Metropolitan News-Enterprise Monday, May 14, 2001 Page 9 PERSPECTIVES (Column) Cases on Dogs Raise Constitutional Questions By ROGER M. GRACE (Sixth in a series on dogs and the courts.) Cases involving dogs on occasion entail issues of federal constitutional dimension. Below is a run-down on some such cases, arising here in California. The Court of Appeal’s ruling in Conway v. Pasadena Humane Society (1996) 45 Cal.App.4th 163 is summed up in the first two sentences of the opinion: “This appeal presents the question of whether animal control officers can lawfully enter a home, absent a warrant or consent, to seize and impound the homeowner’s dog for violation of a leash law. We hold that the Fourth Amendment of the United States Constitution precludes such conduct.” The opinion was penned by then-Justice William Masterson (since retired) of this district’s Div. One. The case involved a beagle named Toby whom a dog-catcher spotted running loose. Another dog-catcher then saw him running home. The pair, accompanied by Pasadena police, entered Toby’s home through an open door and seized the dog. The homeowners, Nicholas and Virginia Conway, paid a $500 fine for violating the leash law and got Toby back. They then brought suit under 42 USC §1984 for violation of their federal civil rights. Los Angeles Superior Court Judge Coleman A. Swart granted summary judgment in favor of the defendants, the Pasadena Humane Society (with which the city contracts for animal control services), the city, and one of the Humane Society’s dog-catchers. The Court of Appeal reversed. Masterson observed that there were no exigent circumstances justifying the warrantless entry. The justice said although both Government Code section 53074 and a Pasadena ordinance authorized the seizure of dogs who had been running loose and returned home, without mentioning a need to obtain a warrant for entering the homes, such a requirement must be read into those laws. “We do not read these enactments as dispensing with the Fourth Amendment’s requirement that an official entry into a home be justified by a warrant, consent, or exigent circumstances,” he wrote, remarking: ” ‘A statute does not trump the Constitution.’ ” The jurist interjected: “[W]e note the comments made by the Conways’ attorney at the oral argument before the trial court: ‘The facts of this case, your Honor, are both humorous [and] ridiculous but also outrageous and kind of scary.’ No doubt, a civil rights suit about the impounding of an animal—especially a dog that often runs afoul of the City’s leash law—may seem ridiculous. Further, the City argues that the police should be commended, not made the subject of a suit, for protecting the Conway home from a possible burglar. On the other hand, many citizens would probably express concern about the Humane Society’s practice of entering a home without a warrant or consent for the sole purpose of impounding a pet seen running at large.” Earlier in 1996, another Court of Appeal division in this district condemned the warrantless seizure of a dog. In In re Quackenbush, 41 Cal.App.4th 1301, Justice Arthur Gilbert (now the presiding justice) wrote for Div. Six in saying: “Under former Health and Safety Code section 1924 (now section 121710) it is a misdemeanor to fail to produce on demand of a local health officer an animal that has bitten or otherwise exposed a person to rabies. We hold the section does not dispense with the Fourth Amendment requirement for obtaining a search warrant in all cases. We affirm the judgment granting defendant’s writ of habeas corpus.” The facts in the case were that an animal control officer learned that a dog (not named in the opinion) had bitten someone. He came to the home of Daniel and Beverly Quackenbush to see the dog, who was temporarily staying with them, and he determined it was safe to quarantine the dog on the premises for 10 days, rather than taking the dog into custody. Beverly Quackenbush signed an agreement to keep the dog there for the 10-day period, and let the authorities know immediately if the dog ran away, got sick, or died. The control officer was later told by a supervisor that the dog couldn’t be quarantined at the Quackenbush’s home since they didn’t own the dog. He returned to the house and demanded that the dog be turned over to him. Daniel Quackenbush refused, telling him he needed a warrant. The upshot was that Quackenbush was arrested and charged with two misdemeanors and the dog was seized. Santa Barbara County Judge Rodney S. Melville granted a writ of habeas corpus, barring a trial of Quackenbush in the Municipal Court. The Court of Appeal affirmed. “Here the People concede that the Fourth Amendment applies to the seizure of the dog from Quackenbush’s house,” Gilbert wrote in his opinion for the majority. “Nevertheless, the People contend that under former section 1924 Quackenbush was required to turn the dog over to Officer Wagner without a warrant. The contention is untenable.” Gilbert explained: “There is no doubt that exigent circumstances may justify a warrantless seizure….Here, however, neither the Legislature, nor the State Department of Public Health, nor the local officer has found every dog bite to give rise to such exigent circumstances that a seizure of the dog is deemed necessary….It is only when an animal has rabies or exhibits the clinical symptoms of rabies that isolation in a pound, veterinary hospital or other adequate facility is required.” If Quackenbush had refused to produce the dog when the animal control officer first showed up, a seizure would have been warranted, Gilbert said, so that a determination could be made if the dog had rabies. But once an assessment was made that it was safe to leave the dog at the Quackenbush’s home, any follow-up efforts to take the dog from there had to be supported by a warrant, he said. “The People accuse Quackenbush of distorting the issue,” Gilbert related. “They assert he has converted a demand that he turn over a dog belonging to another into a warrantless attempt to search his home. “Even if Officer Wagner did not want to search Quackenbush’s home, it is uncontested that Officer Wagner wanted to seize the dog. The Fourth Amendment protects against unreasonable seizures of property even in the absence of a search.” Justice Kenneth Yegan dissented, saying that Quackenbush had an adequate remedy at law in the form of an appeal from a conviction. He added: “The judiciary should not lightly second-guess animal control authorities. We so indicated in Phillips v. San Luis Obispo County Dept. etc. Regulation (1986) 183 Cal.App.3d 372, 379: ‘It is obvious that summary seizure of dogs must be permitted when of immediate danger to the public, as for example when the dog is vicious or rabid.’ Had the dog run away from the Quackenbush residence, bitten other children, and infected them with rabies, it would be difficult to explain why Quackenbush’s Fourth Amendment rights took precedence over public health and safety. A dog with rabies does not wait for a dispassionate magistrate to issue a search warrant.” What Yegan misses is that the officer did not come to the Quackenbush’s home on the second occasion to seize the dog for fear that he or she was “vicious or rabid” or out of concern that the dog might run away and bite someone else. The animal control officer came there to seize the dog based on the pronouncement of some bureaucrat in the Office of Dog-Catcher that a dog could not be quarantined in the home of someone who was not the owner. Yegan seeks to alter the facts to reach a result—something he has done on other occasion (as I’m personally, painfully aware). Source: Google Cache Directory

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