Stepping in poop without a warrant: Oregon Supreme Court rules

Which of the above items is not like the others?

Case focused on blood sample

         SALEM,  Oregon––If an allegedly abused and/or neglected dog poops in an accessible place,  does the dog’s legal owner have a proprietary claim to the pile sufficient to require that humane officers must obtain a warrant before scooping it up for veterinary examination?

The Oregon Supreme Court sidestepped that steaming issue on June 16,  2016,  though it was part of the case before the bench,  instead focusing on the slightly more complex question of whether a warrant is required to take a blood sample.

Amanda L. Newcomb

Dog-sitter’s own dog

The Oregon Supreme Court ruled,   in State of Oregon v. Amanda L. Newcomb,  who as of June 2016 appears to be self-employed in Beaverton,  Oregon,  as a dogsitter,  that “When the state has lawfully seized an animal on probable cause to believe it has been neglected or abused,  a warrantless withdrawal and testing of the animal’s blood for the purposes of a medically appropriate procedure does not violate Article I,  section 9,  of the Oregon Constitution or the Fourth Amendment to the United States Constitution.”

The verdict reversed a 2014 ruling by the Oregon Court of Appeals,  which had held that a warrant is required for examining animal blood and feces.

Ruling limited to search-&-seizure

Oregon v. Newcomb was hailed on social media as a verdict recognizing animal sentience and contributing to legal recognition that animals are not in the same category as inanimate property.

The language of the Oregon Supreme Court ruling itself,  however,  focused on the Fourth Amendment issues related to search-and-seizure,  and included the disclaimer that “Our holding is confined to circumstances in which the state has lawfully seized a dog or other animal on probable cause to believe the animal has been neglected or otherwise abused. It is also confined to the general kind of intrusion that occurred in this case—a medically appropriate procedure for diagnosis and treatment of an animal in ill-health.”

The most immediate effect of the Oregon v. Newcomb verdict will be to ease the requirements of observing “due process,”  meaning legal formalities,  for veterinarians and humane investigators who are trying to ease the suffering of allegedly neglected and/or abused animals at the same time they are trying to bring the suspected perpetrators to justice.

How the case came to light

Recounted the Oregon Supreme Court verdict of the circumstances bringing Oregon v. Newcomb before the bench,  “The Oregon Humane Society [in 2010] received a report that defendant,”  Amanda L. Newcomb,  “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.

“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,’”  according to his testimony,  “’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.’

Juno.  (Oregon Humane Society photo)

“But Juno was dry heaving and ‘nothing was coming up.’”

Impounded by Oregon Humane Society

Special Agent Wallace therefore “asked defendant why Juno was in that condition—that is, why Juno appeared ‘near-emaciated,’”  the Oregon Supreme Court verdict continued.

“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.”

Special Agent Wallace “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 Oregon Humane Society,”  in Portland,  “where Juno would be housed and medically treated as appropriate.”

Body condition score of 1.5

Oregon Humane Society veterinarian Zarah Hedge,  “from an initial examination,”  the Oregon Supreme Court found,  citing her testimony,  “could identify nothing physically wrong with Juno,  other than that ‘the dog was very thin,’”  so thin as to have a body condition score of just 1.5 on a scale of nine.

“But Dr. Hedge could not be certain,  at that point,”  the Oregon Supreme Court summarized,  “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.”

         Hedge also examined a fecal sample,  the source of which the Oregon Supreme Court verdict declined to discuss.

Argued that dogs are “containers”

“In arguing that the blood testing was an unlawful search,”  the Oregon Supreme Court verdict summarized,  “defendant [Amanda L. Newcomb,  through counsel] 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.”

Juno

Trial court convicted

At trial in 2011,  Multnomah County Circuit Judge Eric Bergstrom rejected defendant Newcomb’s motion to suppress.

“The trial court first concluded that the officer had probable cause to believe Juno was neglected and therefore lawfully took Juno into custody,”  the Oregon Supreme Court verdict recounted.

“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.”

Convicted of second degree cruelty,  defendant Newcomb appealed,  winning the 2014 reversal of her conviction based on the alleged warrantless testing of Juno’s blood and feces.

Oregon Humane Society
(Oregon Humane Society photo)

“No cognizable right” to neglect

Concerning the sentience issue,  the Oregon Supreme Court ruling took notice that,  “A dog is personal property under Oregon law,  a status that gives a dog owner rights of dominion and control over the dog.  But,”  the court noted further,  “Oregon law simultaneously limits ownership and possessory rights in ways that it does not for inanimate property.  Those limitations,  too,  are reflections of legal and social norms.  Live animals under Oregon law are subject to statutory welfare protections that ensure their basic minimum care,  including veterinary treatment.

“The obligation to provide that minimum care falls on any person who has custody and control of a dog or other animal,”  the Oregon Supreme Court emphasized.  “A dog owner simply has no cognizable right,  in the name of her privacy,  to countermand that obligation.

Oregon Humane Society president Sharon Harmon.
(Facebook photo)

“That conclusion follows with equal or greater force when,  as here,  the dog is in the state’s lawful protective custody on probable cause that the dog is suffering injury as a result of neglect, at which point the owner has lost her property rights of dominion and control over the dog.”

“No protected privacy violated”

“We conclude under the Fourth Amendment,”  the Oregon Supreme Court finished,  “that defendant had no protected privacy that was violated by the withdrawal and testing of Juno’s blood without a warrant. The decision of the Court of Appeals is reversed. The judgment of the circuit court is affirmed.

The Oregon v. Newcomb verdict was the fourth of significance pertaining to animal rights and welfare rendered by the Oregon Supreme Court in less than three years.

Grace the horse & Oregon Supreme Court verdict in her case.  (Beth Clifton collage)

Fessenden & Dicke

The first verdict in the series,  issued in August 2014,  came in State vs. Linda Fessenden and Teresa Dicke.

Defendants Fessenden and Dicke contended that their convictions for alleged neglect of a horse named Grace were invalid because animals are property,  and that therefore the sheriff’s deputy who responded to the horse’s condition should have had to obtain a warrant before entering private premises to inspect and remove the horse.

Upholding the convictions of Fessenden and Dicke,  Oregon Supreme Court Justice Martha Lee Walters wrote for the majority,  “We conclude that the officer [who entered their land] 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.”

Grace the horse soon after impoundment. Grace recuperated and lived to age 28 at the Strawberry Mountain Rescue & Rehabilitation Center
(Strawberry Mountain Mustangs photo)

Nix on multiple convictions

Later in August 2014 the Oregon Supreme Court reached similar conclusions in State v. Arnold Nix.

Explained Phil Wright of the Pendleton East Oregonian.  “The Umatilla County Sheriff’s Office in 2009 seized 69 farm animals from Nix’s farm,” in Stanfield, Oregon.  “A jury in 2010 found Nix guilty of 20 counts of second-degree animal neglect, which were misdemeanors at the time,” Wright continued.  “The state asked for sentence on 20 separate convictions, making each animal a victim.  But the defense argued livestock were not victims.”

Accepting the defense argument, then-Umatilla County Circuit Judge Jeffrey Wallace sentenced Nix for only a single violation of the law.

         The Oregon Department of Justice appealed the sentencing decision, holding that Nix should have been sentenced for multiple violations.  In 2012 the Oregon Court of Appeals agreed.

The Oregon Supreme Court.

Oregon Supreme Court reversed itself

The Oregon Supreme Court affirmed the appellate verdict on August 25, 2014,  but then reversed itself on March 5,  2015 in a 15-page verdict which left intact the legal reasoning behind the Fessenden and Dicke ruling.

The reversal in the Nix case was based on a jurisdictional issue:  “In this case,”  the Oregon Supreme Court concluded,  “the appellate courts never had appellate jurisdiction; the state lacked authority to appeal defendant’s judgment of conviction for a misdemeanor. Although neither the state nor defendant raised the issue of jurisdiction until after both the Court of Appeals and this court issued their opinions, the fact remains that neither court possessed authority to issue an opinion.”

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