Appellate court upholds warrantless entry and seizure to save animal’s life

From ANIMAL PEOPLE, June 2010:

LOS ANGELES–A three-judge panel of the California Second
District Court of Appeal ruled on June 3, 2010 that warrantless
entry of private property and seizure of an animal may be permitted
if necessary to save the animal’s life. The verdict was among the
first to recognize “exigent circumstances” in an animal-related case
reaching an appellate court.
Wrote the court, “Where an officer [of law enforcement] reasonably believes an animal is in immediate need of aid due to
injury or mistreatment, the exigent circumstances exception to the
warrant requirement of the Fourth Amendment may be invoked.”
William Heyman, attorney for defendant Keith Chung, pledged
to further appeal the verdict.

Summarized the Second District Court of Appeal, “Keith Chung
was charged with two counts of cruelty to an animal and possession of
a controlled substance. Prior to trial, Chung moved to suppress
evidence seized during a search of his residence on the theory the
police lacked exigent circumstances justifying warrantless entry.”
The case originated, the court recited, when Chung’s
neighbor, Jennifer Lee, “called the police in the early morning
hours of July 13, 2007, and reported hearing the high-pitched
crying of a dog in pain.” Los Angeles police officer Peter Correa
and his partner responded. Chung denied having a dog, but the
officers heard a dog whimper.
“Believing there was an animal in distress, the
officers entered without a warrant after Chung refused the officers
permission to enter,” said the court summary. “The officers found
an injured dog on the patio and a dead dog in the freezer section of
the refrigerator. Both dogs had suffered head trauma. The live dog
was euthanized by a veterinarian later that morning,” the court said.
“The trial court denied the motion to suppress, finding it
was reasonable under the circumstances for the officers to enter the
condominium without first obtaining a warrant in order to aid a live
animal the officers reasonably believed was in distress,” the court
Chung pleaded no contest to one count of cruelty, was
sentenced to 16 months in prison, and appealed his conviction,
contending that the exigent circumstances exception to the Fourth
Amendent warrant requirement “should be limited to preserving human
life,” the court continued.
“Chung notes dogs are considered personal property, and
asserts it is inappropriate to justify warrantless entry into a
residence to protect a dog’s life,” the court explained. Chung’s
appeal cited two 1996 precedents, one of which held that animal
control officers could not enter a home without a warrant to impound
the homeowner’s dog for violation of a leash law, while the other
rejected the claim of exigency to justify seizing a dog who had
bitten someone two days earlier.
The court in the latter case “conceded exigent circumstances
may justify warrantless seizure of a biting dog from a residence if
necessary to determine whether the dog had rabies. However, no
exigent circumstances were shown,” the Second District Court of
Appeal noted.
The court cited four precedents for warrantless actions on
behalf of an animal in other states: People v. Thornton (1997), in
Illinois, in which a police officer entered an apartment where a dog
had barked for several days; Suss v. ASPCA (1993), in New York,
involving the rescue of a cat who was trapped between the walls of
two buildings; Tuck v. United States (1984), in Washington D.C.,
in which heat-stressed rabbits were removed from an unventilated pet
store display window; and State v. Bauer (1985) in Wisconsin,
pertaining to the rescue of horses from a barn.
First-level courts have often accepted “exigent
circumstances” as providing “probable cause” for warrantless search
and seizure in cases not appealed to higher levels.
For example, chief U.S. District Judge B. Lynn Winmill of
Coeur d’Alene, Idaho on February 10, 2010 ruled that Kootenai
County animal control officer Karen Williams and county sheriff’s
deputies did not need a warrant to take three allegedly neglected
horses from the property of horse trader Blair W. Dunham in May 2008.
“There was no violation of Dunham’s constitutional rights,” Judge
Winmill wrote. “The probable cause standard is a flexible,
common-sense approach requiring only that the facts available to the
officer would warrant a belief” that a crime is occurring.
The horses in the Dunham case were the subject of complaints
from others who had seen them. Williams and the sheriff’s deputies
saw reason to be concerned about them from locations with public
right of access. Dunham was not present to be asked about the
horses’ condition or about permission to enter her property to act on
the horses’ behalf. Dunham was acquitted of three counts of cruelty
in February 2009. She then sued Kootenai County, “alleging several
of her rights were violated by excessive force, cruel and unusual
punishment and conspiracy,” reported Coeur d’Alene Press staff
writer Tom Hasslinger.

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