August 25, 2014

Oregon Supreme Court finds exigent circumstances justify warrantless seizure of starving horse

In its recent opinion in State v. Fessenden, 355 Or. 759 (2014), the Oregon Supreme Court upheld the warrantless seizure of a horse in critical condition that led to a successful criminal prosecution of animal abuse and neglect charges. Although hardly a leap forward for animal rights and little more than a nod in that direction, the Court’s decision is at least not a step backward. In that sense, it’s a favorable decision for animals.

The Court upheld the seizure as valid under the Fourth Amendment, as well as Article I, section 9, of the Oregon Constitution, which makes warrantless entries and searches unreasonable unless one of a few narrow exceptions applies. One is the exigent circumstances exception, which applies in “a situation that requires the police to act swiftly to prevent danger to life or serious damage to property . . . .” Id. at 765. It “requires both probable cause and an exigency.” Id. (quoting State v. Snow, 337 Or. 219, 223, 94 P.3d 872 (2004)).

In Fessenden, the Court first observed that Oregon has criminalized both animal neglect and animal abuse. The defendants were charged under ORS 167.330, first degree animal neglect, and ORS 167.320, first degree animal abuse, which prohibit causing serious physical injury to an animal and intentionally, knowingly, recklessly, or negligently failing to provide minimum care if the lack of care causes serious physical injury. It also noted that the horse involved showed signs of needing immediate medical attention, including having all of her backbone protruding and all of her ribs visible, swaying, and straining to urinate. Id. at 761-62.

Since animal neglect is a crime, and animals are currently considered property under the law, applying the exigent circumstances exception to the starving horse in Fessenden would seem uncontroversial. But the Court approached application of the exception cautiously. It observed that “Oregon statutes criminalize the abuse or neglect of only certain animals and identify with particularity the care or treatment that is required or permitted. Accordingly, when an officer has probable cause to believe that a person is violating one of those statutes, the officer acts according to statutory standards and legislative policy, rather than the officer’s own beliefs, in determining that a specific animal deserves and is in need of aid or protection.” Given such assurances of a sufficiently circumscribed warrant exception, the Court found the circumstances sufficiently “exigent” to justify the warrantless seizure.

The Court refused to go further and consider whether an officer could seize a horse without a warrant under the broader emergency aid exception. Under that exception, an officer may enter property without probable cause or a warrant if he or she has “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.” Id. at 765. Fortunately for animals, the Court did not indicate that the emergency aid exception could not apply to a nonhuman person. It merely determined that whether the exception would apply in this case was unnecessary to the holding. The Court thus avoided the question of whether a sentient animal that is unlawfully suffering would qualify as a legal person for purposes of emergency aid, leaving at best only a slight indication that Oregon’s highest court would follow the Oregon Court of Appeals, as well as jurisdictions that have so applied the exception.

In Brinkley v. County of Flagler, for example, a Florida court upheld application of the emergency exception to the warrantless seizure of numerous dogs and a bird by officers responding to a citizen complaint. “As they stood by the front gate, [the officers] were overwhelmed by the nauseating smell of animal waste; indeed, the front yard was covered with animal feces. . . . . Approaching the farmhouse they could see that the front porch was also covered with animal feces along with the decaying carcass of a dog on top of a stack of small pet carriers and fluid from the carcass was dripping onto a live poodle inside one of the carriers.” 769 So. 2d 468, 469 (Fla. Dist. Ct. App. 2000). Similarly, in State v. Bauer, the Wisconsin Court of Appeals upheld the emergency aid exception as applied to the seizure of distressed horses visible in an open barn. Officers called to the property to remove another horse that had died could see that “[t]here was no feed, all of the animals’ feet needed trimming and they were standing in solid horse manure without any bedding in any of the pens . . . [T]wo horses were near death and the condition of all the horses was ‘awful.’” 379 N.W. 2d 895, 897 (Wis. Ct. App. 1985).

Unlike Oregon, however, these jurisdictions do not limit the emergency exception to “persons.” Rather, they permit officers to enter property without a warrant to preserve “life.” The Oregon Court of Appeals has included animals “in the class of ‘persons’ that officers may aid without a warrant.” Fessenden, 355 Or at 763 (citing State v. Nix, 355 Or. 777 (2014)). In Nix, the Court of Appeals also determined that animals can be “victims” for purposes of animal welfare statutes.

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