Companion Animal Law Blog

Bringing together those whose lives and livelihoods revolve around companion animals

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Be Careful What You Ask For: The Dire Consequences of Backyard Chickens

iStock_000002590317XSmallArlington County has been considering allowing backyard hens for a while now. It is commendable to find a way to obtain eggs in a way that doesn’t support big farms and the egg industry. However, backyard chickens in an urban community have the potential for very drastic – even deadly – consequences.

Surprisingly, Arlington County’s current zoning ordinance does not prohibit chickens, but Section 12.7.1 of the zoning ordinance does require poultry to be kept in a building, structure or yard located at least 100 feet from a street or lot line. Considering Arlington’s urban nature and small lots, this set back requirement prohibits the vast majority of residents from having chickens.

Not surprisingly, the County Manager recently recommended against backyard hens at a County Board work session last November. The staff had too many questions about hen raising, including what to do with dead, dying and abandoned hens, the impact on the Animal Welfare League of Arlington and animal control officers, and health and pest concerns.

The County Manager raised one other specific concern that Virginia residents may not be aware of – Virginia Code Section 3.2-6552 and its requirement to immediately kill any dog caught in the act of killing or injuring livestock or poultry. Yes, you read right – “kill”, not euthanize.  Section 3.2-6552’s language and requirements are so extreme that it’s worth it to post the statute verbatim here:

§ 3.2-6552. Dogs killing, injuring or chasing livestock or poultry.

It shall be the duty of any animal control officer or other officer who may find a dog in the act of killing or injuring livestock or poultry to kill such dog forthwith whether such dog bears a tag or not. Any person finding a dog committing any of the depredations mentioned in this section shall have the right to kill such dog on sight as shall any owner of livestock or his agent finding a dog chasing livestock on land utilized by the livestock when the circumstances show that such chasing is harmful to the livestock. Any court shall have the power to order the animal control officer or other officer to kill any dog known to be a confirmed livestock or poultry killer, and any dog killing poultry for the third time shall be considered a confirmed poultry killer. The court, through its contempt powers, may compel the owner, custodian, or harborer of the dog to produce the dog.

Any animal control officer who has reason to believe that any dog is killing livestock or poultry shall be empowered to seize such dog solely for the purpose of examining such dog in order to determine whether it committed any of the depredations mentioned herein. Any animal control officer or other person who has reason to believe that any dog is killing livestock, or committing any of the depredations mentioned in this section, shall apply to a magistrate serving the locality wherein the dog may be, who shall issue a warrant requiring the owner or custodian, if known, to appear before a general district court at a time and place named therein, at which time evidence shall be heard. If it shall appear that the dog is a livestock killer, or has committed any of the depredations mentioned in this section, the district court shall order that the dog be: (i) killed immediately by the animal control officer or other officer designated by the court; or (ii) removed to another state that does not border on the Commonwealth and prohibited from returning to the Commonwealth. Any dog ordered removed from the Commonwealth that is later found in the Commonwealth shall be ordered by a court to be killed immediately.

It’s difficult to fathom how this statute plays out in any jurisdiction, let alone in an urban jurisdiction like Arlington.  But take this as one example.  A neighbor’s chicken gets out of your neighbor’s yard and wanders into your backyard.  Your dog chases and injures or kills the chicken.  An animal control officer drives by just at that time, and sees the dog with the chicken.  Your neighbor is quite understanding and admits it was his fault for not keeping his chicken in his yard, and the animal control officer certainly doesn’t want to get involved.

Under Section 3.2-6552, the animal control officer has no choice but to kill the dog immediately.  The option to seize the dog isn’t applicable, because the animal control officer was an eyewitness to the events and there would be no need to have a hearing about whether your dog was the guilty party.  The animal control officer in all likelihood would not be carrying a firearm.  And even if a person lawfully has a firearm in Arlington, it is against the law to discharge a firearm in the county.  That leaves incredibly undesirable options like snapping the dog’s neck or beating the dog to death – actions that constitute cruelty.

A bill pending in the General Assembly proposes softening – but not eliminating – the dire consequences of Section 3.2-6552.  HB740 would allow localities with a population density of at least 3400 persons per square mile to pass an ordinance to limit or eliminate the animal control officer’s duty to kill or seize a dog, and to limit or eliminate an individual’s rights to kill the dog.

For those Arlington County residents who want local fresh eggs, you can have your cake and eat it, too, by shopping at Arlington County’s many wonderful local farmers’ markets and avoiding these potential hazards.

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Ring in the New Year — but not too loudly!

iStock_000029585012XSmallBy all means, ring in 2014 – but don’t be too loud!  You may be kicking off the new year with a new noise ordinance.

Fairfax County and other localities in Virginia have not been enforcing noise ordinances since 2009, when the Supreme Court of Virginia struck down Virginia Beach’s noise ordinance as unconstitutionally vague in Tanner, et al. v. City of Virginia Beach, 277 Va. 432 (2009).  Virginia Beach’s ordinance prohibited “unreasonably loud, disturbing and unnecessary” noise that is “detrimental to the life or health of persons of reasonable sensitivities.”  The noise at issue involved hip-hop, punk rock and indie music pumping from Virginia Beach’s Peppermint Beach Club on Atlantic Avenue.

The language in Fairfax County’s old noise ordinance was very similar to the Virginia Beach ordinance, prohibiting “any unnecessary sound which annoys, disturbs or perturbs reasonable persons with normal sensibilities.”  By contrast, Fairfax County’s new noise ordinance will prohibit noise “that is audible in any other person’s residential dwelling with the doors and window’s to the other person’s residential dwelling closed.”

Arlington County is also working on updating its noise ordinance, proposing to prohibit amplified sound over specific distances (20 feet from the sound in another dwelling or 50 feet across property boundaries), or barking or squawking at least once per minute for 10 consecutive minutes.  The “squawking” prohibition may be in anticipation of backyard chickens – a topic worthy of its own blog post and major public education about Virginia’s mandatory and immediate death sentence for chicken-killing dogs.

With the old ordinances, local officers became particularly adept at trying to resolve noise conflicts in creative ways.   Hopefully these efforts will not fully disappear as jurisdictions amend their noise ordinances.  Slapping someone with a ticket or a lawsuit is much less effective that solving the underlying problem – particularly with an incessantly barking dog.  For excellent ideas about how to address excessive barking, take a look at this recent blog post by trainer Veronica Sanchez with Cooperative Paws in Vienna, Virginia!

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A Sniff Is A Search By Any Other Name, But Is It Reliable? Florida v. Jardines and Florida v. Harris

The United States Supreme Court has weighed in on two K9 cases to conclude that a sniff is a search that must be supported by probable cause, and the reliability of that search is judged under the totality of the circumstances by examining the dog’s training and performance in controlled certification and training settings.

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A Sniff is a Search by Any Other Name:  Florida v. Jardines

In Florida v. Jardines, Miami/Dade County Detective Pedraja received an unverified tip that Jardines was growing marijuana in his house.  A month later, the DEA and local police staked out Jardines’ home.  They saw no activity and could not see past the closed blinds into Jardines’ house.  After fifteen minutes, Pedraja and K9 Detective Bartelt walked Franky, a chocolate lab, up Jardines’ sidewalk.  At the porch, Franky started to show changes in his behavior that indicated he sensed the odor of one of the controlled substances he had been trained to detect.  Franky “bracketed,” sniffing back and forth to locate the source of that odor, and narrowed the source to the base of Jardines’ closed front door.  Franky then “alerted” that he located the source of the odor by sitting at the front door.

Pedraja used Franky’s performance to obtain a search warrant, and the subsequent search revealed marijuana plants in Jardines’ house.  Jardines was arrested, and he challenged the warrant, claiming that the officers’ actions and Franky’s sniffing was a search unsupported by probable cause.

As I suspected, the Court agreed with Jardines, relying on the concept of curtilage, the private area surrounding a person’s house.  Traditionally, curtilage is part of the home itself, and enjoys the same constitutional protections as the inside of our homes.  The police cannot not enter and search in one’s curtilage unless implicitly or explicitly invited.  We explicitly invite our friends to dinner, and we implicitly invite trick-or-treaters and Girl Scouts selling cookies to walk up to our front door and to knock.

Justice Scalia concluded that this implicit invitation could include an officer who walks up to the front door, unarmed with a trained K9, but does not extend to an officer with his highly trained K9 who is hoping to find incriminating evidence.  Justice Scalia ended his analysis there, refusing to analyze whether the officers’ actions invaded Jardines’ right of privacy.

Justices Kagan, Ginsburg and Sotomayor concurred with Justice Scalia, analogizing the officer’s actions to a creepy neighbor who comes on your porch with high-powered binoculars.  They agreed with Justice Scalia’s analysis on curtilage grounds, but found additionally that Jardines’ right of privacy was violated by using Franky as a “super sensitive instrument” to go beyond a “plain sniff.”

Justice Alito, with Chief Justice Roberts, Justice Kennedy and Justice Breyer dissented, finding no trespass or invasion of privacy when the detectives spent all of one or two minutes walking down Jardines’ driveway to his front door.   They also pointed to the fact that Detective Pedraja could smell marijuana from outside the door, although Detective Bartelt could not.

But Is The Sniff Reliable?  Florida v. Harris

In yet another Florida case, Florida v. Harris, Officer Wheetly pulled Harris over for a routine traffic stop.  Harris was visibly nervous and had an open beer can in his truck.  Wheetly decided to search Harris’s truck with his K9, Aldo.  Aldo alerted at the driver side handle of Harris’s truck, and Wheetly found pseudoephedrine, matches, hydrochloric acid, iodine crystals and antifreeze – ingredients commonly used to make meth.  However, Aldo was not trained to detect these ingredients – he had only been trained to detect meth, marijuana, cocaine, heroin and ecstacy.

While Harris was on bond, Wheetly caught Harris with a broken tail light and pulled him over again.  Aldo once again alerted at Harris’s driver side door, but Wheetly found nothing in the truck that time.

Harris moved to suppress the meth ingredients.  At the hearing on the motion to suppress, Wheetly testified to his and Aldo’s training.  Wheetly and another dog had completed a 160-hour narcotics detection course.  Aldo and a different handler completed a similar 120-hour course, and Aldo received a one-year certification from a private company.  When Wheetly and Aldo teamed up, they completed a 40-hour refresher course together.  Wheetly and Aldo train together four hours a week, with Wheetly hiding drugs in certain areas and leaving other areas blank to determine whether Waldo Alerted correctly.  Monthly detection training logs showed that Aldo always found the hidden drugs and that he performed satisfactorily on each day of training.

Harris didn’t challenge Aldo’s training, instead focusing on certification and field performance, including what he characterized as the two “false positive” results when Wheetly pulled him over.  The trial court denied the motion.  The Florida Supreme Court sided with Harris, spelling out an array of evidence, including field results and “false positive” records, that K9 officers must keep to establish probable cause.

The United States Supreme Court handily sided with Aldo, ruling unanimously that K9 officers had no duty to maintain field performance history and records of purported “false positives.”  The Court refused to adopt Florida’s laundry list of records that K9 officers had to maintain, going back to a “totality of the circumstances” test to conclude that probable cause is present if the dog’s training and testing in controlled settings support the dog’s reliability, and a defendant fails to undermine that evidence.

The Court refused to hold a K9 to his field performance results.  Those records would not show false negatives – when the K9 failed to find drugs that were present – because the officer would not have conducted the search and found the substance.  More importantly here, if the dog alerts and the officer does not find drugs, that does not automatically result in a “false positive.”  The Court had no problem concluding that Aldo was absolutely right when he alerted, but that the residual meth odor was in a quantity too small for Wheetly to observe and seize.

The Court pointed out that defendants will have the opportunity through facts and expert testimony to challenge the reliability of detection dogs – and their handlers.  Some of the challenges may include the adequacy of training and certification, the dog’s and handler’s performance in assessments, and even field performance.  The Court gave two examples of field performance issues, including whether the handler intentionally or inadvertently cued the dog, or whether the dog and handler team were working in an unfamiliar environment.

Ultimately, the Court phrased the question as “whether all the facts surrounding a dog’s alert, viewed through the lens of common sense, would make a reasonably prudent person think that a search would reveal contraband or evidence of a crime.  A sniff is up to snuff when it meets that test.”  In applying that test, the Court found that Aldo’s sniff was more than up to snuff.

The Nose In Everyday Life

A recent study funded by the Department of Justice found that detection dogs in controlled environments were accurate 90% of the time, if not more.  Interestingly enough, the dogs were rotated through three different diets, and a high fat diet increased accuracy.  The study may be more anecdotal than scientific, with only 17 dogs and an eighteen-month window.  But there is no doubt that our companions’ noses are super machines.

It is no wonder that the first chapter of Alexandra Horowitz’s wonderful book, Inside of a Dog, begins with describing the world “from the dog’s point of nose.”  In the chapter entitled “Sniff,” Horowitz describes beagles’ sense of smell as possibly “millions of times more sensitive than ours.”  We routinely discourage our companions from using their noses when we are out on walks or when they greet our human friends in particularly exuberant doggy ways.  What can happen when we give our dogs a channel to use their “super sensitive instruments”?

Apparently, great things!  The April 2013 edition of The Whole Dog Journal describes how the new activity and sport, K9 Nose Work®, is helping shelter dogs cope and get adopted.  Doing K9 Nose Work® with my own dogs, Boomer and Sophie, and teaching K9 Nose Work® classes, give me a profound respect for our companions’ olfactory abilities.

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Update on Virginia’s 2012 Legislative Session

As well as this legislative session started, not much positive happened for animals this year.  Here’s a rundown of what the General Assembly did this year:

HB 95 (Bear Hound Training):  Even though bear hound training was already allowed during most times of the day, this bill extended the hours of training bear hounds to include 4:00 AM to 10:00 PM.  The Senate  stopped this bill in its tracks last year, but it sailed through the House and the Senate this year and was signed into law by the Governor.

HB 158 (Prohibiting Devocalization):  This is the second time Virginia missed an opportunity to put a stop to the inhumane practice of devocalization. This bill was pushed off until 2013 when it was continued by voice vote in the Agriculture, Chesapeake and Natural Resources Committee.

HB 363 (Companion Animals in Protective Orders):  This bill would have clarified that judges have the ability to include companion animals in protective orders, but it was left in the House Appropriations Committee.

HB 537/SB 305 (Dangerous Dog Registry):  This bill made its way up to the Governor and was signed into law.  It shifts more responsibility to local animal control officers to regulate dangerous dogs, and changed the time to comply with  registration from 10 days to 45 days.

HB 650 (Notice of Euthanasia for Companion Animals):  This bill would require shelters or pounds to give notice to rescues in the position to help out before euthanizing healthy, adoptable companion animals.  This is yet another example of a bill that got stuck in the Agriculture, Chesapeake and Natural Resources Committee.

HB 695/SB 202 (Prohibiting Fox and Coyote Penning):  This bill would have outlawed the cruel blood sport of fox and coyote penning.  I’m very disappointed to say that this bill, like many others, did not make it out of the Agriculture, Chesapeake and Natural Resources Committee.

HB 888 (Allowing Local Anti-Tethering Ordinances):  This bill would have clarified that localities can pass their own anti-tethering ordinances.  No surprises here — yet another bill stuck in the Agriculture, Chesapeake and Natural Resources Committee.

HB 1242/SB 477 (Prohibiting Exotic Animals):  This bill was in response to the tragedy last year in Zanesville, Ohio involving the deaths of numerous exotic animals.  The House continued this bill in the Agriculture, Chesapeake and Natural Resources Committee by voice vote to the 2013 session.  The Senate kicked it to the Agriculture, Conservation and Natural Resources Committee.

SB 359 (TNR):  This bill would declare TNR to be a legal and acceptable practice to control feral cat populations.  It passed the Senate, but got stuck in the Agriculture, Chesapeake and Natural Resources Committee.

SB 610 (Agricultural Animals):  This bill got lots of traction, but fortunately did not become law.  It is still kicking around the Senate Agriculture, Conservation and Natural Resources Committee.  This bill seeks to exclude hunting, working and show dogs from the definition of companion animals, and would throw a great deal more on the shoulders of the State Vet instead of localities and animal control officers.

There’s much work ahead of us to prepare for the 2013 legislative session!  We could especially use help from those of you with delegates in the House Agriculture, Chesapeake and Natural Resources Committee.  If you’re not sure who your delegate is, or whether they are members of that committee, take a look now with the Virginia General Assembly “Who’s My Legislator” site.


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Humane Lobby Day and an Overview of Virginia’s 2012 Legislative Session

Please join the Virginia Federation of Humane Societies and the Humane Society of the United States this Thursday in Richmond for Humane Lobby Day.  There will be plenty to discuss with your representatives.  Here is my take on each of the companion animal related bills in this session:

STRONGLY SUPPORT:

HB 158 (Prohibiting Devocalization):  A great bill designed to end an inhumane practice. Virginia missed the opportunity to pass this last year, but will hopefully come through this session.

HB 363 (Companion Animals in Protective Orders):  This bill clarifies that judges have the ability to include companion animals in protective orders.

HB 650 (Notice of Euthanasia for Companion Animals):  This bill provides that shelters or pounds give notice to rescues in the position to help out before euthanizing healthy, adoptable companion animals.

HB 695/SB 202 (Prohibiting Fox and Coyote Penning):  Like dog fighting, which is now outlawed in all fifty states, fox penning is an inhumane “sport” that amounts to cruelty.

HB 888 (Allowing Local Anti-Tethering Ordinances):  This merely clarifies that localities have the ability to pass their own anti-tethering ordinances.

HB 1242/SB 477 (Prohibiting Exotic Animals):  A necessary response to the tragedy last year in Ohio.

SB 359 (TNR):  This bill clarifies that TNR is a legal and acceptable practice to control feral cat populations that should not be hindered by current abandonment laws.

HJ 143 (Spay Day):  Who could resist this?!

SUPPORT IN PART AND OPPOSE IN PART:

HB 537/SB 305 (Dangerous Dog Registry):  This bill makes good changes to shift more responsibility to local animal control officers, but the 45-day window to comply with the registration certification procedures is too long.  When there has been an issue such as obtaining insurance that has taken longer than the current 10-day window, animal control officers are more than willing to work with registrants.  A 15-day window would probably be sufficient.

STRONGLY OPPOSE:

HB 95 (Bear Hound Training):  Training is already allowed during most times of the day, and there is no reason to extend training into the late hours of the night and early hours of the morning.

SB 610 (Agricultural Animals):  This bill is a huge setback, as it tries to peel off hunting, working and show dogs from the definition of companion animals and puts all authority in the hands of the State Vet instead of localities and animal control officers.

Please reach out to your state representatives to ask for support regarding these vital companion animal issues.  If you are unsure of who your representatives are, or how to contact them, visit the Virginia General Assembly website.


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Virginia 2012 Legislative Roundup, Part Two

As promised, here is more information about a few of the bills in this legislative session:

HB 1242/SB 477 would make it a Class 1 misdemeanor (punishable by up to 12 months in jail and a $2500 fine) to possess, sell or breed exotic animals.  This bill is in response to the tragedy last year in Ohio resulting in the death of almost fifty animals after the owner released the animals and killed himself.

SB 359 will officially legalize Trap, Neuter and Return (TNR) programs. This bill clarifies that anyone engaged in TNR is not an “owner” who could be deemed to be “abandoning” the cats.

If you would like to know more about fox penning and HB 695/SB 202, the Humane Society of the United States has put together a video explaining this blood sport and why it is vital that we push to prohibit this cruel practice.  A major focus of Humane Lobby Day in Richmond this Thursday will be to gather support for these bills.

Last but not least is HJ 143, which would establish February 28 as Spay Day.

Now the bad news.  As is often the case, a devastating bill will sneak into the legislation when no one is looking.  And so it is with SB 610.  This bill would prohibit localities and animal control officers from regulating agricultural animals, placing all authority over agricultural animals in the hands of the State Vet.  This bill would also expand the definition of agricultural animals to include hunting, working and show dogs.  Needless to say, this bill would be a tremendous set back to animal welfare by placing a huge burden on the State Vet’s office, and taking the power to investigate and prosecute animal cruelty and neglect out of the hands of localities and animal control officers who are in the best position to take action.

Stay posted later this week for an overview of the good, the bad and the ugly in the bills geared towards companion animals in this legislative session.

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Virginia Legislative Round Up for 2012 Session

It’s that time of year again! Several bills have already made it on this year’s slate, and a couple more may be added before the session is over. This year’s legislative session looks very promising for companion animals – with one glaring exception.

HB 95 (Bear Hound Training): We start with the one glaring exception. As things stand, hunters can train dogs to hunt bear from a half hour before sunrise until four and a half hours after sunset. This bill would allow this training to occur at night. Last year, the House passed this bill, but the Senate stopped the bill in its tracks.

HB 158 (Devocalization of Companion Animals): This bill makes devocalization a Class One Misdemeanor (punishable by up to 12 months in jail and a fine) unless the operation is necessary to relieve illness, disease, injury or pain. This is another carry over from last year, when this bill ended up getting stuck in the House Committee for Courts of Justice.

HB 363 (Companion Animals in Protective Orders): Once again, this bill ties into a bill from 2011. Last year’s bill would have granted courts explicit authority to include companion animals in domestic violence protective orders. It was resolved by adding language prohibiting acts of abuse or offenses that result in injury to person or “property.” Needless to say, confusion has arisen with this language, and this bill attempts to clarify that a protective order petitioner can be awarded control, custody and care of a companion animal.

For an overview of last year’s legislative session, take a look at this post.  And on to new topics for this year’s session:

HB 537/SB 305 (Dangerous Dog Registry): This bill proposes to place primary responsibility for registering dangerous dogs with animal control officers instead of the State Veterinarian’s office. It would also lengthen the amount of time to obtain the certificate of registration from ten days to 45 days. The certification fee would increase from $50 to $150, but the registration fee that went to the State Vet would be eliminated.

HB 650 (Notice of Euthanasia for Companion Animals): This bill requires city and county pounds to maintain a registry of organizations willing to accept healthy and non-vicious companion animals scheduled to be euthanized, and requires the pounds to give 24 hours’ notice to the organizations prior to euthanizing. This bill also requires pounds to make available annual statistics of impounded animals.

HB 695 (Prohibiting Fox and Coyote Penning): The Humane Society of the United States (HSUS) has taken this crucial issue head on this year. This bill would make fox and coyote penning a Class One Misdemeanor. If you don’t know about this cruel “sport,” think dog fighting, but using foxes and coyote as bait animals. Read more about it on HSUS’s website.  And, Virginians, you can send a message directly to your legislators on this HSUS site.

HB 888 (Anti-Tethering Ordinances): Virginia is a strong proponent of “Dillon’s Rule,” which dictates that counties, cities and other localities have only those powers that the state has explicitly granted them. This is reflected in Virginia Code Section 3.2-6543, which lays out for localities the types of ordinances they may enact that impact companion animals. Leash laws are explicitly included, but that section does not directly address tethering. Some Virginia localities, such as Alexandria, haven’t let that stop them. But this bill would wisely make it clear that localities can regulate tethering.

Watch for three more bills that are in the works for this year’s legislative session: (1) establishing February 28 as Spay Day; (2) addressing TNR (trap, neuter and return of feral cats); and (3) prohibiting ownership of exotic animals. I’ll post more information on these as they become available.

If you live in Virginia, please reach out to your local legislators on these bills.  And consider joining HSUS and the Virginia Federation of Humane Societies for Humane Lobby Day in Richmond on January 26, 2012!

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The Nose Knows: Florida v. Jardines

In November 2006, an anonymous tipster informed police that Joelis Jardines might be growing marijuana at his house just south of Miami. Miami-Dade police and DEA agents began a surveillance operation outside the house. After a month of gathering intelligence on Jardines, police were ready to move in. Officer Bartlet showed up with Franky, a gregarious chocolate lab with a well-trained nose. Franky sniffed at the base of the front door, and quickly sat, alerting the officers to the presence of drugs.

The police used Franky’s training and actions to request a search warrant, and detailed Franky’s impressive law enforcement history. Franky has participated in 656 narcotics detection tasks, with 399 positive alerts that have led officers to 13,008 grams of cocaine, 2,638 grams of heroin, 180 grams of methamphetamine, and 936,614 grams of both processed and live-growing marijuana.

Armed with this information, officers succeeded in obtaining a search warrant for Jardines’ house. While executing the search warrant, police arrested Jardines as he tried to flee from the house. During the search, the officers confiscated 179 marijuana plants with a street value of over $700,000.

Jardines was charged with drug trafficking and grand larceny for stealing electricity to grow the plants. Jardines pleaded not guilty, and challenged the warrant and the search.

The trial court agreed with Jardines, tossing the evidence seized in the search. Florida’s intermediate appeals court disagreed, finding the search constitutional. The Florida Supreme Court sided with the trial court and ruled for Jardines. Now Florida prosecutors are pursuing the case to the United States Supreme Court.

This would not be the first K-9 case in the United States Supreme Court.  But if the Supreme Court takes this case, the Justices can examine the difference between “open fields,” which are fair game for a search, and “curtilage,” the area surrounding a house that is still constitutionally protected. Also up for discussion is whether the “plain view” doctrine – allowing officers to search and seize anything they can see in the open from a lawful vantage point – should be expanded to include the “plain sniff” doctrine.

The Justices would also have to grapple with a case called Kyllo, relied on by the Florida Supreme Court to side with Jardines. Kyllo held that use of a thermal imager constituted an unlawful search because it revealed “intimate details,” namely the ambient temperature, inside a house. The Justices could easily decide that using Franky is not the same as using sense-enhancing technology such as a thermal imager, and that unlike the thermal imager that can relate to both lawful and unlawful activity, Franky is specifically trained to detect and alert to only unlawful substances.

To follow whether the Supreme Court takes this case, and to find a link to the Florida Supreme Court’s opinion, visit SCOTUSblog. For more information and pictures of Franky in action, take a look at this AP article by Curt Anderson.

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Alexandria Animals Score Big Today!

This morning, the City Council in Alexandria, Virginia faced a final vote on two crucial companion animal laws.

The first vote was politically very easy and straightforward — after all, who could possibly disagree that there should be a specific cruelty law to address leaving an animal in a car on a hot day?  The new City Code Section 5-7-58 will punish leaving an animal in a car that is not air-conditioned if the outside temperature is 70 degrees or hotter with a fine, and makes it a jailable offense to leave an animal in a car if the animal suffers heat stress.  The vote took no time, passing 6-0.  There was no debate against the law, and plenty of well-deserved kudos to the Animal Welfare League of Alexandria and its hard-working animal control officers for taking the initiative on this issue.

The political temperature on the next vote was unknown — whether City Council would pass a law that would say definitively that electronic collars don’t cut it under Alexandria’s leash laws.  (Sound familiar?  Who’s said that before…?)  Plenty of speakers came out in support of proposed amendment to the leash law, and no one spoke against it.

After the testimony, Vice Mayor Kerry Donley started the discussion with the comment that this law — like the previous one — was a “no brainer.”  Donley’s first question to the staff was about the penalty for violating the leash ordinance, which is currently a $100 civil fine.  He then asked if that was the most the City could do under state law, and invited the staff to make a recommendation at a later date to stiffen the penalty.  And a discussion of possible harsher penalties for recidivists followed.  Nicely done, Mr. Vice Mayor!

Councilmember Del Pepper praised the ordinance for giving clear guidance to animal control officers and one more welcome tool for the officers.  Councilmember Rob Kupricka commented that electronic collars pose safety issues for the public and not just the animals, and he hoped the new law would aid the officers in confronting off leash dogs.

A crucial question raised by Pepper was how to get the word out to the citizens of Alexandria that electronic collars would no longer suffice as a “leash.”  Joy Wilson, the Director of Animal Control, responded that she plans to focus on educating the public about why the law changed.  Councilmember Frank Fannon had an excellent suggestion about reaching out through Alexandria’s robust pet care industry to spread the news.

After discussion, the City Council voted — once again, unanimously — in support of the change.  With that vote, the City of Alexandria has made it clear that electronic collars pose a sufficient safety threat to the dogs and the public that they will no longer count as “leashes” or “physical restraint” under the leash laws.

Major kudos to Alexandria’s Animal Control Officers and the Animal Welfare League of Alexandria!  As a resident of Alexandria since 1997, I can’t be more proud!  Thanks for all you do and congratulations on this huge victory for the animals!

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Alexandria, Virginia Steps Up Safety For Companion Animals

Tomorrow morning at 9:30 AM, the Alexandria City Council is poised to pass two ordinances aimed at companion animal safety.

The first ordinance is not a new topic for this blog –whether electronic collars qualify as “leashes” under Alexandria’s leash laws. The City Council is addressing this issue head on, and if this ordinance passes, will say unequivocally that a shock collar does not qualify as a leash. This law is a welcome step in the path of countries like Wales, which recently banned electronic collars.

Here is the gist of proposed amendment to Alexandria’s ordinance from the definitions section in Section 5-7-31 (j), with new language in bold and italics:

(j) Run or running at large. Roaming or running off the premises of its owner not under the control of its owner or a responsible person capable of physical restraining the dog and not secured by a leash, lead or other means of physical restraint, which leash, lead or other means of physical restraint is not harmful or injurious to the dog and which is held by a responsible person capable of physically restraining the dog. An electronic collar or other similar electronic device does not qualify as a leash, lead or other means of physical restraint.

Similar changes prohibiting electronic collars will carry through to Section 5-7-33.1, addressing dogs running at large, and Section 5-7-35, Alexandria’s leash law. You can see all of the proposed changes and further discussion on the proposed ordinance on the City of Alexandria’s website.

The second ordinance addresses locking animals in hot cars. The proposed law would make it a misdemeanor punishable by a fine for confining an animal in a car if the outside temperature is 70 degrees or hotter and the car is not properly air conditioned. The law would also make it a crime punishable by a fine and up to twelve months in jail for leaving an animal unattended if the animal suffers heat stress.

Here is the full language of proposed Section 5-7-58:

Sec. 5-7-58 Confinement of animals in vehicles prohibited.
(a) Any person who confines an animal in an unattended, enclosed vehicle where the outside temperature is 70 degrees Fahrenheit or greater, and the interior of the vehicle is not provided with conditioned air to maintain an internal temperature of 80 degrees Fahrenheit or less, shall be guilty of a Class 3 misdemeanor.
(b) Any person who confines an animal in an unattended, enclosed vehicle so as to cause the animal to suffer from heat stress as diagnosed by a licensed veterinarian, shall be guilty of a Class 1 misdemeanor. The Animal Control Officer or other officer shall have the authority to remove any animal found in an enclosed vehicle that appears to be suffering from heat stress. The animal shall be provided immediate veterinary care. The animal owner or custodian shall be responsible for all expenses incurred during the removal of the animal or its subsequent treatment and impoundment.
(c) In the event that the person responsible for the violation cannot be ascertained, the registered owner of the vehicle, as required by Chapter 6 of Title 46.2 of the Code of Virginia (1950), as amended, shall constitute in evidence a prima facie presumption that such registered owner was the person who committed the violation.
Section 2. That this ordinance shall become effective upon the date and at the time of its final passage.

Again, you can check the City’s website for more information on Section 5-7-58.

As a resident of Alexandria since 1997, it will make me very proud to see both of these ordinances pass tomorrow!  Check here for more information on the Saturday, November 12, 2011 9:30 AM docket.

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