Save The Dogs Exception?

By Mark Esposito, Weekend Contributor

Zen Dharma Dog Bite Paralegal in Downtown Los Angeles Law Library Legal Research and Writing Law and Motion_fullMany courts have recognized the so-called emergency aid exception to the Fourth Amendment’s prohibition against  warrantless searches, but the emergency usually had to involve a natural person. Now the highest court in Massachusetts has extended the doctrine to emergency aid in furtherance of animals. In Jan. 2011, Lynn police were called to the home of Heather Duncan based on neighbors’ reports of two dead dogs lying near her locked fence in her backyard. Two officers from the Lynn Police Department arrived and began to investigate the scene. Climbing a nearby snowbank, the officers saw two motionless dogs and another barking weakly.  No food or water was seen and according to the officers, the dogs appeared malnourished and in immediate distress. After trying  unsuccessfully to reach the homeowner, fire officials were called who promptly cut the fence lock and escorted the police onto the property. Two of the animals were indeed dead and the third was starving.

 Ms. Duncan was charged with three counts of animal cruelty. She defended the case based on her claim that the officers had unreasonably searched without a warrant and the fruit of their search was thus unconstitutional. No warrant, no dogs, no case went the defense.

Not so fast wrote Justice Barbara Lenk for a unanimous court: ‘‘In agreement with a number of courts in other jurisdictions that have considered the issue, we conclude that, in appropriate circumstances, animals, like humans, should be afforded the protection of the emergency aid exception.’’ Animal cruelty has been prohibited in the Commonwealth of  Massachusetts since Plymouth Rock times and eradicating it along with protecting the animals was a compelling interest justifying treating dogs like anything but chattel. As we know from many discussions here, the law regards our family pets as mere skin and bones with their value being equal to whatever the marketplace decides. Not realistic, really, but as they say, “It’s the law.”

Now, perhaps Massachusetts can lead the way in proclaiming that our fellow creatures deserve at least some protection from the ravages of human behavior. But does this exception go too far in placing the rights of dogs over the constitutional rights of people? You decide:


~Mark Esposito, Weekend Contributor

31 thoughts on “Save The Dogs Exception?”

  1. I have a different take, I think the dogs could have been saved but the evidence should have been suppressed.

    I worry this will lead into pretexts.

    Another way of looking at this is police, at least in my state, may enter a dwelling under exigent circumstances when there is a threat to the property of the homeowner, such as to extinguish a fire to prevent the rest of the house from burning. I haven’t been in favor during situations such as this for subsequent prosecutions unless there is a grave crime alleged.

    In cases such as this I don’t equate animals to the same level as individuals.

  2. Of course what’s legal and what’s humane and decent are at loggerheads in this case. Similarly, dog, cock and bull fighting are protected legally in places where that also serves as an indictment of their pathetic Courthouse Gang.
    What a shameful and disgusting excuse for a human being it takes to defend anyone like this woman, get her off and return her to her cruelty.

    1. Darrel – everyone has the RIGHT to a defense and I think if this goes up the appellate ladder it is going to get more interesting.


      Bill H – they had to climb up a snowbank to see the dogs. I would agree with your ‘plain view’ but this took effort. The view was restricted for the officers.

  3. Let’s take this a step further. Could I be arrested for having my dog spayed or neutered? Tail-bobbed? Or could I be arrested for NOT having my dog spayed or neutered? The camel is in the tent.

  4. An ongoing crime of cruelty to animals was observed. The police do have a right to intervene in an ongoing crime, right?.

    1. They were called to the scene by neighbors and had to climb a snowbank to observe the dogs, at what point does it become a warrantless search of the property? They had no plain view sight of the dogs, they cannot make that excuse. I think I would make my decision on how well my dog treated me that morning before I left the house.

  5. Ron – I know my neighbors well-enough that if I thought their animal was in distress, they would appreciate my taking care of it.

  6. Nick Spinelli

    This country has a long history of laws regarding abuse of animals. In fact, in Missouri, and I believe other states, child abuse was prosecuted under those statutes, into the 1970′s when laws specific to child abuse were enacted. WTF does that say about our culture???
    Some of our kids are animals?

  7. With the emergency aid exception recognized for human beings, it was only to be a matter of time before it would become recognized for the lives of other beings they domesticate. Any human supported life endangered on a property suggests other life may possibly be endangered as well.The homeowner herself may have been somewhere on the property and herself dying or dead.

    I have trespassed another’s property from a reasonable belief a dog was in distress, and would do it again. Unless the owner is so deliberately negligent of the animal’s care as to be with malice and intent to harm, I cannot imagine they would complain. If they were and then were to complain, I would consider them a threat to all life and unfathomably indifferent to the Constitution behind which they attempt to shield their cruelty.

    Now this may not be a scholarly approach to the question, but I am betting it may be a common sense one.

  8. This country has a long history of laws regarding abuse of animals. In fact, in Missouri, and I believe other states, child abuse was prosecuted under those statutes, into the 1970’s when laws specific to child abuse were enacted. WTF does that say about our culture???

  9. I have to punt with “the totality of the circumstances developed by the facts in each different case” determines the degree of the exception.

    Like Jonathan indicates, some police officers will want to go to places where the facts of a different case do not match the facts of this case.

    Cruelty to the living is a hideous circumstance, which some nations have realized too:

    Bolivia is set to pass the world’s first laws granting all nature equal rights to humans. The Law of Mother Earth, now agreed by politicians and grassroots social groups, redefines the country’s rich mineral deposits as “blessings” and is expected to lead to radical new conservation and social measures to reduce pollution and control industry.

    (Someone Figured It Out). Better alive than dead.

  10. Mark, that is indeed an interesting case and a well-reasoned decision. I do wonder how this exception can now be used whenever there is a pet in an unoccupied home and warrantless entry is justified out of concern for the pet.

  11. If the dogs could be seen from outside the property, the police had probable cause to believe a crime had occurred. The only real question is whether the visible condition of the dogs constituted exigent circumstances, or whether they should have waited to obtain a warrant. Since one dog was barking weakly in the presence of two apparently dead dogs, I think it would be reasonable to conclude, not only that a crime had occurred, but also that a crime (animal cruelty) was in progress. Stopping that crime seems to be to provide an exigency justifying a warrantless entry.

  12. It cannot cut both ways. If police have the right to shot dogs protecting the property why do they have the right to enter the property to protect them from abuse?

  13. I’m sorry… But the curtlidge is as protected as the inside of the house….

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