police need warrant to test dog's feces
by: Ryan • April 16, 2014 • no comments
In today's COA opinion, State v Newcomb, the court held that -- though the dog was legally seized without a warrant -- a warrant was required before testing the dog's blood and urine.
Let me state first of all that this rule wouldn't likely apply if you didn't clean up after your dog. Not only would you be a lazy and selfish person, but I think we can safely assume the judiciary would collectively believe the poop had been "abandoned."
This is a good case for a number of reasons, one of which is that it reaffirms the principle that merely because an item is lawfully seized without a warrant, that does not necessarily mean it can be searched without a warrant.
The opinion cites the following authority for that long-standing if often forgotten principle:
- State v. Dickerson, 135 Or App 192, 195-96, 898 P2d 193 (1995);see also State v. Munro , 194 Or App 538, 545, 96 P3d 348 (2004) (concluding that the defendant retained a protected privacy interest in the contents of a videotape that police had lawfully seized), rev'd, 339 Or 545, 550,553, 124 P3d 1221 (2005) (accepting the state's concession that viewing a lawfully seized videotape was a "search," but concluding that the search was authorized by a warrant); State v. Heckathorne, 347 Or 474, 483-85, 223 P3d 1034 (2009)(reaffirming the principle that opening a lawfully seized container that does not reveal or announce its contents is a search that must be justified by a warrant or an exception to the warrant requirement).
Note also that the AG's office abandoned the argument -- made by the prosecutor at the trial court level -- that the tests of the blood and urine were merely "confirmatory" tests. Prosecutors frequently misunderstand what the exception for confirmatory tests really means. For more on that subject, and why firearms that are seized without a warrant require a search warrant before there can be a ballistics test, see this post.
