Argued and Submitted: May 16, 2013.
Multnomah County Circuit Court 110443303. Eric J. Bergstrom, Judge.
Andrew D. Robinson, Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Jamie K. Contreras, Assistant Attorney-in-Charge, 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.
[262 Or.App. 258] SERCOMBE, J.
Defendant appeals her conviction for second-degree animal neglect, arguing that the trial court erred in denying her motion to suppress evidence obtained when an animal control officer seized her dog and a veterinarian then subjected the dog to testing. Defendant contends that the trial court erred in concluding that the officer's seizure of the dog was justified under the " plain view" exception to the warrant requirement. Defendant further argues that, even if the officer lawfully seized the dog, the trial court erred in concluding that the veterinarian did not " search" the dog because the veterinarian's actions--sampling and testing the dog's blood and feces and recording the dog's weight over several days--revealed information that otherwise would have been hidden or concealed and, therefore, violated defendant's protected privacy interests. The state responds that the dog was lawfully seized and, with respect to the veterinarian's actions, that defendant had no protected privacy interest in the dog's " body condition" because, unlike other property, the dog had a right to care and to be free of neglect, and those rights " trump[ed]" defendant's constitutional possessory and privacy rights.
We conclude that the officer lawfully seized the dog under the " plain view" exception to the warrant requirement because his observations of the dog while lawfully in defendant's apartment, together with information he received from defendant and a named informant, provided probable cause to believe that defendant had neglected the dog and the dog was evidence of that neglect. As to whether the veterinarian's actions invaded defendant's protected privacy interests, we reject the state's novel claim that an animal's statutory rights " trump" a defendant's constitutional rights. Under the prevailing principles of Article I, section 9, of the Oregon Constitution governing privacy rights with respect to personal effects, we conclude that the extraction and testing of the dog's blood was a " search," because those actions constitute a physical invasion of defendant's personal property that revealed otherwise concealed evidence. Accordingly, we reverse and remand.
[262 Or.App. 259] We describe the facts consistently with the trial court's explicit and implicit findings, which the evidence supports. A named informant reported to the Oregon Humane Society that defendant's " dog was being housed in a kennel for many hours of the day, it was being beaten by * * * defendant, and also wasn't being fed properly." An officer, working as an animal cruelty investigator, went to defendant's apartment to investigate the complaint. The officer entered the apartment with defendant's consent and saw the dog in the yard behind the home. The officer saw that the dog was " in a near-emaciated condition" and " was kind of eating at random things in the yard, and * * * try[ing] to vomit. Nothing was coming up, but [the dog] was trying to vomit." The
officer asked defendant why the dog was in that condition; defendant told him that she was out of dog food but was going to get more food that night.
The officer concluded that the dog " certainly appeared neglected" and there was a " strong possibility" that the dog needed medical care. He wanted to take the dog into custody and have it tested by a veterinarian " in order to make a determination if [he] was going to pursue this criminally" and to " determine what [was] wrong with [the dog], to get him vet care." The officer asked defendant to sign a temporary medical release; she refused. The officer then took custody of the dog and brought it to the Humane Society.
At the Humane Society, a veterinarian took samples of the dog's blood and feces and tested those samples. The veterinarian also fed the dog, weighed the dog every three to four days, and charted the change in weight over time. According to the officer, those tests, taken together, showed that defendant's dog " was a healthy dog and with a basic plan of good quality food, he rapidly began to gain weight. So there basically was nothing wrong with him." [262 Or.App. 260] Thus, the evidence was relevant to show that the dog's " near-emaciated" condition resulted from neglect--lack of feeding--rather than sickness or disease.
Defendant filed a motion to suppress evidence derived from the warrantless seizure and search of her dog under Article I, section 9, and the Fourth Amendment to the United States Constitution. Defendant argued that dogs are personal property and that Article I, section 9, and the Fourth Amendment protected her possessory interest in her dog. Defendant also asserted that she had a privacy interest in her dog, and that the state and federal constitutions protected that interest ...