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.

______________

** Appeal from Multnomah County Circuit Court, Eric J. Bergstrom, Judge. 

262 Or App 256, 324 P3d 557 (2014).

** Nakamoto, J., did not participate in the consideration or decision of this 

case.
Cite as 359 Or 756 (2016) 757

Case Summary: After receiving a citizen report of animal neglect, an animal cruelty investigator seized defendant’s near-emaciated dog, Juno, and transported 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 condition. The veterinarian concluded Juno had been malnourished. Defendant was 

charged with second-degree animal neglect for failing to provide Juno with minimum 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 property; 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 property 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 privacy 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 privacy 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 

1 Throughout this opinion, unless otherwise noted, we cite the 2009 versions 

of the relevant statutes, which were the versions in force when the events in this 

case took place. The statute defining animal neglect in the second degree, ORS 

167.325 provides, in pertinent part,

“(1) A person commits the crime of animal neglect in the second degree 

if, except as otherwise authorized by law, the person intentionally, knowingly, recklessly or with criminal negligence fails to provide minimum care 

for an animal in such person’s custody or control.”

2 Article I, section 9, provides, “No law shall violate the right of the people 

to be secure in their persons, houses, papers, and effects, against unreasonable 

search, or seizure; and no warrant shall issue but upon probable cause, supported 

by oath, or affirmation, and particularly describing the place to be searched, and 

the person or thing to be seized.”

The Fourth Amendment provides that “[t]he right of the people to be secure 

in their persons, houses, papers, and effects, against unreasonable searches and 

seizures, shall not be violated[.]”
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 “nearemaciated 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 

3 The state has not disputed that Special Agent Wallace qualified as a government actor under the circumstances of this case. Special Agent Wallace was 

employed by the Oregon Humane Society, a private nonprofit entity, rather than a 

state or local law enforcement agency. However, he was also a certified police officer with authority to issue citations, and he acted pursuant to that certification in 

investigating animal cruelty complaints. See ORS 181.610(12)(b) (“law enforcement unit” for purposes of public safety standards and training includes private, 

nonprofit animal care agency that maintains animal investigation unit); ORS 

609.652(2)(d) (“law enforcement agency” for purposes of animal abuse reporting laws includes only county or municipal animal control agency). Statutes 

enacted after the events in this case have clarified the cooperative role of privately employed persons certified as police officers—now termed “humane special 

agents”—in working with state and local law enforcement agencies to enforce 

animal welfare laws. See ORS 181A.340 (2013) (providing for “humane special 

agents” who may be certified as police officers); ORS 181A.345 (2013) (humane 

special agents shall work in cooperation with law enforcement agencies to enforce 

animal welfare laws).
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 defendant, 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 warranted 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 initial 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 emaciated—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 malnourishment. 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

4 At the motion to suppress, neither party called Dr. Hedge to testify because 

they were in agreement as to the tests she performed and the results. They therefore “stipulated” that she performed the tests and the tests showed that Juno had 

nothing medically wrong with him, which confirmed her initial diagnosis that 

Juno was malnourished. Some of the more detailed facts that we recite (such as 

her scoring of Juno’s body condition) came out only at trial. We include them to 

provide a more complete narrative of the evidence placed before the jury after 

denial of defendant’s motion to suppress; we do not rely on those added details in 

our examination of the trial court’s pretrial suppression ruling.
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 diagnosis, the officer cited defendant for second-degree animal 

neglect.

Before trial, defendant moved to suppress the laboratory 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 

5 Dr. Hedge also tested a feces sample. The record is unclear on how Dr. Hedge 

obtained the feces sample—i.e., whether she actively withdrew it from Juno or 

tested a sample that he had already expelled. Because we conclude that the withdrawal and testing of Juno’s blood did not invade a protected privacy interest on 

defendant’s part, we need not separately discuss or analyze the admissibility of 

the feces sample; even an actively withdrawn feces sample is unlikely to be more 

intrusive than a blood draw in the circumstances presented by this case.
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 malnourished dog. As an alternative theory justifying the warrantless 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 suppress. 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 

6 The prosecutor’s reference appears to have been to a former statutory 

definition of firearm, pursuant to which some firearm-related charges, such as 

unlawfully carrying a concealed firearm, required proof that the weapon was or 

could immediately be made operable. See, e.g., State v. Briney, 345 Or 505, 200 

P3d 550 (2008) (gun with broken firing pin did not qualify as “firearm” under 

ORS 166.210(3) (2007), which required weapon to be “designed to expel a projectile by the action of powder” and also to be “readily capable of use as a weapon”).
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 otherwise concealed information about the dog that served as evidence of a crime.” Id. at 271. Because the intrusion was not 

justified by any recognized exception to the warrant requirement, 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 lawfulness of testing Juno’s blood; defendant no longer disputes 

that Juno was lawfully seized.7

 The chief point of contention between the parties is whether defendant had a protected privacy interest in Juno’s blood once Juno was in 

the state’s lawful custody and care. That, in turn, is essentially 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 constitutional purposes, that search was reasonable in these 

circumstances despite the state’s failure to get a warrant.8

7 Defendant did not cross-petition on the issue of whether Juno was lawfully 

taken into custody and, consistently with the procedural posture of the case, does 

not now argue that Juno’s custody was unlawful.

8 The Court of Appeals did not consider the reasonableness of the search to 

have been preserved by the state, explaining that the state did not, on appeal or 

in the trial court, argue that the search was “reasonable under an established 

exception to the warrant requirement.” Newcomb, 262 Or App at 271, n 13. And 

although the state, by way of a supplemental memorandum of authority, cited 

and relied on State ex rel Juv. Dept. v. M.A.D., 348 Or 381, 233 P3d 437 (2010) 

(upholding as reasonable warrantless search of public school student despite lack 

of a recognized exception to the warrant requirement), the court considered that 

to be insufficient to preserve an argument that the testing of Juno’s blood, if it 

was a search, was reasonable even though it did not fit an established exception 

to the warrant requirement. Newcomb, 262 Or App at 271 n 13. Given our determination that there was no search, we do not need to resolve whether the state’s 

“reasonableness” argument was adequately preserved.
764 State v. Newcomb

Consistently with our approach to analyzing constitutional 

claims, we examine first whether the state’s conduct constituted 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 provides 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 protected privacy interest.” State v. Wacker, 317 Or 419, 426, 

856 P2d 1029 (1993). A seizure occurs only if, through governmental 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 privacy 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 privacy 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 freedom 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 property, it may “observe, feel, smell, shake and weigh” lawfully 

seized property or otherwise “thoroughly examine” its exterior 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 confirm 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 constitutional protection in the same circumstances. With regard to 

living animals, and domestic pets in particular, we have recognized 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 traditional 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 

9 Under Oregon law, there are many exceptions to a person’s ability to lawfully own and possess certain animals. See, e.g., ORS 167.365(1) (person commits crime of “dogfighting” if person knowingly “[o]wns, possesses, keeps, breeds, 

trains, buys, sells or offers to sell a fighting dog”); ORS 609.341 (special state 

permits required to keep “exotic” animals). There are also many limits on animal owners’ rights of dominion and control over some animals. See, e.g., ORS 

609.098(1)(c) (unlawful to use dog as a weapon in the commission of a crime); 

ORS 811.200(1) (unlawful to carry dog on certain parts of a vehicle operated on 

highway without specified protective measures).
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 minimum care for an animal in [that] person’s custody or control.” 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 possession 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 nutrition, “[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 ownership 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 animals 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 possess them as long as their treatment is within the boundaries of “good animal husbandry” or “animal research.” Id. 

10 As we observed in Fessenden/Dicke, 355 Or 768 n 7, ORS 167.305(1) was 

passed in 2013, before the charges in that case were brought. Likewise, the 

charges in this case precede the enactment of that statute. We quote from the 

statute, as we did in Fessenden/Dicke, as background relevant to an overall 

understanding of the animal welfare laws and the policies that current and past 

statutes reflect.
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 property.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 circumstances that exceed legal and social norms. Thus, for example, 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 violate 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 

11 A person can be as cruel or abusive as she wants to her own stereo or folder, 

and can neglect the maintenance of a car to the point where it will not operate, 

without legal consequence. The same is not true of an animal that a person owns 

or has custody of or control over. 
Cite as 359 Or 756 (2016) 769

and the circumstances in which it occurred. We must consider those, too, in resolving the issue before us.

Here, when Dr. Hedge tested Juno’s blood, defendant 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 evaluation, 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 seizure 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 imminent 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 medical condition that might cause his malnourishment.12 When 

12 After having noted that the officer seized Juno both to render aid and to 

preserve evidence, the Court of Appeals expressed uncertainty about Dr. Hedge’s 

motivations for performing the later medical tests—whether they, too, were performed for the “dual purpose” to gather evidence and give medical treatment 

to Juno. Newcomb, 262 Or App at 264 (discussing seizure), 266 n 7 (discussing 

testing).

We agree that the suppression record could be better-developed on the point. 

But there was no dispute that the tests were run by Dr. Hedge for purposes of 

medical diagnosis, even if the officer anticipated that the test results could have 

potential evidentiary value, depending on what they showed. Indeed, defendant 
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 privacy interest in Juno’s blood that was invaded by the medical 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 container 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 medical 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.

13 At least, that was true in this case. It might not be true under different 

facts. Dogs and other animals at least can be used as repositories of information 

and inanimate effects, and can have more inside them than just “more dog.” Many 

animals—and dogs in particular—for example are repositories for information 

through the use of “microchip” technology that permits a scanner, from outside 

the dog, to retrieve information encoded on the microchip. See generally Microchip 

implant (animal) at https://en.wikipedia.org/wiki/Microchip_implant_(animal) 

(accessed May 30, 2016) (describing use of microchips placed under skin of farm 

and ranch animals, as well as domestic pets, as common means of identification).

It is at least doubtful that a dog’s owner would have a cognizable privacy

interest in the information planted in a dog for the specific purpose of being able 
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 dominion 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 reflections 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 dominion and control over the dog. An examination of the dog’s 

physical health and condition in that circumstance, pursuant to a medical judgment of what is appropriate for diagnosis 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.

14 To be sure, Dr. Hedge had to extract Juno’s blood to test it; she could not 

determine the chemical state of Juno’s blood through some noninvasive procedure. As Groucho Marx famously quipped:

“Outside of a dog, a book is man’s best friend. Inside of a dog, it’s too dark to 

read.”

But what Dr. Hedge withdrew here was “more dog,” not a separate item of property that defendant had placed inside Juno to either safeguard or conceal from 

public view in the same way that property nested within other property involves. 

That fact, although not necessarily dispositive, properly bears on the analysis.
772 State v. Newcomb

that, under legal and social norms and conventions, invades 

a dog owner’s protected privacy rights under Article I, section 9.15

That conclusion resolves this case for purposes of 

Article I, section 9. We emphasize, however, that our decision 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 mirror 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 presents, at best, “difficult questions,” and we are well-advised in 

that context “to observe the wise limitations on our function 

15 In her briefing in the Court of Appeals, defendant cited ORS 167.345(2), 

which authorizes police officers to, among other things, “impound” an animal if 

there is probable cause to believe the animal is a victim of any of several crimes, 

including animal neglect. After the animal has been impounded, a court “may 

order” the animal to be held at any animal care facility; that facility, in turn, 

“shall provide adequate food and water” to the animal and “may provide veterinary care.” ORS 167.345(4)(a). Defendant did not make a developed argument 

under the statute, but did point out that there is no record in this case of a court 

order authorizing Juno to be “impounded,” suggesting that the veterinary care 

given to Juno may have been without lawful authority.

It is less than certain whether and how that statute applies to individuals 

like Special Agent Wallace who, although certified as police officers, are employed 

by and serve the special mission of a private, nonprofit animal care agency that 

investigates complaints of animal abuse and has authority to issue citations for 

violations of animal welfare laws. See 359 Or at 759 n 3 (discussing statutory 

authority of such agents). It is also less than clear that, without a court order, 

an animal care facility would be relieved of the obligation to provide minimally 

adequate care to an animal in its custody. The animal neglect statutes that we 

have discussed effectively impose that obligation, regardless of a court order or 

other basis for an animal to be in the custody and control of someone other than 

the owner. On review to this court, defendant does not rely on that statute and 

we need not explore the implications of it. Worth pointing out, however, is that 

the lack of a court order, even if required by ORS 167.345(2), would not be a basis 

to suppress the results of Juno’s blood tests. See ORS 136.432 (courts may not 

exclude relevant evidence “obtained in violation of any statutory provision unless 

exclusion of the evidence is required by” federal or state constitutions or other 

rules governing admissibility of evidence).
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 (quoting 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 circumstances 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 general kind of intrusion that occurred in this case—a medically 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 guarantee 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 interference 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 individual’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 privacy 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 expectation 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 Amendment 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 privacy 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 

16 Compare, e.g., Arkansas v. Sanders, 442 US 753, 764 n 13, 99 S Ct 2586, 61 

L Ed 2d 235 (1979), abrogated on other grounds by California v. Acevedo, 500 US 

565, 579, 111 S Ct 1982, 114 L Ed 2d 619 (1991) (not all containers and property 

deserve full protection of Fourth Amendment; no protected privacy interest in 

container when its outward appearance reveals contents) with Owens, 302 Or 

at 206 (same under Article I, section 9); Jacobsen, 466 US at 125 (removal and 

testing of white powder from lawfully seized clear vial to confirm probable cause 

belief that substance was cocaine was not a significant invasion of protected property interest under Fourth Amendment) with Owens, 302 Or at 206 (same under 

Article I, section 9); Texas v. Brown, 460 US 730, 740, 103 S Ct 1535, 75 L Ed 2d 

502 (1983), abrogated on other grounds by Horton v. California, 496 US 128, 110

S Ct 2301, 110 L Ed 2d 112 (1990) (no legitimate expectation of privacy in interior 

of automobile that may be viewed from outside, even when officer used flashlight 

to illuminate interior and specially positioned himself to see inside) with Wacker, 

317 Or at 427 (no protected privacy interest in activity inside car parked at night 

in lighted parking lot where activity could be viewed by public passing by, even 

though police observations were made from second floor of adjacent tavern using 

night vision scope that magnified view and improved night vision).

17 Defendant also presses an argument under the Fourth Amendment that 

the the blood tests were a search because they required a physical intrusion into 

her property and thus violated her possessory interest in her dog. The cases that 

defendant relies on, however, involved physical invasions of property that the government had not lawfully seized. Florida v. Jardines, ___ US ___, 133 S Ct 1409, 

185 L Ed 2d 495 (2013) (use of drug-sniffing dog on front porch of private home 

exceeded implicit invitation to approach home, and therefore amounted to trespassory invasion of curtilage that violated Fourth Amendment); Jones, ___ US 

___, 132 S Ct 945, 951-53 (covert placement of GPS tracking device on automobile 

to track vehicle’s movements physically trespassed on defendant’s property and 
Cite as 359 Or 756 (2016) 775

Court has not had a case requiring it to examine an individual’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 property 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) (automobiles 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 expectations).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 assumption 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.

18 In two later cases, California v. Acevedo, 500 US 565, 111 S Ct 1982, 114

L Ed 2d 619 (1991) and United States v. Ross, 456 US 798, 102 S Ct 2157, 72 L Ed 

2d 572 (1982), the Court reached dispositions that differed from those in Robbins 

and Sanders. In Robbins and Sanders, the Court determined that the fact that 

a closed opaque container was seized from a mobile automobile did not alter an 

individual’s reasonable expectation of privacy in the closed container, and a warrant was required to intrude into such a container, despite its lawful seizure. 

Robbins, 453 US at 428-29; Sanders, 442 US at 766. In Ross, 456 US at 824, and 

Acevedo, 500 US at 580, the Court concluded that the automobile exception to the 

warrant requirement extends to compartments and closed containers within a 

lawfully stopped automobile when police have probable cause to believe that they 

have contraband or evidence inside. Although those cases disapproved of aspects 

of the reasoning and the dispositions in Robbins and Sanders, the propositions for 

which we cite Robbins and Sanders were not disturbed by those later decisions.
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 expectations of privacy society will recognize as legitimate. See 

Vernonia, 515 US at 654-56 (examining laws and social conventions 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 factors 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 analysis 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.