State v. Fessenden / Dicke ( 2014 )

No. 49 August 7, 2014 759
IN THE SUPREME COURT OF THE
STATE OF OREGON
STATE OF OREGON,
Respondent on Review,
v.
LINDA DIANE FESSENDEN,
Petitioner on Review.
(CC 10CR2252MI; CA A150065; SC S061740 (Control))
STATE OF OREGON,
Respondent on Review,
v.
TERESA ANN DICKE,
Petitioner on Review.
(CC 10CR2251MI; CA A150092; SC S061770)
En Banc
On review from the Court of Appeals.*
Argued and submitted May 6, 2014.
Elizabeth Daily, Deputy Public Defender, Salem, argued
the cause and filed the briefs for petitioner Fessenden. With
her on the briefs was Peter Gartlan, Chief Defender.
Rankin Johnson IV, Law Office of Rankin Johnson IV,
LLC, Portland, argued the cause and filed the briefs for peti-
tioner Dicke.
Pamela Walsh, Assistant Attorney General, Salem,
argued the cause for respondent on review. With her on
the briefs were Ellen F. Rosenblum, Attorney General, and
Anna M. Joyce, Solicitor General.
Lora Dunn, Animal Legal Defense Fund, Portland,
filed a brief for amici curiae Animal Legal Defense Fund,
______________
*  Appeals from Douglas County Circuit Court, George William Ambrosini,
Judge. 258 Or App 639, 310 P3d 1163 (2013). 258 Or App 678, 310 P3d 1170
(2013).
760 State v. Fessenden / Dicke
National District Attorneys Association, and Association of
Prosecuting Attorneys.
WALTERS, J.
The decisions of the Court of Appeals and the judgments
of the circuit court are affirmed.
In this consolidated case, defendants petitioned for review of two Court of
Appeals’ decisions affirming the trial court’s denial of defendants’ motions to sup-
press evidence obtained during a warrantless entry and seizure of defendants’
horse. Held: The trial court correctly denied defendants’ motions to suppress. The
exigent circumstances exception to the warrant requirement of both the Oregon
and federal constitutions permits warrantless action when officers have prob-
able cause to believe that a crime involving animals is in progress and, based
on specific, articulable facts, determine that warrantless action is necessary to
prevent an ongoing criminal act from causing further serious imminent harm to
the animal.
The decisions of the Court of Appeals are affirmed. The judgments of the
circuit court are affirmed.
Cite as 355 Or 759 (2014) 761
WALTERS, J.
In these consolidated criminal appeals, we consider
whether an officer violated Article I, section 9, of the Oregon
Constitution or the Fourth Amendment to the United States
Constitution when, without a warrant, he entered private
property, seized an emaciated horse, and took the horse to
a veterinarian. We conclude that the officer acted lawfully
because he had probable cause to believe that defendants
were committing the crime of animal neglect and reasonably
believed, based on specific articulable facts, that immediate
action was necessary to prevent further imminent harm to
and the death of the horse. We affirm the decisions of the
Court of Appeals. State v. Fessenden, 258 Or App 639, 310
P3d 1163 (2013); State v. Dicke, 258 Or App 678, 310 P3d
1170 (2013).
Because the jury convicted defendants, we recite
the facts in the light most favorable to the state. State v.
Lewis, 352 Or 626, 628, 290 P3d 288 (2012). Codefendants
Fessenden and Dicke jointly owned a horse, which they kept
on Dicke’s property. Dicke’s neighbors called the sheriff’s
office to report that the horse appeared to be starving. An
officer with specialized training in animal husbandry and
in investigating animal cruelty was dispatched to investi-
gate. To reach Dicke’s property, the officer drove up a com-
mon driveway shared by Dicke and her neighbors. The horse
was kept in a pasture in plain view of the shared driveway.
From the driveway, the officer observed that the
horse’s backbone protruded, her withers stood up, her neck
was thin, all of her ribs were visible, she had no visible fatty
tissue in her shoulders, and she was “swaying a little bit,”
all of which the officer recognized as signs of emaciation.
The horse also was straining to urinate, which the officer
recognized as a sign of kidney failure (a potential result of
starvation). At that point, before entering defendant’s prop-
erty, the officer believed that the horse was suffering from
malnourishment and presented a medical emergency. The
officer testified that the horse was “literally *  * the thin-
*
nest horse I’ve seen that was still on its feet,” that the horse
was at risk of her “internal organs * * * shutting down,” and
that the officer was “afraid it was going to fall over and not
762 State v. Fessenden / Dicke
be able to get back up.” The officer knew that when emaci-
ated horses fall, they frequently have to be euthanized.
Given the horse’s condition, the officer believed that
defendants were committing the crime of first-degree ani-
mal neglect. He also believed that it would take between
four and eight hours to obtain a warrant to go onto defen-
dant’s property and that, during that interval, the horse
might fall, resulting in its death. He therefore entered the
property, seized the horse, and immediately took her to a
veterinarian. The veterinarian determined that the horse
was starving and needed immediate medical treatment.
Defendant Dicke was charged with first-degree ani-
mal neglect, ORS 167.330, and first-degree animal abuse,
ORS 167.320.1 Defendant Fessenden was charged with
second-degree animal neglect, ORS 167.325.2
Defendants’ trials were consolidated, and both defen-
dants moved to suppress evidence obtained as a result of the
officer’s seizure of the horse.3 They argued that the officer’s
acts violated the warrant requirements of Article I, section 9,
1
The legislature revised the animal welfare statutes, ORS chapter 167, in
2013. See Or Laws 2013, ch 719. Because defendants were charged before those
revisions, we cite to the 2009 versions of the relevant statutes in discussing the
elements of the crimes with which defendants were charged.
In 2009, ORS 167.330 provided, in part:
“(1) A person commits the crime of animal neglect in the first degree
if, except as otherwise authorized by law, the person intentionally, know-
ingly, recklessly or with criminal negligence fails to provide minimum care
for an animal in the person’s custody or control and the failure to provide care
results in serious physical injury or death to the animal.”
ORS 167.320 provided, in part:
“(1)  A person commits the crime of animal abuse in the first degree if,
except as otherwise authorized by law, the person intentionally, knowingly or
recklessly:
“(a)  Causes serious physical injury to an animal; or
“(b)  Cruelly causes the death of an animal.”
2
In 2009, ORS 167.325 provided, in part:
“(1)  A person commits the crime of animal neglect in the second degree
if, except as otherwise authorized by law, the person intentionally, know-
ingly, recklessly or with criminal negligence fails to provide minimum care
for an animal in such person’s custody or control.”
3
Each defendant filed a separate motion to suppress. Defendant Dicke iden-
tified the evidence to be suppressed as “all observations of the horse.” Defendant
Fessenden moved to suppress “all fruits of said search and seizure including any
information, material or knowledge gained *  * includ[ing] any examination of
*
Cite as 355 Or 759 (2014) 763
of the Oregon Constitution and the Fourth Amendment to
the United States Constitution. In response to the state’s
argument that two exceptions to that requirement—the
emergency aid and the exigent circumstances exceptions—
permitted the officer’s entry and seizure, defendants con-
tended that neither exception permits an officer to act with-
out a warrant to provide aid to an animal. Further, defen-
dants argued, even if one of the cited exceptions applied, the
state had not proved that the horse was in imminent danger.
The trial court denied defendants’ motions to sup-
press, concluding that both exceptions to the warrant
requirement permitted the officer’s acts. The jury convicted
both defendants of the charged crimes, and the court entered
separate judgments against each defendant. Defendants
separately appealed, reprising their trial court arguments,
and, in both cases, the Court of Appeals affirmed.
In Fessenden, the Court of Appeals held that the
officer’s warrantless entry and seizure were lawful under
the emergency aid exception to the warrant requirement
of Article I, section 9. 258 Or App at 640. The court cited
this court’s decision in State v. Baker, 350 Or 641, 649, 260
P3d 476 (2011), for the proposition that officers may enter
property without a warrant if they “ ‘have an objectively rea-
sonable belief, based on articulable facts, that a warrantless
entry is necessary to either render immediate aid to persons,
or to assist persons who have suffered, or who are immi-
nently threatened with suffering, serious physical injury or
harm.’ ” Fessenden, 258 Or App at 640. The court concluded
that animals were included in the class of “persons” that
officers may aid without a warrant:
“[T]he societal interest in protecting nonhuman animals
from unnecessary pain, injury, trauma, and cruel death
can justify *  * a warrantless search or seizure aimed at
*
preventing or alleviating that suffering. *  * [W]e hold
*
that a warrantless search or seizure is justified when law
enforcement officers have an objectively reasonable belief,
based on articulable facts, that the search or seizure is nec-
essary to render immediate aid or assistance to animals
that have suffered, or which are imminently threatened
the horse, photographs, body condition score, other observations of and state-
ments about the condition of the horse.”
764 State v. Fessenden / Dicke
with suffering, serious physical injury or cruel death,
unless that injury or death is being inflicted lawfully.”
Id. at 649.
In Dicke, the Court of Appeals cited its reasoning
in Fessenden and decided, in a per curiam opinion, that the
officer did not violate Article I, section 9. 258 Or App at 679.
The court also relied on the emergency aid exception to the
federal constitution to reject Dicke’s Fourth Amendment
argument. Id. at 680.
Both defendants petitioned this court for review,
asserting that the officer’s entry and seizure violated the
state and federal constitutions.4 We consolidated the cases
and begin our analysis with the state constitution and the
text of Article I, section 9, which provides:
“No law shall violate the right of the people to be secure
in their persons, houses, papers, and effects, against unrea-
sonable search, or seizure; and no warrant shall issue but
upon probable cause, supported by oath, or affirmation, and
particularly describing the place to be searched, and the
person or thing to be seized.”
“Under Article I, section 9, warrantless entries and searches
of premises are per se unreasonable unless falling within one
of the few ‘specifically established and well-delineated excep-
tions’ to the warrant requirement.” Baker, 350 Or at 647
(quoting State v. Davis, 295 Or 227, 237, 666 P2d 802 (1983)).
One such exception allows for warrantless entries,
searches, and seizures to provide emergency aid. In Baker,
this court held that a warrantless entry into a residence was
lawful because the officers reasonably believed that some-
one inside was being assaulted:
“[U]nder certain circumstances, the need to render emer-
gency aid or prevent serious injury or harm is an appropri-
ate justification for an immediate warrantless entry under
4
The state acknowledges that defendant Dicke preserved her Fourth Amend-
ment argument, but suggests that defendant Fessenden may have failed to do so
because she did not specifically raise that issue in the Court of Appeals. Because
we reject Dicke’s Fourth Amendment argument on the merits, we also reject
Fessenden’s corresponding argument and do not specifically address the issue of
preservation. Even if Fessenden’s Fourth Amendment argument were preserved,
it would fail on the merits.
Cite as 355 Or 759 (2014) 765
Article I, section 9. Consequently, we conclude that an
emergency aid exception to the Article I, section 9, warrant
requirement is justified when police officers have an objec-
tively reasonable belief, based on articulable facts, that a
warrantless entry is necessary to either render immediate
aid to persons, or to assist persons who have suffered, or
who are imminently threatened with suffering, serious
physical injury or harm.”
Id. at 649 (footnotes omitted). Another exception to the war-
rant requirement allows for search or seizure under exigent
circumstances, articulated by this court as “a situation that
requires the police to act swiftly to prevent danger to life or
serious damage to property, or to forestall a suspect’s escape
or the destruction of evidence.” State v. Stevens, 311 Or 119,
126, 806 P2d 92 (1991) (when officers are “presented with
both probable cause to believe that a crime had occurred
and an exigent circumstance,” warrantless action may be
justified).
The emergency aid exception and the exigent cir-
cumstances exception differ in at least one key way. The exi-
gent circumstances exception “requires both probable cause
and an exigency.” State v. Snow, 337 Or 219, 223, 94 P3d
872 (2004). The emergency aid exception does not: It permits
warrantless entry, search, or seizure, regardless of whether
the officer has probable cause to believe that a crime has
been or is being committed, as long as the officer reasonably
believes it necessary to “render immediate aid to persons
*  * who have suffered, or who are imminently threatened
*
with suffering, serious physical injury or harm.” Baker, 350
Or at 649. Emergency aid requires only “an objectively rea-
sonably belief, based on articulable facts” that such an emer-
gency exists. Id.
The exceptions also may differ in scope. Although
this court has not decided the question, it has, as noted,
described exigent circumstances as including those in which
swift action is necessary to prevent serious damage to “prop-
erty.” Stevens, 311 Or at 126. The emergency aid doctrine,
on the other hand, has been described as applying to situa-
tions in which immediate action is necessary to render aid
to “persons.” Baker, 350 Or at 649.
766 State v. Fessenden / Dicke
In this case, the Court of Appeals held that the emer-
gency aid exception extends to “animals that have suffered,
or which are imminently threatened with suffering, serious
physical injury or cruel death, unless that injury or death
is being inflicted lawfully.” Fessenden, 258 Or App at 649.
The state does not disagree with that conclusion, but argues
that both the emergency aid and the exigent circumstances
exceptions apply here. In the state’s view, both exceptions
allow warrantless measures to prevent imminent threat to
“property,” and the state asserts that, even if a horse is not
a “person,” it is, at the very least, “property.”
Defendants respond that exceptions to the war-
rant requirement must be “narrowly and carefully drawn,”
see Davis, 295 Or at 243 (observing that exceptions per-
mitting intrusion into home must be “narrowly and care-
fully drawn”), and that neither exception now extends to
or should be broadened to extend beyond the protection of
human life to the protection of property. Inanimate prop-
erty qua property does not constitute a compelling societal
interest equivalent to the interest in avoiding serious physi-
cal harm to persons, defendants contend. Furthermore, they
argue, even if animals are considered “sentient life” and not
“property,” society’s interest in protecting animals from
abuse and neglect is not sufficiently significant to invoke an
exception to Article I, section 9.
Defendants explain society’s interest in protect-
ing animals as deriving not from a recognition that ani-
mal life is inherently worthy of protection, but from vari-
ous benefits that humans receive by protecting animals.
Historically, defendants assert, the common law did not
protect animals aside from their status as the property of
their owners. See Cass R. Sunstein, Standing for Animals
(with Notes on Animal Rights), 47 UCLA L Rev 1333, 1337
(2000) (“Courts generally suggested that such cruelty was
not unlawful unless it worked an injury to the owner, who
was the essential rights holder; but on rare occasions, the
courts concluded that cruelty could count as a common law
misdemeanor.” (Footnotes omitted.)). Defendants contend
that, when states later enacted anticruelty laws, their focus
again was on the impact that animal cruelty could have
on humans. See Thomas G. Kelch, Toward A Non-Property
Cite as 355 Or 759 (2014) 767
Status for Animals, 6 NYU Envtl LJ 531, 540 (1998) (“[T]he
focus and purpose of anti-cruelty laws is to prevent acts
that may ultimately desensitize people to injuring humans.
Thus, the focus is not on the welfare of animals, but on the
impact that animal cruelty may have on actions concerning
humans.” (Footnotes omitted.)). Cf. State v. Nix, 355 Or 777,
791-92, 796-97, ___ P3d ___ (2014) (discussing development
and purposes of anticruelty legislation).
Today, in Oregon, most of the laws prohibiting cru-
elty to animals are classified as misdemeanors, and many
of those laws exempt specified activities and specified ani-
mals.5 See ORS 167.315 to 167.332 (defining violations of ani-
mal welfare statutes as misdemeanors, with the exception of
ORS 167.332, a Class C felony, and ORS 167.312, a Class C
felony if damages to research facility amount to $2,500 or
more); see also ORS 167.335 (exempting specified activ-
ities and specified animals from the protection of animal
welfare statutes “[u]nless gross negligence can be shown”).
Accordingly, defendants argue, even if society has an inter-
est in protecting certain animals from certain kinds of mis-
treatment, that interest is not compelling and is impossible
to translate into a “clear, workable, and consistent” warrant
exception. Cf. State v. Kock, 302 Or 29, 33-34, 725 P2d 1285
(1986) (observing that “there are advantages in having a
clear, workable, and consistent” exception to the warrant
requirement).
Defendants have a point. Although Oregon’s ani-
mal welfare statutes impose one of the nation’s most pro-
tective statutory schemes,6 defendants are correct that
Oregon law still considers animals to be property. See, e.g.,
ORS 167.310(2) (describing domestic animals as “owned or
5
As noted, the legislature amended ORS chapter 167 in 2013. In doing so,
the legislature added legislative findings and sentencing provisions and renum-
bered certain subsections. See Or Laws 2013, ch 719. We cite the current ver-
sions of the relevant statutes for a general understanding of animal welfare laws.
We cite the 2009 version of the applicable statutes when discussing the crimes
charged in this case.
6
See, e.g., Animal Legal Defense Fund, 2013 U.S. Animal Protection Laws
Rankings, http://www.aldf.org/wp-content/uploads/2013/12/2013-United-States-
Animal-Protection-Laws-Rankings.pdf (last checked July 31, 2014) (ranking
Oregon’s animal welfare statutes among the most protective in the United
States).
768 State v. Fessenden / Dicke
possessed by a person”); ORS 167.310(9) (describing mini-
mum care that must be provided by an animal’s “owner”);
ORS 167.312 (providing for damages payable to an animal’s
“owner” for interference with research animals). Although
the Oregon legislature has found that “[a]nimals are sen-
tient beings capable of experiencing pain, stress and fear,”
ORS 167.305(1),7 Oregon law nevertheless permits humans
to treat animals in ways that humans may not treat other
humans. With the exception of the execution of a judicially
imposed sentence of death, see ORS 137.463 to 137.482 (set-
ting out procedure for death penalty), it is never lawful to
kill another human.8 However, Oregon law explicitly sets
out the methods by which animals may be killed. See ORS
603.010 - 603.995 (setting out procedures for animal slaugh-
ter).9 Oregon statutes also allow animals to be treated or
mistreated within the boundaries of “good animal hus-
bandry” or “animal research.” See ORS 167.310(6) (defining
“good animal husbandry” as including “the dehorning of cat-
tle, the docking of horses, sheep or swine, and the castration
or neutering of livestock, according to accepted practices of
veterinary medicine or animal husbandry”); ORS 167.312
(proscribing any interference with animal research).
The animal welfare statutes also distinguish between
different kinds of animals. See ORS 167.310(3) - (8) (sepa-
rately defining “animal,” “domestic animal,” “equine,” “law
enforcement animal,” and “livestock”). Domestic animals,
7
We recognize that ORS 167.305 was enacted after defendants’ convictions;
it therefore has no effect on defendants’ legal position. We cite it only as evidence
of the ongoing evolution of the legal status of animals.
8
There are, of course, circumstances in which the killing of a human may
be deemed justifiable, but not lawful. See ORS 161.219 (deadly physical force
justified only to defend against a felony involving the use or threatened immi-
nent use of physical force, use of unlawful deadly physical force, or burglary in a
dwelling).
Oregon law also permits individuals, under certain limited circumstances,
to obtain medication to end their own lives, but never the life of another human.
See generally ORS 127.800 to 127.995 (setting out parameters and limitations
for Death with Dignity Act); see also ORS 127.570 (forbidding mercy killing or
assisted suicide).
9
For instance, ORS 603.025 sets out licensing requirements for operators of
slaughterhouses. ORS 603.045 to 603.059 set out minimum standards for slaugh-
terhouses. ORS 603.065 states the methods of slaughter that are permissible in
Oregon, requiring that animals be slaughtered only by licensees and by methods
that render the animals “insensible to pain” or unconscious.
Cite as 355 Or 759 (2014) 769
more colloquially known as pets, receive special consider-
ation under Oregon law. ORS 167.310(4) defines “domestic
animals” as “animal[s], other than livestock or equines,
that [are] owned or possessed by a person.” ORS 167.310(1),
(2), and (9)(e) set out specific requirements for the food and
shelter that must be provided to domestic animals, and ORS
167.343 sets out specific requirements and limitations for
tethering domestic animals.10
As those statutes illustrate, some animals, such as
pets, occupy a unique position in people’s hearts and in the
law. See, e.g., Rabideau v. City of Racine, 243 Wis2d 486, 491,
627 NW 2d, 795, 798 (2001) (“[W]e are uncomfortable with
the law’s cold characterization of a dog *  * as mere prop-
*
erty.’ ”). Horses also hold a special place in human affection,
as well as in the development of animal welfare laws. The
seal of the American Society for the Prevention of Cruelty to
Animals, the oldest animal protection organization in the
United States, pictures an angel intervening to save a car-
riage horse from being beaten.11 And the novel Black Beauty
(1877), written from the point of view of a carriage horse,
is widely credited with increasing awareness of the suffer-
ing of animals and advancing the cause of animal welfare.
See Claudia Durst Johnson and Vernon Elso Johnson, The
Social Impact of the Novel: A Reference Guide 253-54 (2002)
(Black Beauty was “credited with boosting the activity in
anticruelty societies and anticruelty legislation across the
nation”). Ongoing litigation in the United States seeks to
establish legal personhood for chimpanzees, see Charles
Siebert, The Rights of Man… and Beast, NY Times, Apr 27,
2014, at MM28 (describing suits filed by the Nonhuman
Rights Project on behalf of three chimpanzees), and India’s
Central Zoo Authority recently banned the exhibition of dol-
phins after concluding that their status was closer to that of
“non-human persons.”12 As we continue to learn more about
10
ORS 167.343, like ORS 167.305, was enacted in 2013; we cite it as general
background.
11
See ASPCA, About Us, http://www.aspca.org/about-us (last checked July 31,
2014) (showing seal).
12
See Government of India, Ministry of Environment and Forestries, Central Zoo
Authority, Circular, Policy on Establishment of Dolphinarium - Regarding, May 17,
2013, 2, http://envfor.nic.in/sites/default/files/ban%20on%20dolphanariums.pdf
(last checked July 31, 2014) (“dolphin[s] should be seen as ‘non-human persons’
770 State v. Fessenden / Dicke
the interrelated nature of all life, the day may come when
humans perceive less separation between themselves and
other living beings than the law now reflects. However, we
do not need a mirror to the past or a telescope to the future
to recognize that the legal status of animals has changed
and is changing still, or to agree with defendants that, at
this moment in time, Oregon law does not protect animal
life to the same extent or in the same way that it protects
human life.
From the premise that society’s interest in protect-
ing animal life is not now equivalent to its interest in pro-
tecting human life, defendant contends that an exception to
the warrant requirement of Article I, section 9, that is justi-
fied by the latter should not extend to the former. The state
disagrees, although not with the premise that animal and
human life do not now occupy the same plane. Instead, the
state argues that, when the Oregon Constitution, including
Article I, section 9, was adopted, the state had authority to
take warrantless measures to save and secure “property”
and that then, as now, animals are characterized as “prop-
erty.” The state also argues that the “reasonableness” stan-
dard imposed by Article I, section 9, “should be construed in
a manner consistent with relevant modern developments”—
developments that demonstrate a modern societal interest in
the protection of animals that permits the state to act on the
animals’ behalf in emergency circumstances. Accordingly,
the state contends, both the emergency aid exception and
the exigent circumstances exception should apply to permit
warrantless intervention when an animal’s life is at risk.
The parties’ arguments thus call on this court to
consider the past and current societal interests in protecting
the lives of animals and the peoples’ constitutional rights to
possession and privacy and to decide in what instances and
as to which animals, if any, society’s interests are sufficiently
compelling to justify a warrantless search or seizure. Those
are difficult questions, and, as the United States Supreme
Court has cautioned, “[t]heir difficulty admonishes us to
observe the wise limitations on our function and to confine
and as such should have their own specific rights and [it] is morally unacceptable
to keep them captive for entertainment purpose[s]”).
Cite as 355 Or 759 (2014) 771
ourselves to deciding only what is necessary to the disposi-
tion of the immediate case.” Whitehouse v. Illinois Cent. R.
Co., 349 U.S. 366, 372-73, 75 S. Ct. 845, 99 L. Ed. 1155 (1955).
The fact that an exception to the Article, I, sec-
tion 9, warrant requirement is at issue is an additional
reason for caution. Since 1986, this court has been aware
that, “in this modern day of electronics and computers,” a
day will come when the warrant requirement can be ful-
filled expeditiously. State v. Brown, 301 Or 286, 278 n 6, 721
P2d 1357 (1986); see also State v. Kurokawa-Lasciak, 351
Or 179, 188, 263 P3d 336 (2011) (discussing desirability of
“a neutral magistrate’s evaluation of probable cause” and
anticipating “advances in technology permit[ting] quick and
efficient electronic issuance of warrants”). In many places
and circumstances, obtaining a warrant no longer entails
undue delay or prevents timely police action. See Riley v.
California, ___ US ___, 134 S Ct ___, ___ L Ed ___ (June 25,
2014), WL 2864483 at *19 (discussing “[r]ecent technolog-
ical advances” that have “made the process of obtaining a
warrant itself more efficient”); Missouri v. McNeely, ___ US
___, 133 S. Ct. 1552, 1573, 185 L. Ed. 2d 696 (2013) (Roberts,
C.J., concurring in part and dissenting in part) (describing
jurisdiction where warrants may be obtained electronically
in as little as 15 minutes). Given the perplexing questions
presented and the current state of technology, we are hes-
itant to extend or broadly apply exceptions to the warrant
requirement without firm constitutional basis.
We proceed, therefore, to the specific facts of this
case and consider whether the officer’s entry and seizure of
the horse were permitted under an existing exception to the
warrant requirement. We begin with the exigent circum-
stances exception because, as this court previously has artic-
ulated that exception, it permits warrantless action when
necessary to prevent serious damage to “property.” The par-
ties acknowledge that, even if a horse is not a “person,” it is
“property.” However, despite this court’s broad articulation
of the exigent circumstances exception, this court has not
yet applied that exception to permit warrantless measures
to protect property. Therefore, we pause to consider whether
the exigent circumstances exception permits the particular
warrantless acts at issue here.
772 State v. Fessenden / Dicke
One of the cases in which this court has applied the
exigent circumstances exception is Stevens, a case in which
officers had probable cause to believe that the defendant had
kidnapped three children, that the children were with the
defendant, and that the children were in imminent danger
of serious harm. The court held that the officers’ warrant-
less entry and search of the defendant’s property to find the
defendant and endeavor to rescue the children did not violate
Article I, section 9. 311 Or at 130. In other cases, the court
has applied the exigent circumstances exception in similar
circumstances—when a crime is in progress and warrant-
less action is necessary to apprehend or detain a suspected
perpetrator. See Snow, 337 Or at 225 (risk that defendant
might escape created exigent circumstance justifying war-
rantless search); State v. Roberts, 249 Or 139, 143, 437 P2d
731 (1968) (“[I]t is preposterous to assert that a police officer
in hot pursuit * * * must stop as soon as the pursued drives
upon private property * * * and get a search warrant in order
to apprehend the [suspect].”). The court also has applied the
exigent circumstances exception when officers have seized
the perpetrator and warrantless action is necessary to pre-
vent the destruction of evidence. See State v. Machuca, 347
Or 644, 657, 227 P3d 729 (2010) (dissipation of alcohol from
bloodstream of perpetrator presented exigent circumstance);
State v. Meharry, 342 Or 173, 177, 149 P3d 1155 (2006) (court
applied, as “a subset of the exigent circumstances exception,
an ‘automobile exception’ to the warrant requirement” allow-
ing warrantless search of mobile vehicle driven by perpetra-
tor because evidence could be lost).
Those decisions demonstrate that the exigent cir-
cumstances exception to Article I, section 9, is not limited, as
defendant argues, to circumstances in which human life is
threatened. This court implicitly has recognized that officers
are permitted to take warrantless measures in instances in
which those measures are necessary to enable officers to ful-
fill essential law enforcement responsibilities in emergency
circumstances. Therefore, the narrow question presented in
this case is whether the responsibilities and circumstances
extant in this case fell within that exception.
We conclude that they do. Our cases recognize that
one of an investigating officer’s most pressing responsibilities
Cite as 355 Or 759 (2014) 773
is to apprehend the perpetrator of a crime in progress. An
officer who has probable cause to believe that a perpetrator
is in the process of causing unlawful harm has a respon-
sibility to apprehend the perpetrator to prevent the perpe-
trator from causing further imminent harm to a victim.
However, apprehending the perpetrator is not the only way
that an officer may fulfill that responsibility. Here, based on
observations made from a lawful vantage point, the officer
had probable cause to believe that defendants were commit-
ting animal neglect under ORS 167.325 by failing to provide
“minimal care” for the “victim” of that crime—the horse.
See Nix, 355 Or at ___ (animals are “victims” for purposes
of animal welfare statutes). The officer believed that, if the
horse were to fall, she was at risk of serious imminent injury
or death; he also believed that it would take at least four,
and possibly as long as eight, hours to obtain a warrant to
seize the horse and take her to a veterinarian. The officer’s
beliefs were objectively reasonable in light of the officer’s
training and experience as an animal welfare officer. See,
e.g., State v. Holdorf, 355 Or 812, ___ P3d ___ (2014).13 Thus,
the officer had probable cause to believe that a crime was
in progress and, based on specific, articulable facts, deter-
mined that warrantless action was necessary to prevent an
ongoing criminal act from causing further serious immi-
nent harm to the victim of the crime—an animal entitled
to statutory protection. In those circumstances, the exigent
circumstances exception permitted the officer’s actions.14
13
Defendants argue generally that ORS 133.545 allows officers to apply for
a warrant telephonically. Although that statutory option is a consideration in our
analysis, see Stevens, 311 Or at 129-30, defendants did not impeach the officer’s
testimony by offering evidence that, if the officer had used that option, he could
have obtained a warrant more quickly.
14
Other state courts also have held that warrantless entries, searches, or
seizures undertaken to protect animals are permissible when there is proba-
ble cause to believe that a crime is being committed and warrantless action is
necessary to prevent the criminal act from causing further serious injury. See,
e.g., People v. Chung, 195 Cal App 4th 721, 732, 110 Cal Rptr 3d 253, 261 (2010)
(exigent circumstances exception permitted warrantless entry where officer had
probable cause to believe that the crime of animal cruelty was in progress); State
v. Stone, 321 Mont. 489, 498, 92 P3d 1178 (2004) (probable cause to believe that
crime of animal cruelty was in progress and harm to animals was imminent
permitted warrantless entry and seizure of starving rabbits); Pine v. State, 889
S.W.2d 625, 631 (Tex App 1994) (warrantless seizure permissible where “deputy
had probable cause to believe the animal was being cruelly treated, and * * * that
774 State v. Fessenden / Dicke
In arriving at that conclusion, we do not extend the
exigent circumstances exception but apply it within nar-
row, workable confines. Our determination that the officer
had probable cause to believe that a crime was in progress
assures us that the officer acted in a circumstance in which
the Oregon legislature intended to protect the horse. As
noted, Oregon statutes criminalize the abuse or neglect of
only certain animals and identify with particularity the
care or treatment that is required or permitted. Accordingly,
when an officer has probable cause to believe that a person
is violating one of those statutes, the officer acts according
to statutory standards and legislative policy, rather than
the officer’s own beliefs, in determining that a specific ani-
mal deserves and is in need of aid or protection. Judicial
review of such actions is similarly circumscribed.
Our determination that the officer in this case acted
based on specific, articulable facts enables us to ensure that
the officer acted only as necessary to achieve his purpose.
Cf. State v. Watson, 353 Or 768, 780-81, 305 P3d 94 (2013)
(scope of a warrantless search “limited to its constitution-
ally permitted purpose and must be reasonably necessary
to effectuate that purpose”); Stevens, 311 Or at 130 (scope of
warrantless search limited to the exigency that justified it).
And our determination that the officer acted only when he
reasonably believed that the victim of the crime would suf-
fer serious imminent harm if he refrained from acting until
he could obtain a warrant assures us that a true emergency
was presented. As the benefits of technological advances
become more widespread, the time it takes to have a neu-
tral magistrate consider whether there are constitutional
grounds for a search or seizure may be reduced, and the
opportunities for such review may be greater.
By describing the narrow confines of our conclu-
sion in this case, we do not imply that the circumstances
presented here are the only ones in which an officer may
take warrantless measures to prevent serious harm to or
the death of an animal. We simply exercise judicial restraint
obtaining a warrant was impracticable because the deputy reasonably believed
there was an immediate need to act to preserve a life”).
Cite as 355 Or 759 (2014) 775
and leave for another day questions unnecessary to the reso-
lution of this case, such as whether the emergency aid excep-
tion extends to animals.
We now turn to the warrant requirement of the
Fourth Amendment to the United States Constitution. Like
Article I, section 9, the Fourth Amendment provides that
warrantless entries, searches, and seizures “are per se unrea-
sonable *  * subject only to a few specifically established
*
and well-delineated exceptions.” Katz v. United States, 389
U.S. 347, 357, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967). However,
like Article I, section 9, the Fourth Amendment also allows
for exceptions to the warrant requirement under exigent cir-
cumstances that are similar to those that this court deems
sufficiently exigent under Article I, section 9. See State v.
Miskell/Sinibaldi, 351 Or 680, 698, 277 P3d 522 (2012)
(describing exigent circumstances under both Article I,
section 9, and Fourth Amendment as “circumstances that
require swift action to prevent harm to persons or property,
escape of a suspect, destruction of evidence, or the like”).
The Ninth Circuit describes exigent circumstances as those
in which “a reasonable person would believe that [warrant-
less action] was necessary to prevent physical harm to the
officers or other persons, the destruction of relevant evi-
dence, the escape of the suspect, or some other consequence
improperly frustrating legitimate law enforcement efforts.”
United States v. Alaimalo, 313 F3d 1188, 1192-93 (9th Cir
2002); see also Hunsberger v. Wood, 570 F3d 546, 555 (4th Cir
2009) (describing exigent circumstances as those creating
“objectively reasonable belief that an emergency existed that
required immediate entry to render assistance or prevent
harm to persons or property within”); Roska ex rel. Roska
v. Peterson, 328 F3d 1230, 1240 (10th Cir 2003) (describ-
ing exigent circumstances as those arising when “officers
have reasonable grounds to believe that there is immediate
need to protect their lives or others or their property or that
of others”).15 At least one court has applied those federal
15
The United States Supreme Court has not explicitly described the exigent
circumstances exception to the warrant requirement. That Court has, however,
declared a variety of circumstances to be sufficiently exigent to permit warrant-
less action. See, e.g., Mincey v. Arizona, 437 U.S. 385, 392-94, 98 S. Ct. 2408, 57
L. Ed. 2d 290 (1978) (an officer may act without a warrant if, in an emergency
776 State v. Fessenden / Dicke
constitutional principles to uphold the warrantless seizure
of an animal. See Tuck v. United States, 477 A2d 1115, 1119
(DC 1984) (where rabbit was dying of heat exposure in a
pet store window, “procurement of [warrant] under the ‘exi-
gent circumstances’ of this case would most likely have frus-
trated the effective fulfillment of [the public interest in ani-
mal welfare]”); see also Siebert v. Severino, 256 F3d 648, 657
(7th Cir 2001) (stating that “[e]xigent circumstances may
justify a warrantless seizure of animals” but holding that no
such exigency existed in case at hand).
Accordingly, having concluded that the officer’s
actions were permitted under the exigent circumstances
exception to the warrant requirement imposed by Article I,
section 9, of the Oregon Constitution, and understanding
that the exigent circumstances exception to the warrant
requirement of the Fourth Amendment to the United States
Constitution similarly applied, we reach the same conclu-
sion with regard to the Fourth Amendment as we reach with
regard to the Oregon Constitution. The officer’s warrantless
seizure of the horse was lawful, and the trial court did not
err in denying defendants’ motions to suppress.
The decisions of the Court of Appeals and the judg-
ments of the circuit court are affirmed.
presenting a “need to protect or preserve life or avoid serious injury, *  * the
*
exigencies of the situation make the needs of law enforcement so compelling that
the warrantless search is objectively reasonable under the Fourth Amendment”)
(citations omitted); Michigan v. Tyler, 436 U.S. 499, 509, 98 S. Ct. 1942, 56 L. Ed. 2d
486 (1978) (warrantless entry by firefighters permitted to prevent further poten-
tial harm to persons); Warden v. Hayden, 387 U.S. 294, 298-99, 87 S. Ct. 1642, 18
L. Ed. 2d 782 (1967) (warrantless action permitted when officer is in hot pursuit of
suspect); Ker v. California, 374 U.S. 23, 40-41, 83 S. Ct. 1623, 10 L. Ed. 2d 726 (1963)
(warrantless action permitted to prevent destruction of evidence). Federal courts
have applied those cases in defining the exigent circumstances exception more
generally. See, e.g., Hunsberger, 570 F3d at 555 (defining exigent circumstances
as “an emergency *  * requir[ing] immediate entry to render assistance or pre-
*
vent harm to persons or property within”).