One Step Forward, Two Steps Back—Damage Control in the Wake of State v. NewcombPosted by Scott Heiser, Senior Attorney and Director, Criminal Justice Program on April 23, 2014
The same three-judge panel of the Oregon Court of Appeals that issued a favorable ruling in Fessenden/Dicke(a 2013 case holding that the emergency aid exception to the warrant requirement applies to animals) just ruled, in State v. Newcomb, that an Oregon Humane Society (OHS) veterinarian’s blood test of a starving dog that was otherwise lawfully seized should be suppressed as a warrantless “search” under the Oregon Constitution. The Court expressly rejected the argument that when law enforcement lawfully seizes an animal owned by the suspect, the suspect’s privacy rights must yield to the animal’s right to veterinary care. In rejecting this perfectly reasonable analysis, the Court wrote, “the veterinarian, acting on behalf of the state, conducted a warrantless search of the dog by extracting and testing its blood—an act that constituted a physical invasion of defendant’s property [see ORS 609.020] and exposed otherwise concealed information about the dog that served as evidence of a crime.” The Court treated the starving dog as if it were a “closed container” that did not announce its contents, making any further “invasive” inspection unlawful without a warrant. Also at issue were questions about testing feces samples and tracking weight gain with regular feeding. The Court held that tracking weight gain is not a search, but remanded the case back to the trial court to make factual findings on the circumstances of the veterinarian’s feces sample collection and testing.
The facts in Newcomb are not complicated. In response to a tip, an OHS investigator went to the defendant’s house to investigate a complaint of dog neglect. The investigator arrived to find a dog in a near-emaciated condition; the dog was eating random items in the yard and was ill—vomiting without disgorging any stomach contents. The investigator interviewed the defendant owner, who said she had run out of dog food but was going to get more food later that evening. The defendant refused to sign a release that would allow the investigator to take the dog in for medical treatment.
The investigator, who had probable cause to believe the dog was the victim of criminal neglect, then seized the dog under the plain view exception to the warrant requirement. Back at OHS, the veterinarian collected and tested blood and feces samples from the dog and charted the dog’s food intake and weight gain. Unfortunately, the record from the hearing on the defendant’s motion to suppress appears to be a bit thin in articulating the compelling need for such testing—namely, the need to render medical care to the ill dog. The Court of Appeals used this deficiency in the record against the State to imply, without deciding, that the blood test was motivated, at least in part, by the desire to collect incriminating evidence against the offender. That implication made it all the easier for the Court to conclude that the blood draw was a “search” subject to exclusion.
This is a bad ruling on multiple levels but I have every confidence that we can get it corrected. However, until then, here are some tips to contain the damage:
- This is a decision applying Article I, section 9 of the Oregon Constitution and it does not apply outside of Oregon. It most certainly does not influence Fourth Amendment analysis in other jurisdictions because the Oregon Constitutional test for what constitutes a “search” is decidedly different than the test used under the Fourth Amendment:
Oregon Constitutional Test: A “search” occurs when a government agent intrudes upon a person’s protected privacy interests. State v. Wacker, 317 Or 419, 425 (1993); State v. Rhodes, 315 Or 191, 196 (1992). In determining whether a “search” occurred, two issues have to be addressed: (1) Does a constitutionally protected privacy interest exist in the area or object? and (2) Did the police conduct intrude upon that interest?
Fourth Amendment Test: A “search” occurs when government officials invade a defendant’s “legitimate expectation of privacy.” Oliver v. United States, 466 US 170, 177-78 (1984); Katz v. United States, 389 US 347 (1967). This rule has been carved into two pieces: (1) Does the individual have an actual subjective expectation of privacy? and (2) Is society prepared to recognize that expectation as objectively reasonable?
Given the radically divergent approaches to defining a “search,” Fourth Amendment jurisdictions should not be impacted by this Oregon ruling.
- As to those of us who practice in Oregon:
a. This ruling does not apply to veterinarians in private practice who are not acting at the direction of law enforcement as there is no “state action” and absent that, the defendant may not invoke the exclusionary rule. A prudent prosecutor will carefully develop the record on this point in future cases.b. In subsequent litigation of this issue in warrantless cases, make a bombproof record on the medical necessity for why these tests (such as blood and feces) are needed, and how the veterinarian and seizing agency are required by law to provide “minimum care” as defined in ORS 167.310(9)(d).
c. In all subsequent warrantless impound cases, secure a search warrant for any and all post-seizure vet care, at least until the Oregon Supreme Court addresses this matter.
d. When drafting a search warrant prior to an impound in any animal cruelty case, be sure to including precise language expressly articulating the medical need for these tests and include language in the draft warrant expressly authorizing diagnostic testing and confirmatory laboratory work.
e. Under NO CIRCUMSTANCES should any competent prosecutor tolerate this case being cited for the proposition that the entity impounding a victim animal cannot provide veterinary care. To do so is to expose the impounding entity to criminal neglect charges for failing to provide minimum care.
It is a shame that the Court, in this context, is treating a starving animal like a film canister or Crown Royal bag—as a “closed container” that does not “announce its contents.” More to the point, this opinion conflicts with State v. Langevin, 84 Or App 376, 383 (1987) affirmed, 304 Or 674 (1988) holding that testing of a suspect’s lawfully seized blood by the crime lab to confirm the presence of alcohol is not a search. If one lawfully seizes a victim dog, does not one also lawfully seize the dog’s fur, bones, and blood? And if testing a human suspect’s lawfully seized blood is not search, it simply does not follow that testing the blood of a suspect’s lawfully seized dog is a search. However, until Newcomb gets reversed, please heed the advice we offer above.