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Rohrer v. Humane Society of Washington County

Court of Appeals of Maryland

June 27, 2017

Daniel Rohrer
v.
Humane Society of Washington County

          Argument: January 6, 2017

         Circuit Court for Washington County Case No. 21-C-15-054127

          Barbera, C.J., Greene, Adkins, McDonald, Watts, Hotten, Getty, JJ.

          OPINION

          McDonald, J.

         This case concerns the application of a State statute designed to remedy mistreatment of animals. In particular, we must construe Maryland Code, Criminal Law Article ("CR"), §10-615 which, among other things, authorizes an officer of a humane society to take possession of an animal from its owner "if necessary to protect the animal from cruelty" or "if necessary for the health of the animal." Pondering laws that regulate the treatment of animals by people can provoke profound questions concerning the nature of human beings and their relationship to the natural world.[1] A statute that deputizes an officer of a private entity to seize an animal belonging to another without prior judicial process and that provides only cryptic direction concerning the consequences of that seizure raises serious constitutional questions under the Fourth Amendment, the Due Process Clause, and their analogs in the Maryland Constitution.[2]

         We will not resolve those questions. Our task is more mundane. We must determine whether the circumstances under which a humane society exercised its authority under CR §10-615 to take possession of a farmer's animals based on allegations of animal cruelty were consistent with that statute in two respects. We must also decide how that action may have affected the farmer's ownership interest in the animals. The resolution of those issues in this case turns in part on the existence of a parallel criminal prosecution and the execution of a criminal search and seizure warrant involving the same animals.

         In late 2014, officers of the Respondent Humane Society of Washington County ("Humane Society"), together with other law enforcement officers, executed a criminal search and seizure warrant at the farm of Petitioner Daniel Rohrer. The search and seizure warrant, which was based on an affidavit of a Humane Society officer alleging abuse and neglect of animals at the farm, resulted in the seizure and removal of nearly 100 animals from Mr. Rohrer's farm. Acting as an agent of the State, the Humane Society placed the animals with foster farms while the animals remained in State custody.

         In early 2015, the Humane Society decided that, regardless of the outcome of the criminal animal cruelty charges pending against Mr. Rohrer, the seized animals should not be returned to him. Invoking its authority under CR §10-615, the Humane Society notified Mr. Rohrer of its intent to "seize/remove" those animals. Pursuant to the same statute, Mr. Rohrer petitioned the District Court for their return. The District Court denied Mr. Rohrer's petition in light of the pending criminal charges.

         Ultimately the vast majority of the animal cruelty charges against Mr. Rohrer were disposed of by dismissal or acquittal. The District Court found him guilty of five misdemeanor counts related to three animals, sentenced him to probation before judgment, released all of the animals from seizure under the warrant, and required him to implement a farm management plan under the supervision of the Humane Society. Although the disposition of the criminal charges released the animals from the warrant, the Humane Society retained possession of the animals, relying on the District Court's earlier denial of Mr. Rohrer's petition for their return under CR §10-615.

         Mr. Rohrer appealed the District Court decision denying his petition for return of the animals to the Circuit Court for Washington County. He argued that possession of the animals by the Humane Society did not satisfy the standards set forth in CR §10-615 and that, in any event, the Humane Society had failed to follow that statute's procedures. The Circuit Court rejected those challenges and affirmed the District Court decision.

         In this Court, Mr. Rohrer again raises questions about the authority of the Humane Society to act under CR §10-615, as well as the legal status of animals seized under that law.

         We hold that, while the statute does not provide for seizure of an animal that is already in State custody in connection with a criminal proceeding, an officer of a humane society may notify the animal's owner or custodian of an intent to take possession of the animal upon the animal's release from State custody in the criminal case. In addition, seizure of an animal under the statute need not occur contemporaneously with the alleged mistreatment of the animal. However, the temporal remoteness of the alleged mistreatment is relevant to whether it is "necessary to protect the animal from cruelty" or "necessary for the health of the animal" for the humane society to take - and retain - possession of the animal. The statute gives a humane society the authority to temporarily possess an animal when those standards are satisfied, although that authority expires when the necessity ends. The statute does not purport to determine ownership of the animal.

         I Background

         A. Animal Cruelty Law and Procedure

         Maryland Animal Cruelty Laws

         Under the common law, farm animals, such as horses, cattle, sheep, and pigs, were treated as a form of personal property. See City of Hagerstown v. Witmer, 86 Md. 293, 300-01 (1897); 3B C.J.S. Animals §3. Mistreatment of animals had legal significance only to the extent that it interfered with someone's property interest in the animal. See S. M. Wise, The Legal Thinghood of Nonhuman Animals, 23 B.C. Envtl. Aff. L. Rev. 471, 525-28 & n.372 (1996); see also Maryland Code, Article 27, §§80-81 (1914); cf. Hurd v State, 190 Md.App. 479 (2010) (affirming conviction for malicious destruction of property based on shooting of pet dog).

         During the mid-nineteenth century, legislatures began to enact animal protection laws that were not based primarily on the protection of a property interest. C.E. Friend, Animal Cruelty Laws: The Case for Reform, 8 U. Rich. L. Rev. 201 (1974). In Maryland, local governments took the lead in passing ordinances that barred abuse of animals. In 1890, the General Assembly enacted a statewide law prohibiting "torture or cruelty" with respect to animals, and classified a violation of that law as a misdemeanor.[3] Chapter 198, Laws of Maryland 1890, then codified at Article 27, §§63-64; see State v. Falkenham, 73 Md. 463, 466 (1891) (holding that new statewide law superseded a local law on animal cruelty). That law defined "torture or cruelty" to "include everything whereby unjustifiable physical pain, suffering or death is caused." It defined "animal" to include "every living creature except men."

         The State animal cruelty law has been amended and refined over the years. It is currently codified in Maryland Code, Criminal Law Article ("CR"), §10-601 et seq. A key provision of this subtitle is CR §10-604, which prohibits abuse or neglect of an animal. Among other things, that statute defines criminal sanctions both for the intentional infliction of "unnecessary suffering or pain on an animal" as well as for the failure to provide the animal with sufficient food, water, space, and shelter.[4] See Silver v. State, 420 Md. 415 (2011) (upholding a conviction for animal cruelty under CR §10-604). An individual who is convicted of a charge of animal cruelty may be prohibited from "owning, possessing, or residing with an animal." CR §§10-604(b)(3), 10-606(b)(3).

         Role of Humane Societies in Enforcement of Animal Cruelty Law

         Since 1900, Maryland law has authorized members of humane societies to serve as animal control units and to help carry out the State's laws concerning the protection of animals from abuse or neglect. Chapter 456, Laws of Maryland 1900, then codified at Article 27, §46T (authorizing "any officer or agent of the Maryland Society for the Prevention of Cruelty to Animals or of any [similar] society" to take charge of abandoned, diseased, or disabled animals). The animal cruelty law currently defines "humane society" as "a society or association incorporated in Maryland for the prevention of cruelty to animals." CR §10-601(d). Although a humane society is a private entity, [5] the criminal statutes concerning animal cruelty delegate to humane societies certain powers to carry out the State's policy against animal cruelty.[6] For example, a humane society officer may arrest anyone "committing a misdemeanor that involves cruelty to an animal." CR §10-609. Pertinent to this case, an officer of a humane society may also seize or remove an animal from its owner under CR §10-615. This case concerns how the power conferred on a humane society by CR §10-615 to take possession of an animal is to be exercised and the consequences of the exercise of that power.[7]

         B. Facts and Judicial Proceedings

         The Farm

         Mr. Rohrer owns and runs a farm in Boonsboro, Maryland. A self-described "Old MacDonald, " he raises various livestock - including cattle, sheep, goats, and chickens - for slaughter and egg production. He sells meat at farmer's markets and participates in "farm-to-fork" programs. At any given time, there may be several hundred animals on his farm. Raising animals for food production is his livelihood.

         The Investigation

         During the fall of 2014, the Humane Society received an anonymous call from an individual concerned about whether animals on Mr. Rohrer's farm were adequately fed. In response, on November 19, 2014, Crystal Mowery, a field services officer with the Humane Society, conducted a drive-by inspection of the farm. After seeing several cattle that "appeared to be thin, " Officer Mowery returned to her office and contacted Dr. Edward Wurmb, a veterinarian. They and another Humane Society officer went to Mr. Rohrer's farm later that day for a closer inspection. Dr. Wurmb observed a number of cattle in the pasture that were "extremely thin" and "walking skeletons, " with some in "imminent danger of dying if it got cold."[8] Officer Mowery asked Mr. Rohrer if they could examine animals inside his barn. He allowed them to look into the barn from outside, but refused to let them enter the barn without a warrant.

         The Warrant

         Two days later, on November 21, 2014, with the approval of the State's Attorney, Officer Mowery applied to the District Court of Maryland for a search and seizure warrant for Mr. Rohrer's farm. In the application, she described the appearance of the cattle and the apparent lack of food for animals in the field. She alleged that these conditions established probable cause to believe that Mr. Rohrer was violating various provisions of CR §10-604. The District Court issued the warrant. The warrant authorized Officer Mowery and other officers to enter and search Mr. Rohrer's farm for evidence of violations of the animal cruelty law, to seize any such evidence, to take photographs, and, at the recommendation of a veterinarian on the scene, to seize "any animal found to be deprived of nutritious food and water."

         Execution of the Search and Seizure Warrant

         Three days later, on November 24, 2014, Officer Mowery - accompanied by other members of the Humane Society, members of the Washington County Sherriff's Department, an Assistant State's Attorney, and Dr. Wurmb - served the warrant and conducted a search of the farm. At that time, according to the later testimony of Officer Mowery and Dr. Wurmb, the pasture was bare with no edible forage, contained numerous empty feeders that - because of the presence of weeds and moldy hay - likely had not been filled for some time, and was littered with dead animal bones and rolls of barbed wire. The barn contained bodies of dead animals lying among the live animals, a dead sheep in the hay feeder, empty water troughs, and manure and feces piled four or five feet high. In a separate, detached chicken coop, live chickens roosted inside dead chicken carcasses, and eggs were intermingled among more than six inches of animal feces. In addition to some emaciated cows, they also discovered sheep and goats whose hooves had never been trimmed and were so overgrown that the animals could no longer walk correctly. When asked about the dead animals, Mr. Rohrer told Officer Mowery that "they lay where they die." He admitted that it had been three or four years since a veterinarian had visited his farm.

         On the basis of these observations, the Humane Society and the Sheriff's Office formally "seized" all of the animals on Mr. Rohrer's farm under the authority granted by the warrant. The search warrant return and inventory completed by Ms. Mowery the next day listed the property taken pursuant to the warrant as "approximately" 50 cattle, 50 sheep, 4 goats, 15 pigs, and 50 chickens. However, no animals were physically removed from Mr. Rohrer's farm that day. Rather, they were left on the farm and Mr. Rohrer was informed that he was not to exercise any control over them. During the period between November 25, 2014 and the expiration of the search warrant on December 10, 2014, [9] the Humane Society returned to the farm, removed many of the seized animals, and relocated them to foster farms. Other animals were "released from seizure" under a written agreement between Mr. Rohrer and the Humane Society.

         The Agreement

         The agreement, dated December 12, 2014, recited that 95 animals (40 cows, 4 goats, and 51 sheep) had been removed from the farm and that the Humane Society and Mr. Rohrer had not agreed on the disposition of those animals. It acknowledged that Mr. Rohrer retained ownership of those animals and that the Humane Society had temporary custody. The agreement further stipulated that the animals remaining on the farm were "released from seizure" and were "now under [Mr. Rohrer's] control." Finally, the agreement provided that Mr. Rohrer "must contain the animals on the property" and was responsible for providing "nutritious food in sufficient quantity, necessary veterinary care, proper drink, air, space, shelter, or protection from weather."

         Criminal Charges

         A few days later, on December 15, 2014, Mr. Rohrer was charged in the District Court with 318 misdemeanor counts of animal cruelty under CR §10-604. Case No. 2V00090540. According to Case Search, the online database of the Maryland Judiciary, most of the charges were brought under CR §10-604(a)(5), which prohibits the owner of an animal from "unnecessarily fail[ing] to provide the animal with nutritious food in sufficient quantity, necessary veterinary care, proper drink, air, space, shelter, or protection from weather." Some of the charges were brought under CR §10-604(a)(4), which prohibits anyone from causing or authorizing certain acts of mistreatment of an animal.[10]

         Unsuccessful Request for TRO

         In December 2014, following the execution of the search warrant and the removal of some of the animals, Mr. Rohrer filed suit in the Circuit Court for Washington County seeking injunctive relief, including a temporary restraining order ("TRO"), for return of the animals. By the time the Circuit Court conducted a hearing on his request for a TRO on December 18, 2014, the criminal charges had been filed in the District Court. In light of the pending criminal charges and the agreement between Mr. Rohrer and the Humane Society with respect to the animals remaining on the farm, the Circuit Court declined to grant injunctive relief pending resolution of the criminal charges.

         Notice of Seizure Under CR §10-615

         On January 20, 2015, approximately two months after execution of the search warrant and removal of some of the animals and one month after the filing of criminal charges, the Humane Society posted a notice on Mr. Rohrer's door stating that it had "seized/removed" the animals from his custody under CR §10-615(b), (c), and (f). The notice also referred to those animals as "impounded from your custody." The Humane Society posted a slightly revised version of the notice on February 5, 2015.[11] The notice referred to seizure, removal, and impoundment under the statute in the past tense, apparently referencing the actions taken in November and December 2014 under the search warrant. However, Officer Mowery later testified that the Humane Society had not decided to invoke its authority under the statute until shortly before the initial notice was posted in January 2015. She explained that, because the court had denied the TRO seeking return of the animals to Mr. Rohrer during the criminal proceedings, the Humane Society had focused on placing and caring for the animals before it sought to resolve their ultimate disposition.

         The January 2015 notice advised that Mr. Rohrer could file a petition for return of the animals in the District Court within 10 days of their removal pursuant to CR §10-615(d) and that, if he chose not to avail himself of that remedy, the animals would be considered strays and disposed of according to Maryland law.[12] The notice also advised Mr. Rohrer that he was "under criminal investigation" for cruelty to animals and provided written Miranda warnings concerning his right to remain silent, to be represented by counsel, and to have counsel appointed if he could not afford a lawyer.

         The Petition for Return of Animals

         On January 30, 2015, Mr. Rohrer filed a "Petition for Return of Seized Animals" ("Petition for Return") in the District Court, pursuant to CR §10-615(d)(2). He argued that the seizure notice was late, that the animals remaining on the farm were well cared for, that he was being deprived of the opportunity to sell certain animals for slaughter at the time of their maximum value, and that the Humane Society had no reasonable justification for holding his animals. In particular, he argued that the Humane Society had failed to provide notice under CR §10-615(d) at the time the animals were actually removed from his property and had not done so until two months later at a time when the animals were in the custody of the State pursuant to the search warrant.

         District Court Hearing on the Petition for Return

         A hearing on the Petition for Return was held in the District Court on February 20 and March 30, 2015. Mr. Rohrer testified and called three witnesses - a University of Maryland extension agent, a veterinarian, and a Maryland Department of Agriculture livestock inspector - to testify about the conditions of his farm around the time the animals were removed from his farm in late 2014. That testimony presented a somewhat different picture of Mr. Rohrer's farm and the conditions of his animals from that portrayed by the Humane Society. Mr. Rohrer explained that most of the animals he acquired were being prepared for slaughter. The extension agent, who had not previously known Mr. Rohrer, visited the farm shortly after the execution of the search warrant, but before most of the animals were removed. He opined that most of the animals were in excellent condition although some of the cattle were thin. The veterinarian, who had also visited the farm at the same time, provided similar testimony as to the condition of the animals.

         Officer Mowery and Dr. Wurmb testified on behalf of the Humane Society at the hearing and reiterated the information they provided in the warrant and also described their observations of conditions when the warrant was executed. Another veterinarian testified that he had evaluated the cattle shortly after execution of the warrant and found 26 of the 40 cattle to be underweight, which he found "very concerning." Officer Mowery testified that, although the animals were originally seized and removed pursuant to the criminal search and seizure warrant in late 2014, the decision to invoke the Humane Society's authority under CR §10-615(c) was not made until shortly before January 20, 2015, when the notice was first posted at Mr. Rohrer's farm.

         At the hearing, Mr. Rohrer reiterated his argument that the Humane Society had failed to provide the appropriate notice under CR §10-615(d) at the time the animals were physically removed from the farm. Alternatively, he argued that, to the extent that the Humane Society was not required to provide that notice at the time the animals were removed because the animals had initially been seized by the State (with the Humane Society's assistance) under a criminal search and seizure warrant, that situation had not changed at the time that the Humane Society actually provided notice under CR §10-615, as the animals remained in State custody at that time and were not under his control.

         Ruling from the bench at the conclusion of the second day of the hearing, the District Court denied Mr. Rohrer's Petition for Return, although the court lamented the "lack of guidance" in the statute as to how it was to decide the case. The court first observed that the animals had been removed from the farm pursuant to a valid search warrant "based on the evidence that was available at the time of the removal." The court cited the conditions on the farm in late 2014: the small size of the cattle in the field, the dead animals and manure in the barn, and the lack of sanitary water. The court did not directly address the adequacy of the timing of the subsequent notice under CR §10-615 by the Humane Society.

         As to whether the animals should be returned to Mr. Rohrer, the court noted the December 2014 agreement between Mr. Rohrer and the Humane Society under which he retained many of the animals and under which the Humane Society acknowledged his ownership of the seized animals. With respect to the animals that had been removed from the farm, the court observed that they "appear to be being well taken care of" by the Humane Society and that "the best interest of the animals" would be served by remaining in that care "at this particular stage ... particularly between now and ... the hearing on [the criminal animal cruelty charges]."

         When Mr. Rohrer's counsel raised the question whether he would lose ownership of the animals as a result of the court's ruling, the District Court stated that "the statute really doesn't say that" and pointed to the December 2014 agreement which, in the District Court's words, "says what it says" - that Mr. Rohrer retained ownership of those animals.

         Mr. Rohrer promptly appealed the District Court decision to the Circuit Court for Washington County.

         Criminal Trial

         In the meantime, while the appeal of the District Court's denial of the Petition for Return of the animals was pending, the criminal charges proceeded to trial before a different judge of the District Court. A bench trial was held over the course of several days in May and July 2015. At the outset of the trial, the State dismissed 288 of the 318 counts. At the conclusion of the State's case, the court granted a motion for judgment of acquittal as to six additional counts. At the conclusion of all the evidence, the State dismissed four more counts. Of the remaining 20 counts, the District Court found Mr. Rohrer not guilty on 15 counts. The District Court found Mr. Rohrer guilty on five counts relating to three animals but, as provided in Maryland Code, Criminal Procedure Article, §6-220, withheld the entry of judgment and placed him on unsupervised probation before judgment for three years with respect to those counts.[13]

         In a probation order issued on July 22, 2015, the court added a special condition of probation that required Mr. Rohrer to comply with a farm management plan supervised by the Humane Society. The probation order stated that the animals were "released from seizure" - presumably referring to seizure under the criminal search warrant - and that "any action to recover may be brought in a civil proceeding." Mr. Rohrer apparently did not appeal this disposition of the criminal charges.

         Failed Negotiations for Return of Animals

         After the adjudication of the criminal charges, but while Mr. Rohrer's appeal of the District Court's denial of the Petition for Return was still pending in the Circuit Court, the parties attempted to negotiate the disposition of Mr. Rohrer's animals. In an email dated August 28, 2015, counsel for the Humane Society indicated his belief that the District Court's decision on the Petition for Return was dispositive as to the ownership of the animals - i.e., the denial of the petition eliminated Mr. Rohrer's ownership interest of the animals. Nevertheless, counsel for the Humane Society offered to return some - but not all - of the animals, provided that Mr. Rohrer agreed to abide by the terms of his probation. Counsel indicated that the offer was "not negotiable, " and if not accepted within three days, all of the remaining animals would be given away.

         In response to this email, on August 31, 2015, Mr. Rohrer filed a Motion for Ex Parte Emergency Relief for Release of Animals or, in the Alternative, Stay of Disposal of Animals and Request for Emergency Hearing in the District Court. The District Court granted the motion in part, and issued an order on September 1, 2015 prohibiting the Humane Society from taking any action regarding the animals "inconsistent" with Mr. Rohrer's property rights, until the conclusion of all legal actions and appeals that involve the disposition of the animals. Because Mr. Rohrer's appeal of the denial of his Petition for Return of the animals was still pending in the Circuit Court, the District Court declined to hold a hearing.

         Appeal of Denial of the Petition for Return

         The Circuit Court held a hearing on the appeal on December 11, 2015. Mr. Rohrer challenged the substantive decision of the District Court - i.e., whether the Humane Society's possession of the animals was actually necessary for the animals' health - as well as the procedures used by the Humane Society under CR §10-615 and in relation to the December 2014 agreement. Among other things, Mr. Rohrer argued that the Humane Society's invocation of its authority to remove animals under CR §10-615 was improper because, at the time it gave him notice of a seizure under the statute, the animals were already in the custody of the State under the search warrant and there was no "necessity" to seize them at that time. The Humane Society, in response, pointed to the evidence of the conditions on Mr. Rohrer's farm in late 2014, argued that its procedure in seizing and holding the animals was lawful, and denied any legal significance of its December 2014 agreement with Mr. Rohrer.

         In a written opinion dated May 6, 2016, the Circuit Court upheld the District Court's denial of the Petition for Return. The Circuit Court concluded that the District Court ruling "was not 'clearly erroneous'. . . that the animals were being well cared-for by the Humane Society, and it was not in the best interests of the animals to return their custody to [Mr. Rohrer]." The Circuit Court did not address the fact that the District Court's decision not to return the animals was premised in part on the fact that criminal charges related to the same animals were pending at the time of the District Court decision. By the time the Circuit Court issued its decision, the criminal charges had been resolved and the animals had been released from seizure in connection with that proceeding. It thus appears that the Circuit Court was focused on the merits of the District Court ruling at the time of that ruling.

         Mr. Rohrer petitioned this Court for a writ of certiorari, which we granted.

         Related Pending Litigation

         Mr. Rohrer has brought a replevin action for return of the animals, but that action has been stayed pending the resolution of this appeal. Case No. 21-C-15-055661 (Circuit Court for Washington County).

         II Discussion

         Mr. Rohrer has presented three issues for review. The first two issues concern the predicate for seizure or removal of an animal from its owner based on allegations of animal cruelty:

(1) May an officer of a humane society seize an animal under CR §10-615 when that animal is already in State custody pursuant to a search and seizure warrant?
(2) Must the seizure of an animal by an officer of a humane society under CR §10-615 be justified by conditions existing at the time of seizure, or may it be based on conditions previously observed?

         The third issue concerns the application and effect of the process created by the statute for the possible return of the animal to its owner:

(3) When an owner of a seized animal files a petition for return of the animal under CR §10-615(d) and the petition is denied, how does that ruling affect the owner's rights with respect to the animal?

         A. Standard of Review

         We have jurisdiction of this case pursuant to Maryland Code, Courts & Judicial Proceedings Article, §12-305, as we are asked to review a final judgment of the Circuit Court on appeal from the District Court's decision denying Mr. Rohrer's Petition for Return of animals under CR §10-615(d). The Circuit Court conducted its review on the record pursuant to Maryland Rule 7-113 and affirmed the decision of the District Court.

         When an action has been tried without a jury, as in this case, an appellate court is to review the case on both the law and the evidence. Maryland Rule 8-131(c). The fact findings of the trial court are not to be set aside unless clearly erroneous. Id. However, the appellate court does not accord any special deference to the legal conclusions of the trial court or its application of the law to the facts. Cunningham v. Feinberg, 441 Md. 310, 321-22 (2015). A circuit court is to apply the same standard of review when it reviews a District Court decision on the record. Maryland Rule 7-113(f); see Friendly Finance Corp. v. Orbit Chrysler Plymouth Dodge Truck, Inc., 378 Md. 337, 342-43 & nn.4-5 (2003).

         The three issues raised by Mr. Rohrer concerning the application of CR §10-615 are purely legal in nature. Accordingly, we shall consider them without according deference to the decisions of the District Court or Circuit Court.

         B. Authority for a Humane Society to Take Possession of an Animal under CR §10-615

         To address the questions before us, it is useful first to sketch out the legal context in which they arise - in particular, the ...


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