State v. Newcomb

756 June 16, 2016 No. 40 IN THE SUPREME COURT OF THE STATE OF OREGON STATE OF OREGON, Petitioner on Review, v. AMANDA L. NEWCOMB, Respondent on Review. (CC 110443303; CA A149495; SC S062387) On review from the Court of Appeals.* Argued and submitted March 10, 2015, at Lewis & Clark Law School, Portland, Oregon.

Jamie K. Contreras, Assistant Attorney General, Salem, argued the cause and filed the brief for petitioner on review.

With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

Andrew D. Robinson, Deputy Public Defender, Salem, argued the cause and filed the brief for respondent on review.

With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Lora Dunn, Animal Legal Defense Fund, Portland, filed the briefs for amici curiae Animal Legal Defense Fund, Association of Prosecuting Attorneys, National District Attorneys Association, Oregon Humane Society, and Oregon Veterinary Medical Association.

Before Balmer, Chief Justice, and Kistler, Walters, Landau, Baldwin, Brewer, Justices, and Linder, Senior Justice pro tempore.** LINDER, S. J.

The decision of the Court of Appeals is reversed. The judgment of the circuit court is affirmed.

Cite as 359 Or 756 (2016) 757 Case Summary: After receiving a citizen report of animal neglect, an ani- mal cruelty investigator seized defendant’s near-emaciated dog, Juno, and trans- ported him the Oregon Humane Society for examination and treatment. As part of her examination, the veterinarian at the Oregon Humane Society drew a blood sample from Juno to rule out any contributing causes for his condition. The subsequent lab results revealed that Juno did not suffer from a medical condi- tion. The veterinarian concluded Juno had been malnourished. Defendant was charged with second-degree animal neglect for failing to provide Juno with mini- mum care and nutrition. Before trial, defendant moved to suppress the results of Juno’s lab tests, asserting that the warrantless blood draw and testing violated Article I, section 9, of the Oregon Constitution and the Fourth Amendment to the United States Constitution. The trial court denied the motion and a jury convicted defendant following trial. Defendant appealed the trial court’s denial of her motion to suppress, arguing she had a protected property interest in Juno’s blood. Defendant emphasized that, under Oregon law, dogs are personal prop- erty; like other personal property, such as a folder or a stereo, the state could examine only the exterior of Juno without a warrant. When the state withdrew Juno’s blood without a warrant, it intruded into defendant’s personal prop- erty and violated her constitutionally protected privacy. The Court of Appeals reversed. Held: when the state has lawfully seized an animal on probable cause to believe it has been neglected or abused, a warrantless withdrawal and testing of the animal’s blood for the purposes of a medically appropriate procedure does not violate Article I, section 9, of the Oregon Constitution or the Fourth Amendment to the United States Constitution.

The decision of the Court of Appeals is reversed. The judgment of the circuit court is affirmed.

758 State v. Newcomb LINDER, S. J.

Defendant was convicted of second-degree animal neglect (ORS 167.325)1 after she failed to adequately feed her dog, Juno, resulting in his malnourishment. Before trial, defendant moved to suppress blood test results showing that Juno had no medical condition that would have caused him to be malnourished, which in turn indicated that Juno was malnourished because he was starving. Defendant argued that the state had violated both Article I, section 9, of the Oregon Constitution, and the Fourth Amendment to the United States Constitution by failing to obtain a warrant before testing the dog’s blood.2 The trial court denied the motion and allowed the state to introduce the test results during trial. Defendant appealed to the Court of Appeals, which agreed with defendant that she had a protected pri- vacy interest in her dog’s blood that required the state to obtain a search warrant, unless the circumstances fit within an exception to the warrant requirement. State v. Newcomb, 262 Or App 256, 271, 324 P3d 557 (2014). Because the state had failed to obtain a warrant, and because no exception to the warrant requirement applied, the Court of Appeals reversed. Id. at 271-72. We allowed the state’s petition for review to resolve whether defendant had a protected pri- vacy interest in her dog’s blood under Article I, section 9, of the Oregon Constitution or the Fourth Amendment to the United States Constitution. As explained below, on these facts, we conclude that she did not. We accordingly reverse Cite as 359 Or 756 (2016) 759 the decision of the Court of Appeals and affirm the decision of the trial court.

I. FACTUAL AND PROCEDURAL BACKGROUND We recite the facts, and all reasonable inferences that they support, in the light most favorable to the trial court’s denial of the motion to suppress. See State v. Bailey, 356 Or 486, 489, 338 P3d 702 (2014) (stating standard of review). The Oregon Humane Society received a report that defendant was abusing and neglecting her dog, Juno. In response to that report, Special Agent Austin Wallace, an animal cruelty investigator and certified police officer, went to defendant’s apartment to investigate.3 While the officer was speaking with defendant inside her apartment, he could see Juno in defendant’s back patio area through the double sliding-glass doors. To the officer, who had seen “hundreds of emaciated animals,” Juno appeared to be in a “near- emaciated condition,” with “no fat on his body.” He also noticed that Juno was “eating at random things in the yard, and * * * trying to vomit.” But Juno was dry heaving and “[n]othing was coming up[.]”

The officer asked defendant why Juno was in that condition—that is, why Juno appeared “near-emaciated.”

Defendant responded that she usually gave Juno dog food from WinCo, which she buys in small four-pound quantities, but that she had run out of it and was planning on buying more that evening. At that point, the officer concluded that 760 State v. Newcomb he had enough evidence to corroborate the citizen report of neglect—Juno was near-emaciated and dry heaving, and defendant had admitted that she had no food for Juno. He therefore concluded that he had probable cause to believe that defendant had neglected Juno. He asked defendant for permission to take the dog in for medical care, but defen- dant, who thought her dog looked healthy, refused and became irate. The officer therefore took custody of Juno without defendant’s consent, both as evidence of the neglect and because of the “strong possibility” that Juno needed medical treatment. He transported Juno to the Humane Society, where Juno would be housed and medically treated as appropriate. From medical tests, the officer expected also to be able to determine whether neglect charges were war- ranted or whether Juno should be returned to defendant.

Dr. Zarah Hedge, a veterinarian, treated Juno after the dog arrived at the Oregon Humane Society. From an ini- tial examination, Dr. Hedge could identify nothing physically wrong with Juno, other than that “the dog was very thin.”

As part of standard practice, Dr. Hedge gave Juno a “body condition score.” That score ranges from one—meaning ema- ciated—to nine—meaning obese. To score dogs on that scale, veterinarians determine, among other things, whether the dog’s ribs and spine are visibly protruding (meaning that the dog is emaciated); or, on the opposite end of the scale, whether the veterinarian must actually touch the dog to be able to locate its ribs and spine (meaning that the dog is obese). After looking at Juno—whose ribs and vertebrae were visible without having to feel for them—Dr. Hedge gave him a body condition score of 1.5. But Dr. Hedge could not be certain, at that point, that Juno was emaciated due to mal- nourishment. Juno could have had a parasite or an intestinal or organ condition that caused him to be thin. She therefore drew a blood sample from Juno for laboratory testing.4 Cite as 359 Or 756 (2016) 761 Dr. Hedge’s withdrawal of that blood sample, and the subsequent testing of it, is the central focus of this case.5 The laboratory tests revealed nothing medically wrong with Juno that would have caused him to be thin; Dr. Hedge therefore concluded that Juno was malnourished and placed him on a special feeding protocol. As a result of that diag- nosis, the officer cited defendant for second-degree animal neglect.

Before trial, defendant moved to suppress the labo- ratory test results, arguing that the officer lacked probable cause to take Juno into custody, and thus had unlawfully seized the dog. Defendant also argued that Dr. Hedge had engaged in an unreasonable search of defendant’s property— i.e., Juno—by drawing and testing Juno’s blood without a warrant, in violation of Article I, section 9, of the Oregon Constitution and the Fourth Amendment to the United States Constitution. In arguing that the blood testing was an unlawful search, defendant emphasized that dogs are personal property under Oregon law; defendant therefore took the position that dogs are “no different than a folder or a stereo or a vehicle or a boot” or other items of personal property. Even if Juno was lawfully taken into custody, defendant urged, the state could examine only the exterior of seized property without seeking a warrant. According to defendant, by withdrawing blood from Juno and testing that blood without a warrant, the state intruded into her personal property and revealed information not otherwise open to view, which violated her constitutionally protected privacy.

The prosecutor countered by first arguing that the officer had probable cause to believe Juno was being neglected, and therefore had lawfully seized Juno and taken him to the Humane Society for care. The prosecutor then turned to the withdrawal and testing of Juno’s blood, arguing that 762 State v. Newcomb a dog, although personal property, is not a container and is not legally analogous to one because, as the prosecutor put it, a dog “doesn’t contain anything”; instead, inside a dog is just “more dog.” A more appropriate analogy, the prosecutor urged, was to test-firing a lawfully seized gun to determine if it is operable.6 According to the prosecutor, in the same way, testing Juno’s blood did not reveal private information concealed inside Juno, but instead confirmed that Juno was what the officer believed that he had seized—a malnour- ished dog. As an alternative theory justifying the warrant- less withdrawal and testing of Juno’s blood, the prosecutor urged that it was reasonable to provide medical care to a dog that had been lawfully taken into custody on probable cause to believe that the dog had been neglected.

The trial court denied defendant’s motion to sup- press. In doing so, the trial court first concluded that the officer had probable cause to believe Juno was neglected and therefore lawfully took Juno into custody. Next, the trial court agreed with the prosecutor that a dog is neither a container nor analogous to one, and stated that the closer analogy would be a medical examination and diagnostic analysis of a child taken into protective custody on suspicion of abuse. The trial court also viewed the testing of Juno’s blood as more analogous to confirmatory chemical testing of a substance seized on probable cause that it is an unlawful drug, or to testing a lawfully-seized firearm for fingerprints.

For those reasons, the trial court ruled that, once Juno had been lawfully taken into custody, neither Article I, section 9, or the Fourth Amendment required a warrant to medically test Juno’s blood.

The case proceeded to a jury trial, and the jury unanimously returned a guilty verdict on the second-degree animal neglect charge. Defendant appealed, challenging the denial of her motion to suppress. In the Court of Appeals, the Cite as 359 Or 756 (2016) 763 parties largely renewed the arguments they had made to the trial court. The Court of Appeals agreed with the trial court that Juno’s seizure was lawful, but disagreed that Juno’s blood could be tested without a warrant. Newcomb, 262 Or App at 264, 271. The court concluded that the “extract[ing] and testing” of Juno’s blood, even though Juno was lawfully in the state’s custody, was a constitutionally significant intrusion into defendant’s privacy, one that “exposed other- wise concealed information about the dog that served as evi- dence of a crime.” Id. at 271. Because the intrusion was not justified by any recognized exception to the warrant require- ment, the court declared that the extraction and testing of Juno’s blood was an unlawful search under Article I, section 9. Id. at 271-72. The Court of Appeals therefore reversed defendant’s conviction and remanded the case to the circuit court.

On review, the only issue before us is the lawful- ness of testing Juno’s blood; defendant no longer disputes that Juno was lawfully seized.7 The chief point of conten- tion between the parties is whether defendant had a pro- tected privacy interest in Juno’s blood once Juno was in the state’s lawful custody and care. That, in turn, is essen- tially a disagreement over whether drawing and testing Juno’s blood was a “search” for purposes of either Article I, section 9, or the Fourth Amendment. The parties further dispute whether, if the blood testing was a search for con- stitutional purposes, that search was reasonable in these circumstances despite the state’s failure to get a warrant.8 764 State v. Newcomb Consistently with our approach to analyzing constitutional claims, we examine first whether the state’s conduct consti- tuted a search under Article I, section 9, and then consider defendant’s Fourth Amendment claim only if we conclude that no state constitutional violation occurred. See Sterling v. Cupp, 290 Or 611, 614, 625 P2d 123 (1981) (describing first-things-first approach).

II. ANALYSIS A. Article I, Section 9 Article I, section 9, of the Oregon Constitution pro- vides in part: “No law shall violate the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure.” Implicit in that guarantee against unreasonable searches and seizures is a significant limitation: The provision applies only when government officials engage in conduct that amounts to a search or a seizure. State v. Howard/Dawson, 342 Or 635, 639, 157 P3d 1189 (2007); State v. Owens, 302 Or 196, 205- 06, 729 P2d 524 (1986). For purposes of Article I, section 9, a search occurs only if governmental action invades “a pro- tected privacy interest.” State v. Wacker, 317 Or 419, 426, 856 P2d 1029 (1993). A seizure occurs only if, through gov- ernmental action, “there is a significant interference with a person’s possessory or ownership interests in property.”

Owens, 302 Or at 207. Although the two interests—privacy and ownership/possession—are not necessarily coextensive, property law concepts of ownership and possessory rights can bear significantly on the existence or nonexistence of a protected privacy interest in the property. Howard/Dawson, 342 Or at 642-43 (discussing principle; concluding that pri- vacy interest in property was extinguished by abandonment of rights of dominion and control over property). Ultimately, “the privacy protected by Article I, section 9, is not the pri- vacy that one reasonably expects but the privacy to which one has a right.” State v. Campbell, 306 Or 157, 164, 759 P2d 1040 (1988) (emphasis in original; citation omitted). And the right to privacy that Article I, section 9, protects is the free- dom from scrutiny as “determined by social and legal norms of behavior, such as trespass laws and conventions against eavesdropping.” Id. at 170 (citations omitted).

Cite as 359 Or 756 (2016) 765 The general issue that this case presents is one that has come before the court with some frequency before: the extent to which the state may examine property without a warrant after it has lawfully seized that property in the course of a criminal investigation. On the other hand, this case presents—as most cases raising search and seizure issues do—its own set of distinctive facts and circumstances within that context. Here, the seized property was a living animal—Juno, the dog—not an inanimate object or other insentient physical item of some kind. Central to the issue that we must resolve is whether that distinctive fact makes a legal difference.

In defendant’s view, it does not. Defendant relies on ORS 609.020, which states: “Dogs are hereby declared to be personal property.” Defendant maintains that, for purposes of Article I, section 9, a dog is the same as any other item of property that can be lawfully owned or possessed, such as a stereo or a folder. As a general proposition, under that construct, when the state lawfully seizes inanimate prop- erty, it may “observe, feel, smell, shake and weigh” lawfully seized property or otherwise “thoroughly examine” its exte- rior without obtaining a warrant. Owens, 302 Or at 206.

But examining the “interior” of the property to reveal other property that it may contain is another matter. Whether such an examination is an unlawful search depends on whether the contents are open to view or the property “by [its] very nature announce[s] [its] contents (such as by touch or smell) * * *.” Id. (no warrant required to withdraw and test white powder visible in lawfully seized clear vial to con- firm probable cause that powder was cocaine); see also State v. Heckathorne, 347 Or 474, 484-85, 223 P3d 1034 (2009) (same result for lawfully seized opaque metal cylinder where the smell of gas escaping from cylinder provided probable cause to believe cylinder contained unlawful substance).

Defendant’s position is that Juno was the legal equivalent of a closed opaque container, one that did not announce its contents, so that a warrant was required before the state could examine its contents.

In Owens, however, this court recognized that “not all containers * * * merit the same protection under Article I, section 9.” 302 Or at 206. The same is true of personal 766 State v. Newcomb property more generally: Not all things that can be owned and possessed as personal property merit the same constitu- tional protection in the same circumstances. With regard to living animals, and domestic pets in particular, we have rec- ognized that “some animals, such as pets, occupy a unique position in people’s hearts and in the law,” one that is not well-reflected in the “cold characterization of a dog * * * as mere property.” State v. Fessenden/Dicke, 355 Or 759, 769, 333 P3d 278 (2014) (latter quotation from Rabideau v. City of Racine, 243 Wis2d 486, 491, 627 NW 2d 795, 798 (2001)).

Whether defendant had a protected privacy interest that was invaded by the withdrawal and testing of Juno’s blood requires us to examine the nature of the property involved and the circumstances of the governmental intrusion into that property.

As to the nature of the property involved—here, a living animal—we are aided by our analysis in Fessenden/ Dicke. The issue there was whether the state could, without a warrant, lawfully seize an animal (a horse) believed to have been criminally neglected. In concluding that tradi- tional exigent circumstances doctrine extended to animals in such a circumstance, this court explored the nature of the relationship of humans to the animals that they own and possess, as well as the social and legal norms that attend to that relationship. The observations that we made in that regard are helpful in the context of the legal issue that this case presents.

Under Oregon’s statutes, animals generally, as well as dogs in particular, are deemed “property.” 355 Or at 767-68 (citing statutes); ORS 609.020 (declaring dogs to be property). Animals generally therefore can be lawfully owned and possessed much as other property can be.9 But the welfare of animals is subject to a series of explicit statutory Cite as 359 Or 756 (2016) 767 protections that are distinct to animals and do not apply to inanimate property. Indeed, “Oregon’s animal welfare statutes impose one of the nation’s most protective statutory schemes[.]” Id. The crimes of animal abuse and neglect are themselves reflections of the distinctive nature of animals as property. Id. at 767-69 (discussing animal neglect and other animal welfare statutes as illustrating unique legal and social status of animals). A person commits first-degree animal abuse if the person, with any of several culpable mental states, causes serious physical injury to or cruelly causes the death of an animal. ORS 167.330(1). A person commits second-degree animal neglect if the person, with any of several culpable mental states, “fails to provide min- imum care for an animal in [that] person’s custody or con- trol.” ORS 167.325(1). Significantly, the obligation to provide minimum care arises for anyone who has custody or control of an animal; it is not limited to those who have lawful pos- session or custody of the animal. “Minimum care,” in turn, means “care sufficient to preserve the health and well-being of an animal” and includes, in addition to adequate nutri- tion, “[v]eterinary care deemed necessary by a reasonably prudent person to relieve distress from injury, neglect or disease.” ORS 167.310(7). If the failure to provide minimum care results in death or serious physical injury, the crime is elevated to first-degree animal neglect. ORS 167.330(1).

Reflected in those and other laws that govern own- ership and treatment of animals is the recognition that animals “are sentient beings capable of experiencing pain, stress and fear[.]” Fessenden/Dicke, 355 Or at 768 (quoting ORS 167.305(1)).10 To be sure, the protection given to ani- mals under Oregon law does not place them on a par with humans. Among other things, there are legally sanctioned ways for humans to kill animals, and many animals may be “treated or mistreated” by those who own or lawfully pos- sess them as long as their treatment is within the bound- aries of “good animal husbandry” or “animal research.” Id. 768 State v. Newcomb at 768-69 (citing statutes; noting special legal protections for domestic animals, “colloquially known as pets”). The important point for this case, however, is not that Oregon law permits “humans to treat animals in ways that humans may not treat other humans.” Id. at 768. What matters here is that Oregon law prohibits humans from treating animals in ways that humans are free to treat other forms of proper- ty.11 Oregon law also places affirmative obligations on those who have custody of an animal to ensure that animal’s basic welfare; those obligations have no analogue for inanimate property.

Those observations alone are not enough to resolve the issue before us. As an abstract proposition, we accept that a person who owns or lawfully possesses an animal, and who thus has full rights of dominion and control over it, has a protected privacy interest that precludes others from interfering with the animal in ways and under circum- stances that exceed legal and social norms. Thus, for exam- ple, if a dog owner walks his dog off-leash down the street, and the friendly dog runs over to greet a passerby who pets it, that act of petting the dog would invade no possessory or privacy interest; a contact of that kind would fall well within social norms and conventions, even if by petting the dog the passerby discovers something concealed from plain view (e.g., that under the dog’s thick fur coat, the dog is skin and bones to the point of serious malnourishment). On the other hand, if the passerby produces a syringe and expertly withdraws a sample of the dog’s blood in the time that it would take to greet and pet the dog, that contact would vio- late the owner’s possessory and privacy interests, even if the passerby did so for a valuable scientific study (e.g., whether local animals were infected with an easily-transmitted virus); such a contact would fall well outside social norms and conventions. As those examples suggest, determining the existence of a constitutionally protected privacy right in property depends not only on the nature of the property itself, but also on the nature of the governmental intrusion Cite as 359 Or 756 (2016) 769 and the circumstances in which it occurred. We must con- sider those, too, in resolving the issue before us.

Here, when Dr. Hedge tested Juno’s blood, defen- dant had lost her rights of dominion and control over Juno, at least on a temporary basis. Juno at that point had been lawfully seized and taken into custody based on probable cause to believe that he had been criminally neglected. The specific neglect that the officer believed Juno to have suffered was that Juno was starving. Juno’s physical appearance and behavior provided the officer with significant support for his belief—Juno was near-emaciated, was dry-heaving, and was “eating at random things” in the yard. The officer had, as well, a citizen report of neglect and defendant’s own admission that she had no food for the dog. The officer, who believed Juno needed medical treatment, asked defendant for her consent to take Juno into custody for medical eval- uation, but defendant refused. When the officer then seized Juno over defendant’s protest, both to preserve evidence and to render aid to the dog, Juno was lawfully taken into the state’s protective custody. See Fessenden/Dicke, 355 Or at 773 (animal entitled to “statutory protection” through sei- zure without warrant if officer has probable cause to believe animal has been criminally neglected, neglect is ongoing, and seizure is necessary to prevent further serious immi- nent harm to animal).

Juno was not beyond danger simply because he had been removed for the time from defendant’s dominion and control, however. Juno’s condition appeared serious and required medical attention. To ensure appropriate medical care for Juno, Dr. Hedge drew and tested Juno’s blood to determine whether he was suffering from some other medi- cal condition that might cause his malnourishment.12 When 770 State v. Newcomb the blood tests failed to reveal any other medical condition that would have caused Juno to be seriously emaciated, Dr. Hedge put Juno on a special feeding protocol.

Given the specific context involved here—the lawful seizure of a dog based on probable cause to believe the dog was suffering from malnourishment, followed by drawing and testing the dog’s blood to medically diagnose and treat the dog—we conclude that defendant had no protected pri- vacy interest in Juno’s blood that was invaded by the medi- cal procedures performed. In these circumstances, we agree with the state that Juno is not analogous to, and should not be analyzed as though he were, an opaque inanimate con- tainer in which inanimate property or effects were being stored or concealed. Juno’s “contents”—in terms of what was of interest to Dr. Hedge—were the stuff that dogs and other living mammals are made of: organs, bones, nerves, other tissues, and blood. As the prosecutor argued at trial, inside Juno was just “more dog.”13 The fact that Juno had blood acknowledged in her memorandum in support of the motion to suppress that the officer had advised defendant that he was taking the dog into custody “to receive veterinary care” and that Dr. Hedge then performed a “battery of laboratory tests” on Juno, after which she placed Juno on a feeding protocol. It was in that context that defendant and the state advised the court that they had no factual disputes about the testing, and they “stipulated” to the results of the medical tests that Dr. Hedge performed to spare her from appearing at the suppression hearing. See 359 Or at 760 n 4.

A medical professional who examines a victim of criminal abuse for purposes of diagnosis and treatment—whether the victim is human or animal—no doubt realizes that the results may have evidentiary value if a criminal prosecution ensues. But that reality does not alter the medically appropriate nature of the testing. Our obligation is to view the facts in the light most favorable to the trial court’s denial of defendant’s motion. Here, the trial court, in denying the motion to suppress, at least implicitly found that Dr. Hedge performed the tests for med- ical reasons by analogizing this case in its ruling to one in which an abused child taken into custody is medically examined for purposes of diagnosis and treatment.

Cite as 359 Or 756 (2016) 771 inside was a given; he could not be a living and breathing dog otherwise. And the chemical composition of Juno’s blood was a product of physiological processes that go on inside of Juno, not “information” that defendant placed in Juno for safekeeping or to conceal from view.14 That fact has significance in the context of the legal and social norms for the care and welfare of animals that we have already discussed. A dog is personal property under Oregon law, a status that gives a dog owner rights of domin- ion and control over the dog. But Oregon law simultaneously limits ownership and possessory rights in ways that it does not for inanimate property. Those limitations, too, are reflec- tions of legal and social norms. Live animals under Oregon law are subject to statutory welfare protections that ensure their basic minimum care, including veterinary treatment.

The obligation to provide that minimum care falls on any person who has custody and control of a dog or other animal.

A dog owner simply has no cognizable right, in the name of her privacy, to countermand that obligation. That conclusion follows with equal or greater force when, as here, the dog is in the state’s lawful protective custody on probable cause that the dog is suffering injury as a result of neglect, at which point the owner has lost her property rights of domin- ion and control over the dog. An examination of the dog’s physical health and condition in that circumstance, pursu- ant to a medical judgment of what is appropriate for diag- nosis and treatment, is not a form of governmental scrutiny to externally identify the dog. On the other hand, hypothetically, if what was planted “inside” the dog was a microchip containing stolen secret government data, the owner’s or possessor’s protected privacy interest, even if the dog had been lawfully seized on probable cause to believe it contained the stolen data, might be the same as in an opaque inanimate container. In short, whatever the answer to the question whether the owner has a protected privacy interest in an object planted inside a dog, the dog is at least more analogous to an inanimate container in such a circumstance.

772 State v. Newcomb that, under legal and social norms and conventions, invades a dog owner’s protected privacy rights under Article I, sec- tion 9.15 That conclusion resolves this case for purposes of Article I, section 9. We emphasize, however, that our deci- sion is limited to the circumstances that this case presents.

As we said in Fessenden/Dicke, 355 Or at 769-70: “As we continue to learn more about the interrelated nature of all life, the day may come when humans perceive less separation between themselves and other living beings than the law now reflects. However, we do not need a mir- ror to the past or a telescope to the future to recognize that the legal status of animals has changed and is changing still[.]”

Assessing an animal owner’s constitutionally protected interests of possession and privacy in his or her animal in that evolving landscape of social and behavioral norms pres- ents, at best, “difficult questions,” and we are well-advised in that context “to observe the wise limitations on our function Cite as 359 Or 756 (2016) 773 and to confine ourselves to deciding only what is necessary to the disposition of the immediate case.” Id. at 770-71 (quot- ing Whitehouse v. Illinois Cent. R. Co., 349 US 366, 372-73, 75 S Ct 845, 99 L Ed 1155 (1955)).

Consequently, our holding is confined to circum- stances in which the state has lawfully seized a dog or other animal on probable cause to believe the animal has been neglected or otherwise abused. It is also confined to the gen- eral kind of intrusion that occurred in this case—a medi- cally appropriate procedure for diagnosis and treatment of an animal in ill-health. In those particular circumstances, we conclude that the warrantless withdrawal and testing of Juno’s blood did not violate Article I, section 9.

B. The Fourth Amendment The remaining question before us is whether the analysis under the Fourth Amendment requires a different result. Although worded somewhat differently, the guar- antee of the Fourth Amendment parallels that of Article I, section 9. The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures[.]” As is true of Article I, section 9, a “seizure” under the Fourth Amendment occurs when there is “some meaningful inter- ference with an individual’s possessory interest” in property.

United States v. Jacobsen, 466 US 109, 113, 104 S Ct 1652, 80 L Ed 2d 85 (1984) (citations omitted). And a “search” for purposes of the Fourth Amendment occurs when an indi- vidual’s protected privacy interest is infringed. Id. (citations omitted).

The test under the Fourth Amendment to determine if a particular governmental action invades a protected pri- vacy interest differs, at least in how it is articulated, from the test under Article I, section 9. Rather than turn on an individual’s “right” of privacy, the Fourth Amendment test has both a subjective and an objective component, and thus involves “two discrete questions.” United States v. Knotts, 460 US 276, 280-81, 103 S Ct 1081, 75 L Ed 2d 55 (1983) (quoting Smith v. Maryland, 442 US 735, 99 S Ct 2577, 61 L Ed 2d 220 (1979)), rule further clarified in U.S. v. Jones, 774 State v. Newcomb ___ US ___, 132 S Ct 945, 951-52, 181 L Ed 2d 911 (2012).

The first is whether an individual has manifested an expec- tation to preserve something as private; the second is whether that subjective expectation of privacy is one “that society is prepared to recognize as reasonable.” Knotts, 460 US at 281 (internal quotations omitted) (citing cases). In application, however, the Fourth Amendment privacy test takes into account the same and similar considerations as the test under Article I, section 9, and the two tests often lead to the same result in like circumstances.16 Understandably, then, the parties’ Fourth Amend- ment arguments closely track the arguments they make under Article I, section 9. Ultimately, the issue under the Fourth Amendment reduces to the same question as under Article I, section 9: Whether defendant had a protected pri- vacy interest in the withdrawal and testing of her dog’s blood for purposes of medical treatment after the dog had been lawfully taken into custody on probable cause to believe that he had been criminally neglected.17 To date, the Supreme Cite as 359 Or 756 (2016) 775 Court has not had a case requiring it to examine an indi- vidual’s privacy interests in a dog or other animal, either generally or in circumstances in which the animal is in the government’s lawful custody. But the Court’s cases suggest that the analysis under the Fourth Amendment would not differ in a significant way from the analysis we have made under Article I, section 9.

In particular, the different nature of that prop- erty that this case involves—a living animal, one that is not ordinarily and was not here used as a repository into which other property was placed—would have bearing on the Fourth Amendment analysis. See, e.g., Robbins v. California, 453 US 420, 426, 101 S Ct 2841, 69 L Ed 2d 744 (1981) (placement of property into closed, opaque container manifests “an expectation that the contents would remain free from public examination”); Arkansas v. Sanders, 442 US 753, 761, 99 S Ct 2586, 61 L Ed 2d 235 (1979) (automo- biles are distinct from closed containers, not only because of their mobility, but also because their use, configuration, and regulation differentiate them for purposes of privacy expec- tations).18 The same is true of the nature and circumstances of the government intrusion that we have discussed—those, too, would be factors in the Fourth Amendment analysis. therefore violated Fourth Amendment protection from unreasonable searches).

As earlier noted, the lawfulness of Juno’s seizure is not an issue at this juncture.

Defendant’s remaining Fourth Amendment argument proceeds on the assump- tion that Juno was lawfully seized, which is the posture of the issue before us.

For that argument, defendant’s position is the same as under Article I, section 9: She analogizes Juno to a closed container in which, because its contents were concealed from view, she had a protected privacy interest that was violated when Dr. Hedge drew Juno’s blood and tested it without a warrant.

776 State v. Newcomb See Vernonia School Dist. 47J v. Acton, 515 US 646, 654, 115 S Ct 2386, 132 L Ed 2d 564 (1995) (“What expectations [of privacy] are legitimate varies, of course, with context[.]”); cf. Maryland v. King, ___ US ___, 133 S Ct 1958, 1978-79, 186 L Ed 2d 1 (2013) (lawfully arrested individuals have lessened legitimate expectations of privacy, even in own DNA). And the laws and social norms of behavior that we have discussed as they pertain to animal welfare generally, and minimum care in particular, are significant under the Fourth Amendment analysis in determining what expec- tations of privacy society will recognize as legitimate. See Vernonia, 515 US at 654-56 (examining laws and social con- ventions pertaining to minors in public schools to determine “legitimacy” of subjective privacy expectations of students in public school setting).

In short, the guidance available to us from current Fourth Amendment jurisprudence leads us to the same fac- tors that we have considered in analyzing the issue under Article I, section 9. No purpose would be served by repeating ourselves. For the reasons we have discussed in our analy- sis under Article I, section 9, we conclude under the Fourth Amendment that defendant had no protected privacy that was violated by the withdrawal and testing of Juno’s blood without a warrant.

The decision of the Court of Appeals is reversed.

The judgment of the circuit court is affirmed.