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Of Dogs and Privacy: The Warrantless Taking of a Dog’s Blood and All That Comes with It

September 16, 2016  |  Phil Friduss

This article appeared in the September 2016 issue of the Georgia's Cities newspaper.
State v. Newcomb, 359 Or. 756 (2016)

Act I: Juno Rescued
Alt
Friduss
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: You Have to Hear From Me
A seriously cool case. Should the U.S. Su­preme Court ever get ahold of this one, there is no telling where the analysis might go.
 
The case has significance to us here in Georgia because the Fourth Amend­ment applies, as does animal control. And like other Americans, we Georgians 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. As to this one particular point, I take is­sue.
 
What if the dog had drugs hidden in­side it, but was looking really ill (to the point of it appearing like animal cruelty) to an officer of the law looking for those drugs. I mean, if the dog requires medical intervention because perhaps the drugs had worked their way into its blood and digestive system, does the fact the sought for drugs are found during that intervention mean the answer should be different than the one in Newcomb’s case? What’s the difference? In both in­stances, there is probable cause to seize the dog under applicable animal cruelty statutes, and evidence of crime resulted from the drawing of the blood.
 
Frankly, I am not sure the U.S. Su­premes will have the same point of view, but we will cross that bridge should we ever get there. I think there was a search within the meaning of the Fourth Amendment, and that the real question at issue should have been whether that search was reasonable—which is the touchstone of the Fourth Amendment. Kind of can’t escape the notion that what happened here was reasonable under the laws construing the Fourth.
 
Finally, as this issue of Georgia Cit­ies comes out, I will be joining many of our city attorneys in Athens for two days at the annual City/County Attorney Institute. This year’s program should be stellar, and I so look forward to the ca­maraderie of this outstanding group of professionals.
 
Phil Friduss is a local government attorney with the law firm of Hall Booth Smith, P.C., in its Atlanta office. Phil lives in Woodstock with his wife, Dayna, and his boys Jakob and Wesley.
 
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