A review by Sara Chisnell, NAIA Trust Legislative Director
A recent ruling by the Supreme Court of Oregon in Oregon v Newcomb has created a lot of confusion in the animal world. Animal rights proponents have claimed this to be a landmark victory in the battle for human rights for animals and have mistakenly led people to believe that the ruling has bestowed some extra rights on animals or given them legal status beyond property. This is so far from the truth. In reality, this was a case about what constitutes an unreasonable search and seizure by the government when it comes to animals.
First, the facts of the original case. The Oregon Humane Society received complaints that the defendant’s dog Juno was abused and neglected. Of interesting note here: a Special Agent of the OHS investigated the complaint, who was not actually employed by law enforcement but a private non-profit, although he was a certified police officer with authority to issue citations. That he actually had government authority was never contested in this case. The dog, Juno, appeared to the agent to be “near emaciated;” Juno was eating at random things in the yard and was dry heaving with nothing coming up. When the Agent asked the defendant why June appeared “near-emaciated,” she stated she had run out of food and was planning to get more. Between the defendant’s admittance that she had no food and the dog’s appearance, the agent concluded he had probable cause for neglect. He asked permission to take the dog in for medical care, but the defendant refused. At that point he took custody of Juno without consent, for both evidence of neglect and to get the dog medical treatment.
Juno was transported to the OHS, where he was seen by a veterinarian. The initial exam showed nothing physically wrong with Juno other than he was very thin. On a body condition range from one (emaciated) to nine (obese), the vet gave Juno a score of 1.5. The vet could not ascertain whether the cause was malnourishment or something internal, so she drew blood to narrow down the cause. The blood tests were normal and did not indicate anything wrong medically with Juno. This meant that lack of proper food was the likely cause of Juno’s emaciation. The vet’s withdrawal of blood and the following testing of it is the central focus of the case. The defendant was charged with neglect due to the result of the blood draw; in other words, the blood draw and diagnosis were the main evidence used to level criminal charges against the defendant.
Prior to trial, the defendant filed to suppress the test results on the basis that the officer lacked probable cause to take Juno into custody; an unlawful seizure. She also argued that the vet engaged in an unreasonable search of her property—i.e., Juno—by drawing blood without a warrant, in violation of both the Oregon Constitution and the Fourth Amendment of the United States Constitution. She further argued because dogs are personal property, “no different than a folder or a stereo or a vehicle or a boot,” that the dog could only be externally examined without a warrant, like other property. She contended the state revealed information otherwise not open to view, violating her constitutionally protected privacy.
The prosecutor first came back with the argument that probable cause the dog was being neglected existed and so Juno was lawfully seized. The prosecutor argued that a dog is not a container that can hold other things, but rather just “more dog.”
Alternatively, the prosecutor added that it was reasonable to provide medical treatment to a dog that had been legally seized based on probable cause that the dog had been neglected.
The defendant’s motion to suppress the test results was denied by the trial court because they found that probable cause for neglect of Juno existed and the seizure into custody was legal. Also, the court agreed with the prosecutor that a dog is neither a container nor similar to one, and likened the blood draw on the dog to a child taken into protective custody and diagnostic analysis performed. This part probably got the animal rights proponents all excited, but it doesn’t really matter because it was simply an analogy given by the lower court and not precedence. Further, the trial court went on to analogize a blood test on a dog to chemical testing of a seized substance on probable cause that it is a drug, or testing a lawfully seized firearm for fingerprints. The trial court ruled that no warrant was needed to medically test the dog’s blood. The jury found the defendant guilty on second degree animal neglect.
The defendant appealed, and both parties raised the same arguments they made to the trial court. The Court of Appeals found that the seizure was legal but that the blood could not be drawn from the dog without a warrant. The Court concluded that although Juno was legally in the state’s custody, drawing the blood “was a constitutionally significant intrusion into the defendant’s privacy, one that ‘exposed otherwise concealed information about the dog that served as evidence of a crime.’” The Court of Appeals could find no recognized exception to the warrant requirement and found instead that it was an unlawful search and violation of privacy and reversed the conviction.
Finally we get to the Oregon Supreme Court’s decision and reasoning. At issue was whether or not the defendant had a constitutionally protected privacy interest in Juno’s blood ONCE LEGALLY SEIZED. The seizure itself was no longer at issue and had been deemed legal. Oregon Constitution Article I, section 9 basically mirrors the US Constitution: “No law shall violate the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search and seizure.” The Fourth Amendment to the US Constitution protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” This does not mean that a warrant is necessary for all searches. Many factors are considered in determining whether a search is reasonable, such as the owner’s expectation of privacy and freedom from scrutiny based on societal and legal norms of behavior.
The question here (and has come up frequently in the past with other pieces of property) is to what extent the state can examine property without a warrant subsequent to legal seizure in the course of a criminal investigation. The Oregon Supreme Court initially went right to the issue of whether the fact that the property in question was a living dog would make a legal difference. The defendant argued that because dogs are personal property, the state is limited to only “thoroughly examine” the exterior without a warrant.
Examining the interior of property to reveal what’s inside is another matter. It has been ruled previously that if the interior contents are open to view or smell, such as a clear container holding powder or gas escaping a cylinder, no warrant is required. The defendant maintained that a dog is like a closed opaque container, one that does not reveal contents, and so a warrant is needed to search inside. However, the court has recognized previously that not all containers are equal and so not all have the same level of protection. The court found the same to be true for personal property. “Not all things that can be owned and possessed as personal property merit the same constitutional protection in the same circumstances. With regard to living animals, and domestic pets in particular, we have recognized that ‘some animals, such as pets, occupy a unique position in people’s hearts and in the law,’ one that is not well-reflected in the ‘cold characterization of a dog *** as mere property.’”
The court goes on to make one distinction of animals from other forms of property—while still importantly maintaining they ARE property—is that animals have welfare statutes applied to them: protections distinct to animals and inapplicable to other inanimate forms of property. The court also quoted a prior ruling that recognized animals as “sentient beings capable of feeling pain, stress, and fear,” which is another part of this ruling the animal rights proponents have latched onto. However, the court makes the very important distinction that the animal rights proponents fail to acknowledge, that “[t]o be sure, the protection given to animals under Oregon law does not place them on par with humans.” With that said, the law does prohibit people “from treating animals in ways that humans are free to treat other forms of property.”
Owners of animals still have possessory and privacy interests in their animal property and expectations of societal norms and conventions. The court makes the distinction between 2 examples. One, a dog gets loose from its owner while walking down the street and a stranger pets the dog—the act of petting does not violate any possessory or privacy interest and is within normal expectations. However if the stranger sticks the dog with a syringe and removes blood for a scientific study, that would certainly fall outside of societal norms and conventions.
In order to properly determine the existence of a privacy right, not only the nature of the property has to be considered but the extent and nature of the governmental intrusion as well. Here in this particular case, the dog was legally taken into custody, medical attention was necessary, and the blood draw was essential to proper treatment. The court found that, in this particular situation and set of circumstances, the dog was not an opaque container with things being stored inside. The dog’s blood was not something that was put inside or hidden by the owner, but as the prosecutor contended at trial, just “more dog.” The court was very cautious to note that this was only true for this case and might not be true under a set of different facts.
The court also noted that because of the animal welfare laws that do somewhat limit property rights in animals, that dog owner’s privacy rights do not override an obligation to minimum care. An exam and medical judgement is not government scrutiny. It’s very important to note that the court stressed that their decision was limited to the specific facts of this case, so it does not set precedence for future legal change. Also, the holding was certainly confined to LAWFUL seizures. The bottom line of this case was clear: the ruling has nothing to do with changing the legal status of animals but is rather an interpretation of the current legal property status of animals when it comes to the Fourth Amendment and criminal investigations.