SJC Expands Pure Emergency Exception to Animals in Duncan James Gardner Long, III * I. INTRODUCTION On April 11, 2014, the Massachusetts Supreme Judicial Court (SJC) extended the pure-emergency exception to allow police officers and other public officials to enter a home without first obtaining a warrant to render emergency assistance to animals. 1 The Fourth Amendment to the United States Constitution and Article 14 of the Massachusetts Declaration of Rights each require a judicial determination of probable cause prior to a government intrusion into an individual s dwelling. 2 Nevertheless, there are a number of exceptions to this requirement. One such exception permits the police to enter a home without a warrant when they have an objectively reasonable basis to believe that there may be someone inside who is injured or in imminent danger of physical harm. 3 The SJC s holding in Duncan extends that pure emergency exception to the rendering of emergency aid to animals as well. 4 II. THE WARRANTLESS ENTRY OF THE DEFENDANT S HOME Police officers arrived at the defendant s home after receiving a telephone * James Gardner Long, III is currently serving on the Private Counsel Division of the Appeals and Post- Conviction Panel for the Committee for Public Counsel Services through his own law firm, James Gardner Long, III, Attorney at Law. Prior to opening his own firm, Attorney Long worked for the Appeals Division of the International Criminal Tribunal for the former Yugoslavia's Office of the Prosecutor as a Post-Graduate Intern in The Hague, Netherlands. In addition, he provides legal services in the areas of estate planning and business law to private clients 1. Commonwealth v. Duncan, 7 N.E.3d 469, 470 (Mass. 2014). 2. See U.S. CONST. amend. IV ( The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. ); MASS. CONST. pt. 1, art. 14 ( Every subject has a right to be secure from all unreasonable searches, and seizures, of his person, his houses, his papers, and all his possessions. All warrants, therefore, are contrary to this right, if the cause or foundation of them be not previously supported by oath or affirmation; and if the order in the warrant to a civil officer, to make search in suspected places, or to arrest one or more suspected persons, or to seize their property, be not accompanied with a special designation of the persons or objects of search, arrest, or seizure: and no warrant ought to be issued but in cases, and with the formalities prescribed by the laws. ); see also Commonwealth v. Forde, 329 N.E.2d 717, 722 (Mass. 1975) ( The right of police officers to enter into a home, for whatever purpose, represents a serious governmental intrusion into one's privacy. It was just this sort of intrusion that the Fourth Amendment was designed to circumscribe by the general requirement of a judicial determination of probable cause. ). 3. Commonwealth v. Peters, 905 N.E.2d 1111, 1114 (Mass. 2009). 4. See Duncan, 7 N.E.3d at 474-75.
2014] SJC EXPANDS PURE EMERGENCY EXCEPTION TO ANIMALS 53 call from a neighbor who reported two dead dogs and one emaciated dog on the defendant s property. Upon arrival, police officers heard a dog whimpering and very hoarsely and weakly barking from behind the defendant s privacy fence. To get a better view, the officers climbed a nearby snowbank and saw three dogs leashed to a fence; two were motionless and frozen and one was emaciated and barking. 5 There appeared to be no food or water for the animals. The officer s attempts to alert any occupants in the defendant s home by engaging their police cruiser s siren, emergency lights, and air horn and utilizing various public records to contact them were unsuccessful. The officers, relying on police protocol for handling animal-related emergencies, contacted the fire department to remove the locks on the defendant s privacy fence. Once inside the defendant s yard, the officers contacted animal control to remove the dogs. The entire event lasted less than two hours. The Essex County District Attorney s Office charged the defendant with three counts of animal cruelty, under Chapter 272 of the Massachusetts General Laws. 6 The defendant moved to suppress the police officers observations and the physical evidence giving rise to the charges, arguing the observations and evidence were unlawfully obtained under the Fourth Amendment to the United States Constitution and Article 14 of the Massachusetts Declaration of Rights. The District Court judge granted the defendant s motion to suppress, reasoning that [Massachusetts] courts have not as yet applied the emergency exception to animals. 7 Nevertheless, the judge reported the question of law to the SJC, under the Massachusetts Rules of Criminal Procedure. 8 The question presented to the SJC was Does the pure emergency exception to the warrant requirement extend to animals? 9 III. A BRIEF SUMMARY OF THE EMERGENCY EXCEPTION TO THE WARRANT REQUIREMENT AND DECISIONS IN OTHER JURISDICTIONS PERMITTING THE EXCEPTION FOR ANIMALS As noted above, both the United States Constitution and the Massachusetts Declaration of Rights consider a police officer s entry into a home, a serious governmental intrusion into one s privacy, and these provisions were designed to limit such intrusions. 10 Despite this protection, courts have recognized an 5. Id. at 471. 6. See id. at 471; see also MASS. GEN. LAWS ANN. ch. 272, 77 (West 2014) (amended 2014). 7. Commonwealth v. Duncan, 7 N.E.3d 470, 472 (Mass. 2014). The judge did find, however, that the police had probable cause to believe that the crime of animal cruelty had been committed. Id. 8. See id.; see also MASS. R. CRIM. P. 34. 9. Duncan, 7 N.E.3d at 471. 10. See Commonwealth v. Peters, 905 N.E.2d 1111, 1114 (Mass. 2009) (quoting Commonwealth v. DeJesus, 790 N.E.2d 231, 234-35 (Mass. 2003)).
54 SUFFOLK UNIVERSITY LAW REVIEW ONLINE [Vol. II:52 exception that allows police to enter into a person s dwelling without a warrant if there is an objectively reasonable basis to believe that there may be someone inside who is injured or in imminent danger of physical harm. 11 The need to protect the life of another person obviates the need for a warrant because of the impracticality of obtaining one during such an emergency. 12 The emergency exception, unlike other exigency-based exceptions, is not based on investigating criminal activity and does not require the showing of probable cause. 13 In order to ensure constitutional protections, there are two strict requirements for a warrantless entry under the emergency exception: the officer must have an objectively reasonable belief that an emergency exists; and the conduct of the officer, following the entry, must be reasonable under the circumstances. 14 In many instances, this emergency exception can discreetly transform into a criminal investigation. There are numerous instances where an officer has responded to a reported emergency that resulted in an arrest. 15 Despite the requirement to act reasonably, an officer s subjective belief does not invalidate the exception. 16 Additionally, the exception permits the officer to conduct a protective sweep in areas where the emergency may reasonably be found. 17 Furthermore, any contraband or evidence of criminal activity observable in plain view during the emergency-based entry is subject to seizure. 18 11. Id. 12. See Brigham City v. Stuart, 547 U.S. 398, 403 (2006) ( One exigency obviating the requirement of a warrant is the need to assist persons who are seriously injured or threatened with such injury. ); Commonwealth v. Forde, 329 N.E.2d 717, 720 (Mass. 1975) ( the claim of exigency cannot be evaluated without considering the circumstances in their totality. ); see also Commonwealth v. Snell, 705 N.E.2d 236, 242 (Mass. 1999) (quoting Mincey v. Arizona, 437 U.S. 385, 392 (1978)) ( The need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal absent an exigency or emergency. ). 13. See Commonwealth v. Entwistle, 973 N.E.2d 115, 123 (Mass. 2012) (noting justification for officer entry under emergency aid exception is not related to criminal act), cert. denied, 133 S. Ct. 945 (2013); JOSEPH A. GRASSO, JR. & CHRISTINE M. MCEVOY, SUPPRESSION MATTERS UNDER MASSACHUSETTS LAW 14-1(a), (c)(3)(vi) (2012-13 ed.). 14. See Commonwealth v. McDermott, 864 N.E.2d 471, 484 (Mass. 2007). 15. See Commonwealth v. Townsend, 902 N.E.2d 388, 397 (Mass. 2009) ( At the time of the entry into the defendant's apartment, the facts then known to the police warranted them in having a reasonable belief that the victim was inside the defendant's apartment and in need of immediate assistance. ); Snell, 705 N.E.2d at 243 ( There existed objectively reasonable grounds to believe that the victim might be injured or dead inside. The defendant had made a direct threat to murder the victim and burn down the house two days earlier, and he was at large. ). 16. See Commonwealth v. Murdough, 704 N.E.2d 1184, 1186 (Mass. 1999) (noting officer s motive [does not] invalidate [ ] objectively justifiable behavior ) (alterations in original). 17. See Commonwealth v. McCarthy, 884 N.E.2d 991, 993 (Mass. App. Ct. 2008). The Appeals Court upheld the search of the defendant s purse for evidence of drugs to assist the en route EMTs. See id. But see Commonwealth v. Kirschner, 859 N.E.2d 433, 438 (Mass. App. Ct. 2006). In Kirschner, the Appeals Court held entering an apartment to seize a bong pipe while searching for a water leak improper because finding the source of the leak could have been left to other authorities and entering the apartment to search for drugs required a warrant. Id. 18. See McCarthy, 884 N.E.2d at 994 (allowing evidence gathered from search of handbag during
2014] SJC EXPANDS PURE EMERGENCY EXCEPTION TO ANIMALS 55 Prior to this case, there was a presumption that the emergency aid exception was related and limited to an imminent injury to a human being. In Massachusetts, there was no precedent or statutory provision for the courts to rely upon. Other state courts, for example, had addressed the issue by declaring that a reasonable interpretation of the emergency aid exception would permit the rendering of aid to vulnerable and helpless animals. 19 Moreover, several states have held that needless suffering and death of animals is an exigent circumstance. 20 These various state appellate court decisions display a growing consensus among the states that animals fall within the scope of living organisms protected by the emergency exception to the warrant requirement. IV. THE SUPREME JUDICIAL COURT S USE OF STATUTORY PUBLIC POLICY TO EXPAND THE EMERGENCY EXCEPTION TO INCLUDE ANIMALS The SJC relied heavily on public policy underlying Massachusetts s criminal statutes. The Court reasoned that it would be counterintuitive to punish individuals for animal mistreatment and abuse but prohibit officers from entering an alleged abuser s dwelling without a warrant to render reasonable emergency aid. 21 In particular, judges have the authority to make a totality-ofthe-circumstances finding of whether there is imminent threat of bodily injury to a pet and judges are required to notify officers of such a finding. 22 The SJC relied upon these statutes and noted that courts may consider such policies when no previous decision or rule of law is applicable. 23 The Court concluded that rejecting the expansion of the emergency aid exception would run contrary to the underlying policy rationales and objectives of the statutes criminalizing animal mistreatment. Additionally, the SJC reasoned that not allowing officers or other public officials to enter a home without a warrant to provide emergency assistance to animals would force untrained persons to objectively reasonable belief of emergency); Commonwealth v. Ringgard, 880 N.E.2d 814, 819 (Mass. App. Ct. 2008) ( Once lawfully inside the premises to remove the defendant, the officers were entitled to seize the firearm, for which the defendant did not possess a firearm identification card, as evidence of a crime within plain view. ). 19. State v. Bauer, 379 N.W.2d 895, 899 (Wis. Ct. App. 1985). 20. See State v. Stone, 92 P.3d 1178, 1184 (Mont. 2004); see also, e.g., Tuck v. United States, 447 A.2d 1115 (D.C. 1984); State v. Goulet, 21 A.3d 302 (R.I. 2011); Hegarty v. Addison Cnty. Humane Soc y, 848 A.2d 1139 (Vt. 2004). 21. See MASS. GEN. LAWS ANN. ch. 272, 77 (West 2014) (amended 2014) (outlawing intentional acts of cruelty against animals, including the unnecessary failure to provide food, water, shelter, sanitary conditions, and protection from the elements); MASS. GEN. LAWS ANN. ch. 140, 174E (West 2014) (requiring dogs housed outdoors be provided with clean water and appropriate shelter); MASS. GEN. LAWS ANN. ch. 272, 80E, 80G, 81 (West 2014) (restricting certain methods of putting down animals, transport of animals by railroad, and use of animals in scientific experiments). 22. See MASS. GEN. LAWS ANN. ch. 209A, 11 (West 2014). 23. Commonwealth v. Duncan, 7 N.E.3d 470, 474 (quoting Commonwealth v. Yee, 281 N.E.2d 248, 252 (Mass. 1972)).
56 SUFFOLK UNIVERSITY LAW REVIEW ONLINE [Vol. II:52 intervene, resulting in harm to the animal, layperson, or community at large. 24 The SJC did limit the scope of the exception to animals harmed by humans, noting that without human action the threshold for police entry... will be considerably higher. 25 Finally, in dicta, the Court noted a list of potential factors that other courts have considered, such as the species of the animal, the privacy interest at issue, the degree of police effort to obtain consent prior to entry, and the extent of intrusion and damage resulting from the entry. 26 The Court remarked that the above list was not exhaustive and emphasized the need for a case-by-case determination upon the totality of the circumstances. V. ANALYSIS While the SJC s ruling does appear to comport with the underlying policy objectives behind statutes criminalizing animal mistreatment and cruelty, this expansion of the emergency aid exception could open a defendant s rights to abuse by officers seeking to use a whimpering dog as pretext for searching a person s home for other illegal activity without probable cause or even reasonable suspicion. The SJC did go to rather great lengths to emphasize the limitations imposed by the emergency aid doctrine. In fact, the Court s opinion hinted that it might be very difficult to utilize the animal-emergency exception when the injuries are not a result of a human cruelty, by stating that such an entry would have a considerably higher threshold. Additionally, the Court highlighted that the emergency exception requires officers to act reasonably under the circumstances. This should restrict the officer to the removal of the endangered animal; however, if the officer were to observe contraband, or other evidence of a crime, in plain view, such evidence would be admissible. The factors enumerated above also demonstrate an attempt by the Court to impose limitations and case-by-case scrutiny by examining the totality of the circumstances. The factor derived from Suss, which examines the measures undertaken by officers to obtain consent prior to entry, has the potential to prevent secret entries when the residents of the dwelling are available to provide consent. Nonetheless, the SJC, in the future, will certainly be prompted to address what constitutes the minimum amount of effort to obtain consent. The Court also noted that the species of the animal was relevant, which raises the logical question of what counts as a protected animal. Perhaps there is some solace that officers, in cases reported in other jurisdictions, only 24. See id. 25. Id. at 476. 26. See DiCesare v. Stout, No. 92-7116, 1993 WL 137110, at *2 (10th Cir. Apr. 23, 1993) (discussing whether Plaintiff had reasonable expectation of privacy); Suss v. Am. Soc y for the Prevention of Cruelty to Animals, 823 F. Supp. 181, 187 (S.D.N.Y. 1993) (demolishing exterior building to rescue cat found unreasonable, particularly where no effort was made to obtain consent or judicial approval); State v. Fessenden, 310 P.3d 1163, 1169 (Or. Ct. App. 2013) (remarking reasonableness determined by totality of the circumstances, including species of animal), aff d, 355 Or. 759 (2014).
2014] SJC EXPANDS PURE EMERGENCY EXCEPTION TO ANIMALS 57 seized neglected or abused animals. Nonetheless, as the Court notes, future litigation will have to flesh out the issues that will naturally arise from the Duncan decision. VI. CONCLUSION The courts of the Commonwealth should vigilantly attempt to safeguard against allowing evidence from an otherwise unlawful search and seizure under the guise of rendering aid to tortured helpless animals. The SJC s opinion makes a valiant effort to prevent abuse of the ruling, but the judges throughout the Commonwealth must strive to keep this ruling narrow and limited to circumstances that require immediate entry to preserve the life of an animal.