or seizure is justified when law enforcement officers have an objectively reasonable belief, based on articulable facts, that the search or seizure is nec- essary to render immediate aid or assistance to animals that have suffered, or which are imminently threatened the horse, photographs, body condition score, other observations of and state- ments about the condition of the horse.” with suffering, serious physical injury or cruel death, unless that injury or death is being inflicted lawfully.” Id . at 649.
In
Dicke
, the Court of Appeals cited its reasoning
in
Fessenden
and decided, in a per curiam opinion, that the
officer did not violate Article I, section 9.
Both defendants petitioned this court for review, asserting that the officer’s entry and seizure violated the state and federal constitutions. We consolidated the cases and begin our analysis with the state constitution and the text of Article I, section 9, which provides:
“No law shall violate the right of the people to be secure in their persons, houses, papers, and effects, against unrea- sonable search, or seizure; and no warrant shall issue but upon probable cause, supported by oath, or affirmation, and particularly describing the place to be searched, and the person or thing to be seized.”
“Under Article I, section 9, warrantless entries and searches
of premises are
per se
unreasonable unless falling within one
of the few ‘specifically established and well-delineated excep -
tions’ to the warrant requirement.”
Baker
, 350 Or at 647
(quoting
State v. Davis
,
One such exception allows for warrantless entries, searches, and seizures to provide emergency aid. In Baker , this court held that a warrantless entry into a residence was lawful because the officers reasonably believed that some- one inside was being assaulted:
“[U]nder certain circumstances, the need to render emer- gency aid or prevent serious injury or harm is an appropri- ate justification for an immediate warrantless entry under ment argument, but suggests that defendant Fessenden may have failed to do so Fessenden’s corresponding argument and do not specifically address the issue of we reject Dicke’s Fourth Amendment argument on the merits, we also reject because she did not specifically raise that issue in the Court of Appeals. Because preservation. Even if Fessenden’s Fourth Amendment argument were preserved, it would fail on the merits. The state acknowledges that defendant Dicke preserved her Fourth Amend- Article I, section 9. Consequently, we conclude that an emergency aid exception to the Article I, section 9, warrant requirement is justified when police officers have an objec- tively 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.”
Id
. at 649 (footnotes omitted). Another exception to the war-
rant requirement allows for search or seizure under exigent
circumstances, articulated by this court as “a situation that
*6
requires the police to act swiftly to prevent danger to life or
serious damage to property, or to forestall a suspect’s escape
or the destruction of evidence.”
State v. Stevens
,
The emergency aid exception and the exigent cir- cumstances exception differ in at least one key way. The exi- gent circumstances exception “requires both probable cause and an exigency.” State v. Snow , 337 Or 219, 223, 94 P3d 872 (2004). The emergency aid exception does not: It permits warrantless entry, search, or seizure, regardless of whether the officer has probable cause to believe that a crime has been or is being committed, as long as the officer reasonably believes it necessary to “render immediate aid to persons * * * who have suffered, or who are imminently threatened with suffering, serious physical injury or harm.” Baker , 350 Or at 649. Emergency aid requires only “an objectively rea- sonably belief, based on articulable facts” that such an emer- gency exists. Id .
The exceptions also may differ in scope. Although
this court has not decided the question, it has, as noted,
described exigent circumstances as including those in which
swift action is necessary to prevent serious damage to “prop-
erty.”
Stevens
, 311 Or at 126. The emergency aid doctrine,
on the other hand, has been described as applying to situa-
tions in which immediate action is necessary to render aid
to “persons.”
Baker
,
In this case, the Court of Appeals held that the emer- gency aid exception extends to “animals that have suffered, or which are imminently threatened with suffering, serious physical injury or cruel death, unless that injury or death is being inflicted lawfully.” Fessenden , 258 Or App at 649. The state does not disagree with that conclusion, but argues that both the emergency aid and the exigent circumstances exceptions apply here. In the state’s view, both exceptions allow warrantless measures to prevent imminent threat to “property,” and the state asserts that, even if a horse is not a “person,” it is, at the very least, “property.”
Defendants respond that exceptions to the war- rant requirement must be “narrowly and carefully drawn,” see Davis , 295 Or at 243 (observing that exceptions per- mitting intrusion into home must be “narrowly and care- fully drawn”), and that neither exception now extends to or should be broadened to extend beyond the protection of human life to the protection of property. Inanimate prop- erty qua property does not constitute a compelling societal interest equivalent to the interest in avoiding serious physi- cal harm to persons, defendants contend. Furthermore, they argue, even if animals are considered “sentient life” and not “property,” society’s interest in protecting animals from abuse and neglect is not sufficiently significant to invoke an exception to Article I, section 9.
Defendants explain society’s interest in protect-
ing animals as deriving not from a recognition that ani-
mal life is inherently worthy of protection, but from vari-
ous benefits that humans receive by protecting animals.
Historically, defendants assert, the common law did not
protect animals aside from their status as the property of
their owners.
See
Cass R. Sunstein,
Standing for Animals
(with Notes on Animal Rights)
, 47 UCLA L Rev 1333, 1337
(2000) (“Courts generally suggested that such cruelty was
not unlawful unless it worked an injury to the owner, who
was the essential rights holder; but on rare occasions, the
courts concluded that cruelty could count as a common law
misdemeanor.” (Footnotes omitted.)). Defendants contend
that, when states later enacted anticruelty laws, their focus
again was on the impact that animal cruelty could have
on humans.
See
Thomas G. Kelch,
Toward A Non-Property
Status for Animals
, 6 NYU Envtl LJ 531, 540 (1998) (“[T]he
focus and purpose of anti-cruelty laws is to prevent acts
that may ultimately desensitize people to injuring humans.
Thus, the focus is not on the welfare of animals, but on the
impact that animal cruelty may have on actions concerning
humans.” (Footnotes omitted.)).
Cf. State v. Nix
,
Today, in Oregon, most of the laws prohibiting cru-
elty to animals are classified as misdemeanors, and many
of those laws exempt specified activities and specified ani-
mals.
[5]
See
ORS 167.315 to 167.332 (defining violations of ani-
mal welfare statutes as misdemeanors, with the exception of
ORS 167.332, a Class C felony, and ORS 167.312, a Class C
felony if damages to research facility amount to $2,500 or
more);
see also
ORS 167.335 (exempting specified activ-
ities and specified animals from the protection of animal
welfare statutes “[u]nless gross negligence can be shown”).
Accordingly, defendants argue, even if society has an inter-
est in protecting
certain
animals from
certain
kinds of mis-
treatment, that interest is not compelling and is impossible
to translate into a “clear, workable, and consistent” warrant
exception.
Cf. State v. Kock
,
Defendants have a point. Although Oregon’s ani- mal welfare statutes impose one of the nation’s most pro- tective statutory schemes, [6] defendants are correct that Oregon law still considers animals to be property. See, e.g. , ORS 167.310(2) (describing domestic animals as “owned or the legislature added legislative findings and sentencing provisions and renum- See bered certain subsections. Or Laws 2013, ch 719. We cite the current ver- sions of the relevant statutes for a general understanding of animal welfare laws. charged in this case. We cite the 2009 version of the applicable statutes when discussing the crimes As noted, the legislature amended ORS chapter 167 in 2013. In doing so, Rankings , http://www.aldf.org/wp-content/uploads/2013/12/2013-United-States- Oregon’s animal welfare statutes among the most protective in the United Animal-Protection-Laws-Rankings.pdf (last checked July 31, 2014) (ranking *8 States). e.g. See , Animal Legal Defense Fund, 2013 U.S. Animal Protection Laws , possessed by a person”); ORS 167.310(9) (describing mini- mum care that must be provided by an animal’s “owner”); ORS 167.312 (providing for damages payable to an animal’s “owner” for interference with research animals). Although the Oregon legislature has found that “[a]nimals are sen- tient beings capable of experiencing pain, stress and fear,” ORS 167.305(1), [7] Oregon law nevertheless permits humans to treat animals in ways that humans may not treat other humans. With the exception of the execution of a judicially imposed sentence of death, see ORS 137.463 to 137.482 (set- ting out procedure for death penalty), it is never lawful to kill another human. [8] However, Oregon law explicitly sets out the methods by which animals may be killed. See ORS 603.010 - 603.995 (setting out procedures for animal slaugh- ter). [9] Oregon statutes also allow animals to be treated or mistreated within the boundaries of “good animal hus- bandry” or “animal research.” See ORS 167.310(6) (defining “good animal husbandry” as including “the dehorning of cat- tle, the docking of horses, sheep or swine, and the castration or neutering of livestock, according to accepted practices of veterinary medicine or animal husbandry”); ORS 167.312 (proscribing any interference with animal research).
The animal welfare statutes also distinguish between different kinds of animals. See ORS 167.310(3) - (8) (sepa- rately defining “animal,” “domestic animal,” “equine,” “law enforcement animal,” and “livestock”). Domestic animals, it therefore has no effect on defendants’ legal position. We cite it only as evidence of the ongoing evolution of the legal status of animals. [7] We recognize that ORS 167.305 was enacted after defendants’ convictions; See be deemed justifiable, but not lawful. justified only to defend against a felony involving the use or threatened immi- ORS 161.219 (deadly physical force nent use of physical force, use of unlawful deadly physical force, or burglary in a dwelling). There are, of course, circumstances in which the killing of a human may Oregon law also permits individuals, under certain limited circumstances, to obtain medication to end their own lives, but never the life of another human. See generally ORS 127.800 to 127.995 (setting out parameters and limitations for Death with Dignity Act); see also ORS 127.570 (forbidding mercy killing or assisted suicide). terhouses. ORS 603.065 states the methods of slaughter that are permissible in slaughterhouses. ORS 603.045 to 603.059 set out minimum standards for slaugh- that render the animals “insensible to pain” or unconscious. Oregon, requiring that animals be slaughtered only by licensees and by methods For instance, ORS 603.025 sets out licensing requirements for operators of more colloquially known as pets, receive special consider- *9 ation under Oregon law. ORS 167.310(4) defines “domestic animals” as “animal[s], other than livestock or equines, that [are] owned or possessed by a person.” ORS 167.310(1), (2), and (9)(e) set out specific requirements for the food and shelter that must be provided to domestic animals, and ORS 167.343 sets out specific requirements and limitations for tethering domestic animals.
As those statutes illustrate, some animals, such as
pets, occupy a unique position in people’s hearts and in the
law.
See
,
e.g.
,
Rabideau v. City of Racine
, 243 Wis2d 486, 491,
From the premise that society’s interest in protect- ing animal life is not now equivalent to its interest in pro- tecting human life, defendant contends that an exception to the warrant requirement of Article I, section 9, that is justi- fied by the latter should not extend to the former. The state disagrees, although not with the premise that animal and *10 human life do not now occupy the same plane. Instead, the state argues that, when the Oregon Constitution, including Article I, section 9, was adopted, the state had authority to take warrantless measures to save and secure “property” and that then, as now, animals are characterized as “prop- erty.” The state also argues that the “reasonableness” stan- dard imposed by Article I, section 9, “should be construed in a manner consistent with relevant modern developments”— developments that demonstrate a modern societal interest in the protection of animals that permits the state to act on the animals’ behalf in emergency circumstances. Accordingly, the state contends, both the emergency aid exception and the exigent circumstances exception should apply to permit warrantless intervention when an animal’s life is at risk.
The parties’ arguments thus call on this court to
consider the past and current societal interests in protecting
the lives of animals and the peoples’ constitutional rights to
possession and privacy and to decide in what instances and
as to which animals, if any, society’s interests are sufficiently
compelling to justify a warrantless search or seizure. Those
are difficult questions, and, as the United States Supreme
Court has cautioned, “[t]heir difficulty admonishes us to
observe the wise limitations on our function and to confine
and as such should have their own specific rights and [it] is morally unacceptable
to keep them captive for entertainment purpose[s]”).
ourselves to deciding only what is necessary to the disposi-
tion of the immediate case.”
Whitehouse v. Illinois Cent. R.
Co.
,
The fact that an exception to the Article, I, sec-
tion 9, warrant requirement is at issue is an additional
reason for caution. Since 1986, this court has been aware
that, “in this modern day of electronics and computers,” a
day will come when the warrant requirement can be ful-
filled expeditiously.
State v. Brown
,
We proceed, therefore, to the specific facts of this case and consider whether the officer’s entry and seizure of the horse were permitted under an existing exception to the *11 warrant requirement. We begin with the exigent circum- stances exception because, as this court previously has artic- ulated that exception, it permits warrantless action when necessary to prevent serious damage to “property.” The par- ties acknowledge that, even if a horse is not a “person,” it is “property.” However, despite this court’s broad articulation of the exigent circumstances exception, this court has not yet applied that exception to permit warrantless measures to protect property. Therefore, we pause to consider whether the exigent circumstances exception permits the particular warrantless acts at issue here.
One of the cases in which this court has applied the
exigent circumstances exception is
Stevens
, a case in which
officers had probable cause to believe that the defendant had
kidnapped three children, that the children were with the
defendant, and that the children were in imminent danger
of serious harm. The court held that the officers’ warrant-
less entry and search of the defendant’s property to find the
defendant and endeavor to rescue the children did not violate
Article I, section 9.
Those decisions demonstrate that the exigent cir- cumstances exception to Article I, section 9, is not limited, as defendant argues, to circumstances in which human life is threatened. This court implicitly has recognized that officers are permitted to take warrantless measures in instances in which those measures are necessary to enable officers to ful- fill essential law enforcement responsibilities in emergency circumstances. Therefore, the narrow question presented in this case is whether the responsibilities and circumstances extant in this case fell within that exception.
We conclude that they do. Our cases recognize that
one of an investigating officer’s most pressing responsibilities
773
is to apprehend the perpetrator of a crime in progress. An
officer who has probable cause to believe that a perpetrator
is in the process of causing unlawful harm has a respon-
sibility to apprehend the perpetrator to prevent the perpe-
trator from causing further imminent harm to a victim.
However, apprehending the perpetrator is not the only way
that an officer may fulfill that responsibility. Here, based on
observations made from a lawful vantage point, the officer
had probable cause to believe that defendants were commit-
ting animal neglect under ORS 167.325 by failing to provide
“minimal care” for the “victim” of that crime—the horse.
See Nix
,
Our determination that the officer in this case acted
based on specific, articulable facts enables us to ensure that
the officer acted only as necessary to achieve his purpose.
Cf. State v. Watson
,
By describing the narrow confines of our conclu- sion in this case, we do not imply that the circumstances presented here are the only ones in which an officer may take warrantless measures to prevent serious harm to or the death of an animal. We simply exercise judicial restraint obtaining a warrant was impracticable because the deputy reasonably believed there was an immediate need to act to preserve a life”). and leave for another day questions unnecessary to the reso- lution of this case, such as whether the emergency aid excep- tion extends to animals.
We now turn to the warrant requirement of the
Fourth Amendment to the United States Constitution. Like
Article I, section 9, the Fourth Amendment provides that
warrantless entries, searches, and seizures “are
per se
unrea-
sonable * * * subject only to a few specifically established
and well-delineated exceptions.”
Katz v. United States
, 389
US 347, 357,
Accordingly, having concluded that the officer’s actions were permitted under the exigent circumstances exception to the warrant requirement imposed by Article I, section 9, of the Oregon Constitution, and understanding that the exigent circumstances exception to the warrant requirement of the Fourth Amendment to the United States Constitution similarly applied, we reach the same conclu- sion with regard to the Fourth Amendment as we reach with regard to the Oregon Constitution. The officer’s warrantless seizure of the horse was lawful, and the trial court did not err in denying defendants’ motions to suppress.
The decisions of the Court of Appeals and the judg- ments of the circuit court are affirmed.
presenting a “need to protect or preserve life or avoid serious injury, * * * the
exigencies of the situation make the needs of law enforcement so compelling that
the warrantless search is objectively reasonable under the Fourth Amendment”)
(citations omitted);
Michigan v. Tyler
,