How to Investigate Animal Cruelty in NY State – A Manual of Procedures

Chapter 1. Be Prepared Ahead of Time

Overview

There are several elements critical to the success of your animal cruelty investigation. They include:

• Local Resources
• District Attorney’s Office
• Expert Witnesses
• Photographic Evidence
• Key Concepts: Exigent Circumstance and Plain View Doctrine
• Search Warrant Procedure

If you become familiar with these elements before you receive an animal related complaint, your chances of presenting a good case will be enhanced.

Local Resources

One of the best ways to be prepared to investigate an animal-related complaint is to know the people in the area who deal with animals. When you receive an animal cruelty complaint, the following are people who will help you:

Humane Society Personnel/Animal and Dog Control Officers

You will find it helpful and sometimes necessary to enlist the assistance of the local humane society or animal and dog control officers. They often are familiar with the people in the community and are aware of animal-related complaints that may have occurred in the past. In addition, they have or know of facilities to which seized animals can be taken.

It is important to find out the capacity and capabilities of the local shelter to determine if it is able to accommodate extra animals or farm animals on an emergency basis. Even if the local shelter cannot accommodate an influx of animals, it may be able to enlist the aid of other shelters or individuals who can.

Also, advise the shelter to petition the court to hold a security bond hearing, to compel the defendant to post a bond to cover the cost of animal care up front. This process is explained in Agriculture & Markets, Article 26, Section 373 6(a). A complete explanation of the process and downloadable forms are provided on the NYSHA website at: https://www.nyshumane.org/security-bond-posting/.

Veterinarians

One of the people essential to the successful outcome of any cruelty investigation is the veterinarian you engage on the case. The importance of the veterinarian cannot be stressed enough.

Thus, as part of your contact effort, locate a few local veterinarians who would be willing to assist you with animal cruelty cases and provide you with sworn statements. Ensure that they understand that they may be required to testify in court at a later date regarding the condition of the animals. They are testifying as expert witnesses; thus, it would be helpful if they have testified in previous proceedings

Local riding academies, stables, farmers

Some cruelty complaints will involve large animals and farm animals. In some cases a problem might arise in removing the animals from the circumstances because many shelters do not have facilities to accommodate them.

To be prepared ahead of time, become familiar with the stables, riding academies, and farmers in your area who are sympathetic to the plight of animals involved in animal cruelty complaints. Ask if they would be receptive to boarding such animals if the need should arise. Be aware that animals coming from a cruelty case generally will have health issues, so it is more likely that you might find placement with people who own a different species of animal. For example, a person who has horses will not want to help with diseased horses, but might help with goats, if the goat diseases are not transmittable to horses.

You might also find out who is responsible for the local fair grounds. Most fair grounds generally contain barns or large buildings on the property. You might ask if they could be used on a temporary basis if the need arises.

District Attorney’s Office

Because animal cruelty cases are not the norm, it is important to establish contact with the District Attorney’s (DA’s) office early and maintain it throughout a case.

There are several elements the DA’s office considers in determining whether to prosecute an animal cruelty case: the strength of the evidence, the admissibility of the evidence, the background and history of the offender, the experience and training of the arresting officer, and the recommendations of the arresting officer.

To ensure that you are presenting a good case, inform the appropriate Assistant District Attorney (ADA) about the case as soon as possible. In addition, make your initial investigation solid; it is the foundation upon which the rest of the case is built.

What to do

• If you are involved in a complicated case, ask an ADA to review your application for a search warrant to ensure that it is in accordance with the United States and New York State Constitutions. (If possible, have all applications for search warrants reviewed.)
• Always contact the DA’s office on serious and complicated cases. If the case warrants it, the ADA can send an officer undercover to gather evidence for your case, thus enhancing the chances of bringing charges against the defendant and crafting a solid case.
• Make the DA’s office aware of the condition of the animals as soon as possible after they are seized. Ensure that the ADA assigned to the case has copies of all necessary paperwork (Depositions, Information, etc.), and copies of all photographs and video tapes. (Be sure to obtain a receipt from the DA’s office for all photographs, video recordings, and all other evidence.)
• After presenting your Information or Felony Complaint to the DA’s office, continue working with the ADA to obtain whatever additional evidence he requests.
• Decisions as to how the case will be handled will be made by the DA’s office, generally with input from law enforcement and the humane organization involved.

If the DA’s office seems to lack interest in your case, find out why, if possible. Perhaps past cases they received were not well documented, the evidence was poor, and the case was not win-able. If your case is well prepared, and you are supportive and enthusiastic about its prosecution, the response may be different.

IMPORTANT: Occasionally, the probation department sends inquiries to the arresting officer asking for opinions as to what should be done with regard to sentencing. Respond to them, especially for cases in local Justice Courts. Your response is important to the recommendations of the Presentence Investigation Report. If you fail to respond, your input cannot get factored into the sentence.

Whether the case ends in a plea bargain or a conviction after trial, ask the ADA to recommend that as part of the sentencing, the judge order the person to:

• surrender the animals to the local humane organization (see section 374.5 of the Agriculture & Markets Law, Article 26)
• not have any more animals for a reasonable period of time (see section 374.8(c) of the Agriculture & Markets Law, Article 26)
• pay restitution for the cost of care to all humane organizations involved in the case, if there has not been a security bond posting hearing held prior to the case being adjudicated

Regardless of the number of animals seized, it is important that the case be resolved as quickly as possible. It is a great burden for local shelters to house animals if cases drag on for months. The quality of your evidence and your witnesses may facilitate a speedy resolution to the case.

Expert Witnesses
One of the best ways to build a strong animal cruelty case is to support your charges with experts dedicated to animal welfare.

In most circumstances, your best expert witnesses are veterinarians. They have extensive knowledge of animals and can testify to the fact that an animal was malnourished, diseased, suffering, etc.

In addition to veterinarians, a person can testify as an expert witness if he knows more about a given subject than the average individual. Be aware that sometimes the witness must have the judge’s approval to be considered an expert witness in order to testify at trial as to certain opinions and facts.

The following are examples of expert witnesses:

• Veterinary technicians
• Reputable dog trainers or animal behaviorists
• Reputable breeders
• Farriers (blacksmith/horse shoer)
• Reputable horse breeders or stable owners
• Wildlife rehabilitators

What to do

When you investigate the case, assemble your expert witnesses. A case of animal cruelty is very difficult to prove in a criminal trial without expert testimony.

You might use them at the actual scene when you are executing a search warrant, or you might use them after the animal has been seized. We recommend the following:

• Call a local veterinarian whom you know and request that he assist you by examining the animals and providing a sworn statement as to their condition.
• Ask the veterinarian and the local humane society staff for the names of any additional expert witnesses
• Call those witnesses and ask if they would assist and possibly be willing to sign a statement with regard to the condition of the animals.

NOTE: NYSHA has developed a “Veterinarian’s Statement Animal Evaluation” form to be used to document an animal’s condition and dispositions (see Appendix IV Forms & Supplies List). Make photo copies and provide them to the veterinarian. They will make his job easier, especially if there are numerous animals involved, and will provide you with a consistent documentation format to give to the ADA. When this form is completed and signed, it is a court-ready document.

Photographic Evidence
One of the best pieces of evidence that you can use to document animal cruelty/neglect is photographic evidence. The importance of photographs cannot be over-emphasized. Your objective is to show the judge and jury the neglect or cruelty that prompted the complaint and caused you to charge the owner (or person responsible for the care of the animal) with animal cruelty charges.

Animals cannot generally be brought into the court room, and even if they could, their physical condition always will have improved by time the case goes to court. Thus, it is critical that a judge or jury see the poor condition the animals were in on the day they were seized. No amount of verbal testimony can convey the suffering as well as photographs which clearly depict emaciation, injuries, filthy conditions, etc. They validate all the written documents you have accumulated.

What to do

Always take a digital camera, and if possible, a body camcorder, when you are investigating a complaint. Ideally, both should be capable of generating a date and time stamp on the film and video. Also, depending on the circumstances, you might consider taking a Polaroid as a backup. That way, if something goes awry with your digital photos, you will still have the Polaroid photos.

CAUTION: Normally you would take photographs or video the scene; however, if exigent circumstances were involved, and you had to remove the animal(s) immediately to a veterinarian’s office, you would take photographs of the animal there.

IMPORTANT: Images of police and others helping at the scene will appear in photographs and videos. In cases involving large numbers of animals, many volunteers may be needed. Insist that they maintain a professional image at the scene. Assisting at a scene of animal cruelty is very stressful and people act to ease the stress in various ways, one of which is telling jokes. Images of people laughing and smiling in photos or video comes across as callousness. In court, the defense can contrast this with the crying face of the owner, and you could lose your case as a result.

Photo Taking Guidelines

We have found the following guidelines to be useful:

• Take photos of the animal from various angles. If possible, take front, back, and both sides. Take a picture of the animal’s surroundings.
• Certain details of the animal’s appearance will demonstrate neglect; for example, overgrown toenails, overgrown hooves, skin infections, sores. Take a close-up photo of any such detail.
• Take photos of all animals, including any dead ones.
• If there are many animals, or if some of them look alike, identify each of them with an ID number. This can be done in a simple manner by using a thick black marker to write a large identifying number on a sheet of paper and placing the numbered sheet in all pictures of that animal. (A process for dealing with large numbers of animals is explained in the Animal Hoarders portion of the Special Cases section.)
• If you have access to a video recording device, you can use it to show any problems the animal may have in moving about. In addition, you can use it to record the entire scene relating to the condition of the animals.

What do you do with the evidence?

Ensure that you have two copies of the photos or video recording. Provide one to the District Attorney’s Office. Secure the other in your evidence file. Save all notes made by investigators, animal control officers, etc. and enter them into evidence.

EXAMPLES OF DETAIL PHOTOGRAPHS
1. Detail of toenails	2. Detail of hernia
3. Detail of eye encircled by mange
4. Detail of emaciated mother dog

Key Concepts: Exigent Circumstances and Plain View Doctrine
There are two concepts that are important to your investigation of animal cruelty:

• Exigent circumstances
• Plain view doctrine

Exigent Circumstances

Within the context of animal cruelty, exigent circumstances exist if you find an animal in circumstances that put its life in danger. Section 371 of the Agriculture & Markets Law states,

In addition, Subdivision 4 of Section 373 of the Agriculture & Markets Law states:

Based on these sections of the law, it has been our experience that if you come across an animal in such circumstances, you should consider removing it immediately rather than waiting to obtain a search warrant.

Examples of Exigent Circumstances:

1. You are investigating an animal complaint. As you approach the property, you see a cat that is emaciated and unable to get up lying on the porch. It appears to be in danger of dying. You can seize the animal and remove it, and charge the owner with a violation of Section 353 of the Agriculture & Markets Law. The person may also be charged with a violation of 353-A, the felony cruelty law.
2. It is a hot day. You are called to a parking lot to investigate a complaint about a dog in a locked car with the windows rolled up. The dog is panting heavily and is in danger of death. You can enter the car and remove the dog and provide whatever assistance is needed. If possible, have someone witness the situation and sign a statement. You can charge the owner or person responsible for the dog’s situation with a violation of Section 353, as well as a violation of Section 353-D of the Agriculture & Markets Law.
   (NOTE: If authorities have to break a window to enter the car, they are not held criminally or civilly liable for actions taken to enforce this law.)
3. You are sent on a complaint and see a dog chained with a collar embedded in his neck, causing extreme suffering. You may seize the dog and call the animal control officer or humane agency personnel to take the animal to a veterinarian for treatment and charge the person responsible with a violation of 353 of the Agriculture &Markets Law.
4. You are going about your duties and see a man beating a dog with a baseball bat. Arrest the man under Section 353 of the Agriculture & Markets Law, seize the dog, and call the dog control officer or humane agency personnel to take the animal for veterinary treatment. The man may additionally be charged with 353-A, felony cruelty.
5. You come upon two men fighting their pit bulls. Arrest the men under Section 351 of the Agriculture & Markets Law, and call the dog control officer or humane agency personnel to remove the animals and take them for veterinary treatment, if necessary.

Plain View Doctrine

There are two aspects of the plain view doctrine that are important in animal related cases:

1. Plain View Observation
   Based on our experience with the law, when you are investigating an animal related complaint, you can make observations to determine its validity from a place where you have a right to be while doing your job. (The plain view doctrine regarding a search of persons and property suspected of criminal activity was established by court cases, some of which are: People v. Jackson, 41 NY2d 146 (1976), People v. Dancey 84 AD2d 763, 443 NYS2d 776 (2d Dept., 1981), People v. Arroyo, 188 AD2d 655 592, NYS2d 52 (2d Dept., 1992).) The lead federal case on the plain view doctrine is Horton v. California, 496 U.S. 128 (1990).

   Examples:

   1. You are driving up to a person’s house to investigate a cruelty complaint, and you see an animal that appears to be extremely neglected in plain view. You can use that observation as evidence in your investigation.
   2. An owner will not allow you on the property to see the animal; however, a neighbor, whose property adjoins the owner’s property, allows you to observe the animal from there. If your observations confirm the complaint, you can use them to apply for a search warrant. Based on your observations of the animal’s situation in plain view you can do the following, depending on the animal’s condition:
      • Make contact with the owner to discuss the situation.
      • Remove the animal if exigent circumstances exist.
      • Apply for a search and seizure warrant.

2. Plain View Doctrine (during a search)
   Based on our experience with the Plain View Doctrine, if while you are executing a search warrant during an animal related investigation, an object that is evidence of criminal activity is found, that object may be seized and used as evidence. Bear in mind that you must be in a place where you are authorized to be by the search warrant, and you must search within the scope of the search warrant. (The Plain View Doctrine during a search was established as a result of court cases, some of which are: Arizona v. Hicks, 480 U.S. 321, 3245 (1987), People v. Jimenez, Misc.2d, N.Y.L.J. 4/23/93 (Sup. Ct. N.Y. Co. 1993), and People v. Spinelli, 35 NY2d 77, 358 NYS2d 743 (1974).) The lead federal case on the plain view doctrine is Horton v. California, 496 U.S. 128 (1990).

   Examples:

   1. You are executing a search warrant relating to dog fighting. During the course of executing it, you come across some birds that appear to be fighting cocks. You can seize the birds and use them as evidence.
   2. You are executing a search warrant to investigate a complaint about dogs barking in a vacant building. You come across objects in plain view that indicate that dog fighting has been taking place there. You can seize the objects as evidence.
   3. You are executing a search in a barn looking for an injured horse. During the course of your search, you open the drawer of a file cabinet and find a photo of the owner beating the horse. The photo could not be used in court because it was found outside the scope of the warrant; you would not look for an injured horse in a drawer.

Search Warrant Procedure
In this section, we have outlined procedures that deal with applying for and executing a search warrant in an animal cruelty case, as well as examples of documents used in actual cases that you can use as models:

• Applying for a search warrant
• Executing a search warrant
• Completing the search and seizure receipt/inventory

A search warrant is needed anytime you wish to enter private property to investigate an animal related complaint. **The Fourth Amendment to the United States Constitution specifically protects against entering a person’s property without probable cause:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

If you wish to seize animals, or if you need to enter the property for the purpose of gathering evidence, such as photographs, or a combination of both, you need to apply for a search warrant.

** EXCEPTION: In case of exigent circumstances an animal is in a situation where its life is in danger if action is not taken, you may enter the property and remove the animal without a search warrant. See “Key Concepts: Exigent Circumstances and Plain View Doctrine” in the “Be Prepared Ahead of Time Section.”

Applying for a Search Warrant

Your application identifies in detail the property you are requesting to search, the law that is being violated, the animals and related elements you wish to search and seize, and facts that led you to this request. The way you draft the search warrant is key to your success in an animal related case.

Ensure that your application for a search warrant is as comprehensive as you need it to be because items seized outside the confines of what is specified on the search warrant may not be allowed as evidence.

Consider the following questions when applying for a search warrant in an animal related case.

Animal-related Questions

1. Do you have any expertise with regard to animals that is relevant to the case? For example, the case involves horses and you are an experienced rider.
2. What is the exact location and description of the property that you wish to search? (Note that animal-related cases have been thrown out of court because the location of the property was not properly specified. Other cases have been invalidated because the wrong houses have been searched.) Being as precise as possible is critical.
• What street/road is the property located on?
• What side of the street/road? North? etc.
• What is the closest street? (For example, Green Hollow Road is 1/4 mile South of Main Street.)
• What color is the house? What is it made of?
• Does it have a fence? Is it a corner lot?
• What other identifying characteristics make it clear that it is this property that you wish to search?
• Ensure that you provide a description of all buildings.
• (If you have the time, list the lot and block numbers, according to the tax maps of the town/county.)
3. What probable cause do you have to believe that a violation is being committed on the property? The reasons you cite here will determine whether or not the judge will issue a search warrant, so you must be specific. Enter your reasons, followed by those of your witnesses, based on their sworn statements, as follows:

   IMPORTANT: Ensure that you and your witnesses state facts, not conclusions in the sworn statements. For example, state “the cat had a yellow, foul smelling discharge running from its eye,” rather than “the cat looked like it had a cold.”

• What is the name, address, telephone number, and date of birth of the person who provided you with a sworn statement?
• What was the date of the sworn statement? Recap the statement, ensuring that times, dates, and instances of cruel behavior are carefully documented.
• Follow the same process with each sworn statement that you have.
4. What are you specifically requesting to search (you must have probable cause for each area you wish to search)?
• The house? All outbuildings? Storage areas? Specify all the areas you want to search.
• What property and evidence are you asking the court to seize? Dogs, cats, carcasses? Records? You must include all elements you expect to encounter that you wish to seize.
• Who should enter the property with you? What humane animal agencies? What veterinarians?
5. What are you asking that you and the agencies specified above be allowed to do while on the property?
• Remove the animals? Feed the animals? Provide them with veterinary care? Euthanize the animals that need to be euthanized? Impound the animals on the property?

IMPORTANT: For maximum effectiveness and cooperation, if possible, ask the Assistant District Attorney assigned to the locality involved to check your search warrant before submitting it to a judge for signature.

Is there a time limit?

Once you ascertain that probable cause for a complaint exists, there is no time limit within which you must ask for and receive a search warrant. A court will not count the number of days between the time of the occurrence of events and the time you ask for a search warrant; you only need to satisfy the court that the property you described in your application, and are seeking to obtain, is still at the designated location.

In general, to ensure that the conditions of the complaint have not changed, you would apply for the search warrant as soon as possible.

Executing the Search Warrant

If a local magistrate agrees with your application, he will issue and sign a search warrant that directs the law enforcement agency named on the warrant to legally enter and search the designated location and seize the property specified on the warrant in addition to performing other tasks designed to bring relief to the animals.

Keep the original copy of the search warrant in your possession. Before you conduct the search, give a copy to whoever is on the property that appears to be in a position of responsibility. If no one is on the property, leave a copy of the search warrant in a prominent place.

You must execute the warrant between 6 a.m. and 9 p.m., unless the warrant expressly allows for a nighttime search. Also, you must knock and announce your presence ­ before you conduct the search unless the warrant expressly allows for a “no-knock” search.

NOTE: If the magistrate turns down your application, the reason will generally be a lack of probable cause, in which case you will have to obtain more evidence and apply again.

Staying on the Property

You can stay on the property for as long as it takes you to complete the search and render assistance to the animals. When you are on the property, you must maintain a chain of custody by your continuous presence.

Post an officer on the scene if you are forced to leave for a short period of time to get an updated warrant for a new area to search, bring animals for treatment, etc.

Once the search warrant is executed, and you release the premises back to the owner/occupant, you will need a new warrant to re-enter.

After you complete the search, give the original copy of the search warrant to the court and keep a copy for your records.

Is there a time limit?

According to Article 690 of the NYS Criminal Procedure Law dealing with Search Warrants, once the search warrant is issued, it must be executed within ten days, or it becomes invalid.

Completing the Search and Seizure Receipt and Inventory

Once you complete the execution of a search warrant and seize property, you must complete a receipt in which you specify all property that you seized at an individual’s property. This includes animals (dead and alive) and any related elements that indicate that the animals were neglected or abused on the property.

How do I fill it out?

When you complete the document, be specific. Indicate the type of animal that was seized (dog, cat, pig, etc.), the sex of the animal, the breed (or if it is a mixed breed, indicate the mix), the color, and how many of each were seized. Veterinarians or other expert witnesses will be able to provide you with this information.

For property other than animals, describe the property in detail. Specify the size, the color, and the shape. If, and only if, you know what it is, list it as such. For example, if you are seizing evidence in a dog fighting case, and you come across an implement that is normally used to pry a dog’s mouth open during the fight (breaking stick), you would list it as “1 breaking stick.”

What do I do with it?

Leave a copy with the individual whose property you searched. If the individual is not at home, leave a copy in a prominent place.

File the inventory receipt with the court as soon as possible after you execute your search warrant and keep a copy for your records.

Provide the District Attorney’s Office with the veterinarian’s sworn statement of the animals’ condition as well as the documentation that indicates where the animals are being held.

Examples of Forms:

• Application for Search Warrant
• Search Warrant
• Property Statement
• Receipt and Inventory