State v. Fessenden / Dicke

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 US 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

SW2d 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

US 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 US 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 US 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 US 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 US 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”).