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State v. Hershey

Court of Appeals of Oregon

July 19, 2017

STATE OF OREGON, Plaintiff-Respondent,
v.
KENNETH LAWRENCE HERSHEY, Defendant-Appellant.

          Argued and Submitted February 18, 2016

         Harney County Circuit Court 1310372CR W. D. Cramer, Jr., Judge.

          Sarah Laidlaw, Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Offce of Public Defense Services.

          Karla H. Ferrall, Assistant Attorney General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Paul L. Smith, Deputy Solicitor General.

          Before DeVore, Presiding Judge, and Garrett, Judge, and Duncan, Judge pro tempore.[*]

         [286 Or. 825] Case Summary:

         Defendant appeals a judgment of conviction for frst-degree animal neglect, assigning error to the trial court's denial of his motion to suppress evidence gathered as a result of law enforcement offcers' warrantless entry onto his property. The trial court concluded that the search was justifed under the emergency aid exception to the warrant requirement, as that exception was described in State v. Fessenden, 258 Or.App. 639, 310 P.3d 1163 (2013), aff'd on other grounds sub nom State v. Fessenden/Dicke, 355 Or. 759, 333 P.3d 278 (2014). Defendant argues on appeal frst that Fessenden was wrongly decided, and second, that, even under that case, the state did not establish that the requirements of the emergency aid exception had been met.

         Held:

         Because defendant did not argue before the trial court that Fessenden was wrongly decided, instead agreeing that that case provided the relevant analysis, his argument on that basis is not preserved for appellate review. On defendant's second argument, there were specifc and articulable facts from which the offcers could, and did, reasonably conclude that the entry was necessary in order to provide emergency aid to defendant's cattle. The trial court did not err in concluding that the state had met its burden of showing that the requirements of the emergency aid exception, as the Court of Appeals described it in Fessenden, had been met.

          DUNCAN, J. PRO TEMPORE.

         [286 Or. 826] In this criminal case, defendant appeals the judgment convicting him of first-degree animal neglect, ORS 167.330.[1] Defendant moved to suppress evidence gathered as a result of law enforcement officers' warrantless entry onto his property, arguing that the entry violated his rights under Article I, section 9, of the Oregon Constitution.[2] The trial court denied that motion, concluding that the search was justified under the emergency aid exception to the warrant requirement as we had recently interpreted that exception. See State v. Fessenden. 258 Or.App. 639, 649, 310 P.3d 1163 (2013), affd on other grounds sub nom State v. Fessenden/ Dicke, 355 Or. 759, 333 P.3d 278 (2014). Defendant assigns error to that ruling. Addressing the narrow question properly before us, we conclude that, under the totality of the circumstances, there were specific and articulable facts from which the officers could, and did, reasonably conclude that the entry was necessary in order to provide emergency aid to defendant's cattle. We therefore affirm.

         We review a trial court's denial of a defendant's motion to suppress for errors of law. State v. Ehly, 317 Or. 66, 74-75, 854 P.2d 421 (1993). We are bound by the trial court's explicit and implicit findings of fact if there is constitutionally sufficient evidence in the record to support them. Id. at 75. We state the facts consistently with that standard.

         At the time of the hearing on defendant's motion to suppress, Sheriff Glerup was the Sheriff of Harney County. At the time of the hearing on defendant's motion to suppress, Glerup had more than 31 years' experience in law enforcement and had investigated "several" animal abuse and neglect cases in the county. Sergeant Needham was a [286 Or. 827] deputy sheriff in Harney County, who, at the time of the motion hearing, had conducted approximately 10 major animal abuse and neglect investigations.

         On July 8, 2013, Needham went to defendant's property in Burns, Oregon, in response to a call from Noelle Hauck, who lived on a nearby ranch and had reported "that [defendant's] cows were starving, and/or had no water or food." Needham drove to the property, but was unable to see the cattle. There is a hill with a lip, which can conceal the cattle from view from the highway.

         Needham called defendant, who was at the coast, and explained that the sheriff's office had received a report about the condition of defendant's cattle. Defendant told Needham that the cattle "were okay, " and that he had fired the workers who had been taking care of them approximately a week ...


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