Going Out on a Limb

October 28, 2008 at 1:10 am 9 comments

Gina over at PetConnection posted today on “A New Contender for the ‘Hell Isn’t Hot Enough Award‘.”  A heartless, irresponsible dolt who owns a boarding and training facility in Youngstown, Ohio apparently decided that feeding the dogs he was supposed to be caring for was an unnecessary task beyond his budget. And according to Vindy.com:

Kyle Ziegler and Joe Borosky, Animal Charity humane agents, went to the business Wednesday afternoon after a woman called and complained that she couldn’t get her dog back from the man operating the place. The agents knocked but no one answered, so they got permission to look from the next-door neighbor’s backyard.

[...]

After taking the dogs, staff at Animal Charity found the animals were in worse condition than first believed. Some were aggressive against staff because of starvation, he said.

“For the safety of the animal, we’re not going to release the dogs until we’re sure they’re healthy,” Borosky said.

Ziegler said it’s not clear how long ago the seven dogs died. The veterinarian at Animal Charity would know more after post-mortem exams, he said.

The dead dogs included Doberman pinschers, pit bulls and two German shepherds, Borosky said.

Borosky said the eight remaining dogs, German shepherds, Dobermans, a mastiff and pit bull puppy, are barely alive, just skin and bones, and that four of them “might not make it.”

The opinion that Steve Croley, the owner and ‘operator’ of the facility deserves a fast, nonstop ride to hell is an understatement.  This is cold-hearted, criminal neglect of the worst kind and I’m relieved to hear that the surviving animals have been taken from him.

But there’s more to this story than the rescue of abused animals…

In a follow-up story Vindy.com reports:

If Animal Charity humane agents had waited for a search warrant before using bolt cutters to enter High Caliber K-9 — where seven dogs died — the city prosecutor would have filed more charges against the operator.

[...]

[Prosecutor] Macejko, however, did not file charges related to the 15 dogs found after agents entered Croley’s property with bolt cutters.

“They should have called me. I could have got a warrant in one hour,” Macejko said Friday. “Saving animals doesn’t mean you can prosecute.”

Macejko said civilians can act to save animals in distress, but the agents, Kyle Ziegler and Joe Borosky, were acting on behalf of the state and must follow the law if they expect criminal charges to be filed.

[...]

In a written response, Macejko said the Fourth Amendment, which guards against unreasonable search and seizure, applies to humane agents.

The article is a bit vague, but it sounds like the humane agents:

1. Entered the site not only without a warrant, but without asking for a warrant

2. Notified the media either before, or immediately after, they entered the property allowing the press to arrive while they were removing the dogs.

3. Further may not have been duly authorized as one of the armed agents responding had not been appointed by authorities to act in this capacity.

According to Vandy.com, the prosecutor responded by telling them…

“You and they further complicated the matter by turning the scene into a media spectacle. None of you had a right to escort the media around this man’s property,” Macejko wrote. “If you wished to hold a press conference, you would have been fully within your right to do so once the animals had been removed from the scene and secured at Animal Charity.”

He said her conduct — sending letters to the mayor and reporters before they spoke — “only serves to justify my lack of faith in your agency.”

The prosecutor said he learned Thursday, while researching the case, that Borosky has not been appointed by the mayor to act as a humane agent, but Ziegler has, so Borosky had no authority to act at all, other than as a private citizen.

Macejko warned Owen that if Borosky acts again without authority or enters a public building wearing a firearm under the auspices of being a humane agent, all necessary action will be taken. The prosecutor added that her agents are generally unprepared when they present cases to his office and severely need training.

Before you blow a gasket – I am in no way defending the scumbag who tortured and abused these dogs.  And if I had been there, it would have been hard to keep me from going in there to get them.  ButI am going to go out on a limb and defend the scumbag’s civil rights (along with yours and mine).  Specifically the rights granted by the fourth amendment - which specifically requires that search and arrest warrants be judicially sanctioned, supported by probable cause and be limited in scope according to specific information supplied by a person (usually a law enforcement officer) who has sworn by it and is therefore accountable to the issuing court.

OK – you say, search warrants are a good thing – but what about those poor dogs? Can’t a humane agent just break in to rescue them when they are in dire need?  Especially when the dogs are clearly visible from a public area?  Well, he or she can – but if they do so without a warrant they run the risk of polluting the case against the abuser.  From FourthAmendment.com :

Morgan v. State, 285 Ga. App. 254, 645 S.E.2d 745 (2007): (a) The Curtilage.  Morgan contends that the trial court erred in concluding that the warrantless search of the curtilage surrounding his home was justified under the plain view doctrine. We agree that the plain view doctrine, standing alone, did not provide a sufficient basis for the search of the curtilage.

It is true that the deputy’s initial observations of malnourished and mistreated animals occurred while he was standing in the driveway and on the public road, a vantage point that “breached no right of privacy of [Morgan].” State v. Nichols, 160 Ga. App. 386 (287 SE2d 53) (1981). See Sirmans v. State, 244 Ga. App. 252, 254-255 (2) (b) (534 SE2d 862) (2000) (officer’s observations of mistreated animals from public roadway did not violate defendant’s Fourth Amendment rights); Galloway v. State,178 Ga. App. 31, 34 (342 SE2d 473) (1986) (officer’s observations made while on driveway did not violate defendant’s Fourth Amendment rights since officer had taken “the same route as would any guest, deliveryman, postal employee, or other caller”) (citation and punctuation omitted). These initial observations constituted “a lawful, nonsearch plain view situation” supporting a finding of probable cause to suspect that the crime of cruelty to animals was being committed on Morgan’s property. (Punctuation and footnote omitted.) Boldin v. State, 282 Ga. App. 492, 495 (2) (639 SE2d 522) (2006). See Sirmans, 244 Ga. App. at 254-255 (2) (b) (plain view observation of animals in deprived condition supplied officer with probable cause to search defendant’s property).

However, the officer’s initial plain view observations from the driveway and road, in and of themselves, did not authorize the officer to then make a warrantless entry into Morgan’s backyard–a location indisputably within the curtilage surrounding the residence–and take steps culminating in the dogs there being seized and removed from the property.

Along with the limitations presented by the curtilage issue discussed above (see Wikipedia for more on that), BlueDogState wrote an excellent post back in May touching on the potentially terrifying problems associated with allowing private animal welfare officers to conduct searches, seizures and arrests.  Though they may have good intentions, these people operate in the private sector- outside the system of checks and balances designed to help protect our rights in the public law enforcement system.  As BlueDogState astutely noted; “They answer to no one, other than the privately-employed individual that signs their paycheck.” And in too many cases (though I’m not throwing stones at the folks involved here) these are groups with agendas, not relatively impartial law enforcement officers.

Along with the potential problems that arise if we allow armed private individuals to enter our property without warrants to conduct searches and seizures, it’s also important to note that the public (i.e. you and I) has no ability to influence the operations of these private groups and individuals - so when problems (like the very sobering one discussed here) arise, as they are likely to do, - how are we going resolve them? In civil court? Criminal court? Or perhaps with sabers at dawn?

I understand the need – and even more so the desire – to rush in and rescue these dogs, but when it’s done in a manner that isn’t in accordance with constitutional search and seizure provisions - it unneccessarily creates further problems.  And allowing, or worse yet, condoning these kinds of actions could lead us all down the slippery slope that lets anyone who doesn’t agree with the way we keep our dogs or with the kinds of dogs we choose keep to take them away from us without due process of law.

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Entry filed under: animal rights, bsl, dogs. Tags: , .

Now Smell This There. Are. No. Words…

9 Comments Add your own

  • [...] No. 2: Over on SmartDogs, Janeen has a thoughtful post on the reason a search warrant was … warranted. And why when you choose to save an animal [...]

  • 2. Audie's Gramma  |  October 28, 2008 at 3:32 am

    If they had time to alert the media, they had time to request a warrant.

    It really PO’s me when law enforcement officers — not to mention these gray-area wannabes — screw up something like this and cause some jackass to evade legal consequences that he earned.

    That’s almost as lovely as when they screw up something like this and persecute someone who is innocent in an attempt to CYA.

  • 3. Diana L Guerrero  |  October 28, 2008 at 5:17 pm

    Good points and an excellent post.

    I agree that procedure is important–especially when American rights have been ignored and trampled over the past few years.

  • 4. Liztom  |  October 28, 2008 at 8:23 pm

    First of all i will give you links to the articles at vindy.com

    This man killed my dog, he intentionally did not feed him or give him water.

    The counts against this man have already been dropped from 19 counts to only 4 counts as they are stating the humane agent did not act lawfully by entering the premises without a search warrant. He claims he did this because he saw (with the permission of the neighbor – he went into the neighbor’s yard) and looked over the fence and saw a puppy with bones, spine showing staggering around as if drunk and knew this lil pup was in big trouble – he cut the lock with a cutter. Upon entering the property he found many dead dogs and many dogs clinging to life.

    He did not see them from the road. They also DID NOT enter his home. These dogs were all outside. His dogs from inside his house were taken after he was arrested. Please know your story.

    While I understand dogs are considered “property” they are a “very, very special property that require water, food, shelter, etc.” and this kennel owner was responsible for them and paid to provide this. I cannot understand why this man did this – there is absolutely no excuse and justice must be served.

    http://www.vindy.com/news/2008/oct/23/dogs-at-kennel-found-dead/

    http://www.vindy.com/news/2008/oct/28/out-of-state-dog-owners-claim-remains-of-their-pet/

    http://www.vindy.com/news/2008/oct/22/dead-or-emaciated-dogs-found-at-youngstown-kennel/

  • 5. Audie's Gramma  |  October 29, 2008 at 4:10 am

    Liztom, once again – if there is time to alert the media, there is time to petition for a warrant.

    Your anger towards the man who killed your dog is entirely justified.

    You can also quite justly direct some outrage at the persons who, entrusted with a public duty, failed to perform that duty properly.

    Intrusion into curtilage = requires warrant

    Here’s a good article: http://tinyurl.com/64y675

    Hint: if it requires bolt cutters, it is an intrusion into the curtilage.

    The prosecutor cannot waste the court’s time and the public’s money pressing charges that will not stick.

    It is the fault of the officers involved.

    It does not affect the charges for the four dogs that were in plain view, nor your ability to seek civil damages.

  • 6. jackie  |  October 30, 2008 at 2:38 am

    There was a youngstown police officer present when the lock was broken. why didn’t he request a warrant? I don’t think the humane officers called the media-might want to check the facts on that! Whos to tell how many dogs could have died while waiting for a warrant – they saw eminent danger and acted to protect the animals. Dear god, what is this world coming to!! i understand that we all have rights and that laws must be followed, but i think we need to investigate a little further before we believe everthing we read in the newspaper. Don’t persecute the officers – if it werent for them this situation could have been a lot worse – if thats possible.

  • 7. Liztom  |  October 30, 2008 at 5:03 pm

    Petition and sample letters are up on our website.
    http://www.nitrofoundation.com/index.htm

    Also petition can be found here
    http://www.thepetitionsite.com/1/nitrofo

    Please support us to bring some Justice.

    Jackie – thanks.

  • 8. Caveat  |  November 1, 2008 at 6:25 pm

    This sounds like either an HSUS or ASPCA driven operation. The fact that media were contacted first fits their usual MOt.

    These people, with the best of intentions, are not helping!

    In fact, with the increased push for warrantless entry for humane officers, I expect many innocent people to be accused of cruelty, neglect, inhumane breeding, etc.

    In Ontario we have many cases which never get to court due to bumbling by cruelty investigators. We have just as many that don’t get to court because there is not enough evidence to lay charges against the target even if they do follow protocol.

    Every normal person wants cruelty to end; however, civil rights are in place because the individual must be protected from the power of the state (or others) who want to take shortcuts.

    In this case, local authorities let the people and the dogs down in a big way.

  • 9. Donna Caudill TriState Foster Coordinator  |  November 2, 2008 at 12:37 am

    I have helped the collie rescue for over a year now. If this man gets off with a slap. Then what good is the law that is out there to protect these animals. I really feel sorry for the family of the wonderful pets and my heart goes out to them all.

    Donna

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