4th Amendment, Fourth Amendment, Mass. Crim. Dig.

Mass. Crim. Dig.: Commonwealth v. Duncan

Contributing Editor: Sean P. Murphy

Commonwealth v. Duncan, 467 Mass. 746 (2014)

I. Facts

On a “bleak, snowy, and freezing” January day, a neighbor went to retrieve a borrowed shovel from Heather Duncan’s residence; although no one was home and the gate was locked, she observed two dead dogs in Duncan’s yard and heard a third dog barking. Responding to the neighbor’s subsequent call, police officers heard a dog whimpering as if in distress. Stepping on a tall, nearby snowbank and gazing over Duncan’s six-foot privacy fence, they saw two dogs who were apparently frozen and a third dog “alive but emaciated”—they couldn’t see any food or water left out for the dogs. The yard’s gate was padlocked, so officers tried numerous ways to contact the homeowner, to no avail. The officers then contacted the fire department, which removed the padlock from the gate, and animal control took custody of the dogs—in total, police were on scene for less than two hours.

II. Procedural History

Heather Duncan was charged with three counts of animal cruelty under G.L. c. 272, § 77. The defendant filed a motion to suppress the observations by police and any physical evidence, and after an evidentiary hearing the judge allowed the motion, stating “[o]ur courts have not as yet applied the emergency exception to animals.” Under Rule 34 of the Massachusetts Rules of Criminal Procedure, the judge reported the question of law, and trial was continued pending the resolution of the question.