COMMONWEALTH OF MASSACHUSETTS SUPREME JUDICIAL COURT

Essex, ss. No. SJC-11373

COMMONWEALTH

Appellant,

vs.

HEATHER M. DUNCAN

Appellee

__________________

ON DIRECT APPELLATE REVIEW OF A REPORTED QUESTION FROM THE LYNN DISTRICT COURT

___________________

BRIEF OF AMICI CURIAE ANIMAL LEGAL DEFENSE FUND & ANIMAL RESCUE LEAGUE OF BOSTON

___________________

Virginia F. Coleman (BBO#xxxxxx)

Ropes & Gray LLP Prudential Tower 800 Boylston Street Boston, Massachusetts 02199-3600 (617)951-7000 virginia.coleman@ropesgray.com

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TABLE OF CONTENTS

Page

STATEMENT OF INTEREST.................................1

ISSUE PRESENTED, STATEMENT OF THE CASE, AND STATEMENT OF THE FACTS...........................3

SUMMARY OF THE ARGUMENT...............................3

ARGUMENT..............................................4

I. MASSACHUSETTS HAS A LONGSTANDING, COMPREHENSIVE PUBLIC POLICY OF PROTECTION OF ANIMALS AGAINST CRUELTY AND NEGLECT WHICH MANDATES APPLICATION OF THE EMERGENCY EXCEPTION TO ANIMALS.............................4

II. CASE LAW IN OTHER STATES HAS UNIFORMLY UPHELD THE APPLICATION OF THE EMERGENCY EXCEPTION TO ANIMALS............................16

III. APPLICATION OF THE EMERGENCY EXCEPTION TO ANIMALS IS CONSISTENT WITH AND WILL IN NO WAY ERODE FOURTH AMENDMENT PROTECTIONS AGAINST WARRANTLESS SEARCH AND SEIZURE..........22

A. Potential Considerations in Cases Involving the Application of the Emergency Exception to Animals................................ 22

IV. IN THE INSTANT CASE AN EMERGENCY WAS PRESENTED WHICH JUSTIFIED THE IMMEDIATE ENTRY BY THE OFFICERS TO THE DEFENDANT’S PROPERTY TO TRY TO SAVE THE LIFE OF THE SOLE SURVIVING DOG...................................30

A. Case Law Involving Similar Facts Supports the Officers’ Actions in the Instant Case .. .......................................... 32

CONCLUSION...........................................38

CERTIFICATION OF COMPLIANCE WITH MASS. R.A.P. 16(k)...........................................39

ADDENDUM TABLE OF CONTENTS...........................40

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TABLE OF AUTHORITIES

Page(s) CASES

Brigham City v. Stuart, 547 U.S. 398 (2006) .................................4, 11

Brinkley v. Cnty. of Flagler, 769 So.2d 468 (Fla. Dist. Ct. App. 2000) ...............17

Broden v. Marin Humane Soc’y, 83 Cal. Rptr. 2d 235 (Cal. Ct. App. 1999) ..............11

Cady v. Dombrowski, 413 U.S. 433 (1973) ....................................23

Commonwealth v. Bates, 28 Mass. App. Ct. 217 (1990) ............................4

Commonwealth v. Entwistle, 463 Mass. 205 (2012) ....................................4

Commonwealth v. Erickson, 74 Mass. App. Ct. 172 (2009) ...........................15

Commonwealth v. Hurd, 51 Mass. App. Ct. 12 (2001).........15

Commonwealth v. Ortiz, 435 Mass. 569 (2002) ...................................11

Commonwealth v. Snell, 428 Mass. 766 (1999) ....................................4

Commonwealth v. Turner, 145 Mass. 296 (1887) ....................................5

Davis v. State, 907 N.E.2d 1043 (Ind. Ct. App. 2009) ...................13

DiCesare v. Stout, No. 92-7116, 1993 WL 137110 (10th Cir. Apr. 23, 1993) ..................................................18

Hegarty v. Addison Cnty. Humane Soc’y, 848 A.2d 1139 (Vt. 2004) ...............................16

Knox v. MSPCA, 12 Mass. App. Ct. 407 (1981) ............................5

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Mincey v. Arizona, 437 U.S. 385 (1978) .....................................4

Morgan v. State, 645 S.E.2d 745 (Ga. Ct. App. 2007) .........17, 33, 34, 36

Morgan v. State, 656 S.E.2d 857 (Ga. Ct. App. 2008) .....................17

People v. Chung, 110 Cal. Rptr. 3d. 253, 258 n.8 (Cal. Ct. App. 2010), rev. denied, 250 P.3d 179 (Cal. 2011) ......................................14,15,19

People v. Rogers, 708 N.Y.S.2d 795 (N.Y. App. Div. 2000) .............13, 20

People v. Thornton, 676 N.E.2d 1024 (Ill. App. Ct. 1997) ...................17

Pine v. State, 889 S.W.2d 625 (Tex. Ct. App. 1994), cert. denied, 516 U.S. 914 (1995) ............................18

Scott v. United States, 436 U.S. 128 (1978) .....................................4

Siebert v. Severino, 256 F.3d 648 (7th Cir. 2001) ...........................18

State v. Bauer, 379 N.W.2d 895 (Wisc. Ct. App. 1985), rev. denied, 388 N.W.2d 185 (Wis. 1986) .................13, 19

State v. Berry, 92 S.W.3d 823 (Mo. Ct. App. 2003) ......................17

State v. Betts, No. PD-1221-12, 2013 WL 1628963 (Tex. Crim. App. Apr. 17, 2013) ....................................33

State v. Black, No. 87-0103-CR, 1987 WL 267615 (Wisc. Ct. App. July 1, 1987) ..........................................19

State v. Grillo, No. 90-2109-CR, 1991 WL 100378 (Wisc. Ct. App. Apr. 16, 1991) .........................................19

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State v. Kilburn, No. CA96-12-130, 1998 WL 142412 (Ohio Ct. App. Mar. 30, 1998) .........................................17

State v. Nix, 283 P.3d 442 (Or. Ct. App. 2012), rev. granted, 353 Or. 410 (2013) ......................................6

State v. Stone, 92 P.3d 1178 (Mont. 2004) ..........................passim

Suss v. ASPCA, 823 F.Supp. 181 (S.D.N.Y. 1993) ....................passim

Tuck v. United States, 477 A.2d 1115 (D.C. 1984) ..........................12, 13

STATUTES AND ACTS

42 U.S.C. § 1983......................................22, 24

Cal. Penal Code § 597.1...................................12

D.C. Code § 22-801........................................13

G.L. c. 10, § 35WW.........................................9

G.L. c. 112, § 58B.........................................8

G.L. c. 131, § 80A.........................................8

G.L. c. 140, § 157-59......................................9

G.L. c. 140, § 174A........................................9

G.L. c. 140, §§ 174E.......................................9

G.L. c. 209A, § 11.........................................9

G.L. c. 266, § 47..........................................7

G.L. c. 272, § 77.....................................passim

G.L. c. 272 § 77A..........................................7

G.L. c. 272 § 77B..........................................7

G.L. c. 272 § 78...........................................7

G.L. c. 272 § 78A..........................................7

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G.L. c. 272 § 79A..........................................7

G.L. c. 272 § 79B..........................................7

G.L. c. 272 § 80A..........................................7

G.L. c. 272 § 80B..........................................7

G.L. c. 272 § 80C..........................................7

G.L. c. 272 § 80D..........................................7

G.L. c. 272, § 80F......................................5, 7

G.L. c. 272 § 85A.......................................7, 8

G.L. c. 272 § 85B..........................................8

G.L. c. 272 §§ 86-86F......................................7

G.L. c. 272 § 87...........................................8

G.L. c. 272 § 94...........................................8

G.L. c. 272 § 95...........................................8

G.L. c. 272 § 80I..........................................7

G.L. c. 272 § 801/2........................................7

G.L. c. 272, § 104.........................................8

Mont. Code Ann. § 45-8-211................................11

“An Act for the More Effectual Prevention of Cruelty to Animals,” 1868 Mass. Acts c. 212 .............5

1930 Mass. Acts c. 428.....................................8

1996 Mass. Acts c. 453.....................................8

2006 Mass. Acts c. 434, § 1................................7

“An Act Further Regulating Animal Control,” 2012 Mass. Acts c. 193 .......................................8

2012 Mass. Acts, c. 193, §1.............................7, 9

2012 Mass. Acts c. 193, § 32...............................9

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2012 Mass. Acts c. 193, § 45...............................9

2012 Mass. Acts c. 193, § 48...............................9

2012 Mass. Acts c. 193, § 50...............................9

OTHER AUTHORITIES

2012 U.S. Animal Protection Laws Rankings, Animal Legal Defense Fund (Dec. 17, 2012), http://aldf.org/article.php?id=2269 ....................10

2012 Humane State Rankings, Humane Society of the United States (Jan. 15, 2013), http://hsus.typepad.com/wayne/2013/01/humane-state-ranking-animal-welfare.html ......................10

Ballot Question 3, Office of the Secretary of the Commonwealth, Return of Votes, Nov. 4, 2008, www.sec.state.ma.us/ele/elepdf/2008%20Return%20of%20Votes%20Complete.pdf ...............................8

J.W. Grasso, Jr. & C.W. McEvoy, Suppression Matters under Massachusetts Law, § 14-1[c][3], 14-13 (2011-12 ed.) .................................4, 11

Joseph D. Eisenstadt, The Law of Humanity: Tracing the History of Animal Welfare Law in Massachusetts, and Anticipating the Next Step, 94 Mass. L. Rev. 184, 185 (2010), http://www.massbar.org/media/738569/mlr%20v92%20n4.pdf .................................................5

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STATEMENT OF INTEREST

Founded in 1979, the Animal Legal Defense Fund

(“ALDF”) is a national nonprofit organization of

attorneys specializing in the protection of animals

and working to ensure the enforcement of animal

protection laws throughout the United States. Toward

this end the ALDF’s Criminal Justice Program provides

free prosecution assistance in animal neglect and

cruelty cases nationwide, both independently and in

partnership with the National District Attorneys

Association and the Association of Prosecuting

Attorneys. ALDF staff attorneys work out of offices

in five states, helped by over 1,000 volunteer

attorneys nationwide who are ALDF members and who work

on a pro bono basis. Total contributing membership of

the ALDF is over 100,000.

This Court has requested amicus curiae briefs in

the instant case and has asked that they consider the

ramifications of the Court’s decision. The ALDF, with

the depth of its expertise on the entire spectrum of

Fourth Amendment issues which arise in cases of animal

cruelty and neglect, is uniquely able to respond

meaningfully to this request.

The Animal Rescue League of Boston (the “League”)

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is a non-profit Massachusetts humane society dedicated

to rescuing domesticated animals and wildlife from

suffering, cruelty, abandonment, and neglect. Founded

in 1899, the League has consistently and vigorously

advocated the philosophy of its founder, Anna Harris

Smith, that “Kindness Uplifts the World.” The

League’s animal welfare expertise and rescue personnel

are nationally respected. Further, the League’s law

enforcement department, whose officers are

commissioned by statute as special state police

officers, has been at the forefront of major animal

cruelty cases over the years with its investigations,

evidence assembly, and direct courtroom assistance to

local district attorneys with cruelty prosecutions.

On the legislative level, the League is one of the

leaders in the Commonwealth in drafting and promoting

animal welfare legislation. Accordingly, the League

has valuable expertise and experience to offer on the

issue presented by the Report of the District Court.

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ISSUE PRESENTED, STATEMENT OF THE CASE, AND STATEMENT OF THE FACTS

The amici curiae ALDF and the League adopt the

issue presented, statement of the case and statement

of facts as submitted by the Commonwealth.

SUMMARY OF THE ARGUMENT

The police officers in the instant case saw in

plain view in the defendant’s front yard two

apparently dead animals and a third emaciated and near

death on a bitterly cold evening in January. Had the

animals been human animals the officers’ warrantless

entry onto the premises to save the only survivor

would have been a textbook example of the “pure

emergency” or “emergency” exception to the requirement

of a warrant under the Fourth Amendment to the U.S.

Constitution. The question reported to this Court

arises only because the animals were non-human animals,

specifically dogs. The issue to be decided is whether

because of this difference a contrary result is

required as a matter of law.

The longstanding, strong public policy of animal

protection in the Commonwealth calls for a negative

answer to this question: that animals, like humans,

should be afforded the protection of the emergency

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exception in appropriate circumstances and subject to

the same evidentiary requirements that apply to the

emergency exception in any other context. This is the

position that has been adopted in other states which

have decided the issue, in an evolving body of case

law with virtually no contrary authority. The

establishment of such a principle in the Commonwealth

will in no way detract from or erode the strong policy

against warrantless searches and seizures embodied in

the Fourth Amendment. If the Court chooses to reach

the merits of this case in addition to answering the

reported legal question, on the facts contained in the

record an emergency existed which justified the

officers’ warrantless entry onto the defendant’s

premises and the seizure of the dogs.

ARGUMENT

I. MASSACHUSETTS HAS A LONGSTANDING, COMPREHENSIVE PUBLIC POLICY OF PROTECTION OF ANIMALS AGAINST CRUELTY AND NEGLECT WHICH MANDATES APPLICATION OF THE EMERGENCY EXCEPTION TO ANIMALS.

Since before the founding of the Republic

Massachusetts has taken the lead in the prevention of

cruelty to animals and continues to rank among the

states affording the highest level of such protections.

It would be a tragic aberration, in the face of this

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long and proud history, if this Court were not to

accord animals in the Commonwealth the protection of

the emergency exception, in essence requiring law

enforcement to let an animal suffer and perhaps die

rather than intercede without a warrant.1

In 1641 the then colony of Massachusetts Bay

enacted the first animal protection statute in the New

1 The emergency exception, at issue in this case, although often described as a “sub-genre” of the community-caretaking exception is distinct from it. J.W. Grasso, Jr. & C.W. McEvoy, Suppression Matters under Massachusetts Law, § 14-1[c][3], 14-13 (2011-12 ed.). Both exceptions stem from the role of police officers as community care-takers, but as this Court has pointed out “the exceptions have different origins and applicability.” Commonwealth v. Entwistle, 463 Mass. 205, 219 n.8 (2012). In order for the emergency exception to apply the intrusion must be in response to an immediate need to protect life or property, without regard to the existence or not of a crime, and the action taken must be objectively reasonable in light of the circumstances presented. See, e.g., Brigham City v. Stuart, 547 U.S. 398, 403 (2006); Mincey v. Arizona, 437 U.S. 385, 392 (1978); Commonwealth v. Entwistle, 463 Mass. 205, 213-214 (2012); Commonwealth v. Snell, 428 Mass. 766, 774-75 (1999); Commonwealth v. Bates, 28 Mass. App. Ct. 217, 219 (1990). In particular, the actual state of mind of the officer at the time of the entry is not relevant to the emergency exception “as long as the circumstances, viewed objectively, justify [the] action,” whereas the community care-taking exception requires a showing of a “subjective noninvestigative intent.” Brigham City, 547 U.S. at 404 (quoting Scott v. United States, 436 U.S. 128, 138 (1978)). In addition, it is established that the emergency exception applies to entry into the home or curtilage, such as occurred in this case. Entwistle, 463 Mass. at 219 n.8.

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World. Included among one hundred “Liberties” was the

following: “No man shall exercise Tyranny or Cruelty

towards any bruit Creature which are usually kept for

man’s use.” Joseph D. Eisenstadt, The Law of Humanity:

Tracing the History of Animal Welfare Law in

Massachusetts, and Anticipating the Next Step, 94 Mass.

L. Rev. 184, 185 (2010), available at

http://www.massbar.org/media/738569/mlr%20v92%20n4.pdf;

The Massachusetts Body of Liberties (1641), available

at www.winthropsociety.com/liberties.php.

The substance of the present animal anti-cruelty

statute, found at G.L. c. 272, § 77, dates back to

1868. In that year the General Court enacted “An Act

for the More Effectual Prevention of Cruelty to

Animals,” 1868 Mass. Acts c. 212, criminalizing a

number of offenses against any “animal”2 as well as

2 Massachusetts has never defined the term “animal” for purposes of its anti-cruelty statute, but there seems little doubt that the term encompasses all nonhuman creatures, in accordance with the dictionary meaning of the word. See Commonwealth v. Turner, 145 Mass. 296, 300-01 (1887) (applying the anti-cruelty statute in a case involving cruelty to a fox even though a fox was a “noxious animal”, and noting “[t]he word ‘animal’ in its common acceptation, includes all irrational beings.”); Knox v. MSPCA, 12 Mass. App. Ct. 407, 410 (1981) (holding that a goldfish was an animal for purposes of c. 272, § 80F, which bars the use of “any live animal” as a prize in a game).

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particular species, in recognizably nineteenth century

language which has largely survived; G.L. c. 272, § 77

in its current form and the 1868 statute as enacted

are both printed in full in addendum A for comparison.3

In the century and a half since, as attitudes

toward the role of animals in society and the

significance of humans’ interactions with them have

evolved, so have the protections afforded animals in

the Commonwealth. The anti-cruelty statute, G.L. c.

272, § 77, has been amended to require that an animal

be provided a “sanitary environment” as well as proper

food, drink, shelter, and protection from the weather;

to increase punishment for violations to a felony

punishable by incarceration for up to five years; to

3 The placement of § 77 in G.L. c. 272 , as a crime against “Chastity, Morality, Decency and Good Order” likewise dates back to the original anti-cruelty statute and reflects a distinctly nineteenth century view of the rationale for criminalizing cruelty or other mistreatment of animals. The subsequent history of animal related legislation described above in the text demonstrates a recognition that animal life is valuable in and of itself, that it is a proper and indeed fundamental goal of a civilized society to protect and preserve it against gratuitous harm, and that the primary victim of the crime of cruelty to animals is not society at large but the animals themselves. Accord State v. Nix, 283 P.3d 442, 449 (Or. Ct. App. 2012) (holding that each animal abused was a separate “victim” for purposes of determining the sentence of a convicted offender), rev. granted, 353 Or. 410 (2013).

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provide for forfeiture of animals of an offender, and,

just this past year, to prohibit persons convicted

under the statute from working in any capacity

involving contact with animals. 2012 Mass. Acts, c.

193, § 1; 2006 Mass. Acts c. 434, § 1 (requiring

forfeiture of animal whose treatment is the basis for

animal-cruelty conviction); 2004 Mass. Acts, c. 319, §

4 (increasing penalties for violation of anti-cruelty

statute). In addition, the General Court has enacted

upwards of twenty other statutes proscribing specific

conduct toward particular animals in particular

circumstances,4 as well as procedural protections:

4 A listing of these would include the following, all of which appear in G.L. c. 272 except as otherwise noted: § 77A (prohibiting willful injury to a police dog or horse); § 77B (prohibiting exhibition of wild animals for attracting trade or amusement); § 78 (prohibiting sale of disabled horse); § 78A (prohibiting sale of foal under five months old without its dam); § 79A (prohibiting docking the tail of a horse); § 79B (prohibiting exhibition of horse with a docked tail); § 801/2 (prohibiting unlicensed surgical devocalization of a dog or cat); § 80A (prohibiting ear cropping of a dog except by a veterinarian); § 80B (prohibiting exhibition of dog with ears cropped except as certified necessary by a veterinarian); § 80C (prohibiting taking of cat, dog or bird for exhibit, experimentation or mutilation without consent of owner); § 80D (prohibiting sale of baby birds under two months old or animals which have been dyed); § 80F (prohibiting use of live animal as a prize); § 80I (prohibiting rental of dogs); § 85A and G.L. c. 266, § 47 (prohibiting removing collar from licensed and collared dog); §§ 86-86F (imposing

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veterinarians who report suspected animal cruelty or

abuse are shielded from criminal or civil liability,

and seized animals of suspected offenders are afforded

an immediate, pre-conviction safe harbor. G.L. c. 112,

§ 58B; G.L. c. 272, § 104. Citizens of the

Commonwealth have weighed in with ballot initiatives,

prohibiting traps causing suffering to wild animals

and putting an end to greyhound racing. See 1930 Mass.

Acts c. 428 and 1996 Mass. Acts c. 453, codified at

G.L. c. 131, § 80A; Ballot Question 3, Office of the

Secretary of the Commonwealth, Return of Votes, Nov. 4,

2008, at 50-51, available at

www.sec.state.ma.us/ele/elepdf/2008%20Return%20of%20Vo

tes%20Complete.pdf.

Just this past year the General Court passed “An

Act Further Regulating Animal Control,” 2012 Mass.

Acts c. 193, a particularly significant, wide-ranging

statute designed to improve the lot of domestic

requirements on the stabling of horses and penalties for violation); § 87 (prohibiting keeping birds to be shot at); § 94 (prohibiting possession of bird, dog or other animal for fighting); § 95 (prohibiting presence at an animal fight). In addition, § 85A provides a civil remedy in tort for killing, maiming or stealing a pet, and § 85B permits economic and “non-economic” damages to be recovered against one who steals or attacks a service animal of a physically impaired individual.

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animals in a variety of ways. In addition to amending

the animal-cruelty statute to prohibit offenders from

any work with animals, as noted above, this statute

contains the following provisions:

Establishment of a Homeless Animal Prevention and Care Fund, to be funded by voluntary contributions by citizens and used to offset costs of neutering and vaccinating homeless dogs and cats or those owned by low income persons, and to pay for training of animal control officers. G.L. c. 10, § 35WW, as added by 2012 Mass. Acts c. 193, § 1.

Prohibition of breed-specific ordinances and replacement with a breed-neutral process for identifying and controlling dangerous dogs. G.L. c. 140, §§ 157-59, as amended by 2012 Mass. Acts c. 193, § 32.

Limitation on means of euthanizing unadoptable dogs and cats. G.L. c. 140, § 174A, as amended by 2012 Mass. Acts c. 193, § 45.

Detailed restrictions on the duration and conditions under which a dog may be restrained out of doors. G.L. c. 140, § 174E, as added by 2012 Mass. Acts c. 193, § 48.

Authorization for judges in domestic abuse, child custody or domestic relations matters to include pets in the household in protective and restraining orders. G.L. c. 209A, § 11, as added by 2012 Mass. Acts c. 193, § 50.

The comprehensive scheme of animal protections in

the Commonwealth, considered in its entirety, has

earned Massachusetts a ranking in the top tier of

states by the Animal Legal Defense Fund in its 2012

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U.S. Animal Protection Laws Rankings, and a number two

ranking by the Humane Society of the United States,

the nation’s largest animal protection organization,

in its 2012 Humane State Ranking. See 2012 U.S.

Animal Protection Laws Rankings, Animal Legal Defense

Fund (Dec. 17, 2012),

http://aldf.org/article.php?id=2269; 2012 Humane State

Rankings, Human Society of the United States (Jan. 15,

2013), http://hsus.typepad.com/wayne/2013/01/humane-

state-ranking-animal-welfare.html.

It follows from this strong public policy of

animal protection that the ambit of the emergency

exception must encompass animals as well as humans.

This logic has been persuasive to courts in a number

of other states considering this issue as a matter of

first impression, including California, the District

of Columbia, Indiana, Montana, New York, and Wisconsin.

See State v. Stone, 92 P.3d 1178, 1183-84 (Mont. 2004)

(dead and dying rabbits in cages on defendant’s fenced

property – “As evidenced by the various states’

statutory language quoted above, the District of

Columbia, Wisconsin, Illinois, Texas, and Montana have

all enacted laws, evidencing a strong public policy of

preventing mistreatment and cruelty to animals . . .

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Montana’s public policy is the same and is exemplified

through the legislative history of [the Montana animal

cruelty statute, attached as addendum B], and the

legislature’s adoption of increasingly strong

protections for animals against the cruelty and

mistreatment of those who would abuse them.”);5 Broden

5 In Stone, the Montana Supreme Court applied not the “pure emergency” exception, which is referenced in the question reported to this Court, but rather the “probable cause and exigent circumstances” exception, in which there is probable cause to believe a criminal offense has occurred and exigent circumstances require immediate action. 92 P.3d at 1184. The pure emergency exception, unlike the probable cause and exigent circumstances exception, requires that the officer in question have acted solely to save life or property and not in any investigative or law enforcement capacity. See Brigham City v. Stuart, 547 U.S. at 403 (2006); Grasso & McEvoy, supra note 1, at § 14-1[c][3], 14-13. Despite this distinction, this Court has recognized that both exceptions can apply in the same situation. See generally Commonwealth v. Ortiz, 435 Mass. 569 (2002). This will almost always be the case where the life in peril is that of a domestic animal, and it is certainly the case here. See Findings of Fact and Report of Question of Law to the Appeals Court of District Judge Ellen Flatley at 9-10, n.6 (Aug. 28, 2012) (specifically finding that the police had probable cause to believe a crime had occurred), attached as addendum C. The reason is simply that it is immediately apparent in these situations that the animal’s plight is the result of human conduct which is probably a violation of the applicable state anti-cruelty statute. Thus, although the officer intervenes solely to save the animal, inherent in the situation is probable cause that a criminal offense has occurred. We have found no distinction in the animal context between what constitutes exigent circumstances for purposes of the probable cause and exigent circumstances exception and

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v. Marin Humane Soc’y, 83 Cal. Rptr. 2d 235, 237, 240

(Cal. Ct. App. 1999)(entry into closed exotic reptile

shop where two snakes were dead and the stench was

“horrific” – “There is no question that law

enforcement officers may make warrantless entry of a

building when there are reasonable grounds for

believing that persons inside are in need of immediate

aid. Section 597.1 [California’s anti-cruelty statute,

attached as addendum D] clearly contemplates that

animals shall receive a similar solicitude.”)

(internal citation omitted); Tuck v. United States,

477 A.2d 1115, 1120 (D.C. 1984) (rabbit suffering heat

stroke in display window of pet store – “Although the

exigency in the present case involved the protection

of animal life rather than human life, we believe that

the ‘public interest’ in the preservation of life in

general and in the prevention of cruelty to animals in

particular (see [D.C. anti-cruelty statute, attached

as addendum E]) ‘require[s] some flexibility in the

application of the general rule that a valid warrant

is a prerequisite for a search.’ Indeed, given the

inherent delay in obtaining a warrant, procurement of

what constitutes an emergency for purposes of the pure emergency exception.

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one under the ‘exigent circumstances’ of this case

would most likely have frustrated the effective

fulfillment of those public interests.”) (internal

citation omitted);6 Davis v. State, 907 N.E.2d 1043,

1050 (Ind. Ct. App. 2009) (thirteen emaciated dogs on

defendant’s property, living in filth –

“[C]ircumstances of animal cruelty may create exigent

circumstances to permit a warrantless search of the

curtilage. Similar to those states that have

determined the threat to animal life to be a basis for

exigent circumstances, Indiana’s animal cruelty

statute evidences a strong public policy against the

mistreatment of animals.”); People v. Rogers, 708

N.Y.S.2d 795, 797 (N.Y. App. Div. 2000) (entry into

closed pet store with dead animals observable from the

front – “To [sustain the motion to suppress] would

undermine this state’s efforts in regulating the

welfare of animals.”); State v. Bauer, 379 N.W.2d 895,

899 (Wisc. Ct. App. 1985), rev. denied, 388 N.W.2d 185

(Wis. 1986) (one horse dead in plain view and others

6 We note that the language of the D.C. anti-cruelty statute at the time, as quoted by the court in Tuck, was substantially identical to language also found in the Massachusetts anti-cruelty statute. Compare D.C. Code § 22-801(1981), attached as addendum E, with G.L. c. 272, § 77.

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found starving in paddock and barn area - “[A]

compelling need was demonstrated in this case. This

need was to stop the ongoing suffering of the animals.

The exigent standard test applies to situations

involving mistreatment of animals. Cruelty to animals

is a statutory offense. It is therefore state policy

to render aid to relatively vulnerable and helpless

animals when faced with people willing or even anxious

to mistreat them.”).

A fortiori this same logic should apply here in

the Commonwealth.

It bears mentioning as well that the animal

involved in this case is a dog. The emergency

exception has been applied to a wide range of animals,

and this is as it should be. However, dogs do have a

special relationship to humans, not just as beloved

pets but as providers of essential services for humans

which dogs are uniquely able to perform. As the

California Appeals Court noted in People v. Chung, in

which entry was made into a home where a dog was being

abused:

Dogs have become increasingly integrated into peoples’ lives. In addition to serving as companion animals, dogs function as service animals to assist people with disabilities, they work in animal assisted-

16 34805334_2

therapy and in search and rescue, in law enforcement and in the military, helping to detect bombs and drugs and much more. Changed circumstances make society even less tolerant of cruelty toward animals, particularly dogs.

110 Cal. Rptr. 3d. 253, 258 n.8 (Cal. Ct. App. 2010),

rev. denied, 250 P.3d 179 (Cal. 2011) (internal

citation omitted). It is thus especially fitting that

in appropriate circumstances a dog in peril should

have the benefit of the emergency exception.

II. CASE LAW IN OTHER STATES HAS UNIFORMLY UPHELD THE APPLICATION OF THE EMERGENCY EXCEPTION TO ANIMALS.

As the District Court Judge properly noted in her

Report, the question reported in this case has not

been decided by the courts in Massachusetts because

although the question has been raised tangentially in

a few animal cruelty cases, no case has squarely

presented it as this one does.7 A number of courts in

7 In Commonwealth v. Hurd, the Appeals Court acknowledged the absence of decisions on this point and continued the status quo by holding that “assum[ing], without deciding, that the emergency principle does extend to animals,” on the facts presented there was not an emergency which justified a warrantless entry to the defendant’s premises. 51 Mass. App. Ct. 12, 18 (2001). The Appeals Court also skirted the issue in Commonwealth v. Erickson, because there the warrantless entry was justified by “an objectively reasonable basis to believe that a human being in need of immediate assistance [rather than solely animals] may have been inside the

17 34805334_2

other jurisdictions, however, have confronted this

issue in recent years as a matter of first impression,

as this Court does now. There is an evolving,

virtually uniform body of case law, building on prior

case law, that the emergency exception applies to

animals. This is not to say that every case has found

on the facts presented that the emergency exception

applied – that is a fact-based inquiry the result of

which of necessity will not be uniform – but the legal

principle is increasingly well established that a

warrantless entry and seizure may be effected to save

an animal whose life is in jeopardy as a result of

human conduct if law enforcement reasonably believes

that immediate intervention is required to save the

life.

Authority to this effect arising in California,

the District of Columbia, Wisconsin, Montana, New York,

and Indiana is cited in the preceding section. There

is like authority in Florida, Georgia, Illinois, Ohio,

Missouri, Texas, Vermont, and the United States Courts

of Appeals for the Seventh and Tenth Circuits. See

Hegarty v. Addison Cnty. Humane Soc’y, 848 A.2d 1139,

apartment . . . .” 74 Mass. App. Ct. 172, 176 n.3 (2009).

18 34805334_2

1142-45 (Vt. 2004) (permitting warrantless seizure of

emaciated horse); Brinkley v. Cnty. of Flagler, 769

So.2d 468, 471-72 (Fla. Dist. Ct. App. 2000) (allowing

warrantless entry to alleviate extreme animal

hoarding); Morgan v. State, 645 S.E.2d 745, 747, 749-

50 (Ga. Ct. App. 2007) (allowing warrantless entry

onto property on bitterly cold day to save “’starving’”

and “’distressed’” dogs and other animals);8 People v.

Thornton, 676 N.E.2d 1024, 1028 (Ill. App. Ct. 1997)

(permitting warrantless entry to apartment to rescue

emaciated, grossly neglected dog); State v. Berry, 92

S.W.3d 823, 830 (Mo. Ct. App. 2003) (acknowledging

“that exigent circumstances in cases involving animal

abuse constitute an exception to the search warrant

requirement,” but holding emergency not shown on the

facts); State v. Kilburn, No. CA96-12-130, 1998 WL

142412, at *4 (Ohio Ct. App. Mar. 30, 1998)

(unpublished decision) (upholding warrantless entry

8 In Morgan, the Georgia Court of Appeals remanded the case to the trial court for a determination of whether on the facts exigent circumstances were shown, since the trial court had erroneously upheld the warrantless entry into and seizure from the backyard, as opposed to the front yard, on the basis of the plain view exception. 645 S.E.2d at 749. On remand, the trial court determined that there were exigent circumstances, and this decision was upheld on appeal. Morgan v. State, 656 S.E.2d 857 (Ga. Ct. App. 2008).

19 34805334_2

onto property to rescue horse stuck in mud in plain

view, malnourished goats, dogs and sheep visible after

entry); Pine v. State, 889 S.W.2d 625, 632 (Tex. Ct.

App. 1994) (permitting warrantless entry onto property

to save dying colt), cert. denied, 516 U.S. 914

(1995);9 accord Siebert v. Severino, 256 F.3d 648, 657

(7th Cir. 2001) (“Exigent circumstances may justify a

warrantless seizure of animals,” but emergency not

shown on facts.); DiCesare v. Stout, No. 92-7116,

1993 WL 137110, at *3 (10th Cir. Apr. 23, 1993)

(unpublished opinion) (permitting warrantless entry

onto fenced area around the home to rescue

malnourished horses).

The extant authority is also instructive in other

respects. A number of cases, like the instant case,

have involved entry onto and seizure of an animal from

the defendant’s home or curtilage. These areas are

entitled to the highest level of protection from

intrusion under the Fourth Amendment, and as discussed

9 In Pine, the “emergency doctrine” as articulated by the Texas Court of Appeals is essentially what we have called the “probable cause and exigent circumstances” exception at note 6 supra, requiring probable cause that a crime has been committed. 889 S.W.2d at 631. For the reasons stated in note 6, we believe this is a distinction without difference.

20 34805334_2

below this fact may properly be taken into account in

determining if the emergency exception applies in any

particular case, including a case involving an animal.

However, it is no reason to bar the exception entirely

as a matter of law, especially inasmuch as the home or

curtilage is inherently a likely setting for the human

conduct which gives rise to an abused or neglected

animal. Thus, in Chung, the California Court of

Appeals rejected the defendant’s attempt to

distinguish the earlier holding of the Appeals Court

in Broden, on the basis that Broden did not authorize

a warrantless search of a private residence, holding:

“Irrespective of any differences identified by Chung,

Broden recognizes the exigent circumstances exception

permits officers to make a warrantless entry when

there are reasonable grounds to believe there are

animals inside in need of immediate aid.” Chung, 110

Cal. Rptr. 3d at 259; see also State v. Grillo, No.

90-2109-CR, 1991 WL 100378, at *2 (Wisc. Ct. App. Apr.

16, 1991) (unpublished decision) (applying Bauer

holding to residential searches); State v. Black, No.

87-0103-CR, 1987 WL 267615, at *3 (Wisc. Ct. App. July

1, 1987) (unpublished decision) (applying Bauer

holding to residential searches).

21 34805334_2

Secondly, the authority to date has

overwhelmingly described these situations, in which a

warrantless entry was made to save an animal in dire

straits, as an intervention to save life. Inasmuch as

the emergency exception covers an intervention to

protect property as well as life, the significance of

the distinction between property and life in this

context is unclear, and in any event, courts have not

found it necessary to rule on the question as such.10

Nonetheless, to the extent this Court deems it

relevant we submit it is unquestionably correct to

view what is at stake in these cases as life and not

property. Although animals may properly be viewed as

property in other contexts such as larceny or

10 The N.Y. Supreme Court Appellate Term, in Rogers, nominally took the position that animals are property for purposes of the emergency exception, stating: “Since the protection of property is encompassed in the [emergency] doctrine, this court finds no reason not to include therein the protection of animals which constitute property (3 NY Jur 2d, Animals, sec. 3).” 708 N.Y.S.2d at 795. The discussion by that court of the emergency at hand, however, belies this characterization. An ASPCA officer entered a closed pet store because he could observe dead animals inside and heard a dog barking “plaintively.” Id. “[I]t was highly probable that there were living creatures inside which required emergency medical attention. . . . [E]ntry into the closed store . . . was . . . to rescue the livestock. The fact that no human life was in danger does not vitiate the urgency of the rescue.” Id. (emphasis added).

22 34805334_2

conversion, see Commonwealth’s Br. at 47, in the

context of the emergency exception what is at stake is

life. Warrantless intervention may be necessary

precisely because animals suffer: they feel pain, cold,

hunger and thirst. Computers and televisions do not.

The scope of the emergency exception to save the life

of an animal may not be co-terminous with the scope of

the exception to save a human life, but what is at

stake is unquestionably a life.

III. APPLICATION OF THE EMERGENCY EXCEPTION TO ANIMALS IS CONSISTENT WITH AND WILL IN NO WAY ERODE FOURTH AMENDMENT PROTECTIONS AGAINST WARRANTLESS SEARCH AND SEIZURE

The emergency exception is narrow and carefully

delineated. The burden is on the prosecution in every

case to show that an emergency existed, and the test

is an objective one, premised on how a reasonable

person would have viewed the situation and what a

reasonable person would have done in response.

Application of the emergency exception to animals will

in no way alter these fundamental principles. It will

simply be a recognition that it is socially desirable

in the twenty-first century not to let an animal

suffer and die needlessly, so that in appropriate

23 34805334_2

circumstances a warrantless entry may be made to

accomplish this result.

Private redress against overzealous state actors

who proceed without a warrant on the basis of a

purported emergency that does not exist, whether

involving animals or not, is available under federal

law. See 42 U.S.C. § 1983; see also Suss v. ASPCA,

823 F.Supp. 181, 189-90 (S.D.N.Y. 1993) (discussed

infra).

A. Potential Considerations in Cases Involving the Application of the Emergency Exception to Animals

Of necessity it is impossible to delineate a set

of criteria which must be satisfied before the

emergency exception can apply to an emergency

involving animals, and no court to date has attempted

to do so. As the United States Supreme Court has

stated:

The Framers of the Fourth Amendment have given us only the general standard of ‘unreasonableness’ as a guide to determining whether searches and seizures meet the standard of that Amendment in those cases where a warrant is not required. Very little that has been said in our previous decisions . . . and very little that we might say here can usefully refine the language of the Amendment itself in order to evolve some detailed formula for judging cases such as this.

24 34805334_2

Cady v. Dombrowski, 413 U.S. 433, 448 (1973) (internal citations omitted).

Each case that arises is unique, and a decision will

turn on the totality of the relevant facts. One can,

however, enumerate the considerations which may play

into this decision in any given case in which the

emergency exception is claimed as permitting a

warrantless entry or seizure to save an animal in

distress – some peculiar to the animal context and

some not. These would include the following:

Causation of the animal’s condition. In the

overwhelming majority of situations, the

desperate condition of the animal will not be the

result of the animal’s own actions but rather of

human neglect and/or abuse in violation of G.L.

c. 272, § 77. In such circumstances the public

policy reasons discussed above strongly favor

application of the emergency exception assuming

other relevant factors evidence that an emergency

existed. Whether that fact should be a necessary

(but not sufficient) predicate for application of

the emergency exception, however, is a much more

difficult question which has not been decided and

25 34805334_2

which we submit should not be decided in the

abstract.

In the only case to date involving such a

situation, Suss, the United States District Court

wisely made no general pronouncement as to

whether the emergency exception could ever apply

in situations lacking an element of human cruelty

or abuse. 823 F.Supp. at 187. There a cat was

trapped between two buildings, and the wall of

one of the buildings was demolished by the ASPCA

and New York City firefighters in an attempt to

rescue the cat. Id. at 185. No attempt was made

to notify the owner of the affected building or

to seek a warrant during the six hours that

elapsed between the discovery of the cat and the

rescue effort. Id. On these facts the District

Court found, we submit correctly, that the

emergency exception did not apply.11 Id. at 186-

87. One can imagine a far different set of facts

– for instance the rescue of a drowning dog from

11 The issue arose on cross motions for summary judgment in an action for damages brought by the occupant of the building against the ASPCA and New York City under 42 U.S.C. § 1983. Suss, 823 F.Supp. at 185. In a ruminative and somewhat philosophical opinion, the District Court denied both motions and urged the parties to settle. Id. at 184, 194.

26 34805334_2

a backyard pool – in which application of the

emergency exception might be appropriate. It can

certainly be stated, however, that the threshold

for applying the emergency exception in

situations not involving human cruelty or abuse

would be considerably higher.

It goes without saying also that if the

animal’s circumstances, though dire, are the

result of legal human behavior that is within

accepted norms there would be no cause for

application of the emergency exception.

Livestock are slaughtered for food; animals are

used in medical experiments. Both these

activities are highly regulated with a view to

minimizing the pain and suffering of the animals

involved. So long as the slaughter or protocol

is carried out in accordance with applicable laws

and regulations the circumstances of the animals

involved should not be considered an emergency

for purposes of the emergency exception.

This is not to say that simply because an

animal is destined eventually for the slaughter

house it could not be subject to treatment that

would warrant the application of the emergency

27 34805334_2

exception. Rather the slaughter itself would not

create such a situation per se even though by

definition it would involve destruction of the

animal. The same principle would apply to a

laboratory animal.

Species of animal. Cutting off the wings of a

bird is torture and in appropriate circumstances

warrantless entry should be permitted under the

emergency exception to save a bird from being

subjected to such treatment. Pulling off the

wings of a dragonfly, although likewise

disturbing, is a more doubtful predicate for the

same conclusion because at least so far as we

humans are aware an insect is not cognizant of

its condition in the same way as a bird, not to

mention a dog, a cat, a horse, or legions of

other animals. Although no clear lines can be

drawn as to which species are potentially within

or without application of the emergency

exception, the lower down the animal is on the

scale of sentient versus non-sentient creatures,

the less likely that circumstances would arise

warranting application of the emergency

exception.

28 34805334_2

Setting. Under well established Fourth Amendment

jurisprudence, the greater the expectation of

privacy in a particular setting the higher the

threshold for permitting a warrantless search and

seizure. Greatest protection is afforded the

home and curtilage. Accordingly, a higher level

of scrutiny is warranted where the search and

seizure occurs in the home than in a less private

setting such as a field or a commercial

establishment. Having said that, as noted above,

many emergency situations involving animals will

occur in the home or curtilage.

Evidence of the emergency prior to entry. Most

dogs that bark are not in extremis; someone who

reports that his neighbor is abusing his pet may

have his own agenda and is not necessarily

telling the truth. On the other hand, the two

together – the neighbor’s report buttressed by

barks of pain within the premises that are

audible from outside – present quite a different

picture. In order for the exception to apply

there must be evidence that would cause a

reasonable person to believe that an animal was

in grave peril. The stronger that evidence the

29 34805334_2

greater the likelihood that the emergency

exception will apply.

Extent of the intrusion. If the intrusion

necessarily involves damage to property, such as

breaking down a door or, as in Suss, demolishing

a wall, there is a collateral cost to the action

that is not present if the entry can be

accomplished without damage. It follows that

those situations in which the rescue will involve

property damage will attract greater scrutiny

than situations in which the warrantless rescue

can be done with no collateral damage to the

premises.

Time elapsed between perception of the emergency

and entry. The law does not require proof that

in the time it would have taken to obtain a

warrant the animal would have died. In many

cases, such as this one, such a burden would be

impossible to carry since the animals involved

are not grievously wounded but rather suffering

from starvation and/or exposure to the elements.

In addition, the suffering of the animal may be

sufficient in and of itself to justify the entry.

However, if prompt action is not taken after the

30 34805334_2

apparent emergency is discovered, absent good

reason for it that fact will cast doubt on the

applicability of the emergency exception.

Efforts to reach the owner of the premises and

obtain consent. Consent to the entry will moot

any Fourth Amendment issue. Accordingly, whether

reasonable efforts were made to reach the owner

or other person who could give consent will weigh

into the overall reasonableness of the

warrantless entry, although reasonable efforts in

the circumstances may be none at all.

IV. IN THE INSTANT CASE AN EMERGENCY WAS PRESENTED WHICH JUSTIFIED THE IMMEDIATE ENTRY BY THE OFFICERS TO THE DEFENDANT’S PROPERTY TO TRY TO SAVE THE LIFE OF THE SOLE SURVIVING DOG.

Applying the factors listed above to this case,

the situation with which the officers were confronted

was clearly one which, objectively considered, was an

emergency.12 The sole surviving dog was a victim of

12 It is unclear whether this issue is before the Court, as opposed to the pure legal issue of whether the emergency exception can apply to animals. The District Judge in her Report states that the ruling on this appeal “appears to be dispositive of the underlying case,” thus suggesting that she has found on the facts presented that the emergency exception applies, subject to this Court’s ruling on the pure legal issue. Findings of Fact and Report of Question of Law to the Appeals Court of District Judge Ellen Flatley, at 13 (Aug. 28, 2012).

31 34805334_2

human neglect. The defendant had acknowledged on

Officer Flynn’s first visit that the three dogs

belonged to her and her husband and that she was

taking care of them. Findings of Fact and Report of

Question of Law to the Appeals Court of District Judge

Ellen Flatley, at 6 (Aug. 28, 2012) [hereinafter

Report], attached as addendum C. In the six days that

had elapsed between his first and second visits, two

of the three dogs that he had seen on that first

occasion had died, still leashed. Report at 6-7.

Photos of these dogs, lying lifeless in the snow,

speak for themselves. R. Exs. 9-10, attached as

addendum F.

No species of non-human animal has a higher level

or deserves a higher level of protection against human

cruelty and neglect than dogs. The dogs were located

in the curtilage of the defendant’s home, with ample

indicia of steps taken by the defendant and her

husband “to protect the privacy and safety of herself,

her children, and her dogs.” Report at 4. The

intrusion thus deserves a higher level of scrutiny

32 34805334_2

than would entry to a less private setting.13 The

officers could hear the surviving dog “very hoarsely

and weakly barking,” “sound[ing] like an animal in

distress” from outside the defendant’s property.

Report at 7. By climbing onto a snow bank on the

adjacent vacant property, without entering the

defendant’s property, they could observe the three

dogs – two dead and one dying. Report at 7. Both of

these were plain view observations. Report at 9. The

only way to rescue the dying dog was to gain access to

the property where the dog lay. There was no choice

in the matter.

There was more than enough evidence to cause a

reasonable person to believe that an emergency existed.

The officers were responding to a call from the

defendant’s friend, who had observed the dogs, saw

that two were apparently dead, and was concerned about

the third. Report at 7. As noted above, the officers

could hear the surviving dog’s distress and see the

desperate situation it was in; they could also see

that the other two dogs had apparently already

13 It would be ironic indeed if the measures taken by the defendant, in her own words, to preserve the safety and privacy of her dogs were to be the basis for a ruling that the sole surviving dog could not be saved.

33 34805334_2

succumbed to starvation and exposure. It was

reasonable to conclude that the third dog would as

well if immediate steps were not taken to provide

shelter and food.14

The only property damage involved was to the

padlock that had to be cut in order to permit entry to

the yard. Report at 8. The officers acted promptly

once they realized the severity of the situation,

while also attempting to attract the attention of

anyone who was in the home and to identify and reach

the owner of the property. Report at 8. Upon entry

to the property the officers followed police protocol

for handling animal emergencies, contacting an Animal

Control Officer to handle the surviving dog which was

initially aggressive and scared. Report at 8-9. They

stayed on the premises until the Animal Control

14 Compare and contrast the finding of a Navarro County (Tex.) District Court trial judge described in the decision on appeal in State v. Betts, No. PD-1221-12, 2013 WL 1628963 (Tex. Crim. App. Apr. 17, 2013), that “‘[n]o evidence was presented indicating the dogs [which were seized without a warrant] were in danger of death. . . .’” Id. at *2. This finding seemingly formed the basis for the trial judge’s ruling that “[t]here were no exigent circumstances present”: a ruling which was not appealed. Id. at *2-7. In the instant case, by contrast, there was ample evidence, not least from the very fact that 2 of the 3 dogs had already died, that the sole surviving dog was in imminent danger of joining them.

34 34805334_2

Officer took custody of all three of the dogs. Report

at 9. In short, it is hard to imagine a reasonable

officer confronted with the same situation doing

anything other than what the officers did here.

A. Case Law Involving Similar Facts Supports the Officers’ Actions in the Instant Case

Since each case involving the emergency exception

is fact specific, case law is of limited utility in

evaluating on which side of the line any given

situation falls. However, the facts in two of the

decided cases are similar to those here. Morgan

involved entry into the curtilage and seizure of

animals from the curtilage after a plain view

observation, as in this case. 656 S.E.2d 857 (Ga. Ct.

App. 2008). In Morgan, a deputy responding to a call

from a neighbor of mistreated animals was able to see

in the defendant’s front yard starving ducks, geese,

pigeons and a pot-bellied pig, all without shelter in

bitter weather, with no food or water. Id. at 859.

While observing the animals in the front yard, the

deputy could hear dogs barking in the backyard and

entered the property to check on them, whereupon he

found remains of dead dogs and several surviving dogs

with no food, water or shelter, one of them almost

35 34805334_2

frozen to death with its leg caught between the

floorboards of the back porch. Id. The Georgia Court

of Appeals held that the warrantless entry to the

backyard and seizure of the animals was reasonable on

these facts and permitted by the emergency exception:

In the instant case, the deputy’s initial observation of malnourished and mistreated animals from the driveway and road, combined with the allegations of animal mistreatment made by Morgan’s neighbor and the prevailing harsh weather conditions, provided the deputy with a reasonable belief that the dogs heard barking in the backyard were in need of immediate aid to prevent their serious injury or death. As such, an exigency existed justifying the deputy’s decision to make an immediate warrantless entry into Morgan’s backyard where the barking dogs were located. Likewise, once the officer entered the backyard and observed the seriously deprived condition of the dogs, he was entitled to respond to the dire emergency situation by having the dogs immediately seized so that they could be transported for emergency treatment.

Id. at 860. In the instant case, the totality of the

emergency could be viewed without the need for a

warrantless entry onto the defendant’s property; what

was thus visible was entirely comparable to the

emergency confronted by the deputy in Morgan except

that there were fewer animals involved.

In Stone, the defendant kept animals in cages on

his property with multiple indicia of privacy as in

36 34805334_2

this case: a fence surrounded the property, there was

a closed, latched gate and several “No Trespassing”

signs. 92 P.3d 1178, 1179 (Mont. 2004). As a result,

unlike this case, the cages could not be seen without

entry onto the property. Id. The police action was

initiated by a call from the father of a boy whom the

defendant had asked to help him with the animals; the

boy had discovered a number of dead and dying rabbits

in the same cages, with some of the rabbits that were

still alive feeding off of the ones that were dead.

Id. at 1180. A sheriff’s deputy was dispatched to the

property and found no one home. Id. Once on the

property, however, the deputy saw the rabbits as

described, as well as apparently starving dogs and

cats in kennels with no food or water. Id. At that

point he took action to locate all the animals on the

property and to help them. Id.

The defendant argued “that he had a reasonable

expectation of privacy (1) in the cages around his

house, as they were in close proximity to his house;

and (2) in the entire fenced area around his house, as

he took much effort to protect his privacy by posting

several ‘No Trespassing’ signs.” Id. at 1180-81. The

Montana Supreme Court concluded that nonetheless:

37 34805334_2

[D]eputy Gleich’s warrantless search was justified given the unrefuted imminent threat to the lives and well-being of the animals on Stone’s property. We agree that, under the circumstances here, the prevention of needless suffering and death of the animals on Stone’s property created exigent circumstances justifying the warrantless search for and rescue of the animals.15

Id. at 1184. Stone, like Morgan, differs from the

instant case primarily in that in those cases

warrantless entry onto the property was necessary in

order to view the animals in distress. Arguably,

therefore, this case presents an even stronger set of

facts than those inasmuch as the emergency situation

could be seen by a plain view observation.

The foregoing case law is helpful. Ultimately,

however, it is the totality of the facts of this case

by themselves which establish the existence of an

emergency that required immediate action.

15 There were also animals inside the defendant’s house, which the deputy entered after having received permission from the defendant’s probation officer, who was called to the scene. Stone, 92 P.3d at 1184. The entry into the house and seizure of the animals there was separately analyzed by the court and found permissible as a “justifiable probation search” inasmuch as there was probable cause to believe that the defendant was violating his probation by committing the offense of cruelty to animals. Id.

38 34805334_2

CONCLUSION

For the foregoing reasons, amici curiae ALDF and

the League respectfully request that this Court answer

in the affirmative the question reported: whether the

“pure emergency” exception to the warrant requirement

extends to the protection of animals.

39 34805334_2

CERTIFICATION OF COMPLIANCE WITH MASS. R.A.P. 16(k)

Pursuant to Mass. R. A. P. 16(k), I hereby certify that this brief complies with the rules of court pertaining to the filing of briefs, including but not limited to Mass. R.A.P. 16, 18, and 20.

____________________________ Zachary Golden (BBO# 684887)

40 34805334_2

ADDENDUM TABLE OF CONTENTS

A. 1868 Mass. Acts c. 212 & Mass. G. L. c. 272, § 77

B. Mont. Code Ann. § 45-8-211 (2003)

C. Findings of Fact and Report of Question of Law to the Mass. Appeals Court of District Judge Ellen Flatley (Aug. 28, 2012)

D. Cal. Penal Code § 597.1 (West 1999)

E. D.C. Code § 22-801 (1981)

F. Photographs of Deceased Dogs, R. Exs. 9-10