State Supreme Court Rules that a Dog Is Not “Property” Under the Fourth Amendment in Animal Cruelty Case

The Fourth Amendment to the U.S. Constitution protects people’s privacy in “their persons, houses, papers, and effects.” Domesticated animals have been the subject of numerous unlawful seizure claims in animal cruelty cases. A recent decision by the Oregon Supreme Court addressed a different sort of claim. A defendant argued that police violated her Fourth Amendment rights by drawing blood from her dog without a warrant, essentially claiming that this was an unlawful search of her property. The court disagreed, ruling that a dog is not merely personal property in this legal context. State v. Newcomb, 359 Or. 756 (2016).

Texas has separate cruelty laws for “livestock animals,” including horses and cattle, Tex. Pen. Code § 42.09; and “nonlivestock animals,” which consists of any “domesticated living creature” like a dog, cat, or hamster, id. at § 42.092. Both statutes make it an offense to “fail[] unreasonably to provide necessary food, water, care, or shelter for an animal in the person’s custody.”

Texas courts have held that police may investigate suspected animal abuse or neglect on private property, without a warrant, when the animals in question are in plain view, McCall v. State, 540 S.W.2d 717 (Tex. Crim. App. 1976), but not when the animals are not visible from the street or another public vantage point, State v. Betts, 397 S.W.3d 198 (Tex. Crim. App. 2013). Police may seize an animal they suspect to be the victim of cruelty or neglect, without a warrant, under the emergency doctrine, which allows “a warrantless search and seizure when there is a need to act immediately to protect or preserve life, or to prevent serious injury.” Pine v. State, 889 S.W.2d 625, 631 (Tex. App.–Houston [14th Dist.] 1994), citing Bray v. State, 597 S.W.2d 763, 764 (Tex. Crim. App.1980).

The defendant in Newcomb owned a dog named Juno. The Oregon Humane Society (OHS) received a report of alleged abuse and neglect. An animal cruelty investigator with the police department visited the defendant’s home and, after speaking to the defendant and observing Juno, concluded that he had probable cause to seize the dog without the owner’s consent. A veterinarian at OHS tested Juno’s blood and determined that malnourishment was the likely explanation for the dog’s condition. The defendant was eventually convicted of second-degree animal neglect.

When the case reached the Oregon Supreme Court, the defendant was only disputing the legality of the blood draw, not the officer’s seizure of Juno. She claimed that it had violated her privacy under the Fourth Amendment and the Oregon Constitution. The court ruled against her, holding that, after a lawful seizure of an animal, the state may conduct “a medically appropriate procedure for diagnosis and treatment of an animal in ill-health.” Newcomb, 359 Or. at 773.

In Texas, the Pine case established a two-part test for justifying a warrantless seizure of an animal:  (1) probable cause to suspect cruel treatment, and (2) a reasonable belief that immediate action is needed to preserve the animal’s life. Matus v. State, No. 10-08-00149-CR, slip op. at 18 (Tex. App.–Waco, Mar. 30, 2011), citing Pine, 889 S.W.2d at 631. Applying this principle, it seems likely that a Texas court would rule the same as the Oregon court in Newcomb.

These blog posts are meant to be illustrative only. Unless expressly stated to the contrary herein, these matters are not the result of any legal work of Michael J. Brown, but are used to communicate a particular point of view. Michael J. Brown does not claim credit for any legal work done by any lawyer or law firm either generally or specifically, with respect to the matters contained in this blog.

Michael J. Brown, a board-certified criminal defense attorney in West Texas, has defended people against alleged criminal charges for more than two decades in both state and federal courts. To schedule a confidential consultation with an experienced criminal justice advocate, contact us today online or at (432) 687-5157.

More Blog Posts:

Supreme Court Rules that Government Cannot Freeze Assets Unrelated to Alleged Criminal Activity if It Prevents Defendant from Retaining Defense Counsel, Texas Criminal Lawyer Blog, May 12, 2016

Federal Lawsuit Addresses Government’s Authority to Detain, Search Individuals at U.S. Border Without a Warrant, Texas Criminal Lawyer Blog, October 30, 2015

Texas Court of Criminal Appeals Affirms Finding that Police Lacked Probable Cause to Search Backyard Without Warrant, Texas Criminal Lawyer Blog, May 24, 2013

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