Friday, June 4, 2010
Noise From Injured Dog Justified Warrantless Entry—C.A.
By KENNETH OFGANG, Staff Writer
Police responding to a report of possible animal abuse did not need a warrant to enter a Marina del Rey condominium unit after one of the officers heard the sound of a dog whimpering, the Court of Appeal for this district ruled yesterday.
Div. Three affirmed the conviction of Keith Chung, who was sentenced to 16 months in prison for animal cruelty by Los Angeles Superior Court Judge Robert O’Neill.
Chung was charged with two counts of animal cruelty and one count of possession of a controlled substance as a result of the warrantless entry, which occurred in July 2007. He pled no contest to one count of animal cruelty, with the other charges dismissed, after the judge denied his motion to suppress.
The motion was based on the contention that the officers lacked exigent circumstances for the entry.
At the suppression hearing, Chung’s downstairs neighbor, Jennifer Lee, testified that she called 911 after being awakened at 2 or 3 in the morning by loud banging and the sound of a “yelping, howling” dog emanating from Chung’s unit. The noise lasted 15 minutes before she called, she said, adding that she had heard such noises before but this time “it just sounded really bad.”
She said she had called police two or three three times before, but had used a non-emergency number and was referred to animal control.
Officer Peter Correa testified that he and his partner went to the condominium complex in response to the animal cruelty report and spoke to Lee. After she explained what she had heard on that occasion, and in the past, the officers went to Chung’s unit and asked him to step outside.
Chung, the officer said, stepped out, leaving his front door open about an inch. Correa said he heard a dog whimpering and asked if he could go inside, but Chung said the unit was too messy.
At that point, Correa said, he and his partner detained Chung in handcuffs and, after telephoning their watch commander to ask whether their belief that animals might be suffering harm allowed them to enter, went inside the unit.
Correa said he found the unit in disarray and saw a glass pipe on the kitchen counter, apparently containing the residue of an illegal drug. He eventually found an injured dog in a toolbox on the patio, a dead dog in the freezer, and what appeared to be dog hair and blood on the bathroom floor and walls, with a couple of knives nearby.
On cross-examination, Correa said he could not wait for a warrant before entering because he was “looking for dogs that could be in danger.”
‘Seemingly Credible’ Report
The judge said the search was lawful because the police were relying on a report by “a seemingly credible citizen” that an animal might be in danger. Chung, on the other hand, was of questionable credibility because he claimed not to own a dog, even though the officer heard the sound of one.
O’Neill said it would be “unreasonable to expect that any human being in those circumstances would delay for hours in order to get a warrant, knowing that the animal might be in serious distress, serious injury, or dying.”
Presiding Justice Joan Dempsey Klein, writing for the Court of Appeal, agreed.
The government, Klein noted, has long been held to possess a legitimate interest in the protection of animals, and California has had an animal cruelty statute on the books since 1872.
In Chung’s case, she went on to say, the circumstances known to the officers justified their actions under the exigent-circumstances exception to the warrant requirement.
Citing cases in California and elsewhere, Klein wrote:
“Where an officer reasonably believes an animal on the property is in immediate need of aid due to injury or mistreatment, the exigent circumstances exception to the warrant requirement of the Fourth Amendment may be invoked to permit warrantless entry to aid the animal.”
Klein went on to say that the trial judge’s finding that there was a specific need to enter Chung’s unit was supported by sufficient evidence.
The defense argued that the noises Lee heard could have come from other sources, and that Lee might have embellished because she was involved in litigation with Chung and had complained about him to the homeowner’s association about noise. As for the whimper the officer said he heard, the defense said the officer might not have actually heard it, or it might have come from a television or radio.
Be that as it may, Klein said, an appellate court reviews the factual findings underlying a ruling on a suppression motion under the substantial evidence test.
“Here... Lee reported Chung actively was abusing and possibly torturing a dog,” the presiding justice wrote. “Thus, there was sufficient evidence to support the trial court’s finding of exigent circumstances.”
The case is People v. Chung, 10 S.O.S. 3007.
Copyright 2010, Metropolitan News Company