2

Oregon v. Newcomb:

A dog is personal property under Oregon law. However, Oregon law simultaneously limits ownership and possessory rights in ways that it does not for inanimate property. Live animals under Oregon law are subject to statutory welfare protections that ensure their basic minimum care, including veterinary treatment. The obligation to provide that minimum care falls on any person who has custody and control of a dog or other animal. A dog owner simply has no cognizable right, in the name of her privacy, to countermand that obligation.

The bolded portion confuses me. By "countermand that obligation" I think they are referring to the obligation of animal owners to take care of their domestic pets. How exactly does the right to privacy clash with this obligation? Am I supposed to interpret this sentence as saying that you may not invoke your right to privacy to protect yourself from a warrantless search of your pet if it is suspected that you have neglected your obligation to maintian your pet's welfare? Or is it trying to say something else?

In this case the animal was seized by an officer without a warrant on the basis that the animal was severely emaciated and was dry heaving. He had received reports of dog abuse, and the owner admitted that she had no food for the dog. The dog, though emaciated, was not in any immediate danger. The court ruled that the owner's rights to due process and privacy was not infringed upon.

1

In the Oregon Supreme Court ruling, "a search occurs only if governmental action invades 'a protected privacy interest'". The appeals court ruling was that

Under the prevailing principles of Article I, section 9, of the Oregon Constitution governing privacy rights with respect to personal effects, we conclude that the extraction and testing of the dog's blood was a “search,” because those actions constitute a physical invasion of defendant's personal property that revealed otherwise concealed evidence.

In the Supreme Court analysis, defendant did not have a cognizable privacy interest in the dog. They analyze privacy in terms of "containers", such as cylinders. They find (State v. Owens, 302 Or 196) that that “not all containers merit the same protection under Article I, section 9”, and live animals are a special case. They accept that "a person who owns or lawfully possesses an animal, and who thus has full rights of dominion and control over it, has a protected privacy interest that precludes others from interfering with the animal in ways and under circumstances that exceed legal and social norms", but in this instance, "defendant had lost her rights of dominion and control over Juno, at least on a temporary basis". They conclude that "defendant had no protected privacy interest in Juno's blood that was invaded by the medical procedures performed", and they reject the analysis that a dog is "an opaque inanimate container in which inanimate property or effects were being stored or concealed".

There is an "obligation to provide that minimum care", meaning that (in this context) blood must be drawn. The court is saying that there is no privacy right at stake, nothing to trump the obligation to provide care. There is also no property right ("the owner has lost her property rights of dominion and control over the dog"). And

An examination of the dog's physical health and condition in that circumstance, pursuant to a medical judgment of what is appropriate for diagnosis and treatment, is not a form of governmental scrutiny that, under legal and social norms and conventions, invades a dog owner's protected privacy rights under Article I, section 9.15

It is not the most self-evident analysis that I've seen.

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No, it says that the judge can force the dog owner to follow the measures needed to ensure the dog's welfare and that the owner cannot refuse on the basis that his privacy is being violated.

Imagine that you buy a brand new iPhone and immediately after buying it you hammer it1. Even if the judge suspects that you did that, the judge has no power to force you to produce the phone to ensure that you have treated it well; and if you were subpoenaed to that effect you could argue that the judge is violating your privacy (forcing your to explain what you did or did not to the iPhone) for no good legal reason and try to stop the subpoena.

Now, what this text means is that if the judge believed that you could be neglecting or abusing your dog, then the judge2 would have authority to inquiry about the status of the dog and your behavior (for example, by forcing you to produce the dog to a vet that would examine it). You would still have a right to privacy, but the need to care for the dog would provide the judge for a reason to deny you the use of this right to privacy as a way to stop the inquiry.

I would expect all of the cases of neglect and almost all of the cases of abuse to be handled by the court (which would issue the needed warrants and subpoenas), with only the most urgent of cases (e.g. the dog's life is in clear and imminent danger if the intervention is not immediate) to grant the police access to someone's home without a warrant.


1Hypothetical scenario. Please do not try this at home.

2Or other competent authority.

  • Please see my edit to my question – S J Dec 20 '18 at 23:15

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