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State of Oregon v Gruntz

Case No. A145351 (OR Ct. App., Feb. 8, 2012)

The state appeals, under ORS 138.060(1)(c), from an order suppressing evidence of animal neglect, ORS 167.325; ORS 167.330, discovered as a result of two searches pursuant to search warrants. The trial court, after excising certain material from the affidavit in support of the warrant application for the first search (a ruling not challenged on appeal), determined that the remaining content was insufficient to establish probable cause that evidence of animal neglect would be found at defendant's ranch. Consistently with the standard of review prescribed in State v. Castilleja, 345 Or 255, 264-66, 192 P3d 1283, adh'd to on recons, 345 Or 473, 198 P3d 937 (2008), we conclude that the magistrate could properly have concluded that the supporting affidavit, as excised, established probable cause that a search of defendant's property would yield evidence that defendant had failed to provide "[m]inimum care" for horses on his ranch by failing to provide "[f]ood of sufficient quantity and quality to allow for normal growth or maintenance of body weight." Former ORS 167.310(6)(a) (2007), renumbered as ORS 167.310(7)(a) (2009). Accordingly, we reverse and remand.

Before recounting the particular facts in this case pertaining to probable cause, it is useful--indeed, essential--to put what follows into legal perspective. Two overarching considerations circumscribe and inform our review. The first is procedural-- the operative standard of review. In State v. Duarte/Knull-Dunagan, 237 Or App 13, 21- 22, 238 P3d 411, rev den, 349 Or 370 (2010), we summarized the applicable principles:

"[W]hen a defendant seeks to suppress evidence from a search authorized by warrant, contending that the information in the predicate warrant did not establish probable cause, the court's function is limited to determining whether, given the uncontroverted facts in the affidavit and reasonably derived inferences, the issuing magistrate reasonably 'could have concluded that the affidavit (excluding the excised parts) established probable cause to search * * *.' [Castilleja, 345 Or] at 265. That is so regardless of whether the reviewing court--whether a trial court, this court, or the Supreme Court-- might have drawn different inferences yielding a different determination.

"Further, in exercising that discrete review function, the court is to view the predicate affidavit in a 'commonsense, nontechnical and realistic fashion,' with 'doubtful cases * * * to be resolved by deferring to an issuing magistrate's determination of probable cause.' State v. Wilson, 178 Or App 163, 167, 35 P3d 1111 (2001) (internal quotation marks omitted). That deferential standard comports with 'the preference for warranted searches over those conducted without prior judicial authorization.' Id."





 

 

Judge(s): Rick Haselton
Jurisdiction: Oregon Court of Appeals
Trial Court Judge(s)
George Neilson

 
Court of Appeals Judge(s)
Rex Armstrong
Rebecca Duncan
Rick Haselton

 
Appellant Lawyer(s) Appellant Law Firm(s)
John Kroger Office of the Oregon Attorney General
Paul Smith Office of the Oregon Attorney General
Linda Wicks Office of the Oregon Attorney General
Mary Williams Office of the Oregon Attorney General

 
Appellee Lawyer(s) Appellee Law Firm(s)
Steven Bryant Bryant Emerson & Fitch LLP

 

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Click the maroon box above for a formatted PDF of the decision.
to care and feeding is necessary, based upon the professional opinion of dr.14 evidence of animal neglect and, particularly, of failure to provide "[m]inimum care" as10 fashion,' with 'doubtful cases * * * to be resolved by deferring to an issuing15 reversed and remanded. evidence of animal neglect, ors 167.325; ors 167.330, discovered as a result of two3 expressed a concern that feeding patterns were weak, but failed to describe16 plaintiff-appellant, have drawn different inferences, for the reasons identified by the trial court in granting6 although the manager said that he had "been trying to get the horses fed on a regular1 "working on getting more hay to feed on a more regular basis." (5) between late16 3 he was coming to see us [law enforcement]."7 on appeal, the state contends that the trial court's analysis and disposition1 december 22 visit, that, "for the most part[,]" the horses' condition did not evince7 6 the horses were on breeding programs along with a routine feeding * * *8 the motion to suppress--as well as the other matters recounted above. the magistrate12 results in serious physical injury or death to the animal." to standards lately"--and that that was so because he had "not been able to purchase hay20 overarching considerations circumscribe and inform our review. the first is procedural--1 anonymous, about the informant's concerns, based on personal observation, that a horse16 well-being of an animal and, except for emergencies or circumstances3 lately," but "he was working on it." the manager further stated that "he has not been able4 least, the following facts: (1) plinski, who had extensive experience in managing and9 1 the warrant, the officers inadvertently failed to seize one additional horse that required14 entirely derivative of the first. thus, the propriety of suppression with respect to both daily basis." by way of pertinent experience, plinski further averred:5 reasonably have concluded that the uncontroverted and unexcised facts in the predicate9 state of oregon, plinski's march 28 affidavit described her observations and information15 plinski's affidavit pertaining to that type of animal neglect and do not--except, again by failing to provide "[f]ood of sufficient quantity and quality to allow for normal growth13 the trial court, consequently, granted the motion to suppress evidence seized pursuant to21 condition of the horses did not fall below the level that they were[,] and actually in most9 "[w]hen a defendant seeks to suppress evidence from a search authorized4 plinski's march 28 affidavit established probable cause to search defendant's ranch for9 237 or app at 22.6 considering the unnamed informant failed to report any concern regarding19 8 the reviewing court--whether a trial court, this court, or the supreme court--11 complaints or the identity of the complainant or complainants.14 cannot be reconciled with the standard of review prescribed in castilleja and amplified in2 ranch. we appreciate the trial court's thoughtful consideration of the motion to suppress but20 robert gruntz, the operative standard of review. in state v. duarte/knull-dunagan, 237 or app 13, 21-2 warrantless entry of the ranch must be excised, that the material pertaining to the two3 watered on a daily basis * * *. horses need approximately 20 pounds of13 affidavit, along with inferences reasonably derived from those facts, established probable10 response.4 167.310(6), in turn, defines "[m]inimum care," as pertinent here, as follows:1 medical treatment; accordingly, on march 31, plinski submitted an application for a15 examining the facts and inferences supporting probable cause to determine whether they5 such a way as to substantiate probable cause. duarte/knull-dunagan, 237 or app at 21.19 ors 167.310(7)(a) (2009).2 evidence seized pursuant to the march 28, 2009, search and the derivative april 2, 2009,12 evidence that defendant had failed to provide "[m]inimum care" for horses on his ranch12 on march 28, 2009, crook county deputy sheriff plinski executed an15 defendant1 allow for normal growth or maintenance of body weight." former ors 167.310(6)(a).13 "a person commits the crime of animal neglect in the second degree nonexcised portions of the affidavit establish probable cause with respect to defendant's plinski's affidavit that the trial court excised. further, because we conclude that the the trial court excised the material derived from the march 27 entry and,7 "from 2002 to 2007[,] i managed a ranch consisting of about 20 head of6 searches depended on the lawfulness of the first search. at some unspecified point in that interval, a feed supply store also contacted the 11 erroneously made its own findings and drew its own inferences * * * rather than4 experience in caring for horses and the qualified character of sharpnack's evaluation9 interview of the informant on march 27--viz., that, if the informant had seen evidence of9 horses needed to be fed more." (4) at the same time, defendant stated that he was15 minimum care for an animal in such person's custody or control." establish probable cause. specifically, with respect to animal neglect based on10 over those conducted without prior judicial authorization.' id."19 feed per day and an unlimited water source."14 but she did not. or a magistrate could reasonably have construed the ranch manager's11 09fe0073 search.13 magistrate could reasonably have drawn a negative inference from the content of plinski's8 second warrant authorizing the search of that horse. the magistrate issued that warrant16 establish probable cause, the court's function is limited to determining6 on march 26, 2009, plinski met with an informant, who wished to remain15 in bad condition" in that they were "race horses and didn't need to be fed much."4 argued, in part, that the material in plinski's affidavit derived from the march 272 were sufficient such that the issuing magistrate could find probable cause." (emphasis in6 "(a) food of sufficient quantity and quality to allow for normal6 respectfully reiterate one observation from duarte/knull-dunagan:21 sheriff's office "about filing an nsf check case" based on delivery of hay to defendant's affidavit in support of an application to search defendant's ranch for evidence of animal16 affidavit. the trial court denied that motion, and, on appeal, defendant does not contest deferential standard comports with 'the preference for warranted searches18 before recounting the particular facts in this case pertaining to probable16 by warrant, contending that the information in the predicate warrant did not5 the trial court, after excising certain material4 the following requirements:5 by march. in that regard, an issuing magistrate could reasonably have viewed the ranch19 in that connection, the manager mentioned that "none of the [ranch] employees original.)7 failure to provide adequate veterinary care to one or more horses. to plinski on march 27 regarding his inability to purchase feed regularly for the horses16 the second transcendent consideration is substantive--the gravamen of the20 under weight." (3) at the same time, a ranch hand told plinski that he believed that "the14 defined in former ors 167.310(6)(a). accordingly, the trial court erred in suppressing11 to purchase hay regularly because the owners have not been transferring funds to be able5 beyond the reasonable control of the owner, includes, but is not limited to,4 set out in the affidavit partake of the function of an issuing magistrate and4 each horse has to stay on a routine program to maintain weight and good10 observations at the ranch--material that the trial court ultimately excised in determining11 lawful december entries was impermissibly "stale," that the information provided by the4 "a person commits the crime of animal neglect in the first degree if, different inferences; rather, the question is whether the issuing magistrate could17 december had not only continued but had become so extreme as to elicit an extraordinary3 reversed and remanded.14 fed on a regular basis."6 sheriff's office received "approximately eight citizen complaints of the horses not being12 the manager told plinski that, "if the owners did not transfer money today[,]6 163, 167, 35 p3d 1111 (2001) (internal quotation marks omitted). that17 in the court of appeals of the state of oregon sharpnack a case for animal neglect was not present; * * * [the manager]15 8 to do so."7 reasonably have construed the affidavit, including reasonably derivative inferences, in18 none of that information was obtained from the informant whose reliability, as 7 2 horses in deschutes county[,] keeping records of all of the care for each.7 19, 2008, plinski visited defendant's ranch along with crook county sergeant chapman.5 castilleja. as we explained in duarte/knull-dunagan, the question is not whether we or15 as described below, see ___ or app at ___ (slip op at 6), the second search was animal in the person's custody or control and the failure to provide care obtained with respect to the condition of horses on defendant's property. on december16 defendant] did not transfer money [for the purchase of feed] today."9 observed horses that were inadequately fed.19 officers to the ranch, where they observed evidence of animal neglect. plinski then9 "blowing the whistle" on his employer--as confirmation that the conditions extant in2 inadequately fed horses when she visited the ranch, she would have so informed plinski,10 but all of that is immaterial to our review (or the trial court's review) under14 between the december 22 visit and late march 2009, the crook county11 general, and linda wicks, assistant attorney general. described her "personal experience and knowledge" of horses that "comes from being3 excised, established probable cause that a search of defendant's property would yield11 other horses (nearly 80 in number) on the premises."20 regularly because the owners [had] not been transferring funds to be able to do so." (7)21 searches pursuant to search warrants.1 alleged failure to adequately feed his horses, we limit our description to the portions of plinski's march 28 affidavit did not specify the date of those13 on march 31, and it was executed on april 2.17 "'minimum care' means care sufficient to preserve the health and2 from the foregoing, an issuing magistrate could reasonably have found and4 severely under weight." one of the ranch hands told plinski that he "did not approve" of19 purported crimes. an abstract extended discussion of the content of a search warrant21 raised around horses all my life" and "currently own[ing] 3 horses that i care for on a4 a145351 neglect. as pertinent here,4 we emphasize that we do not suggest that a reasonable magistrate could not5 the trial court could, or would, have construed the predicate affidavit differently, drawing16 provide horses in his custody or control with "[f]ood of sufficient quantity and quality to12 challenged on appeal), determined that the remaining content was insufficient to establish6 at defendant's ranch "about 15 horses that appeared to be malnourished and severely13 submitted a warrant application, supported by her affidavit, describing her march 2710 haselton, p. j. visit and his visit three days later, on december 22, was attached and incorporated as an issued the warrant, and officers seized, inter alia, several horses. however, in executing13 10 cause, it is useful--indeed, essential--to put what follows into legal perspective. two17 defendant was charged by indictment with multiple counts of first-degree18 the description that follows does not, except collaterally, refer to the content of on the briefs were john r. kroger, attorney general, mary h. williams, solicitor "anonymous" informant was not reliable, and that, in all events, the material in plinski's5 17 being fed "[f]ood of sufficient quantity and quality to allow for normal growth or6 defendant also filed a motion to controvert material in plinski's march 28 thus, our inquiry here reduces to whether the issuing magistrate could8 basis," he was also "coming to see" the sheriff's office if "the owners [including2 on march 27, in response to the informant's complaint, plinski and two1 magistrate's determination of probable cause.' state v. wilson, 178 or app16 ors 167.330(1) provides: 167.325(1) (emphasis added); ors 167.330(1) (emphasis added).3 manager's statements about intending to contact law enforcement "today"--that is,1 or maintenance of body weight." former ors 167.310(6)(a) (2007), renumbered as14 that ruling. conclude that the magistrate could properly have concluded that the unexcised portions of8 nuanced and cogent, and its consequent assessment of the relative strength2 3 haselton, p. j.1 (e.g., "for the most part * * * was not that it was neglect"), the issuing magistrate was not10 we agree. here, the unexcised portions of plinski's affidavit establish, at8 of competing inferences that could be drawn from the uncontroverted facts3 argued and submitted on january 05, 2012. inadequate feeding, the trial court reasoned that the affidavit failed to establish probable11 consistently with the standard of review prescribed in state v. castilleja, 345 or 255,8 "[w]hile [the] december investigation does establish some greater attention13 health.11 with respect to animal-related crimes, including animal neglect and animal abuse,2 george w. neilson, judge. 264-66, 192 p3d 1283, adh'd to on recons, 345 or 473, 198 p3d 937 (2008), we conclude9 "the [trial] court's deconstruction of the content of the affidavit, albeit1 noted, the trial court assumed but did not determine. reasonable inference, that the neglect that existed in late december 2008 continued to13 because of defendant's failure to provide the necessary funds supports a reasonable, albeit17 duarte/knull-dunagan. specifically, the state asserts that "[t]he trial court here3 basis." (6) on march 27, the ranch manager told plinski that the horses had "not been fed19 from the affidavit in support of the warrant application for the first search (a ruling not5 comments about funding for feed as expressing only frustration about a nonculpable12 "approximately 20 pounds of feed per day." (2) in late december 2008, plinski observed12 plinski, in addition to recounting her training and experience1 derived inferences, the issuing magistrate reasonably 'could have concluded8 former ors27 exhibit to plinski's march 28 affidavit. application without reference to what must be established--i.e., probable cause of what?--22 after rejecting defendant's contentions concerning staleness and assuming, without8 complaints about lack of regular feeding in that interim, the ranch manager's statements15 not of the rigorously circumscribed role of a reviewing court."5 filed: february 08, 2012 other officers spoke with the ranch manager at his home, which is not located on the2 before haselton, presiding judge, and armstrong, judge, and duncan, judge. renumbered, without textual change, as ors 167.310(7). or laws 2009, ch 233, 2. of the horses they needed to improve somewhat."10 the veterinarian, sharpnack, may have had a different view--but, given plinski's extensive8 not ineluctable, inference that the conditions existing in december had not been remedied18 knowingly, recklessly or with criminal negligence fails to provide 5 that the affidavit (excluding the excised parts) established probable cause to9 except as otherwise authorized by law, the person intentionally, knowingly, steven d. bryant argued the cause for respondent. with him on the brief was bryant, v. and second-degree animal neglect. ors 167.330; ors 167.325. defendant moved to19 2 [had] been paid lately." after the search warrants in this case issued, this section of the statute was circumstance or merely apprehension about a prospective, not yet realized, condition.13 1 that the magistrate could properly have concluded that the supporting affidavit, as10 more regular basis." the veterinarian, sharpnack, was of the opinion, following the6 butte ranch. that lack of information is particularly significant18 consistently with the standard of review prescribed in castilleja, we7 what, if any, impact was exhibited by the herd of horses on the powell17 inferred that, even as of late december, at least some of defendant's horses were not5 4 cause that a search of defendant's ranch would yield evidence that defendant had failed to11 6 caring for horses, stated that horses need "to stay on a routine program to maintain weight10 exist as of march 28, 2009. even putting aside the multiple, but amorphous, citizen14 the feeding methods being employed and that he "felt the horses needed to be fed more."1 affidavit failed to establish probable cause.6 the state appeals, under ors 138.060(1)(c), from an order suppressing2 22, 238 p3d 411, rev den, 349 or 370 (2010), we summarized the applicable principles:3 and supplement program. based on my training and experience i know that9 "further, in exercising that discrete review function, the court is to13 is an empty exercise. here, in issuing the warrant for the predicate first search, the23 4 further, an issuing magistrate could reasonably also have found, by way of12 a copy of chapman's contemporaneous report, describing both the december 19 might have drawn different inferences yielding a different determination.12 ranch. the manager told plinski that "he knew the horses had not been fed to standards3 and good health" and that they "need to be fed and watered on a daily basis," requiring11 whether, given the uncontroverted facts in the affidavit and reasonably7 at defendant's ranch required immediate veterinary care. plinski's description of the17 crook county circuit court suppress the evidence seized during the execution of the two search warrants.8 emerson & fitch, llp. however, defendant also stated that "he was working on getting more hay to feed on a5 search * * *.' [castilleja, 345 or] at 265. that is so regardless of whether10 at that time, plinski "observed about 15 horses that appeared to be malnourished and18 cause because,12 required to give sharpnack's assessment conclusive or preclusive effect.11 view the predicate affidavit in a 'commonsense, nontechnical and realistic14 collaterally--refer to those portions of the affidavit pertaining to defendant's purported second-degree animal neglect, both of which require a showing that the person has25 5 december 2008 and late march 2009, the crook county sheriff's office received17 probable cause that evidence of animal neglect would be found at defendant's ranch.7 accordingly, we reverse and remand.15 "based on my history of owning horses i know horses need to be fed and12 recklessly or with criminal negligence fails to provide minimum care for an we turn to the content of that affidavit.14 9 9 suppression, and, for those reasons, have declined to issue a warrant. for example, a7 magistrate determined that there was probable cause with respect to first-degree and24 the march 28 search and the derivative april 2 search.22 3 if, except as otherwise authorized by law, the person intentionally, 7 defendant-respondent. paul l. smith, attorney-in-charge, collateral appeals, argued the cause for appellant. maintenance of body weight." former ors 167.310(6)(a) (emphasis added). to be sure,7 to the ranch to speak with defendant. defendant "did not feel as though the horses were3 interview with the informant does not include any reference to the informant having18 on december 22, chapman, along with a veterinarian, sharpnack, returned2 "neglect"--"but that the care needed to be stepped up to the next notch so that the8 the manager subsequently, and without defendant's consent, took the8 "approximately eight citizen complaints of [defendant's] horses not being fed on a regular18 growth or maintenance of body weight."7 "fail[ed] to provide minimum care for an animal" in the person's custody or control. ors26 ors 167.325(1) provides: deciding, the informant's reliability, concluded that the unexcised material failed to9


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