State v. Randall J. Sheperd

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal
revision before publication in the Vermont Reports. Readers are requested to notify the Reporter
of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109
State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made
before this opinion goes to press.

2017 VT 39

No. 2016-145

State of Vermont Supreme Court

On Appeal from
v. Superior Court, Franklin Unit,
Criminal Division

Randall J. Sheperd November Term, 2016

Alison S. Arms, J. (motions for forfeiture and to suppress); Robert A. Mello, J. (costs)

James A. Hughes, Franklin County State’s Attorney, St. Albans, for Plaintiff-Appellee.

Matthew F. Valerio, Defender General, and Sarah Star, Appellate Defender, Montpelier, for
Defendant-Appellant.

PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.

¶ 1. ROBINSON, J. In this case involving multiple counts of cruelty to animals,

defendant appeals the trial court’s denial of a motion to suppress and its order imposing costs for

the care of forfeited animals. With respect to the suppression motion, defendant argues that: (1) the

warrant was unconstitutionally broad in allowing the search for and seizure of any animal found

at defendant’s home; (2) there was no veterinarian present during execution of the warrant as

required by statute; (3) and the court improperly placed the burden of proof on defendant at the

suppression hearing. He also argues that the court abused its discretion in ordering him to repay

costs incurred in housing the forfeited animals in the amount of $51,070. We affirm the trial

court’s rulings on the first three issues, but we reverse and remand for reconsideration of the court’s

order regarding statutory costs of care for the forfeited animals.
 ¶ 2. The trial court made the following findings of fact. In February 2015, an animal

control officer responded to a complaint concerning dogs at defendant’s home. When the officer

arrived, she heard barking coming from the house. Defendant’s daughter answered the door and

told the officer that defendant was not home, and the officer offered to leave a bag of dog food at

the house. The officer retrieved the bag of food from her car, and when she returned to the house

a dog appeared from under a blanket on the porch. The temperature was thirty degrees below zero,

the porch was not protected from the elements, and the officer saw no sign of dog food or water

nearby. According to the officer, the dog appeared emaciated and too weak or cold to stand. She

knocked on the door to tell the daughter that she should take the dog inside, but nobody answered.

At that time, the officer saw two more dogs in the house and heard barking coming from inside.

¶ 3. The officer’s observations at defendant’s home and her concerns for the dogs

prompted her to first contact the state’s attorney and the state police, and then to obtain a search

warrant for the house.1 The warrant authorized the search for and seizure of two specific dogs, a

male and female pit bull, as well as “any additional pit bull or pit bull mix dogs on the premises.”

The warrant also included the sentence, “I would like to search inside and outside the home for

any additional animals.” The warrant was issued pursuant to 13 V.S.A. § 354(b)(2), which allows

a humane officer to apply for a search warrant upon probable cause that an animal is being

subjected to cruelty.2 That statute provides that “[a] veterinarian licensed to practice in Vermont

must accompany the humane officer during the execution of the search warrant.” Id.

1
The search warrant was apparently based on not only the animal control officer’s direct
observations, but also her report that defendant had voluntarily relinquished a dog to a deputy
sheriff, who had observed “four additional puppies in distress.” We draw this inference not from
the record, because the affidavit supporting the search warrant was never offered into evidence,
but from defense counsel’s representations in the motion to suppress.
2
13 V.S.A. § 351(4) includes animal control officers under the definition of “humane
officer.”
2
 ¶ 4. The officer executed the warrant on February 5, 2015 at around 4:00 p.m. She was

accompanied by her supervisor and state troopers, but not a veterinarian. A veterinarian had been

contacted, but was unable to be present. When they arrived at defendant’s home, the temperature

was below zero and the officer noticed that the dog she saw during her previous visit was still on

the porch; this dog was eventually taken from the house during the search. Defendant answered

the door, the officer presented him with the search warrant, and he allowed them inside.

¶ 5. Once in the kitchen, defendant locked one dog in the bathroom after explaining that

the dog had a propensity to bite. There was another dog in a crate. One of the troopers reported

that the crated dog was extremely thin, with its ribs and hips visible through its skin, and was in

need of medical attention. The animal control officer removed these two dogs from the house.

The officer found two more dogs upstairs and took them from the house. The troopers later

reported that the house smelled strongly of dog feces and urine. The troopers asked defendant if

he had any more dogs and defendant told them there were two more in the basement. The basement

was only accessible from the outside and when the troopers went to look for the dogs there were

no fresh footprints in the snow, indicating that defendant had not checked on the dogs since the

snow stopped falling that morning. The troopers opened the door to discover an unlit, cold

basement with a cement floor covered in dog feces and urine. The troopers found and removed

two dogs from the basement, both of whom were skinny, malnourished, and had patches of fur

missing.

¶ 6. Altogether, the animal control officer found and took seven dogs from defendant’s

house during the search. The officer and troopers reported that all were thin, appeared unhealthy,

and had fleas. They observed that several had patchy fur and visible ribs, backbones, and hips.

The dogs were taken to another location where the director of a nearby animal rescue organization

examined them further. The director reported that the dogs were emaciated and dehydrated, and

their appearance showed that they were being deprived of food, water, and medical care. The dogs

3
were given food, water, and blankets for the night. The next morning, they were examined by a

veterinarian who later testified that almost all the dogs were underweight and had skin conditions,

patchy fur, very long nails, and fleas.

¶ 7. The State filed a motion for forfeiture of the dogs on April 3, 2015, and defendant

filed a motion to suppress on April 10. The trial court held a hearing on August 19, 2015 to address

both motions but continued the matter after hearing from several witnesses because the court had

another hearing scheduled at that time. The next hearing was not held until February 3, 2016, at

which time the court continued the case again to provide the State with additional time to organize

and prepare witnesses. On March 2, 2016, the court heard testimony from more witnesses but

again continued the case, partly because the veterinarian who examined the dogs after they were

taken from the house could not be at the hearing. The court heard from the remaining witnesses

on March 30 and issued a written decision on the suppression motion and the forfeiture request

that day.

¶ 8. The court denied defendant’s motion to suppress. Defendant’s motion argued that

the warrant was not supported by probable cause, that the warrant was overly broad, and that the

execution of the warrant was improper because there was no veterinarian present. The court

rejected defendant’s argument that the warrant was not supported by probable cause because

defendant did not submit to the court any of the supporting evidence underlying the warrant

request; thus, defendant failed to meet his burden in showing that the warrant was not supported

by probable cause. The court concluded that the warrant was not impermissibly broad because it

limited the search to pit bulls and pit bull mixes after the issuing court received reliable information

establishing probable cause to believe some number of pit bulls in the home were being subjected

to cruelty. Lastly, it determined that the execution of the warrant was not unreasonable because,

although 13 V.S.A. § 354(b)(2) calls for a veterinarian to be present during the search, the statute

did not provide a remedy in the case of a violation and suppression was therefore not appropriate.

4
 ¶ 9. The court granted the State’s forfeiture motion with respect to all but one of the

dogs pursuant to 13 V.S.A. § 354(f)(1).3 The court concluded that this dog, who was not as

unhealthy as the others, “was not subjected to cruelty, neglect, or abandonment” and therefore was

not subject to forfeiture. Pursuant to the forfeiture statute, the court ordered that defendant repay

all reasonable costs incurred by the custodial caregiver for caring for the animals, including

veterinary expenses. The court set a further hearing regarding these costs.

¶ 10. At the April 5 hearing on costs, the court received uncontested evidence that the

Franklin County Humane Society, which housed the forfeited dogs from February 5, 2015 until

the court’s March 30, 2016 forfeiture, spent $1270 for testing, medication, and veterinary treatment

for the dogs. The Humane Society also sought daily charges of $20 per day per dog for boarding

the animals during that period. Defendant argued that the daily charges for boarding sought by

the Humane Society were not direct “costs incurred,” since they represented primarily overhead

costs to the Humane Society. He also contended that he should not be responsible for all 415 days

the dogs were housed because much of the delay in this case was caused by the court and the State.

¶ 11. In its written decision the next day, the court rejected both arguments. On the first,

it reasoned that caring for animals requires more than just food and veterinarian bills. The Humane

Society must pay their heating bill, staff salaries, and property taxes to keep the animals warm and

cared for. Regarding the second argument, the court concluded that the statute required payment

for all the reasonable costs incurred by a custodial caregiver and did not contain any exceptions

that would allow the court to reduce the number of days for which the Humane Society was

reimbursed. The court ordered defendant to pay the Humane Society $51,070 pursuant to the

statute.

The court’s forfeiture order also encompassed a dog that defendant had given to a deputy
3

sheriff prior to execution of the warrant. The costs associated with caring for this dog were not
included in the trial court’s subsequent order requiring defendant to pay those costs. Further
explication of the circumstances surrounding this dog is not necessary in connection with the issues
in this appeal.
5
 ¶ 12. On appeal, defendant challenges the court’s denial of his motion to suppress on

three bases: (1) the warrant was unconstitutionally broad because it allowed for the search for and

seizure of any animals found at defendant’s home; (2) execution of the warrant was unlawful

because there was no veterinarian present; and (3) the trial court improperly placed the burden of

proof on defendant with respect to his probable cause challenge. He also argues that the court

failed to exercise its discretion in determining the reasonableness of the total costs of the dogs’

care. We consider each issue in turn.

¶ 13. When reviewing the denial of a motion to suppress, we review a trial court’s

findings of fact under a clearly erroneous standard and its legal conclusions without deference.

State v. Bryant, 2008 VT 39, ¶ 9, 183 Vt. 355, 950 A.2d 467. Here, defendant is challenging only

the trial court’s legal conclusions so our review is plenary and nondeferential. Id.

I. Scope of the Warrant

¶ 14. We reject defendant’s argument that the warrant was unconstitutionally broad

because it authorized the officers to search for and remove any animals, although the warrant only

listed two specific pit bulls. Probable cause in this case supported the warrant’s full scope and the

warrant’s language was sufficiently particular. We conclude on the record of this case that once

the animal control officer established probable cause concerning the dog on the porch, she had

probable cause to search for and seize all dogs at defendant’s home.

¶ 15. The United States and Vermont Constitutions require warrants to particularly

describe the places to be searched and the things to be seized. U.S. Const. amend. IV; Vt. Const.

ch. I, art. 11. The “principal evil” to be remedied by this requirement “was the issuance of general

warrants and the concomitant vesting of officers of the state with unlimited discretion to intrude

upon the privacy interests of particular individuals of their choice without particularized suspicion,

in the hope of immediately discovering wrongdoing.” State v. Martin, 2008 VT 53, ¶ 18, 184 Vt.

23, 955 A.2d 1144 (emphasis removed).

6
 ¶ 16. To be sufficiently particular, the scope of a warrant must not exceed the probable

cause upon which it is based, United States v. Zimmerman, 277 F.3d 426, 432 (3d Cir. 2001), and

it “must enable the executing officer[s] to ascertain and identify with reasonable certainty those

items that the magistrate has authorized [them] to seize.” United States v. George, 975 F.2d 72,

75 (2d Cir. 1992). Warrants that authorize the police to search for evidence of any crime, without

linking the evidence to a particular illegal activity for which there is probable cause, are

unconstitutionally broad. See id. at 75-76 (holding warrant allowing search for “any other

evidence relating to the commission of a crime” too broad because “[n]othing on the face of the

warrant tells the searching officers for what crime the search is being undertaken”). On the other

hand, the particularity requirement must be considered within the context of the surrounding

circumstances; a warrant’s description “ ‘will be acceptable if it is as specific as the circumstances

and nature of the activity under investigation permit.’ ” State v. Dorn, 145 Vt. 606, 619, 496 A.2d

451, 458 (1985) (quoting United States v. Wuagneux, 683 F.2d 1343, 1249 (11th Cir. 1982)),

abrogated on other grounds by Horton v. California, 496 U.S. 128 (1990).

¶ 17. Additional considerations come into play when a warrant calls for the search for

and seizure of animals. This Court has recognized that nonhuman animals occupy a unique legal

status in that they have traditionally been regarded as property but are nonetheless “different from

other property.” Hament v. Baker, 2014 VT 39, ¶ 8, 196 Vt. 339, 97 A.3d 461. Accordingly,

animals “generally do not fit neatly within traditional property law principles,” but instead

“occup[y] a special place somewhere in between a person and piece of personal property.” Morgan

v. Kroupa, 167 Vt. 99, 103, 702 A.2d 630, 633 (1997) (quotation omitted). Various laws limit

peoples’ ownership rights over animals, requiring them to provide a minimum level of care to

animals in their possession and prohibiting them from treating animals the same way they might

treat true, nonsentient property. See, e.g., 13 V.S.A. §§ 352, 352a (criminalizing cruelty to

animals); id. § 386 (prohibiting confinement of animals in motor vehicles when conditions are

7
dangerous, and allowing state agents to remove animals from a vehicle to prevent harm). This

special treatment of animals reflects a recognition that animals are living, sentient beings to which

the law may provide protections in their own right. Hament, 2014 VT 39, ¶ 8.

¶ 18. Other states have considered the role of animals’ special legal status in the context

of searches and seizures. These cases establish that the treatment of animals is different from that

of other types of property in this area of the law and that animal welfare is a factor we must consider

when determining whether a search or seizure was lawful. For example, the Oregon Supreme

Court in State v. Newcomb, 375 P.3d 434, 444-45 (Or. 2016) recently held that a warrant is not

needed to draw and test the blood of a dog lawfully seized based on probable cause that the dog

was neglected. The purpose of the blood test was to determine whether an unknown medical

condition or starvation caused the dog’s malnourishment, and therefore to ensure that the dog

received proper treatment. The defendant argued that the blood test was an unlawful search, as

Oregon law requires the state to obtain a warrant before searching the interior of lawfully seized

property, when the contents are not apparent from the property’s exterior. The court examined the

animal’s legal status in depth and declined to view the dog as “an opaque inanimate container in

which inanimate property or effects were being stored.” Id. at 442. Instead, the court reasoned

that although a dog is legally considered personal property,

Oregon law simultaneously limits ownership and possessory rights
in ways that it does not for inanimate property . . . . Live animals
under Oregon law are subject to statutory welfare protections that
ensure their basic minimum care, including veterinary treatment.
The obligation to provide that minimum care falls on any person
who has custody and control of a dog or other animal. A dog owner
simply has no cognizable right, in the name of [his or] her privacy,
to countermand that obligation.

Id. at 443. The court emphasized the importance of providing appropriate medical care to the dog,

ultimately holding that “[a]n examination of the dog’s physical health and condition in that

circumstance, pursuant to a medical judgment of what is appropriate for diagnosis and treatment,

8
is not a form of government scrutiny that, under legal and social norms and conventions, invades

a dog owner’s protected privacy rights.” Id.

¶ 19. By the same token, multiple states have held that the exigent circumstances

exception to the warrant requirement allows state agents to conduct a warrantless search or seizure

in order to prevent an imminent threat to a nonhuman animal’s well-being. See Commonwealth

v. Duncan, 7 N.E.3d 469, 474 (Mass. 2014); State v. Stone, 2004 MT 151, ¶ 39, 92 P.3d 1178;

State v. Fessenden, 310 P.3d 1163, 1169 (Or. Ct. App. 2013). The Vermont Legislature has

codified this exception in 13 V.S.A. § 354(b)(3), which allows a humane officer to seize an animal

without a warrant if the officer “determines that an animal’s life is in jeopardy and immediate

action is required to protect the animal’s health or safety.” These examples all establish that a

defendant’s property rights over animals are limited when animal welfare is at risk, and we must

take the animals’ welfare into consideration when determining the legality of a search or seizure.

¶ 20. The warrant in this case allowed the animal control officer to search for and seize

two particular pit bulls and “any additional pit bull or put bull mix dogs.”4 The officer, who had

held that position for two years and had fifteen years of prior experience as a veterinary technician,

observed one pit bull on defendant’s porch during an exceptionally cold day. The dog appeared

emaciated and unable to stand, and there was no food or water in sight. She also saw two dogs

inside the home and heard barking coming from additional, unseen dogs inside, providing evidence

that the apparently neglected dog on the porch was only one of several dogs at defendant’s home.5

The exceptionally neglected condition of the dog on the porch reasonably supported a probable

4
The handwritten notation that expanded the search to additional pit bulls also included
the sentence, “I would like to search inside and outside the home for any additional animals.” The
meaning of this notation in the context of a warrant is not entirely clear. Insofar as all the animals
seized were found to be pit bulls or pit bull mixes, we need not rule on the effect of this language.
5
As noted above, see supra, n.1, the warrant was apparently also based on the observations
of a deputy sheriff who reportedly saw “four additional puppies in distress.” This evidence further
buttresses the inference that multiple dogs in defendant’s home were the subject of neglect.

9
cause finding to support a search for and seizure of not only that dog, but also the others reasonably

believed to be at the home. See Schulz v. Gendregske, 544 F. App’x 620, 624 (6th Cir. 2013)

(concluding, in § 1983 suit, that observing some mistreated animals in poor conditions is sufficient

for officer to “reasonably believe [defendants] were likely mistreating all the animals in their care”

because “common sense suggests” that evidence of mistreatment of some animals suggests owners

are likely mistreating all their animals); cf. E.J.R. v. Young, 162 Vt. 219, 224, 646 A.2d 1284,

1287 (1994) (holding that in some cases evidence of a pattern of abuse or neglect as to one sibling

can support finding that another is at risk of abuse or neglect). On these facts, it was not necessary

for the warrant to limit the search to a particular dog breed, although, as noted above, the seized

dogs all fit within the breed specified in the warrant.

¶ 21. Given this context, the language was sufficiently particular. The warrant was far

from those found unconstitutional because they allow the unfettered search for evidence of

unknown crimes. See, e.g., Cassady v. Goering, 567 F.3d 628, 635 (10th Cir. 2009) (holding

warrant allowing search for “all other evidence of criminal activity” unconstitutionally broad

because it “did not confine the scope of the search to any particular crime”); United States v.

Stefonek, 179 F.3d 1030, 1032 (7th Cir. 1999) (holding warrant allowing search for “evidence of

crime” unconstitutionally broad). On the contrary, this warrant authorized the search and seizure

of pit bulls and pit bull mixes, and was “no broader than the probable cause on which it [was]

based.” Zimmerman, 277 F.3d at 432 (quotation omitted). It did not allow an unconstitutional

“general, exploratory rummaging” of defendant’s belongings. Dorn, 145 Vt. at 621, 496 A.2d at

459 (quotation omitted).6 For these reasons, we conclude that the warrant in this case was not

unconstitutionally broad.

6
We note that the humane officer’s authority to seize animals on the premises was not
necessarily limited by the terms of the warrant. 13 V.S.A. § 354(b)(3) authorizes warrantless
seizures when an officer “determines that an animal’s life is in jeopardy and immediate action is
required to protect the animal’s health or safety.” Because the search and seizure here was
authorized by the warrant, we need not consider the application of this subsection in this case.
10
 II. Execution of the Warrant Without a Veterinarian

¶ 22. We conclude that suppression is not the appropriate remedy for the animal control

officer’s failure to include a veterinarian in the execution of the warrant, as required by 13 V.S.A.

§ 354(b)(2). That statute specifically requires: “A veterinarian licensed to practice in Vermont

must accompany the humane officer during the execution of the search warrant.” There is no

dispute that the warrant in this case was executed without the presence of a licensed veterinarian,

but we conclude that this failure to conform to the statute does not require suppression.

¶ 23. Evidence obtained in violation of certain state statutes may be suppressed at trial.

State v. Gilman, 173 Vt. 110, 115, 787 A.2d 1238, 1243 (2001). We have held that suppression

may be appropriate even when a statute does not explicitly call for this remedy. Id. at 115, 787

A.2d at 1242. The purpose of our state exclusionary rule is to discourage official misconduct,

protect individual rights, and preserve the integrity of the judicial process. State v. Oakes, 157 Vt.

171, 173-74, 598 A.2d 119, 121 (1991).

¶ 24. Whether suppression is the appropriate response to the violation of a statutory

requirement is a question of legislative intent. See Gilman, 173 Vt. at 117, 787 A.2d at 1244

(holding that suppression was appropriate when “[n]oncompliance with the statute produced

exactly the situation the Legislature sought to avoid”); State v. Bean, 163 Vt. 457, 465, 658 A.2d

940, 946 (1995) (holding that suppression was appropriate when “the consequences of the

violation are exactly what the rule was intended to prevent.”). Other states likewise look to

legislative intent to determine the proper remedy for statutory violations. See People v. Sobczak-

Obetts, 625 N.W.2d 764, 768 (Mich. 2001); State v. Smith, 908 A.2d 786, 788 (N.H. 2006); State

v. Popenhagen, 2008 WI 55, ¶ 68, 749 N.W.2d 611.

¶ 25. In contrast to the statutes at issue in the above-cited Vermont cases, the statute

outlining the process for executing a search warrant does not evince a legislative intent that failure

to have a veterinarian at the execution of the warrant should result in suppression. Defendant

11
argues that the purpose of the veterinarian requirement is to protect the privacy interests of those

suspected of animal cruelty. Defendant’s theory seems to be that the veterinarian can step in and

prevent seizure of an animal in the veterinarian’s discretion. However, a closer reading of the

statute suggests otherwise. As § 354(b)(2) requires, probable cause of animal cruelty is already

established by the time the humane officer executes the warrant. This means that a court has

authorized the officer to seize animals within the scope of a warrant. Nothing in the statute

empowers the veterinarian to override the officer’s authority to remove certain animals. The

veterinarian requirement, in other words, “[does] not in any way lead to the acquisition of

evidence,” Sobczak-Obetts, 625 N.W.2d at 777, and no evidence “came into existence because of

a lack of compliance,” because the officer was authorized to take all animals at defendant’s house

whether or not a veterinarian was present. Bean, 163 Vt. at 466, 858 A.2d at 946.

¶ 26. In addition, another provision in the statute, § 354(b)(3), reveals that the more likely

purpose of the veterinarian’s presence is to provide emergency medical care. That provision,

which allows for the seizure of animals without a warrant when “immediate action is required,”

directs the officer to take the animals to a veterinarian once the animals are seized—not to

determine whether it was proper to seize them, but instead “for medical attention to stabilize the

animal’s condition and to assess the health of the animal.” 13 V.S.A. § 354(b)(3). The difference

between § 354(b)(2) and § 354(b)(3) is timing; in the former, it is presumed that the officer has

enough time to contact a veterinarian before execution of the warrant. However, the purpose of

the veterinarian for both situations is the same—to provide for the welfare of the animal or animals

at issue.

¶ 27. Therefore, noncompliance with the veterinarian requirement of § 354(b)(2) does

not trigger the exclusionary rule and the suppression of evidence found during the search.

Applying the exclusionary rule to guarantee statutory protections may be appropriate in some

cases, but the statutory provision at issue here—the requirement of a veterinarian’s presence—was

12
not included to protect defendants. This is what distinguishes this case from previous ones in

which we applied the exclusionary rule to suppress evidence obtained because of a statutory

violation. In those cases, violating the relevant statute robbed defendant of statutory protections.

See Gilman, 173 Vt. at 115, 787 A.2d at 1242 (involving defendant’s right to counsel before

deciding whether to consent to blood alcohol test); State v. Madonna, 169 Vt. 98, 102, 726 A.2d

498, 501 (1999) (involving “right to contact a public defender regardless of financial position”

when detained for driving under the influence); State v. Karmen, 150 Vt. 547, 548-49, 554 A.2d

670, 671 (1988) (involving right to demand blood test when detained for driving under the

influence). The veterinarian requirement, in contrast, stems from a concern for animal welfare and

not for defendants’ individual rights. For these reasons, we conclude that the absence of a

veterinarian during execution of the warrant does not require suppression of evidence found during

the search.

III. Burden at the Suppression Hearing

¶ 28. Next, we conclude that the trial court was correct in placing the burden of proof on

defendant during the suppression hearing. Before the trial court, defendant contended that the

search warrant was not supported by probable cause. However, defendant supplied the court only

with the warrant itself and did not offer into evidence the affidavit or any supporting documents

on which the warrant was based. The court concluded that the burden of proof was on defendant

during the suppression hearing, and that defendant failed to carry that burden. Defendant argues

that the trial court erred in placing the burden on him.

¶ 29. We agree with the trial court that a defendant generally bears the burden of proof

at suppression hearings when challenging the validity of a warrant. This Court has not specifically

addressed the question of who bears the burden of proof when the defendant argues that the warrant

was not supported by probable cause. We have, however, placed the initial burden on defendants

when they move to suppress evidence on other grounds. See State v. Harris, 2009 VT 73, ¶ 6, 186

13
Vt. 225, 980 A.2d 785 (“In a motion to suppress based on an illegal search or seizure, the defendant

bears the burden of proving that a seizure occurred.”); State v. Demers, 167 Vt. 349, 353, 707 A.2d

276, 278 (1997) (holding that defendant bears initial burden of proof when “challeng[ing] a

probable cause finding on grounds that the supporting affidavit contains false information or

omissions”).

¶ 30. Additionally, other courts have generally accepted that the defendant bears the

burden of proving that a warrant is not supported by probable cause. See United States v. Esser,

451 F.3d 1109, 1112 (10th Cir. 2006) (“Generally, the defendant has the burden of showing a

constitutional infirmity if a search or seizure was carried out pursuant to a warrant”); United States

v. Rodriguez-Suazo, 346 F.3d 637, 643 (6th Cir. 2003) (holding that, when defendant challenges

probable cause determination, “[i]t is well settled that in seeking suppression of evidence the

burden of proof is upon the defendant to display a violation of some constitutional or statutory

right” (quotation omitted)); United States v. Richardson, 943 F.2d 547, 548 (5th Cir. 1991) (“The

defendant challenging a search must show the warrant to be invalid by a preponderance of the

evidence”).

¶ 31. The reasoning behind these decisions is sound. When the police conduct a search

pursuant to a warrant, “an independent determination on the issue of probable cause has already

been made by a magistrate, thereby giving rise to a presumption of legality.” 3 W. LaFave, et al.,

Criminal Procedure § 10.3(b) (4th ed. 2016) (quotation omitted). As the proponent of the motion,

defendant must rebut this presumption.

¶ 32. Therefore, we conclude that defendants do bear the burden of proof when arguing

that evidence should be suppressed because a warrant was not supported by probable cause.

Defendant argues that the court wrongly “shifted” the burden to him because it did not inform him

that it did not have the warrant’s supporting documents. Even if defendant was under the

impression that the court possessed the necessary documents, the burden was always on him to

14
ensure that that belief was accurate. Defendant did not even satisfy his burden of production, let

alone his burden of proof.

IV. Reasonableness of the Repayment Order

¶ 33. Finally, we conclude that the trial court erroneously failed to exercise its discretion

when it held that it could not consider the length and reason for substantial delays in the forfeiture

case in imposing on defendant the cost of caring for the dogs pursuant to 13 V.S.A. § 354(g)(1).

Defendant argues that delays following the forfeiture motion, most of which were requested by

and benefitted the State, drove up the cost of caring for the dogs, and that he should not be

responsible for costs—amounting to $51,070—that accrued through no fault of his own. The trial

court held defendant accountable for the entire amount, reasoning that “[d]efendant seeks to reduce

the number of days by the days of delay for which he was not responsible, but the statute contains

no such exception.” We conclude, based on the plain language of the statute, that the trial court

does have the power to consider the reasonableness of the fine to be imposed, which includes

considering the reasons why the fine was so large.

¶ 34. We review questions of statutory interpretation without deference. See Wright v.

Bradley, 2006 VT 100, ¶ 6, 180 Vt. 383, 910 A.2d 893. If the language of a statute is clear, we

“apply the statute in accordance with its plain meaning.” Id.

¶ 35. The statute at issue provides that, “if an order of forfeiture is entered against an

owner under this section, the defendant or owner shall be required to repay all reasonable costs

incurred by the custodial caregiver for caring for the animal, including veterinary expenses.” 13

V.S.A. § 354(g)(1) (emphasis added). We have previously held that the plain meaning of this

statute empowers the trial court to “determine whether the claimed costs were reasonable,” but this

determination does not include considering the defendant’s ability to pay. State v. Eldredge, 2006

VT 80, ¶ 10, 180 Vt. 278, 910 A.2d 816. We conclude that determining “reasonable costs” does

include consideration of the factors that contributed to the cost; in this case, that includes

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consideration of the length of and the reasons for the delay in the forfeiture case. A prolonged

delay of a forfeiture motion may render certain costs unreasonable under 13 V.S.A. § 354(g)(1).

Insofar as the trial court concluded that it did not have discretion to take into account whether

delays caused by the State or court rendered its assessment against defendant unreasonable, it

failed to exercise its discretion. We remand to the trial court to reconsider the reasonableness of

the cost of caring for the forfeited animals.

The trial court’s order as to defendant’s motion to suppress is affirmed. The trial court’s
order as to the costs for the care of defendant’s forfeited animals is vacated and remanded for
reconsideration consistent with the above.

FOR THE COURT:

Associate Justice

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