County District Court Nos. 12CR222 & 12CR27 Honorable
William David Alexander, Judge
Cynthia H. Coffman, Attorney General, Rebecca A. Adams,
Senior Assistant Attorney General, Denver, Colorado, for
C. Biddle, Pueblo, Colorado; Darrel L. Campbell, Westminster,
Colorado, for Defendant-Appellant
1 Valerie Christine Harris was convicted of twenty-two counts
of cruelty to animals after dozens of malnourished animals
were discovered on her property by employees of the Humane
Society acting as state animal protection agents.
2 Her appeal raises two novel issues of statutory
construction: first, we consider whether, under section
35-42-107(7), C.R.S. 2016, an animal protection agent who is
an employee of the Humane Society is authorized to obtain a
search warrant to investigate the suspected mistreatment of
horses. We conclude that the agent exceeded her statutory
authority but determine that suppression of the evidence
seized in executing the warrant is not required.
3 Second, we consider the proper unit of prosecution in an
animal cruelty case. Harris contends that her mistreatment of
the twenty-two animals constituted one continuous course of
conduct, and the district court's entry of judgment on
twenty-two counts therefore violated her rights under the
Double Jeopardy Clause. We conclude, however, that under
section 18-9-202, C.R.S. 2016, cruelty to each identified
animal victim constitutes a separate and distinct offense.
4 Harris raises a number of other claims, which we address in
turn and reject. Accordingly, we affirm.
5 In December 2011, Harris's neighbor called animal
control to report a dead horse near the fence line of his
property with Harris. Animal protection agent Sergeant
Stephanie Garcia and a fellow officer, employees of the
nonprofit corporation Humane Society of the Pikes Peak
Region, responded to the call and discovered that the dead
horse was visibly emaciated. Using binoculars, the agents
observed additional horses, a donkey, and a llama on
Harris's property, all of which also appeared
6 Based on the condition of the animals, Sergeant Garcia
sought a search warrant (the horse warrant) for Harris's
ranch to investigate possible animal cruelty. During the
search, conducted on January 6, the animal protection agents
and accompanying law enforcement officers discovered a
recently deceased donkey that, like the previously discovered
deceased horse, appeared drastically underfed. About
one-third of the horses on the property similarly showed
signs of starvation.
7 The officers also discovered a number of dogs showing signs
of neglect: many of them appeared severely malnourished, and
they did not appear to have adequate care or shelter.
However, the horse warrant only allowed the agents to search
for and seize abused livestock. Based on her observations of
the dogs, Sergeant Garcia obtained a second warrant (the dog
warrant) to search for and seize mistreated domestic dogs,
which was executed that same day.
8 Harris was charged with fifteen counts of cruelty to
animals (second offense) and two counts of aggravated cruelty to
animals for needlessly killing an animal (case 12CR27).
9 Approximately three weeks later, on January 27, the same
neighbor who had made the initial report informed animal
control that three dead horses had been dragged onto his
property. The neighbor later observed Harris and her brother
attempting to drag the horses back onto her property.
Sergeant Garcia responded to the call and, after observing
the three dead horses, contacted Harris. With Harris's
permission, Sergeant Garcia entered onto her property and
discovered two additional dead horses.
10 Harris was charged in a separate case with five counts of
aggravated cruelty to animals for needlessly killing the five
horses (case 12CR222). The two cases were later consolidated
11 At trial, the prosecution presented multiple witnesses,
including an expert in veterinary medicine, who were on the
property during the search. All of these witnesses testified
that the animals at issue in the case appeared severely
malnourished and that there was no evidence of food on the
property. To demonstrate this fact, the prosecution submitted
numerous pictures depicting the visibly emaciated animals.
12 Harris's theory of defense was that the horses were
malnourished due to excess sulfates in the water. She
insisted that she was regularly feeding her horses and
justified the absence of any food on the ranch by explaining
that she procured hay from a neighbor on a daily basis. In
support of this defense, Harris presented evidence that a
test had revealed high sulfate levels in her well water, and
an expert witness who opined that this level of sulfates in
the water could cause horses to be malnourished.
13 The jury convicted Harris on all counts. In a bifurcated
proceeding, the court determined that the fifteen animal
cruelty convictions counted as a second offense due to
Harris's prior misdemeanor convictions for animal cruelty
in 2007. The court sentenced Harris to concurrent ten-year
terms of probation for all counts of conviction in case
12CR27. On the five aggravated animal cruelty counts in case
12CR222, the court sentenced Harris to three years in the
custody of the Department of Corrections, to run concurrently
to each other and to her sentences in 12CR27.
14 In the district court, Harris moved to suppress all
evidence obtained from the search on the grounds that the
animal protection agents were not statutorily authorized to
obtain a livestock warrant and that both warrants lacked
probable cause. She renews that argument on appeal.
15 We agree that the animal protection agent exceeded her
statutory authority in procuring the horse warrant. However,
we reject Harris's argument that the warrants were
otherwise deficient because they were not supported by
probable cause. Based in part on this latter determination,
we conclude that the statutory violation does not implicate
constitutional concerns and, therefore, does not require
suppression of any evidence obtained from the search.
Accordingly, we affirm the trial court's denial of the
motion to suppress. See People v. Aarness, 150 P.3d
1271, 1277 (Colo. 2006) (we may affirm the district court on
any grounds supported by the record).
Authority to Obtain the Horse Warrant
16 Harris contends that, although Sergeant Garcia is a peace
officer under the Animal Protection Act, because she is an
employee of a nonprofit organization, she was not statutorily
authorized to investigate cases of cruelty to livestock.
17 The People respond that Harris raised this issue for the
first time on appeal, but our review of the record
establishes that Harris's counsel argued the issue at the
hearing on the motion to suppress evidence. Accordingly, the
claim of error is preserved.
18 Ordinarily, in reviewing the trial court's ruling on a
motion to suppress evidence, we are presented with a mixed
question of fact and law and apply a dual standard of review,
deferring to the factual findings and reviewing legal
conclusions de novo. People v. Vaughn, 2014 CO 71,
¶ 9. Here, Harris's contention raises an issue of
statutory construction, and thus we review her claim de novo.
People v. Chavez-Barragan, 2016 CO 16, ¶ 9.
19 Our primary duty in interpreting statutes is to give full
effect to the intent of the General Assembly. Ryan Ranch
Cmty. Ass'n v. Kelley, 2014 COA 37M, ¶ 39,
aff'd, 2016 CO 65. To determine legislative
intent, we look first to the plain language of the statute.
State v. Nieto, 993 P.2d 493, 500 (Colo. 2000). When
the language of a statute is clear, we apply the statute as
20 Under section 35-42-107, the Colorado Commissioner of
Agriculture may appoint animal protection agents, who are
designated as peace officers. These agents may be employees
of the state, nonprofit corporations, municipal corporations,
counties, cities, cities and counties, or any other local
governmental entity or political subdivision of the state.
21 Harris does not dispute that Sergeant Garcia was properly
commissioned as an animal protection agent even though she
was an employee of the Humane Society, a private nonprofit
organization. She contends, though, that under section
35-42-107(7), only state employees may investigate livestock
22 Subsection 107(7) specifies that "[a]gents authorized
to investigate cases involving livestock shall be employees
of the division or the division of brand inspection of the
department or any sheriffs when appointed and within their
jurisdiction." In construing this provision, we must
look first to the plain language of the statute,
Nieto, 993 P.2d at 500, which indicates that agents
who investigate livestock cases "shall" be
specifically designated public officials. "It is
axiomatic that the term 'shall' is usually
interpreted to make the provision in which it is contained
mandatory." Estate of Guido v. Exempla, Inc.,
2012 COA 48, ¶ 25; see also Hillebrand Constr. Co.
v. Worf, 780 P.2d 24, 25 (Colo.App. 1989) (the term
"shall" connotes a mandatory requirement). Thus,
under the plain language of the statute, the provision
restricts the investigation of livestock cases to employees
of the Division of Agriculture, brand inspectors, and
23 This interpretation of the provision's plain language
comports with other standards applicable to investigations
involving livestock. Because livestock generally have greater
economic value than companion animals, the article provides
certain protections for owners of livestock. For example,
livestock cannot, under any circumstances, be seized without
a court order. Compare § 35-42-109(2)(b),
C.R.S. 2016 (livestock may only be seized pursuant to a court
order, even when the animal's life or health is
endangered), with § 35-42-109(2)(a) (companion
animals may be seized whenever the animal's life or
health is endangered).
24 Our interpretation insures that owners of livestock have a
broader remedy against agents who commit negligence or
misconduct. The state may disclaim liability for the conduct
of animal protection agents employed by nonprofit
organizations, see § 35-42-107(3), but it is
liable for the conduct of the designated public officials. We
believe the legislature's mandate that animal protection
agents who seize livestock shall be employees
indicates an intent that the state be accountable for the
misdeeds of agents entrusted with livestock investigations.
25 The People insist that section 34-42-107(7) does not limit
the animal protection agents who are authorized to
investigate livestock; rather, it confers employment status
on those agents. But they offer no support for this novel
interpretation, and this construction does not comport with
the plain language of the statute or its purpose. See
Tatum v. Basin Res., Inc., 141 P.3d 863, 871 (Colo.App.
2005) ("Courts may not interpolate into a statute words
that it does not contain, or extract a meaning which is not
expressed by it."). Accordingly, we reject this reading
of the statute.
26 Thus, because Sergeant Garcia is an employee of a
nonprofit corporation, she was not authorized to investigate
livestock cases. And the People do not dispute that the
horses at issue are livestock. Therefore, we conclude that
Sergeant Garcia was not authorized to investigate
Harris's suspected mistreatment of the horses or to
obtain the horse warrant.
Remedy for the Statutory Violation
27 Next, we must decide the appropriate remedy for this
violation. Both parties assume that, if Sergeant Garcia had
no authority to obtain the horse warrant, the search
necessarily violated Harris's Fourth Amendment right to
be free from unreasonable searches and seizures. On this
basis, Harris contends that the exclusionary rule applies,
and thus the evidence obtained during the search should have
been suppressed. The People maintain that the evidence was
properly admitted under the "good faith exception"
to the exclusionary rule, as codified in section 16-3-308(1),
C.R.S. 2016. We reject both contentions.
28 We conclude that, although Sergeant Garcia was not
authorized to obtain the horse warrant, the statutory
violation did not amount to a constitutional violation.
Accordingly, the exclusionary rule does not apply and the
evidence was properly admitted at trial.
29 "[T]he exclusionary rule is a judicially created
doctrine whose sole purpose is to deter future Fourth
Amendment violations." People v. Marko, 2015
COA 139, ¶ 150. Violations of statutory provisions,
though, are not per se violations of the Fourth Amendment.
People v. Hamilton, 666 P.2d 152, 156 (Colo. 1983).
Thus, before employing the exclusionary rule as a remedy, we
must determine whether there was a constitutional violation,
rather than a mere statutory violation. See People v.
Bowers, 716 P.2d 471, 473 (Colo. 1986)
("[S]uppression of evidence is a drastic remedy and is
generally confined to violations of constitutional
rights."); People v. Casillas, 2015 COA 15,
¶ 19 ("A statutory violation does not ordinarily
trigger suppression of evidence because suppression 'is
designed to effectuate guarantees against deprivation of
constitutional rights.'" (quoting
People v. McKinstry, 843 P.2d 18, 20 (Colo. 1993)))
(cert. granted May 16, 2016).
30 Harris contends, or rather assumes, that the horse warrant
was constitutionally deficient because Sergeant Garcia was
not authorized to obtain it. But to be valid under both the
United States and Colorado Constitutions, a warrant must meet
three requirements: (1) it must have been issued by a
neutral, disinterested magistrate; (2) those seeking the
warrant must have demonstrated to the magistrate their
probable cause to believe that the evidence sought would aid
in a particular apprehension or conviction for a particular
offense; and (3) the warrant must particularly describe the
things to be seized, as well as the place to be searched.
People v. Pacheco, 175 P.3d 91, 94 (Colo. 2006);
Marko, ¶¶ 145-46; see also Bowling v.
Rector, 584 F.3d 956, 969 (10th Cir. 2009).
31 Based on these requirements, Sergeant Garcia's acting
beyond her statutory authority when she obtained the horse
warrant has no bearing on the constitutionality of the
warrant and related search. See Bowling, 584 F.3d at
968 (warrant was constitutional even though officer acted
beyond his statutory authority when he applied for it);
United States v. Freeman, 897 F.2d 346, 348 (8th
Cir. 1990) (A limited-authority officer's conduct in
excess of his statutory jurisdiction is an example of
"procedural violations which do not implicate the
constitutional values of probable cause or description with
particularity of the place to be searched and items to be
seized."). Whether or not she exceeded her statutory
authority is simply unrelated to the core constitutional
concerns of a neutral magistrate, probable cause, and
particularity. Indeed, this statutory violation "is not,
without more, significantly relevant to our Fourth Amendment
analysis." Bowling, 584 F.3d at 967.
32 Accordingly, if the horse warrant procured by Sergeant
Garcia, although obtained in excess of her statutory
authority, meets the three requirements of a neutral
magistrate, probable cause, and particularity, there is no
constitutional violation. While Harris does not contest that
the first and third ...