1. When Activists Come Calling –
Know Your Rights
Animal Agriculture Alliance
11th Annual Stakeholders Summit
“Real Farmers Real Food: Celebrating
Tradition and Technology”
May 3, 2012
By Cari B. Rincker
2. Like Any Good Lawyer,
I Have A Disclaimer
• I am an attorney but may not be your attorney
unless you have signed a retainer with Rincker
Law, PLLC
– No attorney-client relationship
• This presentation is for informational purposes
only and should not be construed as legal advice
– If you have questions relating to your particular
livestock operation, you are highly encouraged to
consult an attorney licensed in your jurisdiction
3. Overview of Discussion
• 5 State Law Approaches
• Oversight of Humane
Societies
• Example Regime:
New York
• The Problem: Discussion
• Cowboy Crim Pro
• Ag Gag Legislation
• Get a Plan
5. 5 State Law Approaches
• Ordinary Rights
• Animal Rescue
• Limited Law
Enforcement
• Law Enforcement
• Community Policing
6. Ordinary Rights Approach
• Humane societies
operate animal
shelters and educate
community about
animal abuse
– No police power
7. Ordinary Rights Approach
States with this approach
– Alaska, Arizona,
Arkansas, Colorado,
Georgia, Idaho, Illinois,
Iowa, Maine,
Mississippi, Missouri,
Montana, Nebraska,
New Mexico, North
Carolina, North Dakota,
Oklahoma, Texas, Utah,
West Virginia, Wisconsin
and Wyoming
8. Ordinary Rights Approach
• States with this approach may have a separate
enforcement regime
– Government entity
• Colorado Bureau of Animal Protection
– Appointment of individuals
• North Carolina
• North Dakota
• Illinois
– Government animal cruelty “officers”
• Texas
9. Animal Rescue Approach
• Humane societies
representatives serve a
role at the “crime
scene” by seizing
allegedly abused
animals and providing
treatment
• Limited police Power
– May also investigate
animal cruelty
– Unable to obtain search
warrants
11. Limited Law Enforcement Approach
• Humane societies
are allowed to
investigate animal
cruelty, seize
animals, and
conduct searches.
• Police power still
limited
– Typically, no
firearms
– Cannot arrest
without permission
12. Limited Law Enforcement
• States with this
approach include
Kentucky, Nevada,
South Carolina,
Tennessee, Vermont,
Virginia, and
Washington
13. Law Enforcement Approach
• Humane societies are
granted all police
powers including seizing
animals, investigating
animal abuse, executing
search warrants, issuing
citations, and arresting
offenders
– Usually have the right to
carry a firearm
14. Law Enforcement Approach
States with this
approach include
– Hawaii, California,
New Jersey,
Pennsylvania,
Rhode Island, New
York
15. Community Policing Approach
• Designates an active police officer to serve as
the humane officer who will work with the
humane society
• Humane officer retains all police powers but
investigates animal cruelty violations and
enforces animal cruelty laws
• State using this Approach:
– Indiana
17. Governmental Oversight
• A few states give
humane societies full
discretion with
appointment of
humane officers and
enforcement of laws
• Majority of states
appoint government
entities for oversight
– How much and the type
of oversight varies from
state-to-state
18. Agent Training
• Most states do not
require training for
humane society agents
in their statutes
– However, states that
vest more police power
to humane societies are
more likely to require
comprehensive training
– Firearm training may be
required
20. New York Animal Cruelty Law
• Applicable Statute:
N.Y. Agri. & Mkts Law
§ 350 et seq.
– “Torture” or “cruelty”
including an action,
omission to act, or
neglect where
“unjustifiable physical
pain, suffering or
death is caused . . .” Id.
at § 350(2).
21. Misdemeanor Animal Cruelty
• Section 353 proscribes:
– Overdriving, overloading, unjustifiable maiming,
mutilation or killing any animal
– Depriving any animal of “necessary sustenance,
food or drink . . .”
• “Sustenance” includes shelter and veterinary care to
maintain health and comfort.
Exceptions: properly conducted scientific tests, experiments, and/or
investigations approved by New York Commissioner of Health
22. Case Illustration
People v. Arcidicono, 360 N.Y.2d
156 (App. Term 1974) (where the
defendant was in charge of
feeding gelding for three months,
was aware of his loss of weight,
and when it was returned to its
owner the gelding was in such a
state of malnutrition that it was
mercifully destroyed).
23. Case Illustration
Mudge v. State, 45 N.Y.S.2d 896 (Ct. Cl.
1944) (where state trooper inspected
a barn and found the main door so
frost swollen that it could not be
closed; livestock were found shivering
in 1-2ft of manure without bedding,
feed, drinkable water).
24. Case Illustration
People v. Bowe, 876 N.Y.S.2d
762 (Third Dep’t 2009) (where
police discovered 15 horses on
property – some which were
dead while others were
severely emaciated)
25. Case Illustration
• People v. O’Rourke, 369
N.Y.S.2d 335 (N.Y. City Crim. Ct.
1975) (where court held that
an owner of a horse and
hansom cab that permitted a
horse which was limping to
continue to work without
supplying necessary medical
attention constituted neglect
under statute).
– Owner of horse was obligated
to call a veterinarian upon
receiving notice of horse’s
lameness
26. Felony Animal Cruelty
(aka “Buster’s Law”)
• Section 353-a proscribes
aggravated animal cruelty to
a companion animal
– No justifiable purpose
– Intentionally kills or causes
serious physical injury
• Intended to cause extreme
physical pain; or
• Especially depraved or sadistic
• Exceptions: hunting, trapping, fishing,
dispatch of rabid/diseased animals, or
properly conducted scientific tests
27. Aggravated Animal Cruelty:
Case Examples
• People v. Degiorgio, 827
N.Y.S.2d 511 (Third Dep’t
2007) (where defendant
kicked dog while wearing
boots and killed the dog
by picking up dog by its
neck and shook it,
banged dog’s head
against the door, and
threw dog down
basement stairs until it
hit the cement floor).
28. Abandonment of Animals
Section 355 proscribes
an
owner/possessor/bailor
of an animal:
– from leaving it to die
in a public place; or
– Leaving an animal in a
public place for more
than three hours after
he receives notice
that he is left disabled
29. Transportation of Farm Animals
• “28-Hour Law”: When
transporting livestock
animals for more than 28
hrs, section 359 requires
that animals be given 5
consecutive hours of rest
along with available food
and water
– Exception: prevented by
storm or inevitable
accident
• Section 359-a(1) enumerates
specific requirements for
every vehicle utilized to
transport more than six
horses.
30. Poisoning Animals
• Section 360 indicates
that poisoning farm
animals is a
misdemeanor
– Don’t need to know the
substance is poisonous
so long as he/she
intends that livestock
animal be exposed to
the substance
– Includes toxic levels of
drugs
31. Seizure of Farm Animals
Pursuant to Section 373,
any police officer or officer
of a duly incorporated
society for the prevention
of cruelty to animals with a
valid warrant may lawfully
take possession of any
animal that for more than
12 successive hours has
been confined or kept in
unhealthy conditions
without necessary
sustenance, food or drink
32. Duty to Cooperate With Farm Search
Section 369 proscribes
the interference or
obstruction of a search
by a police officer or
duly incorporated
society for the
prevention of cruelty to
animals with a valid
warrant
– Misdemeanor
33. “Peace Officers” in New York
• Duly incorporated societies for the prevention
of cruelty to animals CPL 2.10(7)
• “Confidential investigators and inspectors” as
designated by the NYS Dept. of Agric. & Mkts
CPL 2.10(6)
• Policemen for “horse racing” CPL 2.10(29)
34. Issuance of Warrants
• Pursuant to Section 372, police officers and
authorized animal societies (“peace officers”)
can obtain warrants to search farms upon
showing a magistrate that there is reasonable
cause animal cruelty
– Can use (video) cameras. Anderson v. WHEC-TV,
461 N.Y.S.2d 607 (Fourth Dep’t 1983).
– Informants can be used
– Warrants must be precise
35. The Problem: Discussion
See Elizabeth R. Rumley
& Rusty Rumley,
“Enforcing Animal
Welfare Statutes: In
Many States, It’s Still the
Wild West”
37. Fourth Amendment
• Fourth Amendment offers protection from
unreasonable searches and seizures from the
Government
– “The right of the people to be secure in their
persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be
violated, and no warrants shall issue, but upon
probable cause, supported by oath or affirmation,
and particularly describing the place to be
searched, and the persons or things to be seized.”
38. Does the Fourth Amendment Apply?
• Government Conduct
– Publically paid police officers (on or off duty)
– Private individual acting at the direction of the
police
– Privately paid police deputized with the power of
arrest
– Humane society deputized with police powers
39. Does the Fourth Amendment Apply?
• Person must have a “reasonable expectation
of privacy”
– Automatic standing
• Owner of premises
• Live on premises
• Overnight guests
– Sometimes have standing
• Present when search took place
• Own property (animals) that are being seized
– No standing
• Areas outside home or barn
• Aerial photography
40. Is there a Valid Search Warrant?
SNAP
– S – Warrant must be
precise on its fact
(specificity)
– N – Neutral and detached
magistrate
– A – Oath or Affirmation
from P/O to judge
– P – Probable Cause
• More than mere suspicion
41. Was the Warrant Executed Properly?
• Must be executed by the
police or humane society
with permission to
search/seize
• Must be executed promptly
to lessen possibility of a
change in circumstances the
existence of probable cause
• “Knock and Announce”
before forcible entry (unless
emergency)
42. Did the P/O Stay Within
the Scope of the Warrant?
• A search warrant does not create right to
search individuals on the premises
• Warrant should specifically list the evidence
sought
– Can go outside scope of warrant if in plain view
43. Some Examples When
No Warrant Is Needed
• A police officer can search a property in “exigent
circumstances” where there is probable cause
and when evidence may be lost, destroyed, or
may dissipate if a warrant is obtained
– Emergency
• Consent is freely given (voluntary & intelligent)
– P/O must stay within scope of consent
• If something is in plain view
– P/O must already be lawfully on premises
44. Miranda Rights
• 5th Amendment
• P/O must read Miranda
Rights to a person in custody
prior to interrogation
– Right to counsel
• Cannot be questioned after
request for attorney
• Waived if questioned by police
& voluntary answer
– Right to remain silent
45. Exclusionary Rule
Fruit of the Poisonous Tree
– Prevents the introduction
of evidence that is the fruit
of violating someone’s
Fourth, Fifth and Sixth
amendment rights
– Exceptions/Limitations
– Harmless Error Doctrine
46. Supremacy Clause
• Federal legislation may preempt state law
– Federal schemes with biosecurity
• Animal Health Protection Act, 7 USC 8301 et seq.
(USDA)
• Food, Drug and Cosmetic Act, 21 U.S.C. 301 et seq.
(FDA)
– Inspectors should coordinate ahead of time with
local law enforcement if biosecurity is an issue
• Injunction in Federal Court?
47. What If A Non-Police Officer Visits Your
Farm and Asks To Look Around?
• Ask for identification
• Ask for the warrant
• Read the warrant
• Ask if the visitor has
camera/video
equipment
• Take notes during farm
inspection
49. States That Currently Prohibit
Undercover Video Surveillance
• Kansas
• Montana
• North Dakota
• Iowa
• Utah
50. Kansas
• Kansas gives criminal liability to those who, absent
consent from the owner
– with the intent to damage or destroy the animal facility
actually damage or destroy an animal facility (or any
animal or property therein),
– exercises control over an animal facility with the intent to
deprive the owner of such facility (or any animal or
property therein)
– with the intent to damage or destroy the animal facility
enter an animal facility and/or remain concealed with the
commit or attempt an act prohibited by this statute and/or
take photographs or video coverage.
See K.S.A. § 47-1827(a)-(c).
51. Kansas
• It proscribes a person, without consent from the
owner, and with the intent to damage the
enterprise conducted at the animal facility, enter
and/or remain in the animal facility if the person
had notice that they were forbidden or received
notice but failed to leave the premises.
– Both oral and written communication (e.g., signs
posted on the facility) by the owner or someone with
apparent authority (e.g., employee) or fencing or
some other type of enclosure by the owner
constitutes “notice.”
See K.S.A. § 47-1827(d).
52. Kansas
• K.S.A. § 47-1828 sets
forth a civil cause of
action
• The plaintiff may be
entitled to “three times
all actual and consequential damages. . .” (including
production, research, testing, replacement and
crop/animal development), court costs and
reasonable attorneys fees.
53. Montana & North Dakota
• Both states have very
similar criminal and civil
provisions as Kansas
• Montana exempts both
government officials
carrying out their duties
and “humane animal
treatment shelter or its
employees whose primary
purpose is the bona fide
control or humane care of
animals or the
enforcement”
54. Iowa
A “person is guilty of animal
production facility fraud” if they
(1) obtain access to an agriculture
production facility under false
pretenses, or (2) make a false
statement on an employment
application with the intent to
commit an act that is knowingly
prohibited by the owner of the
agricultural facility. See section
717A.3A(3).
55. Utah
Also prohibits farm
employees and criminal
trespassers to take
unauthorized photographs,
videos and sound.
See U.C.A. § 76-6-112(c)-
(d).
56. States with Proposed “Ag Gag” Bills
• Illinois
• Indiana
• Minnesota
• Nebraska
• Tennessee
• New York
• Florida (died in budget)
57. Will Missouri Be a Trend-Setter?
• Missouri also has
pending legislations
allowing “unedited
surveillance” to be
taken and then
turned over to the
police.
– Trying to get away
from the “ag gag”
stigma
58. Animal Enterprise Protection Act
(“AEPA”)
• Interstate commerce
• Causes “physical
disruption to the
functioning of animal
enterprise”
– Includes farms, zoos,
aquariums, circus,
rodeo, state fairs
• Aggravated Offenses
for serious bodily injury
or death
59. Center for Food Integrity’s (“CFI”)
Animal Care Review Panel
• Independent review board comprised of
recognized animal welfare experts including:
– Animal scientist
– Veterinarian
– Animal ethicist
• Currently for pork only but Panel wants to work
with other species
• Panel’s reviews, assessments, recommendation,
and reports are not submitted to the pork
industry for approval
– Instead, mission is to facilitate review and release
findings
61. Seek Counsel Before An Issue Arises
• Find an attorney you
know and trust
– Who will you want to
call in an emergency?
– Understand the law in
your state
– Who will file an
injunction against
animal activist group
(e.g., protests,
harassment)?
62. Discuss With Your Attorney
Speak to him/her about
concerns specific to your
operation
– Special biosecurity concerns?
– Have a protocol for visitors and law
enforcement
Formulate a defense strategy for your farm
with the advice of counsel
63. Get a Plan For Your Farm
• Employment Handbook
– Have animal handling policies put in place
– Enumerate procedures on what to do
• Train employees on a regular basis
• Participate in voluntary livestock animal
welfare programs
– Example: New York State Cattle Health Assurance
Program
64. Start Building a Defense
• Have a relationship
with industry experts
– Veterinarian
– Nutritionists
– Cooperative Extension
Specialists
• Keep records of
visits/recommendation
s
• Keep records of noted
improvements/complia
nce with said
recommendations
65. Start Building a Defense
• Maintain feeding,
breeding, and
health records
• Record body
condition scores
• Take photographs
• Keep diaries
• Build written record
66. Know Who You Hire
• Background checks
• Recommendations
• Smartphones
• Supervision
• Employment/
• Independent Contractor
Contract
• Animal Handling Training
– Certification?
67. Undercover Video Surveillance
• Have a work environment
where employees are likely to
report suspected undercover
workers/visitors
• Prohibit smartphones on the
phone without permission
(e.g., construction company
installing solar panels)
68. Pay Attention To Public Image
• Farm website
• Drive around perimeter of
property- pay attention to
“broken windows”
• What would an aerial
photograph show on your
property?
• Pay special attention to
animals with genetic
defects and/or aesthetic
issues
69. Pay Attention to Public Image
• When is the last time
you ran an internet
search on your farm?
• Is social media right for
you?
• Farm tours?
• Reputation in your
community
71. Contact Me
• Send Me Mail: 535 Fifth Avenue, 4th Floor, New York, NY
10017
• Call Me: (212) 427-2049 (office)
• Fax Me: (212) 202-60777
• Email Me: cari@rinckerlaw.com
• Read My Food & Ag Law Blog: www.rinckerlaw.com/blog
• Tweet Me: @CariRincker @RinckerLaw
• Facebook Me: www.facebook.com/rinckerlaw
• Link to Me: http://www.linkedin.com/in/caririncker
• Skype Me: Cari.Rincker
Hinweis der Redaktion
No attorney-client privilege Every person in this room has different facts and circumstances surrounding their farm operation.
24 states have this approachMajority of states have this approachJurisdictions with this approach may still regulate humane societies in their other functions such as the types of chemicals used in the euthanasia of animals. See e.g., CO ST § 12-22-304.
For instance, Colorado has a Bureau of Animal Protection with a commissioner who can appoint agents to assist law enforcement. These agents are not necessarily chosen from humane societies but they are still specialized individuals who handle animal cruelty cases. North Carolina and North Dakota have a similar process in which agents are appointed, regardless of whether they are from a humane society. Illinois requires the humane society to endorse an appointment but the agent does not have to be a member of the humane society. Some states have full-time animal cruelty officers who are government employees. - TexasTherefore, these states may not necessarily need the humane societies to help enforce animal cruelty laws.
For instance, any duly authorized officer or employee of a humane society can seize any animal that is sick or disabled due to neglect or abuse in Alabama. However, these humane society employees still must satisfy certain due process protections such as written notice to the animal’s owner and do not have any additional police powers. Minnesota is unique because their Code allows humane society agents to investigate animal cruelty but then the agent must seek a police officer’s assistance to actually enforce the animal cruelty laws.
For instance, Kentucky gives humane society agents all “the powers of peace officers, except arrest, to enforce animal cruelty provisions.” The humane society agent has to request an actual peace officer to arrest the offender.
Many states that use this approach maintain detailed regulatory systems to monitor and train agents. For instance, Pennsylvania devotes a whole chapter of their Code to humane society agents with regulations ranging from appointment, qualifications, training, and powers. Likewise, California’s regulatory regime is complex enough to designate two levels of humane society agents.
The humane officer is required to attend humane society meetings and report monthly. [19] Thus, the humane officer is an extension of the humane society while still remaining an active duty police officer. In addition, the humane officer is entitled to the same amount of pay as a regular police officer.
In California and Pennsylvania, two of the most comprehensive systems, the courts appoint humane society agents and oversee matters dealing with the agent’s certification and behavior. In contrast, the governor in Oregon grants police powers to “special agents.” Moreover, some states rely on administrative bodies. For instance, Connecticut requires the Commissioner of Public Safety to appoint the agent. [23]Occasionally, a state legislature will even defer to local governing bodies to appoint and monitor humane society agents. For example, Louisiana requires the mayor to appoint a humane society agent. North Carolina relies on county commissioners. New Hampshire requires the sheriff’s approval. [24] Florida uses a hybrid approach that requires approval from several government entities to appoint a humane society agent. The mayor must approve all agents within a city while a circuit court judge must approve agents within the county but outside the city. In addition, county commissioners must approve all agents within the county regardless of whether they will enforce animal cruelty laws in or outside a city.In summary, there is hardly a uniform governmental entity, if an entity is even designated at all, among the states for the appointment and monitoring of humane society agents. Similarly, states vary on whether the appointing governmental entity should be from the state or local level.
However, states that vest significant police powers to humane societies are more likely require comprehensive training. For instance, Pennsylvania and California list the subject matters that must be covered in the training. [25] In contrast, Ohio relies on the “peace officer training commission” to develop a program for humane society agents. [26] In New York, the State Division of Criminal Justice Services is designated to administer the certification program. [27]States using the law enforcement approach are likely to allow humane society agents to carry firearms in the performance of their duties. Besides specialized training to combat animal cruelty, additional training is often required for agents authorized to carry firearms. Firearm training is typically continuous throughout the agent’s tenure. For example, California requires agents authorized to carry firearms to complete training for the initial appointment and ongoing weapons training and range qualifications every six months thereafter. [28]
Class A Misdemeanor – up to one year in jailCaselaw in New York defines “sustenance” People v. Mahoney, 804 N.Y.W.2d 535 (App. Term 2005).Based upon the moral standards of the communityMust prove beyond a reasonable doubt (criminal)All animals
Do not have to be owner – can simply be caring for animals
Make sure that the livestock have adequate food and water during the winter
Fulton CountyEmaciated – extremely thinLook at the BIG picture- do you have several problem animals or just one?
Mental culpabilityMensrea(compare to acusrea)
Misdemeanor
Use of smooth materials for the interior;Abrasive materials on floor to prevent skidding;Sufficient apertures to maintain adequate ventilation;Sufficient insulation to maintain an adequate temperature; Partitions shall be placed a maximum of 10 ft apartmentDoorways shall be of sufficient height to allow safe ingress and egress of each horse contained in the compartmentEach compartment shall be of such height so as to allow sufficient clearance above the poll and withers of each horseRamps sufficient for loading/unloading horses shall be provided if the vertical distance from the floor of the compartment containing horses to the ground is greater than fifteen inchesThere shall be at least two doorways
Beef Quality Assurance Training?
New York is on the forefront for trusting SPCA
Fourth Am right to be free of unreasonable searches & seizures Bill of Rights
Does the Fourth Amendment Apply?Government conductReasonable expectation of privacy
No right to privacy with:the style of your handwriting (handwriting samples)paint on your carsound of your voice (voice exemplars) account records held by a bank monitoring the location of your car in the street or on the highwayodors from luggage or car-> dog can sniff car garbage left out on the curb (any discarded property)abandoned property electronic tracking device on cars so P/O can track b/c no expectation of privacy on public streets anything that can be seen across the open fields areas outside home (“curtilage”-> dwelling place) or related buildings (e.g., barn, shed)includes aerial photography of outdoor areas of industrial complexes that are fenced off from the publicpolice can observe growing marijuana plants -> discernable to the naked eye within public navigable airspace impermissible if highly sophisticated surveillance equipment was used anything that can be seen by flying over
P-Probable cause: Something less than beyond a reasonable doubt but more than a mere suspicion or hunchAguilar-Spinelli Test:MBE-> 2 prong test PLUS totality of the circumstances MBE: allows for good faith reliance NY: no good faith reliance NY-> Anguilar 2prong test only Credible information as to the evidence of crime soughtReliable informant -> previously used informant (proven providing fresh personal knowledge) Use of informers NY:2 part test: veracity & reliability Aff’d must set forth sufficient facts and circumstances to let the magistrate know how they got their information Support the reliability and the credibility of the informer (not MBE) Wiretapping requirements:Probable causeSuspected persons are namedThe warrant must particularly describe the conversations intended to be heardThe durational period of the wiretap must be short Termination must be provided for Court must be given a transcript of the intercepted conversations A- Oath or Affirmation->From a P/O for presentation to the magistrate M- Neutral & detached Magistrate issued warrant: P-The warrant must be precise on its face (specificity)State with particularity the place to be searched and the things to be seized Court clerks can give warrants for violations of city ordinancesNY: For video surveillance & wiretapping, must also name suspects expected to be overheard & particularity to conversations
Other examplesS-Stop and FriskReasonable suspicion -> articulable reason to stop an individual Weapons: always admissible so long as the stopping was reasonable Where P/O forms a reasonable belief that the individual is armed and dangerous“pat down” of outer garmetsNonweapons: Did it look or feel like contraband? Plain Feel TestH- Hot pursuit of Evanescent EvidenceIt might go away if you take the time to get a warrantWhile you are waiting to get the warrant the person might go wash their hands Scope of search is held to include whatever is reasonably necessary to keep the felon from evading captureContraband or mere evidence Factors:PAGEP- Clear showing of probable causeA- where suspect was armedG- gravity of the offenseE-likelihood the suspect will escape Example:Saw somebody rob ATM and chased him-> can seize the money Search incident to a lawful arrest:GR: The person and his wingspan can be searched for contraband and weaponsEverything in car but not trunk Need probable cause for arrest and search Must be contemporaneous w/ arrestIf arresting officer believes that accomplices are present then they can make a protective sweep of the area beyond the wingspan Rationale: Prevents the destruction of evidence Examples:Person arrested under a bed in a hotel room-> P/O can search the area around the under the bed as being within the “wingspan” of the suspect NY: arrest must be made firstPackages found w/in wingspan cannot be searched, only seized UNLESSthere is either probable cause to search or a suspicion that the Δ or a package contains a weapon Even if there is probable cause or a suspicion that it contains a weapon, it cannot be searched IF:The package is securely fastened so it cannot be opened quickly, ORThe arrestee makes it clear that he will not reach for the contents, ORThe package is too small to contain a weapon or contraband A-Automobile Exception2 Types:Protective Sweep Search:When the P/O forms the belief that the motorist is armed or that there is a weapon in the vehicle he may ask the person to step out of the car and do a patdown of the person as in stop and frisk and do a wingspan protective search of the passenger compartment of the car Can’t search trunk or search ashtrays Probable Cause For Search:can search entire car-> trunk, containers, packagesmust have probable cause to believe the vehicle contains contrand or evidence of a crimemay be done at the time of the stop or the police may tow the vehicle to the station and search at a later time Administrative Searches:There are times where a search may only be conducted at certain times and it would be impossible and administratively unfeasible to expect the police or government agent to get a warrant every time they need to conduct a search Requires-> reasonable grounds School searches:Warrant or probable cause is not required for searches conducted by public school officials -> only reasonable grounds for the search is necessary E.g., principal calls P/O to do a search when he had reasonable suspicion that student had drugs Border searches:Can even be conducted inland -> P/O can follow the care from the border to a town in Mexico and then search trunk
Custody:Not free to leaveDoesn’t include routine traffic stopsNot enough that a P/O merely ordered the person to stopRequires physical application of force or a submission to a P/O show of force InterrogationWhen P/O knew that they might give damaging statementIf Δ “blurts” or makes a spontaneous statement then not interrogationMiranda does not apply to spontaneous voluntary statements of the Δ made w/o verbal or physical prompting by the police at any point b/f or during the interrogation if Δ states a desire to remain silent, all question of that particular crime must ceaseWaiver:can waive Miranda but State must C/W must prove that waiver was knowing, voluntary, and intelligentcan’t waive by silence or shoulder shruggingRight to attorneywaiver must be made knowingly, intelligently & involuntaryLook at the totality of the circumstances including age, education, etc. to see if free choice was impaired in any way Ex: 15 yr old was badgered for 2 hours -> waive was not effective
Exceptions (When Government Breaks Chain and “tainted” evidence may be purged) SIKAS- Evidence obtained from a source independentof the original illegality Evidence will be admissible if prosecution can show that the evidence was gained from a source independent of the illegality Ex: first officer kicked the door down thinking they would escape and seeing the contraband on the table and nobody was home, waited for the second officer I- Inevitable discoveryAdmissible if the prosecution can show by a preponderance of the evidence that the tainted evidence would have been otherwise discovered despite the illegal searchProcess of discovery must have already been in motion K- Violations of Knock and Announce A- Intervening acts of free will by ΔIf following the illegal search, the Δ voluntarily acknowledges the otherwise illegal evidence, the taint will be removed and the evidence will be admissible Ex: Δ is arrested pursuant to an illegal search but is released on bail. The following day, Δ voluntarily returned to the police and confessed to the crime. Subsequent voluntary confession purged the taint of the illegal searchLimitations: Doesn’t Apply To: (Miranda’s CI2G2)M- MirandaC- Civil Proceedings & Parole Evidence Revocation ProceedingsIf in violation of internal agency rules I- ImpeachmentOnly ΔEvidence can be used to impeach Δ if he takes the stand to impeach his credibility I-In-court identificationA W’s in-court identification of the Δ will not be excluded as a poisonous fruit of an unlawful detention if the W’s knowledge of the Δ’s identity was acquired prior to the illegality Ex: Δ arrested for armed robbery -> illegal search; V ID’s Δ as the perpetrator; the ID stands despite illegal search G- Grand JuriesUnless, violation of federal wiretappingCan be used as a basis for the return of a grand jury indictment against the Δ unless obtained in violation of federal wiretapping rulesNY: one can only indict on evidence that is legally sufficient and corroborated G- Good Faith Defense Won’t exclude evidence when P/O relies on:Caselaw (later Δed)Statute (later declared unconstitutional)Defective Search Warrant (NY: Not recognized) Good Faith Reasonable beliefOn appeal, may look into the probable causeNY: Must also have probable cause at the time the warrant was issuedExceptions-> won’t apply and evidence won’t be excluded if the defective search warrant was issued based on:Misleading affidavits to the issuing magistrateInadequate affidavitsFactually deficient warrantRubber stamping magistrate who “wholly abandoned his judicial role”Harmless Error Doctrine: Δ may assert that the evidence should be excluded pursuant to the exclusionary ruleJ may decide that the evidence should not be excluded.Δ can appealOn appeal, if the prosecution can prove beyond a reasonable doubt that the conviction would have occurred even w/o the illegally obtained evidence, the evidence will be deemed harmlesserror and the conviction will stand Procedure:Determination made by the J as a matter of law on the admissibility of the evidence“motion to suppress” can only be made a/f arraignment NY: must be made w/in 45 d of arraignment (omnibus motion) NY Omnibus Motions:Motion to inspect & dismiss or inspect & reduce Motion to suppressWade Motion: suppress P/O’s identificationHuntley Motion: suppress any statementsMapp Motion: suppress physical evidence Sandoval Motion i.e., Δ will more to prevent the prosecution from using specific instances of prior criminal conductPrior Bad Acts:Δ moves that the prosecution come forth w/ any evidence it intends to bring of prior bad acts of the Δ that the Δ would not know about Hearing:Hearing in front of a judge regarding the probative alue and prejudice of the prior bad actsany testimony by Δ on a motion to suppress may not be used as a subsequent determination of guiltBOP is on prosecution to prove the admissibility of contested evidence by a preponderance of the evidence
Under the Supremacy Clause of the Constitution, federal legislationmay preempt state law. Congress may express an intent to preempt inthe federal statute. An intent to preempt may also be implied, forexample, when federal and state laws directly conflict, when state lawstands as an obstacle to accomplishing the purposes of federallaw, or when federal law is so pervasive that it reflects an intent tooccupy a regulatoryfield.Here are some cases: NATIONAL MEAT ASSOCIATION v. HARRIS (U.S. No.10-224) http://www.supremecourt.gov/opinions/11pdf/10-224.pdf (holdingthat California cannot regulate their meat inspection different fromFMIA because the statute completely regulates field); Taub v. State,463 A. 2d 819 (1983), (held by Maryland Court that state animalcruelty laws are preempted by the Animal Welfare Act)There are two big federal schemes for biosecurity in animal facilitiesthat I see#1 Animal Health Protection Act (AHPA, 7 U.S.C. 8301 et seq.), -- USDAAnimal and Plant Health Inspection Service (APHIS)#2 Food, Drug and Cosmetic Act (21 U.S.C. 301 et seq.). -- FDAThere are additional sources where wildlife or aquaculture areinvolved, but you seem to be dealing with equine, porcine, bovine,poultry, other traditional livestock.There seems to be significant amounts of federal enforcement going onat APHIS, suggesting substantial pre-emption..http://www.aphis.usda.gov/newsroom/2011/11/enforcement_actions_oct.shtmlSo what happens when another agency wants to search a facility withbiosecurity issues?What I found so far is that the FDA defers to APHIS and statedepartment of health Animal Vector Control Units. The concernexpressed in the agency manual was along the lines that I wasdiscussing on the telephone. The inspectors are (and should be)concern about zoogenic contagion.http://www.fda.gov/ICECI/Inspections/IOM/ucm122530.htm#5.2.10the EPA echoes this concern:http://www.epa.gov/oecaagct/biosecurity.pdfThe USDA advice seems to be that facilities which implement high-levelbiosecurity measures should, in fact, coordinate AHEAD OF TIME withlocal law enforcement ona) Response times in the event of unanticipated adverse events or intrusionsb) Having local law enforcement be aware of the suspected securitythreats and the potential public health impacts (severity andlikelihood)c) To the extent that federal preemption/coordination with regionalUSDA may be a factor, having local law enforcement assist withinter-agency issues is helpful.http://www.ocio.usda.gov/directives/doc/DM9610-001.htm
1. Ask for Identification. The New York SPCA has similar authority with the search and seizure of farm animals in New York as police officers. Members from other animal societies may not have this same authority. 2. Ask for the Warrant. If the visitors to your property do not have a warrant then you have the right to ask them to leave. If they do not cooperate then you may contact your local law enforcement. 3. Read the Warrant. If the visitors have a warrant then please take time to carefully read the warrant. Pay special attention to the scope of the warrant. For example, if the warrant is to investigate potentially abused dogs in the backyard then the peace officers should not investigate horses in your barn. 4. Ask if the Visitor Has Camera/Video Equipment. If you decide to let a visitor on your property without a warrant, ask if the visitors have camera/video equipment, including but not limited to, smartphones. Peace officers do have the ability to use camera/video equipment during their search. If the visitors do not have a warrant then you have a right to ask them to leave all cameras and phone equipment in their vehicle. 5. Take Notes During the Farm Inspection. Write down the date, time, names of the visitors, whether there was a warrant, what was inspected, and when the visitors left. Note whether there were any changes or damages made to the property (e.g., feed pans knocked over, livestock locked away from access to water) and the condition of the animals that were inspected (e.g., visual indicators of sickness, approximate body condition score, signs of heat or stress).
The agriculture community has faced problems with animal welfare organizations using undercover videos that are sensationalizing alleged acts of animal cruelty on livestock operations. Larger livestock farmers using conventional production practices and concentrated animal feeding operations are at greater risk. Due to the media attention from these undercover videos, several states have developed animal terrorism legislation aimed to proscribe undercover video surveillance on farms (referred to as “ag gag” laws by opponents). This type of legislation has been controversial in the American public and have raised constitutional questions.
Enacted in 1990
To illustrate, in the book Eating Animals, the author broke into a poultry barn and notes his detest that the barn doors were locked. Locking the barn door would likely constitute adequate notice under this Kansas statute that visitors from the public were forbidden. See Jonathan SafranFoer, Eating Animals (2009).
Importantly, the criminal statute does not apply to “lawful activities of any governmental agency or employees or agents thereof carrying out their duties under law.” K.S.A. § 47-1827(h).
Both enacted in 1991
Currently, the Panel is investigating a video of a swine operation in Iowa released in February 2012 by Compassion Over Killing includes Dr. Temple Grandin (Colorado State University), Candace Crone (Purdue University) and Tom Burkgren (American Association of Swine Veterinarians). After reviewing the footage, the experts determined that video illustrated (1) primarily generally accepted production practices (including castration, farrowing, “back feeding” (2) no abusive practices, and (3) well-trained employees; however, the experts also noted that there might have been a need for hoof-trimming but needed to observe more video footage to determine if there was a lameness issue. Compassion Over Killing refused to submit additional video footage to CFI despite repeated requests. It would be idea for the Panel to review unedited video so that the expert may evaluate the alleged acts of livestock animal cruelty in context.
Have a clear understanding from APHIS as to the public health riskand the escalation protocol when a visitor (including quasi-policeASPCA members) refuses to abide by the protocol.
Build a paper historyWhat experts will testify for you at trial? Build a relationship with those people nowKnow how much you are supposed to feedFollow veterinary recommendations – VERY importantWho is feeding?Genetic defects does not necessarily mean there is animal abuseLet science dictate what is necessary food, drink, shelter and veterinary careThese are the types of things that I advise my clients
Broken windows- things you see all the time but never noticeInvestigation starts when someone drives up to the property- looking at land, resources, livestockIf there is just one thin horse then something might be wrong with a horse- if there are several thin horses then there might be a management problemGenetic defects do not necessarily mean there is animal abuse- however, what would a lay person think? Do you think you could prove in court that the animal had a genetic defect? (vet records)Judicially decide what animals should be kept vs. harvested- cists, abscesses, eyes, If somebody was going to stop by your property tomorrow, what would they see? (e.g., hip lift?)