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 ...