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State v. Sheperd

Supreme Court of Vermont

June 2, 2017

State of Vermont
Randall J. Sheperd

         On Appeal from Superior Court, Franklin Unit, Criminal Division

         Alison S. Arms, J. (motions for forfeiture and to suppress); Robert A. Mello, J. (costs)

          James A. Hughes, Franklin County State's Attorney, St. Albans, for Plaintiff-Appellee.

          Matthew F. Valerio, Defender General, and Sarah Star, Appellate Defender, Montpelier, for Defendant-Appellant.

          PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.

          ROBINSON, J.

         ¶ 1. In this case involving multiple counts of cruelty to animals, defendant appeals the trial court's denial of a motion to suppress and its order imposing costs for the care of forfeited animals. With respect to the suppression motion, defendant argues that: (1) the warrant was unconstitutionally broad in allowing the search for and seizure of any animal found at defendant's home; (2) there was no veterinarian present during execution of the warrant as required by statute; (3) and the court improperly placed the burden of proof on defendant at the suppression hearing. He also argues that the court abused its discretion in ordering him to repay costs incurred in housing the forfeited animals in the amount of $51, 070. We affirm the trial court's rulings on the first three issues, but we reverse and remand for reconsideration of the court's order regarding statutory costs of care for the forfeited animals.

         ¶ 2. The trial court made the following findings of fact. In February 2015, an animal control officer responded to a complaint concerning dogs at defendant's home. When the officer arrived, she heard barking coming from the house. Defendant's daughter answered the door and told the officer that defendant was not home, and the officer offered to leave a bag of dog food at the house. The officer retrieved the bag of food from her car, and when she returned to the house a dog appeared from under a blanket on the porch. The temperature was thirty degrees below zero, the porch was not protected from the elements, and the officer saw no sign of dog food or water nearby. According to the officer, the dog appeared emaciated and too weak or cold to stand. She knocked on the door to tell the daughter that she should take the dog inside, but nobody answered. At that time, the officer saw two more dogs in the house and heard barking coming from inside.

         ¶ 3. The officer's observations at defendant's home and her concerns for the dogs prompted her to first contact the state's attorney and the state police, and then to obtain a search warrant for the house.[1] The warrant authorized the search for and seizure of two specific dogs, a male and female pit bull, as well as "any additional pit bull or pit bull mix dogs on the premises." The warrant also included the sentence, "I would like to search inside and outside the home for any additional animals." The warrant was issued pursuant to 13 V.S.A. § 354(b)(2), which allows a humane officer to apply for a search warrant upon probable cause that an animal is being subjected to cruelty.[2] That statute provides that "[a] veterinarian licensed to practice in Vermont must accompany the humane officer during the execution of the search warrant." Id.

         ¶ 4. The officer executed the warrant on February 5, 2015 at around 4:00 p.m. She was accompanied by her supervisor and state troopers, but not a veterinarian. A veterinarian had been contacted, but was unable to be present. When they arrived at defendant's home, the temperature was below zero and the officer noticed that the dog she saw during her previous visit was still on the porch; this dog was eventually taken from the house during the search. Defendant answered the door, the officer presented him with the search warrant, and he allowed them inside.

         ¶ 5. Once in the kitchen, defendant locked one dog in the bathroom after explaining that the dog had a propensity to bite. There was another dog in a crate. One of the troopers reported that the crated dog was extremely thin, with its ribs and hips visible through its skin, and was in need of medical attention. The animal control officer removed these two dogs from the house. The officer found two more dogs upstairs and took them from the house. The troopers later reported that the house smelled strongly of dog feces and urine. The troopers asked defendant if he had any more dogs and defendant told them there were two more in the basement. The basement was only accessible from the outside and when the troopers went to look for the dogs there were no fresh footprints in the snow, indicating that defendant had not checked on the dogs since the snow stopped falling that morning. The troopers opened the door to discover an unlit, cold basement with a cement floor covered in dog feces and urine. The troopers found and removed two dogs from the basement, both of whom were skinny, malnourished, and had patches of fur missing.

         ¶ 6. Altogether, the animal control officer found and took seven dogs from defendant's house during the search. The officer and troopers reported that all were thin, appeared unhealthy, and had fleas. They observed that several had patchy fur and visible ribs, backbones, and hips. The dogs were taken to another location where the director of a nearby animal rescue organization examined them further. The director reported that the dogs were emaciated and dehydrated, and their appearance showed that they were being deprived of food, water, and medical care. The dogs were given food, water, and blankets for the night. The next morning, they were examined by a veterinarian who later testified that almost all the dogs were underweight and had skin conditions, patchy fur, very long nails, and fleas.

         ¶ 7. The State filed a motion for forfeiture of the dogs on April 3, 2015, and defendant filed a motion to suppress on April 10. The trial court held a hearing on August 19, 2015 to address both motions but continued the matter after hearing from several witnesses because the court had another hearing scheduled at that time. The next hearing was not held until February 3, 2016, at which time the court continued the case again to provide the State with additional time to organize and prepare witnesses. On March 2, 2016, the court heard testimony from more witnesses but again continued the case, partly because the veterinarian who examined the dogs after they were taken from the house could not be at the hearing. The court heard from the remaining witnesses on March 30 and issued a written decision on the suppression motion and the forfeiture request that day.

         ¶ 8. The court denied defendant's motion to suppress. Defendant's motion argued that the warrant was not supported by probable cause, that the warrant was overly broad, and that the execution of the warrant was improper because there was no veterinarian present. The court rejected defendant's argument that the warrant was not supported by probable cause because defendant did not submit to the court any of the supporting evidence underlying the warrant request; thus, defendant failed to meet his burden in showing that the warrant was not supported by probable cause. The court concluded that the warrant was not impermissibly broad because it limited the search to pit bulls and pit bull mixes after the issuing court received reliable information establishing probable cause to believe some number of pit bulls in the home were being subjected to cruelty. Lastly, it determined that the execution of the warrant was not unreasonable because, although 13 V.S.A. § 354(b)(2) calls for a veterinarian to be present during the search, the statute did not provide a remedy in the case of a violation and suppression was therefore not appropriate.

         ¶ 9. The court granted the State's forfeiture motion with respect to all but one of the dogs pursuant to 13 V.S.A. § 354(f)(1).[3] The court concluded that this dog, who was not as unhealthy as the others, "was not subjected to cruelty, neglect, or abandonment" and therefore was not subject to forfeiture. Pursuant to the forfeiture statute, the court ordered that defendant repay all reasonable costs incurred by the custodial caregiver for caring for the animals, including veterinary expenses. The court set a further hearing regarding these costs.

         ¶ 10. At the April 5 hearing on costs, the court received uncontested evidence that the Franklin County Humane Society, which housed the forfeited dogs from February 5, 2015 until the court's March 30, 2016 forfeiture, spent $1270 for testing, medication, and veterinary treatment for the dogs. The Humane Society also sought daily charges of $20 per day per dog for boarding the animals during that period. Defendant argued that the daily charges for boarding sought by the Humane Society were not direct "costs incurred, " since they represented primarily overhead costs to the Humane Society. He also ...

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