SO MUCH FOR THE LAW – PART 2
my dog-Argus
In my last blog, I discussed one recent California Supreme Court decision that makes absolutely no sense. This week, I want to discuss another, People v. Olguin, Case No. S149303 (California Supreme Court, December 29, 2008.) It caught my eye because it is about pets, and I am a pet lover, (more specifically, dogs!. See Argus, above.)
It seems that one of the conditions for probation in the County of San Bernardino is that the defendant notify his probation officer of the presence of pets at defendant’s place of residence. The probation officer has no unilateral power to do anything about or with this information (e.g. have it removed), but must get a court order to do so. The defendant must simply inform his probation whether he has a pet.
Here, the defendant pleaded guilty to two counts of driving with a blood-alcohol level in excess of 0.08 percent by weight. Pursuant to a plea agreement, his prison sentence was suspended and he was placed on three years’ supervised probation.
During his sentencing hearing, he requested that the word “pets” be stricken from the probation condition requiring him “to [k]eep the probation officer informed of place of residence, cohabitants and pets, and give written notice to the probation officer twenty-four (24) hours prior to any changes.” (Id. at 2.) His attorney urged this condition was unconstitutional and overbroad as it is not reasonably related to his future criminality and limits his fundamental rights.
The trial court denied the request. Defendant appealed. In a split decision, the appellate court upheld the trial court.
The Supreme Court agreed with the lower courts, finding that the defendant’s challenge lacked merit. As the Court illogically rationalized it:
“Probation officers are charged with supervising probationers’ compliance with the specific terms of their probation to ensure the safety of the public and the rehabilitation of probationers. Pets residing with probationers have the potential to distract, impede and endanger probation officers in the exercise of their supervisory duties. By mandating that probation officers be kept informed of the presence of such pets, this notification condition facilitates the effective supervision of probationers, and, as such, is reasonably related to deterring future criminality.” ( Id. at 1.)
In the ensuing pages of its opinion, the Court points out that proper supervision by a probation officer “. . .includes the ability to make unscheduled visits and to conduct unannounced searches of the probationer’s residence.” (Id. at 6). Thus, the safety of the probation officer is important, here. By being aware in advance that a pet exists on the premises, the Court points out, the probation officer can be “prepared” for the potential situation of a barking, aggressive or territorial dog protecting her turf, should the officer decide to conduct an “unscheduled” compliance visit. Further, according to the Court, this advance knowledge of the existence of a pet also will facilitate the probation officer’s ability to conduct an unannounced search of the residence. Again, the Court rationalizes:
“A pet, such as even a harmless small dog barking in the front yard, may act as a warning system, alerting the probationer to a probation officer’s approach prior to the officer’s knock at the door and allowing the probationer to destroy or hide evidence of illegal activity; it also may distract the probation officer or prevent or delay the officer from entering a residence or conducting a search. . . .” (Id. at 7).
The Court then emphasizes that this condition requires defendant only to inform his probation officer of the presence of pets and to give timely notice prior to any change in that situation. It neither forbids the defendant from owning a pet nor empowers the probation officer from forbidding pet ownership. (Id. at 8).
Luckily, this decision was not unanimous. Justice Kennard dissented, noting that the majority’s reasoning is flawed because it treats all pets alike and as life threatening:
“Falling within that reach would be Jaws the goldfish, Tweety the canary, and Hank the hamster, hardly the kinds of pets one would expect to strike fear in a probation officer.” (Dissent at 2.).
More pointedly, the dissent points out the illogic of the majority opinion:
“The majority expresses concern that pets may warn the probationer of the probation officer’s presence . . . I find that concern puzzling for two reasons. First, the probation condition does not solve the problem the majority poses because the probationer need only give notice that he or she has a pet; nothing in the condition prohibits probationers from having a pet (citation omitted.) Second, warning the probationer is irrelevant, because a probation officer cannot just barge into a probationer’s residence. The law requires knocking or other means of notice of the officer’s presence, and an announcement of the purpose of the visit (citation omitted.) This requirement itself warns the probationer of the officer’s presence.”
(Id. at 2-3.)
Finally, the dissent notes that if anything, pets have proven their rehabilitative worth. The physical and mental health benefits of animal companionship at home have been well documented. (Id.)
The only rationale I can fathom for this decision is that the California Supreme Court is not a pet loving court. Otherwise, it makes no sense.
While I recognize this is a criminal and not civil case, it still confirms my view that people should resolve their own disputes and not leave it to the courts to do it for them. I sure am glad I am a neutral in the business of facilitating self-determination!
. . .Just something (actually quite a lot) to think about!
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