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People v. Harris

Court of Appeals of Colorado, Second Division

November 3, 2016

The People of the State of Colorado, Plaintiff-Appellee,
Valerie Christine Harris, Defendant-Appellant.

         Pueblo 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 Plaintiff-Appellee

          Darol C. Biddle, Pueblo, Colorado; Darrel L. Campbell, Westminster, Colorado, for Defendant-Appellant

          HARRIS JUDGE

         ¶ 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.

         I. Background

         ¶ 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 malnourished.

         ¶ 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)[1] 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 for trial.

         ¶ 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.

         II. The Search Warrants

         ¶ 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).

         A. 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.[2] 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 written. Id.

         ¶ 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. § 35-42-107(2).

         ¶ 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 cases.

         ¶ 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 sheriffs.

         ¶ 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.

         B. 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 ...

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