University of Vermont AAHS

California v. Weems

California Court of Appeals
2004 WL 2526429
November 9, 2004.

Summary of Opinion

An animal control officer obtained a search warrant for defendant Weems’ property to search for sick and neglected animals, including horses.  Animals were seized and defendant was convicted of various cruelty to animals offenses.  In this opinion, the Court of Appeals rejects the argument that the administrative search warrant without probable cause that was used in this case to find and seize the animals was illegal.

Text of Opinion

 Appellant Margaret R. Weems was convicted of the following misdemeanor offenses: cruelty to animals, failure to care for animals, maintaining animals in unsanitary conditions, failure to provide veterinary care, and maintaining an illegal kennel. We affirm.

 We find that an administrative warrant may be used to conduct a criminal search so long as the primary objective of the search is to make an inspection. However, if obtaining criminal evidence is a secondary objective of the search from the outset, then there must be probable cause sufficient to obtain a criminal search warrant. Such probable cause existed in this case. We further hold that the warrant was not executed in such a way as to violate appellant's Fourth Amendment rights, and that appellant was not improperly denied a hearing under Franks v. Delaware (1978) 438 U.S. 154 (Franks ).

BACKGROUND

 According to the November 19, 2001 affidavit of Animal Control Officer Sheri Koenig, from January 1, 1993 to the date of the affidavit, officers of the Los Angeles County Department of Animal Care and Control (the Department) observed that the number of cats and dogs on appellant's property exceeded lawful limits.

 On September 9, 1994, an inspector removed two severely sick kittens from appellant's property and euthanized them. On November 3, 1994, appellant was issued citations for running an illegal kennel, for failing to provide water for animals under her care, and for keeping deceased animals at her residence. On December 2, 1999, appellant was found guilty of operating an illegal cat and dog kennel and given summary probation. A condition of her probation required that appellant was subject to search with 24 hours' notice in order to verify that she was no longer in violation of animal control laws.

 The Department received a complaint on October 1, 2001, that appellant was conducting business under the name of Angel Puss & Pooch. The complaint alleged that animals were abused, mistreated and in danger, and that appellant housed hundreds of sick animals at her place of business as well as at her residence. The complaint specified the name and address of the business but not the address of the residence. It merely stated that the residence belonged to appellant, was located in Los Angeles County, and was known as "The Ranch." On October 2, 2001, the Department obtained a list from appellant's website requesting donations of items that only licensed veterinarians are authorized to use. According to the affidavit, appellant does not have a licensed veterinarian at her place of business or at her residence and was suspected of treating sick and injured animals on her property.

 On November 19, 2001, the trial court issued an inspection warrant for appellant's residence, based on the affidavit of Officer Koenig. The warrant specified that an inspection of appellant's property was authorized to be executed between 7:00 a.m. and 6:00 p.m., and that the purpose of the inspection was to determine if violations of the Animal Code were taking place. The inspectors were authorized to enter by force if necessary, and to take pictures and video of the property and the interior and exterior of structures on the property. The warrant also authorized the search to be made without 24 hours' notice.

 On November 20, 2001, Officer Koenig, the director of the Department, two Los Angeles County Sheriff's deputies, and other animal control officers executed the warrant at appellant's residence at approximately 7:30 a.m. They found more than 60 cats, one dog, and numerous sheep and horses on the property. Many of the cats were crowded into small cages, including 26 cats in one 5 by 5 cage and another 17 in an identical cage. The litter boxes were overflowing with feces. Many of the cats were emaciated, had dull coats, and appeared to be suffering from respiratory ailments. The stables and corral that housed three horses and 31 goats were full of feces. The horses hooves had not been cared for, and the goats were sick.

 Appellant was charged with felony cruelty to animals (Pen.Code, § 597, subd. (b)); misdemeanor failure to care for animals (Pen.Code, § 597f, subd. (a)); maintaining animals in unsanitary conditions (L.A. County Code, § 10.40.010 C); failure to provide veterinary care (L.A. County Code, § 10.40.010 K); and maintaining an illegal kennel (L.A. County Code, § 10.28.060). The trial court heard and denied appellant's motion to suppress pursuant to Penal Code section 1538.5.

 On June 18, 2003, appellant entered pleas of no contest to each count. The trial court ordered count one reduced to a misdemeanor. Appellant was placed on three years' probation. This appeal followed.

CONTENTIONS

 Appellant contends: (1) an administrative inspection warrant may not be substituted for a criminal search warrant as the two are different orders with different standards for issuance and service; (2) the officers did not comply with the procedural requirements of Code of Civil Procedure section 1822.50 et seq., in violation of her Fourth Amendment rights; and (3) she was wrongly denied an evidentiary hearing pursuant to Franks.

DISCUSSION

 I. Whether evidence gathered through an administrative inspection may be used for criminal charges.

 Appellant's first contention is that an administrative inspection warrant cannot be used to gather evidence for criminal charges, and that the trial court erred in denying the motion to suppress.

 " ' "An appellate court's review of a trial court's ruling on a motion to suppress is governed by well-settled principles. [Citations.] [¶] In ruling on such a motion, the trial court (1) finds the historical facts, (2) selects the applicable rule of law, and (3) applies the latter to the former to determine whether the rule of law as applied to the established facts is or is not violated. [Citations.] 'The [trial] court's resolution of each of these inquiries is, of course, subject to appellate review.' [Citations.] [¶] The court's resolution of the first inquiry, which involves questions of fact, is reviewed under the deferential substantial-evidence standard. [Citations.] Its decision on the second, which is a pure question of law, is scrutinized under the standard of independent review. [Citations.] Finally, its ruling on the third, which is a mixed fact‑law question that is however predominantly one of law, ... is also subject to independent review." ' [Citation.]" (People v. Ayala (2000) 23 Cal.4th 225, 255.)

 We conclude that since the primary objective of the warrant was to ascertain the health and safety of animals on appellant's property, the administrative warrant was sufficient. Even if the primary objective was to gather evidence of criminal activity, probable cause supported the search.

 An administrative warrant is simply an inspection warrant allowing an administrative agency to conduct an assessment to ascertain "whether physical conditions exist which do not comply with minimum standards prescribed in local regulatory ordinances." (Camara v. Municipal Court (1967) 387 U.S. 523, 530 (Camara ).) Such searches are "conducted as part of a general regulatory scheme in furtherance of an administrative purpose," rather than as part of a criminal investigation to secure evidence of crime. (United States v. Davis (1973) 482 F.2d 893, 908). As such, a lesser showing of cause is needed to obtain an administrative warrant than in the case of a criminal search warrant, and is a less hostile intrusion than the search for the fruits and instrumentalities of the crime. (Camara, at p. 530.) "Probable cause to issue an administrative warrant exists if reasonable legislative, administrative, or judicially prescribed standards for conducting an inspection are satisfied with respect to a particular dwelling." (Michigan v. Clifford (1984) 464 U.S. 287, 294, fn. 5 (Clifford ).) The scope of the search must be deemed reasonable and not an unnecessary intrusion on the owner's privacy, and the search must be executed at a reasonable and convenient time. (Id. at p. 293.)

 If evidence of criminal activity is discovered during a valid administrative search, it may be seized under the "plain view" doctrine. (Clifford, supra, 464 U.S. at p. 294.) The evidence may then be used to establish probable cause to obtain a criminal search warrant. (Ibid.)

 Here, the evidence showed that the primary objective of the warrant was to ascertain the health of the animals controlled by appellant. The warrant application specifically provided that the objective was "to determine if the animals are being properly cared for," and it was based on a citizen complaint alleging that appellant was mistreating animals in her care. Such an objective comes within the parameters for issuance of an administrative search warrant. (§§ 1822.50-1822.59; People v. Lepeilbet (1992) 4 Cal.App.4th 1208, 1212 (Lepeilbet ).) Thus, the search for criminal behavior was a secondary objective of the search.

 Second, evidence of the maltreated animals was in plain view. According to the record, upon entering appellant's property, the officers observed excessive amounts of horse and goat feces in the corral where sick goats and horses with chipped hooves were housed. They also noticed injured and sick dogs. In appellant's mobile home, the officers found several litter boxes overflowing with feces onto the carpet; kittens in a small plastic carrier with signs of severe upper respiratory infection; and various ill cats crowded in cages. That evidence could properly be used against appellant to support the criminal charges against her.

 Nevertheless, appellant contends that the primary objective of the search was to gather evidence of criminal conduct, and therefore a heightened standard applies. We conclude that even if the primary objective of the search was criminal in nature, probable cause existed to support a criminal search warrant.

 If the primary objective of the administrative warrant is criminal in nature, even though labeled an administrative warrant, the evidence will not be suppressed as long as the warrant was obtained as a result of a showing of probable cause. (Clifford, supra, 464 U.S. at p. 294.) Here, good cause existed for the issuance of a criminal search warrant. A citizen complaint was made to authorities of severe animal abuse; officers had observed that the number of cats and dogs on appellant's property exceeded the legal limits; appellant was on probation for identical conduct; and appellant, who was not a licensed veterinarian, was requesting donation of surgical materials limited to use by a veterinarian, on her website. Thus, we find that the officers had probable cause to believe that relevant evidence would be found on the property. (Ibid.)

 We conclude that the trial court properly issued an administrative warrant because the primary objective of the search was to make an administrative inspection. Even were the primary objective of the search criminal in nature, probable cause supported the issuance of the warrant.

 II. Whether the provisions of section 1822.56 were complied with during the execution of the warrant.

 Appellant next contends that animal control officers violated the procedural requirements of section 1822.56 during the execution of the warrant at her residence, and that the evidence must be suppressed. We disagree. Even if section 1822.56 were violated, the evidence need not be suppressed absent a constitutional violation, which did not occur here.

 Section 1822.56 provides: "An inspection pursuant to this warrant may not be made between 6:00 p.m. of any day and 8:00 a.m. of the succeeding day, nor in the absence of an owner or occupant of the particular place, dwelling, structure, premises, or vehicle unless specifically authorized by the judge upon a showing that such authority is reasonably necessary to effectuate the purpose of the regulation being enforced. An inspection pursuant to a warrant shall not be made by means of forcible entry, except that the judge may expressly authorize a forcible entry where facts are shown sufficient to create a reasonable suspicion of a violation of a state or local law or regulation relating to building, fire, safety, plumbing, electrical, health, labor, or zoning, which, if such violation existed, would be an immediate threat to health or safety, or where facts are shown establishing that reasonable attempts to serve a previous warrant have been unsuccessful. Where prior consent has been sought and refused, notice that a warrant has been issued must be given at least 24 hours before the warrant is executed, unless the judge finds that immediate execution is reasonably necessary in the circumstances shown."

 Appellant urges that the procedural requirements of section 1822.56 were violated because the officers did not first request a consensual search of appellant's premises, nor did they give appellant 24 hours' notice. She also urges that there was no immediate threat to health or safety since the complaint was made on October 1, 2001, seven weeks prior to the date the warrant was issued on November 19, 2001.

 We disagree with appellant's contentions. Section 1822.56 specifically allows an inspection warrant to be issued the day after it is sought if it is reasonably necessary to effectuate the purpose of the regulation being enforced. It permits the trial court to authorize a forcible entry where facts are shown sufficient to create a reasonable suspicion of a violation of a state or local law or regulation, which would be an immediate threat to health or safety. Despite appellant's assertions to the contrary, immediacy was shown by Officer Koenig's affidavit. Officer Koenig stated that the day before the issuance of the warrant, the Department had obtained information on appellant's website indicating her request for surgical supplies limited to use by a licensed veterinarian; that from January 1, 1993 to the present time, the Department had observed illegal numbers of animals at the residence; and the Department had received a complaint on October 1, 2001 indicating that appellant was abusing and mistreating animals. That information permitted the trial court to authorize a forcible entry, prior to 8:00 a.m., without 24 hours' notice.

 Even were the procedural requirements of section 1822.56 violated, by virtue of the failure to give 24 hours' notice and entry at 7:30 a.m., appellant's Fourth Amendment rights of the United States Constitution were not infringed upon, and the evidence need not be suppressed. Section 1822.50 et seq. was enacted to codify the reasonableness standard applied in analyzing the legality of regulatory searches under the Fourth Amendment. (People v. Tillery (1989) 211 Cal.App.3d 1569, 1575 (Tillery ).) However, " '[t]he court may not exclude evidence under the Fourth Amendment unless it finds that an unlawful search or seizure violated the defendant's own unconstitutional rights.' " (Id. at p. 1576.)

 The Legislature, through section 1822.56, rather than the Fourth Amendment, requires officials to give 24 hours' notice before executing an inspection warrant. (Lepeilbet, supra, 4 Cal.App.4th at p. 1214.) The Fourth Amendment requires only minimal limitations on administrative actions to inspect. In Tillery, the court held that violations of section 1822.56 may not automatically require suppression of evidence because the particular procedures the statute mandates are not necessarily part of the Fourth Amendment. (Tillery, supra, 211 Cal.App.3d at p. 1576.) The court stated: "Where, despite statutory violations, the search is 'reasonable' in the constitutional sense, exclusion of the evidence is not warranted." (Id. at p. 1580.) Thus, "[o]ther than the notice of intent to inspect inherent in every request for consent to inspect," the officer need only give notice when he or she displays the inspection warrant and seeks entry. (Lepeilbet, supra, 4 Cal.App.4th at p. 1214.) In Lepeilbet, the court found "no constitutional requirement for 24 hours' notice before serving an inspection warrant [because such notice] may frustrate a significant public interest by forewarning a violator so he or she may take steps to make it more difficult to detect health and safety violations." (Id. at p. 1215.)

 Accordingly, the lack of 24-hours' notice here is not of a constitutional dimension requiring suppression of the evidence, and indeed may have been necessary to prevent appellant from hiding the Animal Code violations. Moreover, under the totality of the circumstances, the inspection was not unreasonable. Appellant was aware that the terms of her probation allowed a warrantless inspection upon 24 hours' notice, between the hours of 7:00 a.m. and 6:00 p.m. We conclude that any statutory violations, including the execution of the warrant 30 minutes prior to 8:00 a.m., and the lack of notice, did not rise to the level of infringement on appellant's Fourth Amendment rights.

 III. Whether the trial court properly refused to hold a Franks hearing.

 Appellant next urges that the trial court erred when it failed to hold a  Franks hearing. Again, we disagree.

 Under Franks, "[w]here the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant's request." (Franks, supra, 438 U.S. at pp. 155‑156.) If the defendant establishes perjury or reckless disregard by a preponderance of the evidence, and the affidavit's remaining content after its false statements are excised is insufficient to justify a finding of probable cause, the search warrant is voided, and the evidence excluded. (Ibid.)

 Affidavits supporting search warrants are presumed valid. (Franks, supra, 438 U.S. at p. 171.) In order to secure an evidentiary hearing, the defendant must make more than conclusory allegations, and the claims must be supported by more than "a mere desire to cross‑examine." (Ibid.) The defendant must allege deliberate falsehood or reckless disregard for the truth, not merely negligence or innocent mistake, accompanied by a statement of supporting reasons. Affidavits should be furnished, or their absence explained. (Ibid.)

 Whether a defendant's evidence is sufficient to require a Franks hearing is a question of law and is reviewed de novo upon appeal, as is the trial court's determination whether to hold an evidentiary hearing. (People v. Box (1993) 14 Cal.App.4th 177, 183.)

 Appellant's arguments are precisely what the Franks court rejected as insufficient to merit a hearing. Her claims are conclusory challenges to the affidavit, unsupported by evidence, and evince a desire to cross-examine.  Appellant's attack on the affidavit as giving the numbers of sick animals in the hundreds does not show knowing or reckless disregard for the truth, since the challenged statement indicated that appellant "housed" hundreds of cats and dogs. Nor is her criticism of the characterization of the items requested on appellant's website as every day items available in pet stores, helpful to her cause. Rather, the request included items such as a surgery table, surgery lights, medical supplies, surgical blades, syringes, needles, I.V. catheters, I.V. setups, and computerized blood and urine testing equipment. Appellant's allegations that the affidavit falsely stated that she did not have a veterinarian at her place of business is also meritless. In point of fact, a veterinarian who testified on behalf of appellant at her preliminary hearing stated that although he had treated approximately six of appellant's animals for free on a monthly basis when she brought them to his facility, he had never treated them at her residence or business.

 Nor does appellant support her allegations that she owns all the animals at her residence and therefore can practice veterinary medicine on them under Business and Professions Code section 4827, subdivision (a), [FN3] or that she was running a "no kill" shelter in which it was not unusual to house sick animals. Indeed, she makes the contradictory argument that she has no history of housing sick animals or of providing medical treatment. Appellant's contentions that the affidavit did not state that the residence was appellant's home, that the complainant operates a competing rescue business, that the officers should have known some of the animals were under the care of a veterinarian, that the Department and the trial court judge have been named in a lawsuit by appellant and are therefore biased against her, do not support a showing that the affidavit was made falsely, intentionally or with reckless disregard for the truth.

FN3. Business and Professions Code section 4827, subdivision (a) exempts an owner from the prohibition of practicing veterinary medicine as a bona fide owner of one's own animals.

 We conclude that the trial court did not err when it failed to hold a  Franks hearing.

DISPOSITION

 The judgment is affirmed.


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