Is Taking Blood from a Dog a “Search” of the Dog’s Owner?

Posted in: Criminal Procedure

In the case of State v. Newcomb, the Oregon Humane Society received a report indicating that a woman named Amanda Newcomb was abusing and neglecting her dog, Juno. In response to the report, an animal cruelty investigator who was also a certified police officer went to the defendant’s home to investigate. When the officer asked the defendant why her dog was so emaciated, she responded that she usually purchased small quantities of dog food but had run out and was planning to buy more. Against the defendant’s wishes, the officer then took the dog into custody and transported him to the Humane Society, where he would receive veterinary care as well as tests that would reveal whether the defendant should be charged with neglect. Juno later received a blood test that revealed that nothing (other than starvation) was wrong with him that could account for his being emaciated. The defendant was subsequently cited for second-degree animal neglect.

Though the dog’s owner originally challenged the taking of the dog into custody as an unlawful seizure, she dropped that challenge and stuck with a different one, arguing that the blood test results should have been suppressed: under the Fourth Amendment as well as the Oregon analogue of the Fourth Amendment, she claimed that police had unlawfully searched the owner’s property, namely, Juno the dog, without the necessary warrant required to search closed containers. The Oregon Supreme Court ruled that in part because a dog is a different kind of property from stereos and folders, the police did not perform a “search” of the owner’s property when they extracted and tested the dog’s blood.

Closed Containers

Ordinarily, when police wish to search a person’s closed container, they need to have a warrant supported by probable cause to believe that the container has evidence of crime inside of it. Had Juno been a suitcase, the police would potentially have had the authority to seize him based simply on probable cause. Such a seizure would qualify, under Fourth Amendment law, as a “plain view seizure” because the police officer had probable cause to believe that the suitcase contained (or itself represented) evidence of crime, and the officer was lawfully in the suspect’s home at the time of the seizure. The legality of the seizure here was ultimately not challenged, though.

After the officer brought Juno the dog in for veterinary care, and blood was taken (and revealed that Juno’s owner had been guilty of neglecting Juno), an ordinary container search would have required a warrant (or an exigent circumstance excusing the lack of a warrant) for such a test. Consider again the hypothetical suitcase in place of Juno. After the plain view seizure of the suitcase, police would have had to obtain a warrant based on probable cause to believe that the suitcase contained evidence of crime or contraband. But the Oregon Supreme Court did not treat Juno as a closed container. In the court’s words, “[r]eflected in … laws that govern ownership and treatment of animals is the recognition that animals ‘are sentient beings capable of experiencing pain, stress and fear.’” In part because Juno was a “sentient” kind of property and in part because the defendant had “lost her rights of dominion and control over Juno” at the time when the blood was taken (because she had neglected his needs), the taking of blood from Juno did not constitute a search, according to the court.

Sentient Property

As an ethical vegan and a supporter of animal rights, I found a few things quite appealing in the Oregon Supreme Court’s decision. First, the bottom line appealed to me—I was pleased that the court did not regard the necessary veterinary care that Juno received to constitute a violation of either the Fourth Amendment or the Oregon analogue of the Fourth Amendment. I also found appealing the notion that an animal’s sentience—his or her ability to have feelings of pain, pleasure, etc.—takes her out of the category of the usual items of property that are subject to searches, like suitcases and folders. Notwithstanding the appealing aspects of the decision, I thought that the Oregon Supreme Court got some things wrong.

First, it seemed to me that taking blood from a dog who belongs to someone—whether we think of that “belonging” quality as regular property or as the special kind of property that the law recognizes for companion animals—does represent a “search” of the person to whom the dog belongs. That is, although it is true, as the State of Oregon asserted, that the inside of a dog “doesn’t contain anything else other than more dog,” the extraction of blood from the dog represents the exposure of facts and biological material that the owner had a reasonable expectation would ordinarily remain unexposed to others (including law enforcement). One need not think of a dog as a suitcase to acknowledge that a blood test performed on the dog does reveal things that would otherwise stay secret, and that is the usual test for what constitutes a “search”—an invasion of a reasonable expectation of privacy. As a matter of Fourth Amendment doctrine, then, it would seem that the blood test should have been classified as a “search” of Juno’s owner, as she did remain his owner even during the period in which he was seized by the police.

Searches, of course, might be lawful if they are reasonable, and a blood test of an emaciated dog in grave need of veterinary care is arguably reasonable—even in the absence of a warrant—because the dog’s situation represents an exigent circumstance. Rather than finding that the blood test did not constitute a search at all, then, the Oregon Supreme Court would have perhaps made a better decision if it had held that the search was reasonable due to exigent circumstances.

My Ideal Resolution of the Case

I have articulated what I view as the good and the bad features of the Oregon Supreme Court’s decision, but here I would like to suggest what I would regard as the best resolution of the case. In my ideal case, an animal would not be considered property at all. Though it may seem benign to consider the dog property in this case, because Juno is a companion animal and because the State is prepared to intervene on behalf of his wellbeing, the status of animals as property is unjust. It is the legal reason that billions of sentient beings are slaughtered to create food that could be easily and healthfully replaced by plant-based, nourishing meals. Imagine a pig suffering in a slaughterhouse because he is scared of dying and can smell the blood that reveals his coming fate. Police could not legally remove the pig and take him to the vet, because the law permits that violence by the pig’s owner (the slaughterhouse), even as it prohibits some violence (or neglect) committed against a pet like Juno. Ideally, then, we would not be exploiting animals at all, and a non-property status for animals, including Juno, could signal the realization of that ideal.

More specific to this case, we would not consider the search of a dog to be a search of the dog’s human companion but instead would regard it as an invasion of the dog’s bodily integrity. In this case, of course, such a “search” of the dog would be permissible (“reasonable,” for Fourth Amendment purposes) because it would be justified by the need to provide veterinary care to a suffering animal. Likewise, the invasive treatment of a young child would constitute a search of that child and would have to be justified as such. The parents could complain only on behalf of their child but could not, under Dubbs v. Head Start, claim an independent privacy interest in the contents of the child’s body.

But alas, we do not live in the ideal world that I envision here. Animals continue to be property, and that includes even the favored animals who live in our homes and are sometimes treated almost as children. Given that reality, the Oregon Supreme Court should have recognized that taking blood from Juno did in fact constitute a search of Juno’s owner (albeit a reasonable one, given probable cause and the exigency). That the court instead found no search at all, though in error, may perhaps reveal an unconscious recognition that while the law makes animals into human property, the law is unjust in doing so, and sentient beings truly are nothing like suitcases and folders.