Know Your Rights ...
“The 10 scariest words when someone knocks at your door are, ‘I am from the government, I am here to help.’” – Ronald Reagan
Some things are sacrosanct – our homes, our property, our families and our dogs, to name a few. In this article I will discuss what you should do legally if your local law enforcement knocks on your door and asks to see your dogs. While the subject could be an entire chapter in a law-school textbook, hopefully I can give you the highlights and make some suggestions so you are prepared.
The Fourth Amendment of the United States Constitution provides that “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” At the very core of the Fourth Amendment stands the right of a man or woman to retreat into his or her own home and be free from unreasonable governmental intrusion. With very few exceptions, the warrantless search of a home is unconstitutional. It is also now well settled that administrative searches generally require warrants.
Of course, I did point out there are a few exceptions, one of which is the “plain view” rule. Law enforcement can search and seize property when the criminal activity is in plain view. If it had been a policeman in Jimmy Stewart’s apartment window in Hitchcock’s “Rear Window” instead of a wheelchair-bound photographer (I hope even the young people understand this reference), the movie would have been about an hour and 20 minutes shorter. Criminal activity in plain view needs no warrant, and the police may exercise their government obligation to prevent or stop a crime and invade your property without a warrant.
What is in “plain view” has become a significant legal issue with the dawn of technology. For example, flying over your property with a helicopter and seeing in plain view your illegal marijuana crop can result in a seizure of the crop and your arrest by the government without a warrant.
So why the lecture on constitutional law? Because more and more municipal forms of government are passing ordinances or laws that are probably unconstitutional and are targeted at people who own dogs. Not to steal my friend Robert Slay’s thunder when he praised and encouraged the “breeders” as “the backbone” of our sport in his remarks at the 2020 Westminster Best in Show selection, but breeders – our backbone – have dogs on their property. Their dogs are their property. Breeders have more dogs than most of us in the fancy on their property at one time, and they nurture, raise, analyze and sell their breeding stock.
So imagine this scenario (it is fictional but it has occurred somewhere in the good ole U.S. of A.): You are a breeder of Standard, Mini and Toy poodles. You have a kennel that is heated, with washtub areas and grooming areas. You have a whelping box – two actually – in your house, not in the kennel. You have a backup in the kennel just in case you got crazy with three simultaneous litters, but that has only happened once. You have been breeding on your 2-acre property for 25 years, and a new condo development is constructed on the adjacent large parcel of land. You never paid attention because you mind your own business and it doesn’t really affect you.
Unfortunately, the new condo owners are all relatives of Gladys Kravitz (the nosy neighbor from “Bewitched”), and they only mind everyone else’s business and not their own. Not satisfied with making a mess of their own condo association, they have to venture down your driveway, uninvited, where they see your 10 runs with a few Standards wrapped to grow coat. They hear barking. They see you walking a few of the Minis from the kennel to the house. Oh, my God! They have discovered a puppymill with “thousands of puppies,” and these big ones all “wrapped in bandages”!
In the our not-so-hypothetical town, a law was passed by the local town council that states: “No one person may have more than one breeding pair of adult dogs on their property, and all other dogs over the age of 6 months must be spayed or neutered. No one person may sell a puppy for profit unless the person is a recognized animal-rescue organization.” The law further empowers the local ASPCA to investigate claims of animal neglect or abuse, and seize animals if it deems it to be in the best interest of the dog. The same law mandates that the owner of a seized animal or animals is liable to pay the local municipality a fee of $50 per day for each animal seized while it is in the custody of the ASPCA or its designee. Finally, the law provides that in such cases the court will appoint a guardian ad litem to represent the interests of each animal. (These provisions of laws I cite are actual provisions now being introduced in town and state legislatures across the country.)
You of course have two litters, one of six Standards that are two weeks old and one of four Minis that are nine weeks old. They are all different colors. You also have your six Standards. Two are specials: one male, one female. You have one brood bitch, and three class dogs of both sexes you are trying to finish. You also have 10 Minis of various sexes. You have two older house dogs – a Standard and a Toy that placed in the group at the Garden 10 years ago that are spayed who live next to your cat by the fireplace.
Next thing you know, the local animal-rights organization is coming down your driveway armed with a local dog officer or animal-control officer and the state veterinarian or someone from his office. They insist on going into your kennel and your home to see these poor bandaged dogs and the hundreds of puppies you are raising in your mill. They have no warrant, but you are unprepared, and they do have official badges, so you let them into your kennel and your home because you think you have to. You give them your consent.
The leading member of the condo association arrives with her new best friend, the local ASPCA leader. (He is 21 and saw a picture of a starving dog at 3 a.m. on a commercial and decided that as a millennial he wouldn’t send money but would instead volunteer at the ASPCA.) He doesn’t own a dog, but his parents used to have one when he was a kid. He is passionate about saving dogs, and he has read all about it from the literature he receives from HSUS.
You can imagine the outcome. Your dogs are all taken after a series of threats, and you are left with a summons to appear in court for 20 animal-cruelty charges at your local municipal court in 20 days. In the meantime, the puppies scheduled for their shots are taken, God knows where, and your dogs, including the elderly house pets, are likewise taken to the ASPCA kennel. They are promptly shaved down (there goes a year of coat growing), and the parade of horribles begins.
This happens. It is traumatic and frightening. Nothing good can come of it. You probably make the local paper and internet, and you are at a loss of where to turn or to whom to turn. What do you do and how can you prevent it?
If you have not prepared for the event, the first thing you do is hire the best criminal attorney who also has experience in civil-rights litigation under 42 U.S.C. sec. 1983. You remain calm. You stick to the facts. You begin the long and probably expensive process of defending yourself and preparing for court hearings.
However, you can be prepared for this event.
First and foremost, in most states your AKC-registered, purposefully bred dogs are considered property. You have property rights in your animals just like you do in your safe, your car, your bank accounts. Dogs are like livestock, and as an American citizen you have constitutional rights in your property. Government cannot take your property without just compensation and without cause serving a legitimate governmental purpose.
Second of all, unless the governmental agency that arrives at your door is wielding a warrant executed by a judge and supported by probable cause, when the officers, agents or “do-gooder” shows up on your property you should immediately tell them to please leave and not return without a properly issued warrant. You should then call your lawyer.
Who is your lawyer? I suggest that anyone breeding today recognize that as part of their cost of having a hobby, passion or business, they should know of and have spoken to a criminal defense attorney who is proficient in the Fourth, Fifth and Sixth Amendments. I also suggest that you know all of the requirements in your county or town with regard to raising animals on your property. These two requirements go hand in hand. First your county or town or municipal government may have rules or regulations relating to zoning or breeding activity, which if followed could eliminate the entire issue.
For example, in my town there are restrictions on the number of dogs you can have on your property unless you are on 10 acres or more and are registered as a farm. There is, however, an exception that allows you to apply for a “hobby breeder” license. In both cases an initial inspection is required, which is usually a friendly process and is a means of educating local law enforcement for animal issues about what you do. In such a setting you can show the animal-control officer all of your ribbons and trophies, show how you groom your Poodles, explain why the various patterns are actually designed to help that purposefully bred dog keep its joints warm in the freezing Rhine River, and explain how you care for and love your animals.
You can also explain the same to the lawyer you find and help educate her about the concerns you have. You can show that lawyer the horror stories of my fictional but not so unrealistic scenario. You can ask the attorney to research all the animal laws in your state, county and municipality that could affect your breeding program. You may find that you are prohibited from doing the type of breeding you want in your neighborhood and have to adjust your hobby expectations. Finally, if your attorney concludes you are conforming to current law you can have that attorney be available in the event someone knocks on your door and says they want to see your animals.
All of this takes time and planning and of course will cost money for the time and advice for your lawyer. However, since when haven’t our dogs and hobby cost us money?
As I have expressed, unless law enforcement has a valid warrant, they are not allowed on your property unless they have your consent. You have every right to tell such a “visitor” that you have an attorney. Hand them his or her business card. Politely explain to the law officer that they are not allowed on your property nor may they view your property without a warrant. Say nothing else. Remember anything you say will be used against you. In today’s day and age we all can video and record events on our cell phones. Video your encounter and record yourself saying, “You are not permitted on my property. You do not have a warrant. I am represented by counsel, and here is her information. I am videotaping this encounter. Please leave my property. Please do not touch my property and animals.”
Say nothing else regardless of what occurs, no matter how painful it may be to watch while you wait for legal advice. Do not get physical. Just continue to record the entire encounter. Call your lawyer and let her or him know what happened and they should be able to take the next steps to protect your rights. Rest assured that if law enforcement does leave because they do not have a warrant, they will be back, and when they come back they will have a warrant. It is not all that hard to get a warrant. Hopefully by that time your lawyer has intervened and identified a reasonable process to protect your interest and animals. If they have a warrant, it is all that much more important to say nothing and record everything.
You should also be aware that in many cases where show dogs have been seized and charges have been brought it is because of a complaint by a neighbor, angry “ex-spouse” or an angry “ex-purchaser or co-breeder” of one of your dogs. Many of the police reports I have read involving these encounters begin with the police officer stating, “… police responded to a complaint that a dog was loose … As the officer approached the home, the officer smelled the extremely potent smell of animal waste and observed feces in the fenced area … The officers were so appalled by the smell that they believed that someone or something could be dead inside … The officers entered the home without a warrant to determine whether the owner was dead or in need of assistance … upon entry the officers did not see any water left out for the animals … upon further inspection they determined the dogs appeared thin, there were empty food bowls in a sink of water, and they were all matted with thick fur.”
The last portion of that quote came from the inspection of a breeder of Bergamasco Sheepdogs.
You should also keep in mind that many of the police officers called to these situations are not mean or evil; they just lack the education regarding what it is you as a conscientious breeder do. Therefore making sure you are in compliance with the zoning and licensing laws is very important. Keeping your kennel clean and organized probably goes without saying, but from time to time we can all be guilty of putting off until tomorrow what we should have done today. In this current climate you cannot afford to do that with your dogs and your kennel. A clean, properly organized and well-run kennel is far less likely to suffer the wrath of even the most zealous of dog officers than one that is disorganized and slovenly maintained.
Finally, remember that your dogs are your property. United States appellate courts have consistently said that your dogs are protected property. The United States Supreme Court has consistently held that your home is protected from warrantless seizures and searches absent an emergency situation supported by probable cause to believe a crime or bodily harm is imminent. Similarly, privacy interests are especially strong in a private residence. It follows that an administrative search of a private residence must comport with Fourth Amendment principles. This requires that, before private residential premises may be subjected to an administrative search, a search warrant demonstrating probable cause for the search must be obtained. Therefore you do have rights, but you must be prepared to enforce them if necessary.
This article by no means addresses every situation that can occur regarding your property rights with your dogs. Hopefully, however, it will heighten your awareness that if you are breeding or even have a number of dogs on your premises you should understand that you do not have to let anyone on your property or allow anyone to see your dogs just because they have a badge, uniform or claim to have authority. They must have a warrant. Hopefully you understand that you should be prepared for the worst and hope for the best. Preparing and having a plan will not only help you through an unfamiliar process, but may also prevent you from enduring a harrowing experience.
Vincent Indeglia is an attorney with offices in Rhode Island and Florida. He is an AKC judge, owner of purposefully bred show dogs, husband and father of two children, not necessarily in that order. He shared his nursery with his parents’ show dog and was taken to dog shows at age 3. He never stood a chance.