Please ensure Javascript is enabled for purposes of website accessibility
Home / Opinion Digests / Criminal Law / No Exclusionary Rule in ‘Dangerous Dog’ Case

No Exclusionary Rule in ‘Dangerous Dog’ Case

A proceeding to identify a “dangerous dog” under Va. Code § 3.2-6540(B) is a civil proceeding and the exclusionary rule does not apply to allow a court to suppress evidence, as the owner of the dog contends; the Fairfax Circuit Court also denies defendant’s motion to exclude an out-of-court identification of the dog by a single photograph.

This matter arises out of a dog bite incident that occurred on Dec. 29, 2014, in Fairfax County. The commonwealth alleges that two boxer dogs ran out of the front door of defendant’s residence, when the door was opened by defendant’s father. The canines ran down the street and knocked over the victim and proceeded to attack and bite him on his face, hand and leg. The victim was transported to the hospital by ambulance and received 18 stitches, as well as treatment for three fractured ribs. The victim stated that both animals bit him while he was on the ground, but it was a black boxer named “Guinness” that knocked down the victim and bit him on his face and hand. Defendant is the owner of Guinness. After the incident, two animal control officers arrived on the scene to question witnesses, including defendant’s father, and seized the dogs. This dangerous dog proceeding determining the status of the dog Guinness now is before the court.

Although defendant conceded that a proceeding under Code § 3.2-6540(B) is a civil proceeding, defendant drew a parallel to a 1965 decision, One 1958 Plymouth Sedan v. Pa., 380 U.S. 693 (1965), involving a civil forfeiture proceeding of a car where the exclusionary rule was applied.

Due to the dearth of case law on the nature of the dangerous dog proceedings, it is necessary to confirm this concession made by both parties to provide clarity and an explicative basis for determining applicability of the exclusionary rule. Based on a plain meaning textual analysis, the character of the penalties within the statute, as well as an understanding of the underlying purposes of the exclusionary rule, Code § 3.2-6540(B) should be treated as a civil proceeding, which thus bars application of the exclusionary rule to the dangerous dog proceeding.

The One 1958 Plymouth holding is not applicable here because, as the commonwealth asserted, a dangerous dog proceeding is not initiated to penalize the dog or owner for an offense against the law. This characterization of the dangerous dog proceeding is in contrast to the object of a forfeiture proceeding, which is to penalize a party for the commission of an offense against the law. In the case at bar, defendant was not penalized for ownership of the dog at issue. Further, defendant was not permanently deprived of the dog, and the temporary taking of the animal was authorized by the statute.

Because of the plain language of Code § 3.2-6540, the nature of the requirements there within and the underlying purpose of the exclusionary rule, this court holds that the exclusionary rule does not apply to dangerous dog proceedings held pursuant to Va. Code § 3.2-6540 as it is a civil proceeding.

The court must next address whether an out-of-court identification of a dog should be suppressed. The court holds that such an identification may not be suppressed. Defendant has provided no authority that would have the identification procedure of a dog in a dangerous dog proceeding – who has not been criminally charged – to be suppressed. There is no justification for extending the constitutional protection afforded to humans to the canine at issue in this case.

Even if such protections were afforded, the alleged identification at issue does not rise above the standards outlined by the U.S. Supreme Court for suppressing an out-of-court identification. Defendant’s claim that the use of a single photo of the dog being unduly suggestive is undercut by the evidence presented. Setting aside the commonwealth’s argument that the dog should be treated like a piece of property (clothing, weapon, etc.), the witness’s statements, the victim’s identification of the residence of the defendant (from where the dogs escaped on the day of the incident), as well as defendant’s father’s own statements to the officers confirm the reliability of the “unduly suggestive” photo. If there is an issue about the identification of the dog in a dangerous dog proceeding, that is a matter best left for trial. The out-of-court identification should be considered admissible.

Motion to suppress denied.

Commonwealth v. Shafer (Brodie) No. MI-2015-792, Sept. 28, 2015; Fairfax Cir.Ct.; Heidi Meinzer for defendant; Lauren E. Hahn, Comm. Att’y Office. VLW 015-8-113, 9 pp.

VLW 015-8-113

Leave a Reply