State v. Newcomb

756 June 16, 2016 No. 40

IN THE SUPREME COURT OF THE

STATE OF OREGON

STATE OF OREGON,

Respondent on Review,

v.

AMANDA L. NEWCOMB,

Petitioner on Review.

(CC 110443303; CA A149495; SC S062387)

On review from the Court of Appeals.*

Argued and submitted March 10, 2015, at Lewis & Clark

Law School, Portland, Oregon.

Jamie K. Contreras, Assistant Attorney General, Salem,

argued the cause and filed the brief for petitioner on review.

With her on the brief were Ellen F. Rosenblum, Attorney

General, and Anna M. Joyce, Solicitor General.

Andrew D. Robinson, Deputy Public Defender, Salem,

argued the cause and filed the brief for respondent on review.

With him on the brief was Peter Gartlan, Chief Defender,

Office of Public Defense Services.

Lora Dunn, Animal Legal Defense Fund, Portland, filed

the briefs for amici curiae Animal Legal Defense Fund,

Association of Prosecuting Attorneys, National District

Attorneys Association, Oregon Humane Society, and Oregon

Veterinary Medical Association.

Before Balmer, Chief Justice, and Kistler, Walters,

Landau, Baldwin, Brewer, Justices, and Linder, Senior

Justice pro tempore.**

LINDER, S. J.

The decision of the Court of Appeals is reversed. The

judgment of the circuit court is affirmed.

______________

**  Appeal from Multnomah County Circuit Court, Eric J. Bergstrom, Judge.

262 Or App 256, 324 P3d 557 (2014).

**  Nakamoto, J., did not participate in the consideration or decision of this

case.

Cite as 359 Or 756 (2016) 757

Case Summary: After receiving a citizen report of animal neglect, an ani-

mal cruelty investigator seized defendant’s near-emaciated dog, Juno, and trans-

ported him the Oregon Humane Society for examination and treatment. As part

of her examination, the veterinarian at the Oregon Humane Society drew a

blood sample from Juno to rule out any contributing causes for his condition. The

subsequent lab results revealed that Juno did not suffer from a medical condi-

tion. The veterinarian concluded Juno had been malnourished. Defendant was

charged with second-degree animal neglect for failing to provide Juno with mini-

mum care and nutrition. Before trial, defendant moved to suppress the results of

Juno’s lab tests, asserting that the warrantless blood draw and testing violated

Article I, section 9, of the Oregon Constitution and the Fourth Amendment to

the United States Constitution. The trial court denied the motion and a jury

convicted defendant following trial. Defendant appealed the trial court’s denial

of her motion to suppress, arguing she had a protected property interest in Juno’s

blood. Defendant emphasized that, under Oregon law, dogs are personal prop-

erty; like other personal property, such as a folder or a stereo, the state could

examine only the exterior of Juno without a warrant. When the state withdrew

Juno’s blood without a warrant, it intruded into defendant’s personal prop-

erty and violated her constitutionally protected privacy. The Court of Appeals

reversed. Held: when the state has lawfully seized an animal on probable cause to

believe it has been neglected or abused, a warrantless withdrawal and testing of

the animal’s blood for the purposes of a medically appropriate procedure does not

violate Article I, section 9, of the Oregon Constitution or the Fourth Amendment

to the United States Constitution.

The decision of the Court of Appeals is reversed. The judgment of the circuit

court is affirmed.

758 State v. Newcomb

LINDER, S. J.

Defendant was convicted of second-degree animal

neglect (ORS 167.325)1 after she failed to adequately feed

her dog, Juno, resulting in his malnourishment. Before trial,

defendant moved to suppress blood test results showing that

Juno had no medical condition that would have caused him

to be malnourished, which in turn indicated that Juno was

malnourished because he was starving. Defendant argued

that the state had violated both Article I, section 9, of the

Oregon Constitution, and the Fourth Amendment to the

United States Constitution by failing to obtain a warrant

before testing the dog’s blood.2 The trial court denied the

motion and allowed the state to introduce the test results

during trial. Defendant appealed to the Court of Appeals,

which agreed with defendant that she had a protected pri-

vacy interest in her dog’s blood that required the state to

obtain a search warrant, unless the circumstances fit within

an exception to the warrant requirement. State v. Newcomb,

262 Or App 256, 271, 324 P3d 557 (2014). Because the state

had failed to obtain a warrant, and because no exception

to the warrant requirement applied, the Court of Appeals

reversed. Id. at 271-72. We allowed the state’s petition for

review to resolve whether defendant had a protected pri-

vacy interest in her dog’s blood under Article I, section 9, of

the Oregon Constitution or the Fourth Amendment to the

United States Constitution. As explained below, on these

facts, we conclude that she did not. We accordingly reverse

1

Throughout this opinion, unless otherwise noted, we cite the 2009 versions

of the relevant statutes, which were the versions in force when the events in this

case took place. The statute defining animal neglect in the second degree, ORS

167.325 provides, in pertinent 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.”

2

Article I, section 9, provides, “No law shall violate the right of the people

to be secure in their persons, houses, papers, and effects, against unreasonable

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.”

The Fourth Amendment provides that “[t]he right of the people to be secure

in their persons, houses, papers, and effects, against unreasonable searches and

seizures, shall not be violated[.]”

Cite as 359 Or 756 (2016) 759

the decision of the Court of Appeals and affirm the decision

of the trial court.

I.  FACTUAL AND PROCEDURAL BACKGROUND

We recite the facts, and all reasonable inferences

that they support, in the light most favorable to the trial

court’s denial of the motion to suppress. See State v. Bailey,

256 Or 486, 489, 338 P3d 702 (2014) (stating standard of

review). The Oregon Humane Society received a report

that defendant was abusing and neglecting her dog, Juno.

In response to that report, Special Agent Austin Wallace,

an animal cruelty investigator and certified police officer,

went to defendant’s apartment to investigate.3 While the

officer was speaking with defendant inside her apartment,

he could see Juno in defendant’s back patio area through

the double sliding-glass doors. To the officer, who had seen

“hundreds of emaciated animals,” Juno appeared to be in

a “near-emaciated condition,” with “no fat on his body.” He

also noticed that Juno was “eating at random things in the

yard, and * * * trying to vomit.” But Juno was dry heaving

and “[n]othing was coming up[.]”

The officer asked defendant why Juno was in that

condition—that is, why Juno appeared “near-emaciated.”

Defendant responded that she usually gave Juno dog food

from WinCo, which she buys in small four-pound quantities,

but that she had run out of it and was planning on buying

more that evening. At that point, the officer concluded that

3

The state has not disputed that Special Agent Wallace qualified as a gov-

ernment actor under the circumstances of this case. Special Agent Wallace was

employed by the Oregon Humane Society, a private nonprofit entity, rather than a

state or local law enforcement agency. However, he was also a certified police offi-

cer with authority to issue citations, and he acted pursuant to that certification in

investigating animal cruelty complaints. See ORS 181.610(12)(b) (“law enforce-

ment unit” for purposes of public safety standards and training includes private,

non-profit animal care agency that maintains animal investigation unit); ORS

609.652(2)(d) (“law enforcement agency” for purposes of animal abuse report-

ing laws includes only county or municipal animal control agency). Statutes

enacted after the events in this case have clarified the cooperative role of pri-

vately employed persons certified as police officers—now termed “humane special

agents”—in working with state and local law enforcement agencies to enforce

animal welfare laws. See ORS 181A.340 (2013) (providing for “humane special

agents” who may be certified as police officers); ORS 181A.345 (2013) (humane

special agents shall work in cooperation with law enforcement agencies to enforce

animal welfare laws).

760 State v. Newcomb

he had enough evidence to corroborate the citizen report of

neglect—Juno was near-emaciated and dry heaving, and

defendant had admitted that she had no food for Juno. He

therefore concluded that he had probable cause to believe

that defendant had neglected Juno. He asked defendant for

permission to take the dog in for medical care, but defen-

dant, who thought her dog looked healthy, refused and

became irate. The officer therefore took custody of Juno

without defendant’s consent, both as evidence of the neglect

and because of the “strong possibility” that Juno needed

medical treatment. He transported Juno to the Humane

Society, where Juno would be housed and medically treated

as appropriate. From medical tests, the officer expected also

to be able to determine whether neglect charges were war-

ranted or whether Juno should be returned to defendant.

Dr. Zarah Hedge, a veterinarian, treated Juno after

the dog arrived at the Oregon Humane Society. From an ini-

tial examination, Dr. Hedge could identify nothing physically

wrong with Juno, other than that “the dog was very thin.”

As part of standard practice, Dr. Hedge gave Juno a “body

condition score.” That score ranges from one—meaning ema-

ciated—to nine—meaning obese. To score dogs on that scale,

veterinarians determine, among other things, whether the

dog’s ribs and spine are visibly protruding (meaning that

the dog is emaciated); or, on the opposite end of the scale,

whether the veterinarian must actually touch the dog to

be able to locate its ribs and spine (meaning that the dog

is obese). After looking at Juno—whose ribs and vertebrae

were visible without having to feel for them—Dr. Hedge gave

him a body condition score of 1.5. But Dr. Hedge could not be

certain, at that point, that Juno was emaciated due to mal-

nourishment. Juno could have had a parasite or an intestinal

or organ condition that caused him to be thin. She therefore

drew a blood sample from Juno for laboratory testing.4

4

At the motion to suppress, neither party called Dr. Hedge to testify because

they were in agreement as to the tests she performed and the results. They there-

fore “stipulated” that she performed the tests and the tests showed that Juno had

nothing medically wrong with him, which confirmed her initial diagnosis that

Juno was malnourished. Some of the more detailed facts that we recite (such as

her scoring of Juno’s body condition) came out only at trial. We include them to

provide a more complete narrative of the evidence placed before the jury after

denial of defendant’s motion to suppress; we do not rely on those added details in

our examination of the trial court’s pretrial suppression ruling.

Cite as 359 Or 756 (2016) 761

Dr. Hedge’s withdrawal of that blood sample, and

the subsequent testing of it, is the central focus of this case.5

The laboratory tests revealed nothing medically wrong with

Juno that would have caused him to be thin; Dr. Hedge

therefore concluded that Juno was malnourished and placed

him on a special feeding protocol. As a result of that diag-

nosis, the officer cited defendant for second-degree animal

neglect.

Before trial, defendant moved to suppress the labo-

ratory test results, arguing that the officer lacked probable

cause to take Juno into custody, and thus had unlawfully

seized the dog. Defendant also argued that Dr. Hedge had

engaged in an unreasonable search of defendant’s property—

i.e., Juno—by drawing and testing Juno’s blood without a

warrant, in violation of Article I, section 9, of the Oregon

Constitution and the Fourth Amendment to the United

States Constitution. In arguing that the blood testing was

an unlawful search, defendant emphasized that dogs are

personal property under Oregon law; defendant therefore

took the position that dogs are “no different than a folder

or a stereo or a vehicle or a boot” or other items of personal

property. Even if Juno was lawfully taken into custody,

defendant urged, the state could examine only the exterior

of seized property without seeking a warrant. According

to defendant, by withdrawing blood from Juno and testing

that blood without a warrant, the state intruded into her

personal property and revealed information not otherwise

open to view, which violated her constitutionally protected

privacy.

The prosecutor countered by first arguing that the

officer had probable cause to believe Juno was being neglected,

and therefore had lawfully seized Juno and taken him to

the Humane Society for care. The prosecutor then turned

to the withdrawal and testing of Juno’s blood, arguing that

5

Dr. Hedge also tested a feces sample. The record is unclear on how Dr. Hedge

obtained the feces sample—i.e., whether she actively withdrew it from Juno or

tested a sample that he had already expelled. Because we conclude that the with-

drawal and testing of Juno’s blood did not invade a protected privacy interest on

defendant’s part, we need not separately discuss or analyze the admissibility of

the feces sample; even an actively withdrawn feces sample is unlikely to be more

intrusive than a blood draw in the circumstances presented by this case.

762 State v. Newcomb

a dog, although personal property, is not a container and is

not legally analogous to one because, as the prosecutor put

it, a dog “doesn’t contain anything”; instead, inside a dog is

just “more dog.” A more appropriate analogy, the prosecutor

urged, was to test-firing a lawfully seized gun to determine

if it is operable.6 According to the prosecutor, in the same

way, testing Juno’s blood did not reveal private information

concealed inside Juno, but instead confirmed that Juno was

what the officer believed that he had seized—a malnour-

ished dog. As an alternative theory justifying the warrant-

less withdrawal and testing of Juno’s blood, the prosecutor

urged that it was reasonable to provide medical care to a dog

that had been lawfully taken into custody on probable cause

to believe that the dog had been neglected.

The trial court denied defendant’s motion to sup-

press. In doing so, the trial court first concluded that the

officer had probable cause to believe Juno was neglected

and therefore lawfully took Juno into custody. Next, the

trial court agreed with the prosecutor that a dog is neither

a container nor analogous to one, and stated that the closer

analogy would be a medical examination and diagnostic

analysis of a child taken into protective custody on suspicion

of abuse. The trial court also viewed the testing of Juno’s

blood as more analogous to confirmatory chemical testing of

a substance seized on probable cause that it is an unlawful

drug, or to testing a lawfully-seized firearm for fingerprints.

For those reasons, the trial court ruled that, once Juno had

been lawfully taken into custody, neither Article I, section 9,

or the Fourth Amendment required a warrant to medically

test Juno’s blood.

The case proceeded to a jury trial, and the jury

unanimously returned a guilty verdict on the second-degree

animal neglect charge. Defendant appealed, challenging the

denial of her motion to suppress. In the Court of Appeals, the

6

The prosecutor’s reference appears to have been to a former statutory

definition of firearm, pursuant to which some firearm-related charges, such as

unlawfully carrying a concealed firearm, required proof that the weapon was or

could immediately be made operable. See, e.g., State v. Briney, 345 Or 505, 200

P3d 550 (2008) (gun with broken firing pin did not qualify as “firearm” under

ORS 166.210(3) (2007), which required weapon to be “designed to expel a projec-

tile by the action of powder” and also to be “readily capable of use as a weapon”).

Cite as 359 Or 756 (2016) 763

parties largely renewed the arguments they had made to the

trial court. The Court of Appeals agreed with the trial court

that Juno’s seizure was lawful, but disagreed that Juno’s

blood could be tested without a warrant. Newcomb, 262 Or

App at 264, 271. The court concluded that the “extract[ing]

and testing” of Juno’s blood, even though Juno was lawfully

in the state’s custody, was a constitutionally significant

intrusion into defendant’s privacy, one that “exposed other-

wise concealed information about the dog that served as evi-

dence of a crime.” Id. at 271. Because the intrusion was not

justified by any recognized exception to the warrant require-

ment, the court declared that the extraction and testing of

Juno’s blood was an unlawful search under Article I, section

9. Id. at 271-72. The Court of Appeals therefore reversed

defendant’s conviction and remanded the case to the circuit

court.

On review, the only issue before us is the lawful-

ness of testing Juno’s blood; defendant no longer disputes

that Juno was lawfully seized.7 The chief point of conten-

tion between the parties is whether defendant had a pro-

tected privacy interest in Juno’s blood once Juno was in

the state’s lawful custody and care. That, in turn, is essen-

tially a disagreement over whether drawing and testing

Juno’s blood was a “search” for purposes of either Article I,

section 9, or the Fourth Amendment. The parties further

dispute whether, if the blood testing was a search for con-

stitutional purposes, that search was reasonable in these

circumstances despite the state’s failure to get a warrant.8

7

Defendant did not cross-petition on the issue of whether Juno was lawfully

taken into custody and, consistently with the procedural posture of the case, does

not now argue that Juno’s custody was unlawful.

8

The Court of Appeals did not consider the reasonableness of the search to

have been preserved by the state, explaining that the state did not, on appeal or

in the trial court, argue that the search was “reasonable under an established

exception to the warrant requirement.” Newcomb, 262 Or App at 271, n 13. And

although the state, by way of a supplemental memorandum of authority, cited

and relied on State ex rel Juv. Dept. v. M.A.D., 348 Or 381, 233 P3d 437 (2010)

(upholding as reasonable warrantless search of public school student despite lack

of a recognized exception to the warrant requirement), the court considered that

to be insufficient to preserve an argument that the testing of Juno’s blood, if it

was a search, was reasonable even though it did not fit an established exception

to the warrant requirement. Newcomb, 262 Or App at 271, n 13. Given our deter-

mination that there was no search, we do not need to resolve whether the state’s

“reasonableness” argument was adequately preserved.

764 State v. Newcomb

Consistently with our approach to analyzing constitutional

claims, we examine first whether the state’s conduct consti-

tuted a search under Article I, section 9, and then consider

defendant’s Fourth Amendment claim only if we conclude

that no state constitutional violation occurred. See Sterling

v. Cupp, 290 Or 611, 614, 625 P2d 123 (1981) (describing

first-things-first approach).

II. ANALYSIS

A.  Article I, Section 9

Article I, section 9, of the Oregon Constitution pro-

vides in part: “No law shall violate the right of the people

to be secure in their persons, houses, papers, and effects,

against unreasonable search, or seizure.” Implicit in that

guarantee against unreasonable searches and seizures is

a significant limitation: The provision applies only when

government officials engage in conduct that amounts to a

search or a seizure. State v. Howard/Dawson, 342 Or 635,

639, 157 P3d 1189 (2007); State v. Owens, 302 Or 196, 205-

06, 729 P2d 524 (1986). For purposes of Article I, section

9, a search occurs only if governmental action invades “a

protected privacy interest.” State v. Wacker, 317 Or 419, 426,

856 P2d 1029 (1993). A seizure occurs only if, through gov-

ernmental action, “there is a significant interference with

a person’s possessory or ownership interests in property.”

Owens, 302 Or at 207. Although the two interests—privacy

and ownership/possession—are not necessarily coextensive,

property law concepts of ownership and possessory rights

can bear significantly on the existence or nonexistence of a

protected privacy interest in the property. Howard/Dawson,

342-43 Or at 642 (discussing principle; concluding that pri-

vacy interest in property was extinguished by abandonment

of rights of dominion and control over property). Ultimately,

“the privacy protected by Article I, section 9, is not the pri-

vacy that one reasonably expects but the privacy to which

one has a right.” State v. Campbell, 306 Or 157, 164, 759 P2d

1040 (1988) (emphasis in original; citation omitted). And the

right to privacy that Article I, section 9, protects is the free-

dom from scrutiny as “determined by social and legal norms

of behavior, such as trespass laws and conventions against

eavesdropping.” Id. at 170 (citations omitted).

Cite as 359 Or 756 (2016) 765

The general issue that this case presents is one

that has come before the court with some frequency before:

the extent to which the state may examine property with-

out a warrant after it has lawfully seized that property the

course of a criminal investigation. On the other hand, this

case presents—as most cases raising search and seizure

issues do—its own set of distinctive facts and circumstances

within that context. 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 defendant’s view, it does not. Defendant relies on

ORS 609.020, which states: “Dogs are hereby declared to be

personal property.” Defendant maintains that, for purposes

of Article I, section 9, a dog is the same as any other item

of property that can be lawfully owned or possessed, such

as a stereo or a folder. As a general proposition, under that

construct, when the state lawfully seizes inanimate prop-

erty, it may “observe, feel, smell, shake and weigh” lawfully

seized property or otherwise “thoroughly examine” its exte-

rior without obtaining a warrant. Owens, 302 Or at 206.

But examining the “interior” of the property to reveal other

property that it may contain is another matter. Whether

such an examination is an unlawful search depends on

whether the contents are open to view or the property “by

[its] very nature announce[s] [its] contents (such as by touch

or smell) * * *.” Id. (no warrant required to withdraw and

test white powder visible in lawfully seized clear vial to con-

firm probable cause that powder was cocaine); see also State

v. Heckathorne, 347 Or 474, 484-85, 223 P3d 1034 (2009)

(same result for lawfully seized opaque metal cylinder where

the smell of gas escaping from cylinder provided probable

cause to believe cylinder contained unlawful substance).

Defendant’s position is that Juno was the legal equivalent

of a closed opaque container, one that did not announce its

contents, so that a warrant was required before the state

could examine its contents.

In Owens, however, this court recognized that “not

all containers * * * merit the same protection under Article I,

section 9.” 302 Or at 206. The same is true of personal

766 State v. Newcomb

property more generally: Not all things that can be owned

and possessed as personal property merit the same constitu-

tional protection in the same circumstances. With regard to

living animals, and domestic pets in particular, we have rec-

ognized that “some animals, such as pets, occupy a unique

position in people’s hearts and in the law,” one that is not

well-reflected in the “cold characterization of a dog * * * as

mere property.” State v. Fessenden/Dicke, 355 Or 759, 769,

333 P3d 278 (2014) (latter quotation from Rabideau v. City

of Racine, 243 Wis2d 486, 491, 627 NW 2d 795, 798 (2001)).

Whether defendant had a protected privacy interest that

was invaded by the withdrawal and testing of Juno’s blood

requires us to examine the nature of the property involved

and the circumstances of the governmental intrusion into

that property.

As to the nature of the property involved—here, a

living animal—we are aided by our analysis in Fessenden/

Dicke. The issue there was whether the state could, without

a warrant, lawfully seize an animal (a horse) believed to

have been criminally neglected. In concluding that tradi-

tional exigent circumstances doctrine extended to animals

in such a circumstance, this court explored the nature of the

relationship of humans to the animals that they own and

possess, as well as the social and legal norms that attend

to that relationship. The observations that we made in that

regard are helpful in the context of the legal issue that this

case presents.

Under Oregon’s statutes, animals generally, as

well as dogs in particular, are deemed “property.” 355 Or at

767-68 (citing statutes); ORS 609.020 (declaring dogs to

be property). Animals generally therefore can be lawfully

owned and possessed much as other property can be.9 But the

welfare of animals is subject to a series of explicit statutory

9

Under Oregon law, there are many exceptions to a person’s ability to law-

fully own and possess certain animals. See, e.g., ORS 167.365(1) (person com-

mits crime of “dogfighting” if person knowingly “[o]wns, possesses, keeps, breeds,

trains, buys, sells or offers to sell a fighting dog”); ORS 609.341 (special state

permits required to keep “exotic” animals). There are also many limits on ani-

mal owners’ rights of dominion and control over some animals. See, e.g., ORS

609.098(1)(c) (unlawful to use dog as a weapon in the commission of a crime);

ORS 811.200(1) (unlawful to carry dog on certain parts of a vehicle operated on

highway without specified protective measures).

Cite as 359 Or 756 (2016) 767

protections that are distinct to animals and do not apply

to inanimate property. Indeed, “Oregon’s animal welfare

statutes impose one of the nation’s most protective statutory

schemes[.]” Id. The crimes of animal abuse and neglect are

themselves reflections of the distinctive nature of animals

as property. Id. at 767-69 (discussing animal neglect and

other animal welfare statutes as illustrating unique legal

and social status of animals). A person commits first-degree

animal abuse if the person, with any of several culpable

mental states, causes serious physical injury to or cruelly

causes the death of an animal. ORS 167.330(1). A person

commits second-degree animal neglect if the person, with

any of several culpable mental states, “fails to provide min-

imum care for an animal in [that] person’s custody or con-

trol.” ORS 167.325(1). Significantly, the obligation to provide

minimum care arises for anyone who has custody or control

of an animal; it is not limited to those who have lawful pos-

session or custody of the animal. “Minimum care,” in turn,

means “care sufficient to preserve the health and well-being

of an animal” and includes, in addition to adequate nutri-

tion, “[v]eterinary care deemed necessary by a reasonably

prudent person to relieve distress from injury, neglect or

disease.” ORS 167.310(7). If the failure to provide minimum

care results in death or serious physical injury, the crime is

elevated to first-degree animal neglect. ORS 167.330(1).

Reflected in those and other laws that govern own-

ership and treatment of animals is the recognition that

animals “are sentient beings capable of experiencing pain,

stress and fear[.]” Fessenden/Dicke, 355 Or at 768 (quoting

ORS 167.305(1)).10 To be sure, the protection given to ani-

mals under Oregon law does not place them on a par with

humans. Among other things, there are legally sanctioned

ways for humans to kill animals, and many animals may be

“treated or mistreated” by those who own or lawfully pos-

sess them as long as their treatment is within the bound-

aries of “good animal husbandry” or “animal research.” Id.

10

As we observed in Fessenden/Dicke, 355 Or 768 n 7, ORS 167.305(1) was

passed in 2013, before the charges in that case were brought. Likewise, the

charges in this case precede the enactment of that statute. We quote from the

statute, as we did in Fessenden/Dicke, as background relevant to an overall

understanding of the animal welfare laws and the policies that current and past

statutes reflect.

768 State v. Newcomb

at 768-69 (citing statutes; noting special legal protections

for domestic animals, “colloquially known as pets”). The

important point for this case, however, is not that Oregon

law permits “humans to treat animals in ways that humans

may not treat other humans.” Id. at 768. What matters here

is that Oregon law prohibits humans from treating animals

in ways that humans are free to treat other forms of proper-

ty.11 Oregon law also places affirmative obligations on those

who have custody of an animal to ensure that animal’s basic

welfare; those obligations have no analogue for inanimate

property.

Those observations alone are not enough to resolve

the issue before us. As an abstract proposition, we accept

that a person who owns or lawfully possesses an animal,

and who thus has full rights of dominion and control over

it, has a protected privacy interest that precludes others

from interfering with the animal in ways and under circum-

stances that exceed legal and social norms. Thus, for exam-

ple, if a dog owner walks his dog off-leash down the street,

and the friendly dog runs over to greet a passerby who pets

it, that act of petting the dog would invade no possessory

or privacy interest; a contact of that kind would fall well

within social norms and conventions, even if by petting the

dog the passerby discovers something concealed from plain

view (e.g., that under the dog’s thick fur coat, the dog is skin

and bones to the point of serious malnourishment). On the

other hand, if the passerby produces a syringe and expertly

withdraws a sample of the dog’s blood in the time that it

would take to greet and pet the dog, that contact would vio-

late the owner’s possessory and privacy interests, even if the

passerby did so for a valuable scientific study (e.g., whether

local animals were infected with an easily-transmitted

virus); such a contact would fall well outside social norms

and conventions. As those examples suggest, determining

the existence of a constitutionally protected privacy right

in property depends not only on the nature of the property

itself, but also on the nature of the governmental intrusion

11

A person can be as cruel or abusive as she wants to her own stereo or folder,

and can neglect the maintenance of a car to the point where it will not operate,

without legal consequence. The same is not true of an animal that a person owns

or has custody of or control over.

Cite as 359 Or 756 (2016) 769

and the circumstances in which it occurred. We must con-

sider those, too, in resolving the issue before us.

Here, when Dr. Hedge tested Juno’s blood, defen-

dant had lost her rights of dominion and control over Juno,

at least on a temporary basis. Juno at that point had been

lawfully seized and taken into custody based on probable

cause to believe that he had been criminally neglected. The

specific neglect that the officer believed Juno to have suffered

was that Juno was starving. Juno’s physical appearance

and behavior provided the officer with significant support

for his belief—Juno was near-emaciated, was dry-heaving,

and was “eating at random things” in the yard. The officer

had, as well, a citizen report of neglect and defendant’s own

admission that she had no food for the dog. The officer, who

believed Juno needed medical treatment, asked defendant

for her consent to take Juno into custody for medical eval-

uation, but defendant refused. When the officer then seized

Juno over defendant’s protest, both to preserve evidence and

to render aid to the dog, Juno was lawfully taken into the

state’s protective custody. See Fessenden/Dicke, 355 Or at

773 (animal entitled to “statutory protection” through sei-

zure without warrant if officer has probable cause to believe

animal has been criminally neglected, neglect is ongoing,

and seizure is necessary to prevent further serious immi-

nent harm to animal).

Juno was not beyond danger simply because he

had been removed for the time from defendant’s dominion

and control, however. Juno’s condition appeared serious and

required medical attention. To ensure appropriate medical

care for Juno, Dr. Hedge drew and tested Juno’s blood to

determine whether he was suffering from some other medi-

cal condition that might cause his malnourishment.12 When

12

After having noted that the officer seized Juno both to render aid and to

preserve evidence, the Court of Appeals expressed uncertainty about Dr. Hedge’s

motivations for performing the later medical tests—whether they, too, were per-

formed for the “dual purpose” to gather evidence and give medical treatment to

Juno. Newcomb, 262 Or App at 264 (discussing seizure), 266, n 7 (discussing

testing).

We agree that the suppression record could be better-developed on the point.

But there was no dispute that the tests were run by Dr. Hedge for purposes of

medical diagnosis, even if the officer anticipated that the test results could have

potential evidentiary value, depending on what they showed. Indeed, defendant

770 State v. Newcomb

the blood tests failed to reveal any other medical condition

that would have caused Juno to be seriously emaciated,

Dr. Hedge put Juno on a special feeding protocol.

Given the specific context involved here—the lawful

seizure of a dog based on probable cause to believe the dog

was suffering from malnourishment, followed by drawing

and testing the dog’s blood to medically diagnose and treat

the dog—we conclude that defendant had no protected pri-

vacy interest in Juno’s blood that was invaded by the medi-

cal procedures performed. In these circumstances, we agree

with the state that Juno is not analogous to, and should not

be analyzed as though he were, an opaque inanimate con-

tainer in which inanimate property or effects were being

stored or concealed. Juno’s “contents”—in terms of what was

of interest to Dr. Hedge—were the stuff that dogs and other

living mammals are made of: organs, bones, nerves, other

tissues, and blood. As the prosecutor argued at trial, inside

Juno was just “more dog.”13 The fact that Juno had blood

acknowledged in her memorandum in support of the motion to suppress that the

officer had advised defendant that he was taking the dog into custody “to receive

veterinary care” and that Dr. Hedge then performed a “battery of laboratory

tests” on Juno, after which she placed Juno on a feeding protocol. It was in that

context that defendant and the state advised the court that they had no factual

disputes about the testing, and they “stipulated” to the results of the medical

tests that Dr. Hedge performed to spare her from appearing at the suppression

hearing. See 359 Or at ___, n 4.

A medical professional who examines a victim of criminal abuse for purposes

of diagnosis and treatment—whether the victim is human or animal—no doubt

realizes that the results may have evidentiary value if a criminal prosecution

ensues. But that reality does not alter the medically appropriate nature of the

testing. Our obligation is to view the facts in the light most favorable to the trial

court’s denial of defendant’s motion. Here, the trial court, in denying the motion

to suppress, at least implicitly found that Dr. Hedge performed the tests for med-

ical reasons by analogizing this case in its ruling to one in which an abused

child taken into custody is medically examined for purposes of diagnosis and

treatment.

13

At least, that was true in this case. It might not be true under different

facts. Dogs and other animals at least can be used as repositories of information

and inanimate effects, and can have more inside them than just “more dog.” Many

animals—and dogs in particular—for example are repositories for information

through the use of “microchip” technology that permits a scanner, from outside

the dog, to retrieve information encoded on the microchip. See generally Microchip

implant (animal) at https://en.wikipedia.org/wiki/Microchip_implant_(animal)

(accessed May 30, 2016) (describing use of microchips placed under skin of farm

and ranch animals, as well as domestic pets, as common means of identification).

It is at least doubtful that a dog’s owner would have a cognizable privacy

interest in the information planted in a dog for the specific purpose of being able

Cite as 359 Or 756 (2016) 771

inside was a given; he could not be a living and breathing

dog otherwise. And the chemical composition of Juno’s blood

was a product of physiological processes that go on inside of

Juno, not “information” that defendant placed in Juno for

safekeeping or to conceal from view.14

That fact has significance in the context of the legal

and social norms for the care and welfare of animals that

we have already discussed. A dog is personal property under

Oregon law, a status that gives a dog owner rights of domin-

ion and control over the dog. But Oregon law simultaneously

limits ownership and possessory rights in ways that it does

not for inanimate property. Those limitations, too, are reflec-

tions of legal and social norms. 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

her privacy, to countermand that obligation. That conclusion

follows with equal or greater force when, as here, the dog is

in the state’s lawful protective custody on probable cause

that the dog is suffering injury as a result of neglect, at

which point the owner has lost her property rights of domin-

ion and control over the dog. An examinations of the dog’s

physical health and condition in that circumstance, pursu-

ant to a medical judgment of what is appropriate for diag-

nosis and treatment, is not a form of governmental scrutiny

to externally identify the dog. On the other hand, hypothetically, if what was

planted “inside” the dog was a microchip containing stolen secret government

data, the owner’s or possessor’s protected privacy interest, even if the dog had

been lawfully seized on probable cause to believe it contained the stolen data,

might be the same as in an opaque inanimate container. In short, whatever the

answer to the question whether the owner has a protected privacy interest in an

object planted inside a dog, the dog is at least more analogous to an inanimate

container in such a circumstance.

14

To be sure, Dr. Hedge had to extract Juno’s blood to test it; she could not

determine the chemical state of Juno’s blood through some non-invasive proce-

dure. As Groucho Marx famously quipped:

“Outside of a dog, a book is man’s best friend. Inside of a dog, it’s too dark to

read.”

But what Dr. Hedge withdrew here was “more dog,” not a separate item of prop-

erty that defendant had placed inside Juno to either safeguard or conceal from

public view in the same way that property nested within other property involves.

That fact, although not necessarily dispositive, properly bears on the analysis.

772 State v. Newcomb

that, under legal and social norms and conventions, invades

a dog owner’s protected privacy rights under Article I, sec-

tion 9.15

That conclusion resolves this case for purposes of

Article I, section 9. We emphasize, however, that our deci-

sion is limited to the circumstances that this case presents.

As we said in Fessenden/Dicke, 355 Or at 769-70:

“As we continue to learn more about 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 mir-

ror to the past or a telescope to the future to recognize that

the legal status of animals has changed and is changing

still[.]”

Assessing an animal owner’s constitutionally protected

interests of possession and privacy in his or her animal in

that evolving landscape of social and behavioral norms pres-

ents, at best, “difficult questions,” and we are well-advised in

that context “to observe the wise limitations on our function

15

In her briefing in the Court of Appeals, defendant cited ORS 167.345(2),

which authorizes police officers to, among other things, “impound” an animal if

there is probable cause to believe the animal is a victim of any of several crimes,

including animal neglect. After the animal has been impounded, a court “may

order” the animal to be held at any animal care facility; that facility, in turn,

“shall provide adequate food and water” to the animal and “may provide veter-

inary care.” ORS 167.345(4)(a). Defendant did not make a developed argument

under the statute, but did point out that there is no record in this case of a court

order authorizing Juno to be “impounded,” suggesting that the veterinary care

given to Juno may have been without lawful authority.

It is less than certain whether and how that statute applies to individuals

like Special Agent Wallace who, although certified as police officers, are employed

by and serve the special mission of a private, nonprofit animal care agency that

investigates complaints of animal abuse and has authority to issue citations for

violations of animal welfare laws. See 359 Or at ___, n ___ (discussing statutory

authority of such agents). It is also less than clear that, without a court order,

an animal care facility would be relieved of the obligation to provide minimally

adequate care to an animal in its custody. The animal neglect statutes that we

have discussed effectively impose that obligation, regardless of a court order or

other basis for an animal to be in the custody and control of someone other than

the owner. On review to this court, defendant does not rely on that statute and

we need not explore the implications of it. Worth pointing out, however, is that

the lack of a court order, even if required by ORS 167.345(2), would not be a basis

to suppress the results of Juno’s blood tests. See ORS 136.432 (courts may not

exclude relevant evidence “obtained in violation of any statutory provision unless

exclusion of the evidence is required by” federal or state constitutions or other

rules governing admissibility of evidence).

Cite as 359 Or 756 (2016) 773

and to confine ourselves to deciding only what is necessary

to the disposition of the immediate case.” Id. at 770-71 (quot-

ing Whitehouse v. Illinois Cent. R. Co., 349 US 366, 372-73,

75 S Ct 845, 99 L Ed 1155 (1955)).

Consequently, our holding is confined to circum-

stances in which the state has lawfully seized a dog or other

animal on probable cause to believe the animal has been

neglected or otherwise abused. It is also confined to the gen-

eral kind of intrusion that occurred in this case—a medi-

cally appropriate procedure for diagnosis and treatment of

an animal in ill-health. In those particular circumstances,

we conclude that the warrantless withdrawal and testing of

Juno’s blood did not violate Article I, section 9.

B.  The Fourth Amendment

The remaining question before us is whether the

analysis under the Fourth Amendment requires a different

result. Although worded somewhat differently, the guar-

antee of the Fourth Amendment parallels that of Article I,

section 9. The Fourth Amendment protects “[t]he right of

the people to be secure in their persons, houses, papers, and

effects, against unreasonable searches and seizures[.]” As

is true of Article I, section 9, a “seizure” under the Fourth

Amendment occurs when there is “some meaningful inter-

ference with an individual’s possessory interest” in property.

United States v. Jacobsen, 466 US 109, 113, 104 S Ct 1652,

80 L Ed 2d 85 (1984) (citations omitted). And a “search” for

purposes of the Fourth Amendment occurs when an indi-

vidual’s protected privacy interest is infringed. Id. (citations

omitted).

The test under the Fourth Amendment to determine

if a particular governmental action invades a protected pri-

vacy interest differs, at least in how it is articulated, from

the test under Article I, section 9. Rather than turn on an

individual’s “right” of privacy, the Fourth Amendment test

has both a subjective and an objective component, and thus

involves “two discrete questions.” United States v. Knotts,

460 US 276, 280-81, 103 S Ct 1081, 75 L Ed 2d 55 (1983)

(quoting Smith v. Maryland, 442 US 735, 99 S Ct 2577, 61 L

Ed 2d 220 (1979)), rule further clarified in U.S. v. Jones, ___

774 State v. Newcomb

US ___, 132 S Ct 945, 951-52, 181 L Ed 2d 911 (2012). The

first is whether an individual has manifested an expecta-

tion to preserve something as private; the second is whether

that subjective expectation of privacy is one “that society

is prepared to recognize as reasonable.” Knotts, 460 US at

281 (internal quotations omitted) (citing cases). In applica-

tion, however, the Fourth Amendment privacy test takes

into account the same and similar considerations as the test

under Article I, section 9, and the two tests often lead to the

same result in like circumstances.16

Understandably, then, the parties’ Fourth

Amendment arguments closely track the arguments they

make under Article I, section 9. Ultimately, the issue under

the Fourth Amendment reduces to the same question as

under Article I, section 9: Whether defendant had a pro-

tected privacy interest in the withdrawal and testing of her

dog’s blood for purposes of medical treatment after the dog

had been lawfully taken into custody on probable cause to

believe that he had been criminally neglected.17 To date, the

16

Compare, e.g., Arkansas v. Sanders, 442 US 753, 764 n 13, 99 S Ct 2586, 61

L Ed 2d 235 (1979), abrogated on other grounds by California v. Acevedo, 500 US

565, 579, 111 S Ct 1982, 114 L Ed 2d 619 (1991) (not all containers and property

deserve full protection of Fourth Amendment; no protected privacy interest in

container when its outward appearance reveals contents) with Owens, 302 Or

at 206 (same under Article I, section 9); Jacobsen, 466 US at 125 (removal and

testing of white powder from lawfully seized clear vial to confirm probable cause

belief that substance was cocaine was not a significant invasion of protected prop-

erty interest under Fourth Amendment) with Owens, 302 Or at 206 (same under

Article I, section 9); Texas v. Brown, 460 US 730, 740, 103 S Ct 1535, 75 L Ed 2d

502 (1983), abrogated on other grounds by Horton v. California, 496 US 128, 110 S

Ct 2301, 110 L Ed 2d 112 (1990) (no legitimate expectation of privacy in interior

of automobile that may be viewed from outside, even when officer used flashlight

to illuminate interior and specially positioned himself to see inside) with Wacker,

317 Or at 427 (no protected privacy interest in activity inside car parked at night

in lighted parking lot where activity could be viewed by public passing by, even

though police observations were made from second floor of adjacent tavern using

night vision scope that magnified view and improved night vision).

17

Defendant also presses an argument under the Fourth Amendment that

the the blood tests were a search because they required a physical intrusion into

her property and thus violated her possessory interest in her dog. The cases that

defendant relies on, however, involved physical invasions of property that the gov-

ernment had not lawfully seized. Florida v. Jardines, ___ US ___, 133 S Ct 1409,

185 L Ed 2d 495 (2013) (use of drug-sniffing dog on front porch of private home

exceeded implicit invitation to approach home, and therefore amounted to tres-

passory invasion of curtilage that violated Fourth Amendment); Jones, ___ US

___, 132 S Ct 945, 951-53 (covert placement of GPS tracking device on automobile

to track vehicle’s movements physically trespassed on defendant’s property and

Cite as 359 Or 756 (2016) 775

Supreme Court has not had a case requiring it to examine

an individual’s privacy interests in a dog or other animal,

either generally or in circumstances in which the animal is

in the government’s lawful custody. But the Court’s cases

suggest that the analysis under the Fourth Amendment

would not differ in a significant way from the analysis we

have made under Article I, section 9.

In particular, the different nature of that prop-

erty that this case involves—a living animal, one that is

not ordinarily and was not here used as a repository into

which other property was placed—would have bearing

on the Fourth Amendment analysis. See, e.g., Robbins v.

California, 453 US 420, 426, 101 S Ct 2841, 69 L Ed 2d 744

(1981) (placement of property into closed, opaque container

manifests “an expectation that the contents would remain

free from public examination”); Arkansas v. Sanders, 442

US 753, 761, 99 S Ct 2586, 61 L Ed 2d 235 (1979) (automo-

biles are distinct from closed containers, not only because of

their mobility, but also because their use, configuration, and

regulation differentiate them for purposes of privacy expec-

tations).18 The same is true of the nature and circumstances

of the government intrusion that we have discussed—those,

too, would be factors in the Fourth Amendment analysis.

therefore violated Fourth Amendment protection from unreasonable searches).

As earlier noted, the lawfulness of Juno’s seizure is not an issue at this juncture.

Defendant’s remaining Fourth Amendment argument proceeds on the assump-

tion that Juno was lawfully seized, which is the posture of the issue before us.

For that argument, defendant’s position is the same as under Article I, section

9: She analogizes Juno to a closed container in which, because its contents were

concealed from view, she had a protected privacy interest that was violated when

Dr. Hedge drew Juno’s blood and tested it without a warrant.

18

In two later cases, California v. Acevedo, 500 US 565, 111 S Ct 1982, 114 L

Ed 2d 619 (1991) and United States v. Ross, 456 US 798, 102 S Ct 2157, 72 L Ed

2d 572 (1982), the Court reached dispositions that differed from those in Robbins

and Sanders. In Robbins and Sanders, the Court determined that the fact that

a closed opaque container was seized from a mobile automobile did not alter an

individual’s reasonable expectation of privacy in the closed container, and a war-

rant was required to intrude into such a container, despite its lawful seizure.

Robbins, 453 US at 428-29; Sanders, 442 US at 766. In Ross, 456 US at 824, and

Acevedo, 500 US at 580, the Court concluded that the automobile exception to the

warrant requirement extends to compartments and closed containers within a

lawfully stopped automobile when police have probable cause to believe that they

have contraband or evidence inside. Although those cases disapproved of aspects

of the reasoning and the dispositions in Robbins and Sanders, the propositions for

which we cite Robbins and Sanders were not disturbed by those later decisions.

776 State v. Newcomb

See Vernonia School Dist. 47J v. Acton, 515 US 646, 654, 115

S Ct 2386, 132 L Ed 2d 564 (1995) (“What expectations [of

privacy] are legitimate varies, of course, with context[.]”);

cf. Maryland v. King, ___ US ___, 133 S Ct 1958, 1978-79,

186 L Ed 2d 1 (2013) (lawfully arrested individuals have

lessened legitimate expectations of privacy, even in own

DNA). And the laws and social norms of behavior that we

have discussed as they pertain to animal welfare generally,

and minimum care in particular, are significant under the

Fourth Amendment analysis in determining what expec-

tations of privacy society will recognize as legitimate. See

Vernonia, 515 US at 654-56 (examining laws and social con-

ventions pertaining to minors in public schools to determine

“legitimacy” of subjective privacy expectations of students in

public school setting).

In short, the guidance available to us from current

Fourth Amendment jurisprudence leads us to the same fac-

tors that we have considered in analyzing the issue under

Article I, section 9. No purpose would be served by repeating

ourselves. For the reasons we have discussed in our analy-

sis under Article I, section 9, we conclude under the Fourth

Amendment that defendant had no protected privacy that

was violated by the withdrawal and testing of Juno’s blood

without a warrant.

The decision of the Court of Appeals is reversed.

The judgment of the circuit court is affirmed.