Date: 07-02-2018

Case Style:

State of Vermont v. Emily K. St. Peter

Case Number: 2018 VT 65

Judge: Beth Robinson

Court: DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT

Plaintiff's Attorney: David Tartter, Deputy State’s Attorney

Defendant's Attorney: Allison N. Fulcher

Description: In February 2015, the State charged defendant with several counts of animal cruelty
alleging that she deprived eight horses of adequate food, water, shelter, or necessary medical
attention. The State alleged that all eight horses showed signs of malnourishment, malnutrition,
and overall neglect of their needs for the past ten to twelve months.
¶ 3. Defendant filed a motion to suppress all evidence that had been acquired by any
law enforcement or humane officer, veterinarian, or other witness following her voluntary
surrender of the horses identified in counts four through eight to the humane officer who
spearheaded the cruelty investigation. In her motion, she noted that the humane officer
acknowledged in deposition testimony that the horses in question were not seen by a “veterinarian
licensed to practice in the State of Vermont” for more than a week after they were surrendered.
See V.S.A. § 354(b)(1). This delay ran afoul of the requirements of Vermont law, which provides:
(1) Voluntary surrender. A humane officer may accept animals voluntarily surrendered by the owner anytime during the cruelty investigation. The humane officer shall have a surrendered animal examined and assessed within 72 hours by a veterinarian licensed to practice in the State of Vermont.

Id. Defendant argued that the appropriate remedy for this failure was to suppress all post-surrender
evidence concerning the horses.
¶ 4. The trial court denied the motion, reasoning that the timing requirement in
§ 354(b)(1) is “directory” and not “mandatory” because the Legislature did not set forth a
consequence for failing to comply with the seventy-two-hour evaluation requirement. The court
analogized the situation to that of lost evidence and concluded that the proper remedy would be to
give a jury instruction that addressed the “lost” evidence—namely, evidence of the horses’
condition within the required seventy-two-hour window. At trial, the court instructed the jury that
because the humane officer had failed to ensure that the horses were seen by a veterinarian within
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the required time after the surrender, the jury should presume that the condition of the horses did
not change from the time of surrender to the time of the examination.
¶ 5. The jury ultimately convicted, and on appeal, defendant renews her argument that
the trial court should have suppressed the evidence concerning the five horses that were voluntarily
surrendered. Whether suppression is the proper remedy for the humane officer’s undisputed
failure to timely arrange a veterinary evaluation of the five horses at issue is a legal question that
we review without deference. State v. Bryant, 2008 VT 39, ¶ 9, 183 Vt. 355, 950 A.2d 467.
¶ 6. Although the direct holding of our decision in Sheperd is not dispositive on this
issue, our reasoning is. 2017 VT 39, ¶¶ 22-27. In Sheperd, a defendant sought to suppress
evidence concerning animals seized pursuant to a search warrant because a veterinarian did not
accompany the officer executing the warrant as required by 13 V.S.A. § 354(b)(2). In analyzing
the argument, we scrutinized the two other prongs of 13 V.S.A. § 354(b):
(1) Search and seizure using a search warrant. A humane officer having probable cause to believe an animal is being subjected to cruel treatment in violation of this subchapter may apply for a search warrant pursuant to the Vermont Rules of Criminal Procedure to authorize the officer to enter the premises where the animal is kept and seize the animal. The application and affidavit for the search warrant shall be reviewed and authorized by an attorney for the State when sought by an officer other than an enforcement officer defined in 23 V.S.A. § 4(11). A veterinarian licensed to practice in Vermont must accompany the humane officer during the execution of the search warrant.

(2) Seizure without a search warrant. If the humane officer witnesses a situation in which the humane officer determines that an animal’s life is in jeopardy and immediate action is required to protect the animal’s health or safety, the officer may seize the animal without a warrant. The humane officer shall immediately take an animal seized under this subdivision to a licensed veterinarian for medical attention to stabilize the animal’s condition and to assess the health of the animal.

¶ 7. We acknowledged that suppression may be appropriate even when a statute does
not explicitly call for the remedy, and we explained that whether violation of a statutory
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requirement requires suppression of evidence turns on legislative intent. Id. ¶¶ 23-24. We
concluded that the veterinarian requirement in § 354(b)(2) “stems from a concern for animal
welfare and not for defendants’ individual rights.” Id. ¶ 27. That subsection, we reasoned, only
applies once a humane officer has secured a warrant on probable cause and does not give the
veterinarian any authority to override the authorization in the warrant. Id. ¶ 25. Moreover,
§ 354(b)(3), which authorizes seizure without a warrant if immediate action is required to protect
the animal’s health or safety, does not require the presence of a veterinarian at all—but does
mandate that the humane officer immediately take a seized animal to a veterinarian “for medical
attention to stabilize the animals’ condition and assess the animal’s health in such circumstances.”
Id. ¶ 26 (quotation omitted). The difference between the timing of the veterinarian requirement in
the respective subsections reinforces a legislative intent to ensure that animals seized, whether
pursuant to a warrant or emergency seizure, receive veterinary attention as soon as reasonably
practicable—at the time the warrant is executed in the case of seizures pursuant to warrant, and
immediately thereafter in the context of warrantless seizures. Id.
¶ 8. This reasoning applies with equal force to voluntary surrenders pursuant to
§ 354(b)(1). We see nothing in the language or structure of § 354(b) that suggests that the
Legislature had a different intention with respect to the veterinarian requirement in § 354(b)(1)
than the parallel requirements in §§ 354(b)(2) and (3). See, e.g., Lovejoy v. Morrison, 116 Vt.
453, 457, 78 A.2d 679, 681 (1951) (directing that to give effect to intention of legislature, court
must consider “the whole and every part of the enactment” as well as other statutes concerning
same subject). Because the timing of a voluntary surrender cannot be predicted by a humane
officer, and a voluntary surrender does not necessarily imply the level of urgency or danger to an
animal that is required for a warrantless seizure or a seizure pursuant to a warrant, it makes sense
that the Legislature has afforded humane officers somewhat more time to arrange a veterinary
examination—seventy-two hours from the surrender—in the case of voluntary surrenders. If
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anything, this timing difference further reinforces that the veterinarian requirements throughout
§ 354(b) are directed at animal welfare and not the privacy or evidentiary interests of individuals
charged with animal cruelty.

Outcome: Accordingly, the trial court did not err in denying defendant’s motion
to suppress.

Affirmed.

Plaintiff's Experts:

Defendant's Experts:

Comments: