When Can an Animal be Seized as Evidence?

horses in pasture

Seth Victor

A provocative case came out of the Oregon Supreme Court two weeks ago addressing a warrantless seizure of a horse that was used to convict the defendants of animal abuse. As Animal Legal Defense Fund (ALDF) reports, in the consolidated cases of State v. Fessenden and State v. Dicke, the court held that an officer was acting in accordance with the exceptions to the warrant requirements when he observed a starving horse on defendants’ property and took the horse to a veterinarian for emergency medical attention. The defendants were later charged with animal abuse, but they contended that the seizure of the horse was in violation of their right to privacy, and as it was a warrantless seizure, the evidence (the horse) had to be suppressed.

The State argued that both under the emergency aid and the exigent circumstances exceptions the officer was acting properly and could conduct a search and seizure without a warrant. The case is an example of the creative wrangling animal advocates have to do in order to fit animal welfare within the framework of the legal system. As Justice Walters notes, the horse was and is property under Oregon law, and to that extent we have to first consider how inanimate property would be treated in a criminal proceeding. If, for example, this were a case involving controlled dangerous substances, such as cocaine, the officer could not enter the property to search and remove drugs. The defendants made a legitimate argument that similarly a horse cannot be taken off of the property when an officer does not have the right to enter private land.

The Court found the State’s argument compelling, and held that the “exigent circumstances exception” applied, which allowed the officer to seize the horse. The Court stated that if an officer has probable cause to believe the animal is a victim of cruelty and immediate action is necessary to prevent further imminent harm to the animal, he may act without a warrant. The Court rejected defendants’ argument that society’s interest in protecting animals does not come from their intrinsic worth, but from the benefits humans receive in protecting them. Defendants argued that even if animals are different from common inanimate property by benefit of being “sentient life,” their protection is not compelling enough to erode Fourth Amendment protection.

Justice Walters noted that the defendants did have a point. She took note that animal are clearly not equals to humans in the eyes of the law, and that animal protection laws themselves only seek to aid certain types of animals. Because of this discrepancy, the Court was apparently reluctant to bluntly declare warrant exceptions to apply in the same manner that they would should an officer observe harm being caused to a human, since to do so would be to open a slippery slope of entering private land to secure property. Navigating this conundrum, the Court instead took note of established precedent in which the exigent circumstances exception has already been applied, and articulated “the exigent circumstances exception. . . is not limited. . . to circumstances in which human life is threatened. . . officers are permitted to take warrantless measures in instances in which those measure are necessary to enable officers to fulfill essential law enforcement responsibilities in emergency circumstances.” The Court found that the specifics of this case fit the exception, as here the officer felt that he horse would not survive the hours it would take him to obtain a warrant on the suspicion of abuse. The Court also found the horse’s suffering to be a compelling reason for the officer to act immediately.

Interestingly, the State did not argue the “plain view exception.” Using the same comparison, if the officer is not on the curtilage of a property and sees the cocaine in plain view, he can seize it as the defendant has sacrificed the reasonable expectation of privacy. The officers in such cases normally testify that through their experience and training as officers of the law they are able to recognize the cocaine as an illegal substance upon observation. Since possession of such a drug is a crime, they have probable cause to believe a crime has been committed, and can act. Here, the officer who responded to a residential call of suspected animal abuse observed the horse in plain view. Justice Walters notes that the officer was standing at “a permissible vantage point” (a common driveway) and that he was trained in animal husbandry. It seems that plain view would have worked, as the officer had probable cause of a crime at that stage. Ultimately though, if the case were decided on plain view, it would not achieve the more lasting precedent now in place that applies the exigent circumstances exception to animals, which was a consideration of ALDF and the Attorney General.

As ALDF notes, the Court could have gone further and also applied the “emergency aid exception,” which would have given officers the rights to act even without probable cause. Still, the case as it stands is an important application of warrant standards to animal abuse issues, and it highlights the difficulty of progressing animal law along the lines of legal precedent even in compelling cases.

7 Responses

  1. We have to change the property status of animals in law. People get away with all sorts of abuse under the pretext that animals are their “property” 😦

  2. WRONG, animals are better protected when they are property. There are plenty of laws on the books regarding animal cruelty. Society was created by humans for humans, and it is a very slippery slope to “personhood” for animals (which is anti-societal, BTW) to change animal status from property.

  3. I agree — granting animals “personhood” (or people animalhood) is wishful thinking, antithetical to reason and philosophically unsound. Furthermore, it’s not necessary. Respect for and kindness toward animals — up to and including adopting vegetarian or vegan diets and lifestyles for those who so choose — does not hinge upon raising animals to the status of humans, or dragging humans down to the level of animals. Indeed, it is by our very virtue of having ascendency over animals — because we are another kind and level of being — that we even have the capacity for and moral obligation to be mindful of and caring toward creatures outside or below our own kind.
    Bluntly and by way of example — I don’t need to be so vapidly self-depreciating of myself or disparaging toward humanity — or so blatantly self-ignorant and unaware as to assume myself to be a mere animal, in order to realize that kicking a dog is wrong.

  4. Well, the “compelling case” argument is an afterthought argument as the officer was later vindicated by the findings of the veterinarian. Similar arguments fly back and forth in child custody cases where after the children are forcibly taken often something emerges that in retrospect vindicates the action and in some cases these “facts” are actually caused by the act of taking custody, like traumatization etc. While I am all for animal welfare, I have an inkling though that all such arguments in the long run pave the way for laws that end in regulating the access without warrant as a matter of course in the name of the state “overseeing” an operation. This then tends, as can be seen in many European states, to allow the state to enter property (though if resisted might still require a warrant – but the resistance in itself is then already proof enough to obtain the warrant!) as a matter of course and “the rule of law” without any privacy rights even seemingly being violated. Like: owning arms gives the state a right to check up on them; next stop: owning animals gives the state a right to see if they’re ok.

  5. the officer lee Bartholomew was a lowly dog catcher …not on list who can apply for search warrant..ors133.525..how did the appeals get the idea he was a deputy sheriff …the law of the land is based on a mistruth

  6. […] require that this holding reach further than traditional companion animals, i.e. dogs or cats. See a previous post on this blog for more details on this […]

  7. […] that this holding reach further than traditional companion animals, i.e. dogs or cats. See a previous post on [Animal Blawg] for more details on this […]

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