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Of Dogs and Privacy: The Warrantless Seizure of a Dog’s Blood, and all that Comes with it

This article originally appeared in the September 2016 issue of the Georgia’s Cities Magazine.

Written by: Phillip E. Friduss, Esq.

State v. Newcomb, 359 Or. 756 (2016)

Act I: Juno Rescued  Amanda Newcomb is out of money. Because of that, she is unable to regularly feed her dog, Juno. Her neighbor, apparently follow­ing Juno’s plight, calls the Oregon Hu­mane Society, and so begins the saga.

Enter Special Agent Austin Wallace, an animal cruelty investigator and certified police officer. What he sees is a “near emaciated” Juno, eating random things in the yard, and dry-heaving with little to no success. He asks Newcomb if he can take possession of Juno. Not at all unexpectedly, the answer is an emphat­ic no.

Wallace takes Juno, without consent, both as evidence of the neglect and because of the “strong possibility” that Juno needs medical treatment. He takes Juno to the Humane Society, where Dr. Zarah Hedge could not conclude on first review that Juno’s condition comes from simple malnourishment, or wheth­er another cause, say parasites or an in­testinal or organ condition caused him to be thin.

So, Hedge takes a blood sample from Juno, concluding in the end that the only thing wrong with this dog is that he is malnourished. Wallace charges Newcomb with second-degree animal cruelty. Newcomb objects—the dog is her personal property, and so, just like a briefcase, cannot be opened/searched without a warrant. The prosecutor dis­agrees, Juno is not like a briefcase, be­cause a dog “doesn’t contain anything” instead, inside a dog is just “more dog.”

Trial court allows the evidence, and Newcomb is convicted. She persuades the Oregon Court of Appeals to reverse the decision, and the prosecutor takes it to the Oregon Supreme Court.

Act II: The Oregon Supremes  By the time the case gets before the Or­egon Supremes, the parties pretty much agree that Wallace had the right to take Juno in the first instance. No problem there. The question is what happened next.

The Court recognizes early on that the basic issue before it—the “extent to which the state may examine property without a warrant after it has lawfully seized that property in the course of a criminal investigation,” has been before the court hundreds and hundreds of times. That said, each case indeed comes with its own unique set of circumstanc­es, like here, where we’re dealing with the insides of a dog. The Court notes this while first addressing the briefcase analogy argument: “Here, the seized property was a living animal—Juno, the dog—not an inanimate object or other insentient physical item of some kind. Central to the issue that we must resolve is whether that distinctive fact makes a legal difference.”

In reaching the conclusion that yes, it does, the Court runs through a number of scenarios and arguments concerning what privacy interests owners have in their dogs. Recognizing a goodly number of these basic interests, the court formally rejects the briefcase analogy argument, stating the chemical composition of Juno’s blood was not “information” that Newcomb “placed in Juno for safekeeping or to conceal from view.” In essence, what happened here was not a search, within the meaning of the Fourth Amendment.

The court also emphasizes that the dog was in bad shape, and that medical attention was indisputably needed. The blood simply needed to be drawn for medical reasons, turning out whichever way the medical review would show. Newcomb’s conviction will stand.

Act III: Parting Thoughts   A seriously cool case. The case has significance everywhere in that the Fourth Amendment and some form of animal control applies to all states. And, we Americans take our rights in our animals very seriously.

The Court gave lip service to the notion that had the search been done pur­posely to uncover evidence of a crime, say, a concealed microchip or drugs, perhaps the analysis would be different. Not sure I agree this wasn’t a search, though.

The entry of the owner’s animal, albeit for potentially life-saving measures provided evidence of wrongdoing. According to this Court’s analysis, if drugs were found, again, this would not be a search, the Fourth Amendment would not be implicated, Newcomb would have faced drug charges, and the evidence would be admitted.

But, wait. Doesn’t this have a alarmingly familiar tone? Isn’t this the exigent circumstances doctrine all rolled up into a canine? Can’t enter a home absent probable cause absent exigent circumstances, right? Like, you know, to save a life? So, when officers break down the door to save a life, only to find drugs on the table, those drugs are admissible in the prosecution of a drug crime.

In other words, I believe the Oregon Court reached the right result using a faulty analysis. This looks far more like a Fourth Amendment warrantless search, excused by the exigency of the circumstances. In other words, a reasonable, but nevertheless, Fourth Amendment search.