VT: SWs for animals are different than for other property; more likely subject to exigency

Search warrants for animals are different than for other property in that they are alive and more likely subject to exigent circumstances because animal welfare is always a consideration. When executing a warrant for two animals, others apparently in distress can be seized. State v. Sheperd, 2017 VT 39, 2017 Vt. LEXIS 64 (June 2, 2017):

[*P17] Additional considerations come into play when a warrant calls for the search for and seizure of animals. This Court has recognized that nonhuman animals occupy a unique legal status in that they have traditionally been regarded as property but are nonetheless “different from other property.” Hament v. Baker, 2014 VT 39, ¶ 8, 196 Vt. 339, 97 A.3d 461. Accordingly, animals “generally do not fit neatly within traditional property law principles,” but instead “occup[y] a special place somewhere in between a person and piece of personal property.” Morgan v. Kroupa, 167 Vt. 99, 103, 702 A.2d 630, 633 (1997) (quotation omitted). Various laws limit peoples’ ownership rights over animals, requiring them to provide a minimum level of care to animals in their possession and prohibiting them from treating animals the same way they might treat true, nonsentient property. See, e.g., 13 V.S.A. §§ 352, 352a (criminalizing cruelty to animals); id. § 386 (prohibiting confinement of animals in motor vehicles when conditions are dangerous, and allowing state agents to remove animals from a vehicle to prevent harm). This special treatment of animals reflects a recognition that animals are living, sentient beings to which the law may provide protections in their own right. Hament, 196 Vt. 339, 2014 VT 39, ¶ 8, 97 A.3d 461.

[*P18] Other states have considered the role of animals’ special legal status in the context of searches and seizures. These cases establish that the treatment of animals is different from that of other types of property in this area of the law and that animal welfare is a factor we must consider when determining whether a search or seizure was lawful. For example, the Oregon Supreme Court in State v. Newcomb, 359 Ore. 756, 375 P.3d 434, 444-45 (Or. 2016) recently held that a warrant is not needed to draw and test the blood of a dog lawfully seized based on probable cause that the dog was neglected. The purpose of the blood test was to determine whether an unknown medical condition or starvation caused the dog’s malnourishment, and therefore to ensure that the dog received proper treatment. The defendant argued that the blood test was an unlawful search, as Oregon law requires the state to obtain a warrant before searching the interior of lawfully seized property, when the contents are not apparent from the property’s exterior. The court examined the animal’s legal status in depth and declined to view the dog as “an opaque inanimate container in which inanimate property or effects were being stored.” Id. at 442. Instead, the court reasoned that although a dog is legally considered personal property,

Oregon law simultaneously limits ownership and possessory rights in ways that it does not for inanimate property … . Live animals under Oregon law are subject to statutory welfare protections that ensure their basic minimum care, including veterinary treatment. The obligation to provide that minimum care falls on any person who has custody and control of a dog or other animal. A dog owner simply has no cognizable right, in the name of [his or] her privacy, to countermand that obligation.

Id. at 443. The court emphasized the importance of providing appropriate medical care to the dog, ultimately holding that “[a]n examination of the dog’s physical health and condition in that circumstance, pursuant to a medical judgment of what is appropriate for diagnosis and treatment, is not a form of government scrutiny that, under legal and social norms and conventions, invades a dog owner’s protected privacy rights.” Id.

[*P19] By the same token, multiple states have held that the exigent circumstances exception to the warrant requirement allows state agents to conduct a warrantless search or seizure in order to prevent an imminent threat to a nonhuman animal’s well-being. See Commonwealth v. Duncan, 467 Mass. 746, 7 N.E.3d 469, 474 (Mass. 2014); State v. Stone, 2004 MT 151, ¶ 39, 321 Mont. 489, 92 P.3d 1178; State v. Fessenden, 258 Ore. App. 639, 310 P.3d 1163, 1169 (Or. Ct. App. 2013). The Vermont Legislature has codified this exception in 13 V.S.A. § 354(b)(3), which allows a humane officer to seize an animal without a warrant if the officer “determines that an animal’s life is in jeopardy and immediate action is required to protect the animal’s health or safety.” These examples all establish that a defendant’s property rights over animals are limited when animal welfare is at risk, and we must take the animals’ welfare into consideration when determining the legality of a search or seizure.