816 NE2D 83 - Trimble v. State

SULLIVAN, Judge,

¶1dissenting.

¶2In the case before us, the deputy sheriff was responding to a credible report that the dog located in a doghouse at Trimble's residence was in need of food, water and medical attention.11 He drove into the Trimble driveway where he could see the doghouse located about five feet from the driveway and approximately thirty feet from Trimble's back door. The deputy *95went from the driveway to the back door, knocked, and when he received no response, proceeded back to the doghouse. He could see the dog's head but the dog would not exit the doghouse, whereupon the deputy pulled the dog from the doghouse so that he could observe its condition.

¶3Here, as in Divello v. State, 782 N.E.2d 433 (Ind.Ct.App.2003) trans. denied, the officer was present upon the property for the purpose of a law enforcement investigation. In Divello it was upon information that a substantial amount of marijuana was being harvested and sold. Here it was upon information that a dog was being . neglected and was in poor physical condition. In Divello, the officers were in close proximity to the house because they were attempting to ascertain the presence of the owner. In the case before us, the deputy's attempt to summon the owner by knocking on the back door could be viewed as incidental to the purpose of the investigation.

¶4My conclusion, as in Divello, is that the deputy here was in a place where he had a right to be, ie. at the doghouse which was located further removed from the back door where he also had a right to be as part of his investigation. That conclusion does not end the inquiry, however. The question raised is whether the officer had a legitimate right or even an obligation to extract the dog from the doghouse in order to ascertain its condition.

¶5In my view the intrusion to Trimble's right of privacy with respect to the dog and the doghouse was minimal in comparison to the very real likelihood that delay would exacerbate the dog's reported condition.

¶6In short, the deputy sheriff was doing his job and did not carry out his responsibility by virtue of an unreasonable search and seizure.

¶7For this reason, I would affirm the convictions.

¶8. The report to the sheriff's department was initiated by the owners of the dog. Mrs. Wilcox gave the information to her sister who in turn called the sheriff's office. Mr. Wilcox was then interviewed by the deputy sheriff who thereupon proceeded to the Trimble property. It is abundantly clear that the Wil-coxes are far from blameless in this matter. They failed to take action to remedy the situation when they had the opportunity to do so earlier and by such failure could be considered to have tacitly contributed to the dog's debilitated condition.