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State v. Fessenden

Court of Appeals of Oregon

September 25, 2013

STATE OF OREGON, Plaintiff-Respondent,
v.
LINDA DIANE FESSENDEN, Defendant-Appellant.

Argued and submitted on June 18, 2013.

Douglas County Circuit Court No. 10CR2252MI, George William Ambrosini, Judge.

Elizabeth G. Daily, Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Pamela J. Walsh, Assistant Attorney General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

Before Ortega, Presiding Judge, and Sercombe, Judge, and Hadlock, Judge.

HADLOCK, J.

Defendant appeals her conviction for second-degree animal neglect, arguing that the trial court erred by denying her motion to suppress evidence related to the warrantless search and seizure of her emaciated horse. The trial court's denial of that motion was premised, in part, on its conclusion that a deputy sheriff's seizure of the horse was justified under the "emergency aid" doctrine, which permits law enforcement officers to enter property without a warrant when they "have 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." State v. Baker, 350 Or 641, 649, 260 P.3d 476 (2011) (footnotes omitted). Defendant's appeal presents two questions: (1) whether the emergency aid doctrine ever extends to warrantless searches or seizures that law enforcement officers reasonably believe are necessary to render immediate aid or assistance to animals and (2) if so, whether the deputy's warrantless seizure of the starving horse was lawful in the circumstances presented by this case. As explained below, we conclude that the answer to both of those questions is "yes."

We describe the facts consistently with the trial court's explicit and implicit findings, which the evidence supports. Defendant and her codefendant, Dicke, together owned an "older" horse that they kept on Dicke's property. In August 2010, Deputy Sheriff Bartholomew responded to a call from Dicke's neighbors, the Kemplens, who had reported that the horse was "very skinny."[1] Bartholomew, who works in the Animal Control Unit at the Douglas County Sheriff's Office, has a bachelor's degree in animal science, has graduated from the National Animal Control Academy, and is trained to investigate animal cruelty. He has worked at the Sheriff's Office for 22 years and investigates animal-control issues on a daily basis. Bartholomew has specific expertise in evaluating the weight of horses using the "Henneke Scoring Method, " which he described as a method for determining whether "the animal's okay or if it's emaciated or thin, " taking into account the amount of fatty tissue on specific areas of the horse's body. Bartholomew evaluates about 100 to 200 horses, including some older horses, every year.

In responding to the Kemplens' call, Bartholomew drove up a "common driveway" that the Kemplens shared with codefendant Dicke. Bartholomew contacted the Kemplens, who told him that the horse looked bad and had been out loose. Bartholomew went further down the driveway to see if the horse was still loose, but she was not; rather, she was "in a little fenced in area" about 100 feet from Dicke's residence. Bartholomew could see from his car that the horse's "backbone was protruding up way more than it should have, " which is a sign of emaciation. The horse was "swaying a little bit" and her neck looked thin. "The withers stood way up as well as the backbone, " which Bartholomew explained are "signs of emaciation." Bartholomew could see each of the horse's ribs as well as her tail bones; "you could see every bone protrusion, and there was no fatty tissue in the shoulder area you could see." Bartholomew made all of those observations before he touched the horse. He also saw the horse straining to urinate, "having a hard time." Such difficulty in urination can be "an issue of kidney failure."

Before touching the horse or going onto Dicke's property, Bartholomew gave the horse a Henneke body score of one out of nine on a scale where one represents emaciation, "two is very thin, three is thin" up to "seven, eight and nine" which can represent being "too fat." Bartholomew believed that the horse was suffering from a medical emergency:

"Yeah, anytime you get a horse this skinny internal organs start shutting down. This literally was the thinnest horse I've seen that was still on its feet. It was, of course, wavering. I was afraid it was going to fall over and not be able to get back up."
If a horse that thin falls down, Bartholomew explained, "a lot of times we can't get them back up and then they end up having to be put down." He explained further:
"[T]he uniqueness is a horse, if it goes down because it's too weak, it sometimes can't get back up and then you have problems with breathing and problems with if ...

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