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State v. Fessenden

Supreme Court of Oregon, En Banc

August 7, 2014

STATE OF OREGON, Respondent on Review,
v.
LINDA DIANE FESSENDEN, Petitioner on Review. STATE OF OREGON, Respondent on Review,
v.
TERESA ANN DICKE, Petitioner on Review

 Argued and Submitted May 6, 2014

On review from the Court of Appeals CC 10CR2252MI; CA A150065. CC 10CR2251MI; CA A150092. [*]

Elizabeth Daily, Deputy Public Defender, Salem, argued the cause and filed the briefs for petitioner Fessenden. With her on the briefs was Peter Gartlan, Chief Defender.

Rankin Johnson IV, Law Office of Rankin Johnson IV, LLC, Portland, argued the cause and filed the briefs for petitioner Dicke.

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

Lora Dunn, Animal Legal Defense Fund, Portland, filed a brief for amici curiae Animal Legal Defense Fund, National District Attorneys Association, and Association of Prosecuting Attorneys.

OPINION

Page 279

[355 Or. 761] WALTERS, J.

In these consolidated criminal appeals, we consider whether an officer violated Article I, section 9, of the Oregon Constitution or the Fourth Amendment to the United States Constitution when, without a warrant, he entered private property, seized an emaciated horse, and took the horse to a veterinarian. We conclude that the officer 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. We affirm the decisions of the Court of Appeals. State v. Fessenden, 258 Or.App. 639, 310 P.3d 1163 (2013); State v. Dicke, 258 Or.App. 678, 310 P.3d 1170 (2013).

Page 280

Because the jury convicted defendants, we recite the facts in the light most favorable to the state. State v. Lewis, 352 Or. 626, 628, 290 P.3d 288 (2012). Codefendants Fessenden and Dicke jointly owned a horse, which they kept on Dicke's property. Dicke's neighbors called the sheriff's office to report that the horse appeared to be starving. An officer with specialized training in animal husbandry and in investigating animal cruelty was dispatched to investigate. To reach Dicke's property, the officer drove up a common driveway shared by Dicke and her neighbors. The horse was kept in a pasture in plain view of the shared driveway.

From the driveway, the officer observed that the horse's backbone protruded, her withers stood up, her neck was thin, all of her ribs were visible, she had no visible fatty tissue in her shoulders, and she was " swaying a little bit," all of which the officer recognized as signs of emaciation. The horse also was straining to urinate, which the officer recognized as a sign of kidney failure (a potential result of starvation). At that point, before entering defendant's property, the officer believed that the horse was suffering from malnourishment and presented a medical emergency. The officer testified that the horse was " literally *** the thinnest horse I've seen that was still on its feet," that the horse was at risk of her " internal organs *** shutting down," and that the officer was " afraid it was going to fall over and not [355 Or. 762] be able to get back up." The officer knew that when emaciated horses fall, they frequently have to be euthanized.

Given the horse's condition, the officer believed that defendants were committing the crime of first-degree animal neglect. He also believed that it would take between four and eight hours to obtain a warrant to go onto defendant's property and that, during that interval, the horse might fall, resulting in its death. He therefore entered the property, seized the horse, and immediately took her to a veterinarian. The veterinarian determined that the horse was starving and needed immediate medical treatment.

Defendant Dicke was charged with first-degree animal neglect, ORS 167.330, and first-degree animal abuse, ORS 167.320.[1] Defendant Fessenden was charged with second-degree animal neglect, ORS 167.325.[2]

Defendants' trials were consolidated, and both defendants moved to suppress evidence obtained as a result of the officer's seizure of the horse.[3] They argued that the officer's acts violated the warrant requirements of Article I, section 9, of the Oregon Constitution [355 Or. 763] and the Fourth Amendment to the United States Constitution. In response to the state's argument that two exceptions to that requirement--the emergency aid and the exigent circumstances exceptions permitted the officer's entry and seizure, defendants contended that neither exception permits

Page 281

an officer to act without a warrant to provide aid to an animal. Further, defendants argued, even if one of the cited exceptions applied, the state had not proved that the horse was in imminent danger.

The trial court denied defendants' motions to suppress, concluding that both exceptions to the warrant requirement permitted the officer's acts. The jury convicted both defendants of the charged crimes, and the court entered separate judgments against each defendant. Defendants separately appealed, reprising their trial court arguments, and, in both cases, the Court of Appeals affirmed.

In Fessenden, the Court of Appeals held that the officer's warrantless entry and seizure were lawful under the emergency aid exception to the warrant requirement of Article I, section 9. 258 Or.App. at 640. The court cited this court's decision in State v. Baker, 350 Or. 641, 649, 260 P.3d 476 (2011), for the proposition that officers may enter property without a warrant if 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 ...


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