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State v. Warren

Supreme Court of Montana

February 26, 2019

STATE OF MONTANA, Plaintiff and Appellee,
v.
CATHIE IRIS WARREN, Defendant and Appellant.

          Submitted on Briefs: December 5, 2018

          APPEAL FROM: District Court of the Nineteenth Judicial District, In and For the County of Lincoln, Cause No. DC 16-79 Honorable Matthew Cuffe, Presiding Judge

          For Appellant: Chad Wright, Appellate Defender, Moses Okeyo, Assistant Appellate Defender, Helena, Montana

          For Appellee: Timothy C. Fox, Montana Attorney General, Roy Brown, Assistant Attorney General, Helena, Montana Marcia Boris, Lincoln County Attorney, Libby, Montana

          OPINION

          Jim Rice Justice

         ¶1 Cathie Iris Warren (Warren) appeals her conviction of three felony counts of aggravated animal cruelty, five felony counts of cruelty to animals, and a misdemeanor count of cruelty to animals, after jury trial in the Nineteenth Judicial District Court, Lincoln County. We affirm, and state Warren's issues on appeal as follows:

1. Did the District Court err by denying Warren's motion to suppress evidence obtained in warrantless searches of her commercial kennel property?
2. Did the District Court err by denying Warren's Batson challenge?
3. Did the District Court err in imposing the costs to be reimbursed by Warren under § 45-8-211(3), MCA?

         FACTUAL AND PROCEDURAL BACKGROUND

         ¶2 This case arises from Warren's kennel operation located on her residential property in Libby, Montana. In August 2013, Warren submitted an Animal Control Business Kennel Application to Lincoln County in which she stated she would (1) hold dogs for sale or exchange; (2) breed, buy, sell, or barter dogs for profit or compensation; and (3) buy or receive dogs, and thereafter exhibit or offer such animals for sale, trade, or barter. Warren's application indicated the kennel was already in operation, and she publicly advertised the location of her kennel and that it was open for business. Pursuant to the application process, Warren's property was inspected by Lincoln County in 2013, and she was issued a license to operate.

         ¶3 In 2016, Lincoln County Animal Control employee Wendy Anderson (Anderson) received a noise complaint regarding barking dogs on Warren's property. Anderson discovered that, despite expiration of Warren's kennel license in October 2015, Warren was apparently still operating a commercial kennel. Anderson contacted Warren and explained that a new kennel license needed to be obtained, which would require an inspection of her property pursuant to county ordinance, as had occurred in 2013. Warren agreed and scheduled an inspection with Anderson, pending which Anderson issued Warren a conditional kennel license.

         ¶4 The purpose of these inspections is to ensure the kennel facility is suitable for the number of animals present, and is not creating a health risk. Lincoln County Ordinance 7.1.306. The inspections are not designed to be criminal investigations, and a prospective kennel licensee is free to decline an inspection, in which case the application for the license will not be processed.

         ¶5 Ultimately, three inspections of Warren's property occurred in 2016. The first, on April 21, 2016, was scheduled with Warren and performed by Anderson and Kathi Hooper (Hooper), Director of the Lincoln County Health Department. During the inspection, Hooper and Anderson followed Warren through her property and inspected those areas as directed by Warren, including rooms inside her home, a barn, a kennel located in the nearby woods, and a metal horse trailer. As Hooper would testify, during this inspection she observed more than fifty poodles with matted hair located in inadequately small areas for the size of the dogs, leaving her concerned for the health of the animals. After this inspection, Anderson attempted to bring Warren into compliance with licensing requirements, and requested that Warren produce rabies vaccinations certificates, by May 10, 2016, for her dogs that were over six months old. In response, Warren provided the Animal Control Office with 132 rabies vaccination certificates for her approximately fifty dogs, without identifying which certificate corresponded to each dog. After reviewing the certificates, the Animal Control Office determined that some certificates corresponded to animals no longer in Warren's possession, while there were no certificates for some dogs that remained in her possession.

         ¶6 Because Warren had not timely provided satisfactory verification, Anderson wrote a letter on June 7, 2016, advising Warren that she had failed to satisfy the conditions of the conditional kennel license, and that her previous kennel license had expired on October 31, 2015, thus requiring her to submit a new kennel application for processing. Warren submitted a new application dated June 10, 2016, after which Hooper and Anderson scheduled another kennel inspection with Warren for June 30, 2016. Lincoln County Sheriff Roby Bowe (Sheriff Bowe) accompanied Hooper and Anderson on this inspection, pursuant to Hooper's practice of requesting law enforcement assistance to keep the peace if she believed an inspection could be contentious. During this inspection, Hooper and Anderson observed approximately fifty-nine dogs on the property, along with horses, donkeys, goats, chickens, and small birds. The inspection raised concerns by Hooper and Anderson about the health of the animals and the conditions of the facilities. Additionally, Warren could not provide appropriate vaccination records for her animals.

         ¶7 Acting on their concerns, Lincoln County Animal Control scheduled a third inspection with Warren for July 26, 2016, to be conducted by Dr. Melissa Genovese, a veterinarian, to further determine the health of the animals and the conditions of the facilities. Dr. Genovese was accompanied by a veterinary technician and Sheriff Bowe. After the inspection, Dr. Genovese recommended the animals be evaluated by the U.S. Humane Society, because, in her opinion, the animals were not receiving adequate care. There were approximately fifty-two dogs on the property, despite a limit of twenty dogs stated on Warren's license application; dogs were kept in stacked crates that were too small; dogs were housed inside Warren's residence in crates, inside a barn, inside the kennel in the woods, or locked inside a metal horse trailer, often in direct sunlight or exposed to eighty-five or ninety degree temperatures; dogs either had no access to food or water or were being fed cat food; and most dogs were either underweight or emaciated and had severe fur matting and ear or eye infections. There were also cats, goats, canaries, parakeets, and mules on Warren's property. The mules were underweight, had long, shaggy coats despite high temperatures, and their hooves were long and curved upwards.

         ¶8 After the inspection by Dr. Genovese on July 26, Sheriff Bowe asked Detective Dave Hall to investigate Warren for possible animal cruelty. Hall obtained reports from Hooper, Anderson, and Dr. Genovese concerning Warren's animals and facilities, and obtained a search warrant based on those reports. Detective Hall served the search warrant on Warren's property on August 2, 2016. Warren's animals were seized the same day, and she was subsequently charged with seventeen felony and misdemeanor animal cruelty offenses.

         ¶9 Warren moved to suppress the evidence obtained in the three 2016 searches of her property, arguing a warrant was required for each inspection. The District Court found Warren "was operating a business that implicated public health and safety and the well-being of the animals being bought, sold, bred, traded, or bartered," which was "open to the public, the address was advertised to the public," and that Warren both initiated the inspections and controlled the areas inspected. The court concluded there was no search because Warren did not have an expectation of privacy in her commercial kennel operation that society would consider objectively reasonable, and denied the motion.

         ¶10 The case proceeded to trial. After voir dire, the State used a peremptory strike to remove Felipe Jara-Pereira, a Hispanic male, from the jury panel. The defense objected to the strike on the basis of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712 (1986), as a violation of equal protection because Jara-Pereira was "the one minority juror on the panel." The prosecutor responded that the strike was "not anything to do with any sort of race or ethnic background," but, rather, because the prosecution "didn't get to" several of the jurors during questioning, it knew "a little bit less" about them, and thus had struck jurors it had not questioned, including Jara-Pereira, even though the prosecutor "didn't have a lot of great concerns" about anyone on the panel. The District Court overruled the objection, stating "we have a female Defendant who is not Spanish," and thus, concluded no Batson violation had occurred. Both parties used all eight of their peremptory strikes. Trial proceeded and Warren was convicted of eight felony counts and one misdemeanor count.

         ¶11 At sentencing, a primary issue was the amount of restitution or costs owed by Warren to Lincoln County. The Lincoln County Animal Control shelter in Libby cared for Warren's animals for over ten months until they were healthy enough to be fostered or adopted. Extensive care was needed to bring the animals back to health, including veterinary care for ear infections, eye infections, urinary tract infections, giardia, worms, tooth removal, overgrown hooves, and tumor removal. Lincoln County was responsible for the care of sixty-seven dogs and six donkeys, which overwhelmed their facilities so that they could not conduct normal animal control activities.

         ¶12 The District Court found that Lincoln County was a victim that suffered pecuniary loss under § 46-18-243, MCA, and calculated costs according to Montana's Animal Cruelty statute, § 45-8-211(3), MCA. The court determined that Warren owed statutorily-imposed costs, including for veterinary care, food and supplies, excess hours worked by county employees, and travel costs. Also included were costs incurred for (1) contracted sheltering with Tobacco Valley Animal Shelter (TVAS), a private, nonprofit shelter in Eureka that Lincoln County contracted with to shelter county animals; and (2)lost revenue, calculated as the difference between the 2016 and 2015 revenue for the ten-month period that Lincoln County cared for Warren's animals, because the County was "unable to conduct normal animal control business, and the shelter, primarily [TVAS], was unable to take in or adopt out animals" and thus could not earn revenue from adoption fees. The District Court sought clarification on the lost revenue amount during the hearing, and asked Hooper:

[The Court]: There's a contract amount which [Lincoln County] pays [TVAS] every month.
[Hooper]: Yes.
[The Court]: Okay. Then there was added costs above and beyond the contract amount that you paid them, correct?
[Hooper]: Yes.

         ¶13 The State originally sought a total of $72, 109.00, but the court subtracted care for parakeets, which were not part of the animal cruelty case, and reduced the amount of ...


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