State v. Hon. harris/mitchell

NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA, Petitioner,

v.

THE HONORABLE MYRA HARRIS, Commissioner of the SUPERIOR
COURT OF THE STATE OF ARIZONA, in and for the County of
MARICOPA, Respondent Commissioner,

HOWARD LEE MITCHELL, III, Real Party in Interest.

No. 1 CA-SA 14-0184
FILED 12-04-2014

Petition for Special Action from the Superior Court in Maricopa County
No. LC2014-000289-001 DT
The Honorable Myra A. Harris, Commissioner

JURISDICTION ACCEPTED; RELIEF GRANTED

COUNSEL

Scottsdale City Prosecutor’s Office, Scottsdale
By Kenneth M. Flint
Counsel for Petitioner

Howard Lee Mitchell, III, Scottsdale
Real Party in Interest
 STATE v. HON. HARRIS/MITCHELL
Decision of the Court

MEMORANDUM DECISION

Judge Kenton D. Jones delivered the decision of the Court, in which
Presiding Judge Peter B. Swann and Judge Michael J. Brown joined.

J O N E S, Judge:

¶1 This matter arises from the Scottsdale City Court’s
termination of Howard Lee Mitchell III’s possessory rights in one dog,
thirteen birds and fourteen tortoises, pursuant to Chapter 4, Article 1 of the
Scottsdale Revised Code. The City of Scottsdale, a political subdivision of
the State of Arizona, petitions for special action review of the superior
court’s order on appeal (1) reversing the city court’s termination and
support order for insufficient evidence, and (2) ultimately suppressing
evidence the superior court deemed to have been obtained in violation of
the Fourth Amendment. For the following reasons, we accept jurisdiction,
reverse the superior court’s order, and remand with directions to reinstate
the city court’s order.

FACTS AND PROCEDURAL HISTORY

¶2 In May 2013, an Arizona Humane Society representative
requested the Scottsdale Police Department perform a welfare check on
animals reportedly left unattended at Mitchell’s home while he was
hospitalized. Two officers were dispatched, one of which was an
emergency animal medical technician who had received specific training in
animal cruelty and neglect investigations. Upon arrival, and prior to
proceeding onto the Mitchell property, the officers looked over a wall from
an adjoining property into Mitchell’s backyard and observed two dead
tortoises “in various stages of decomposition.” The officers then entered
his backyard through an unlocked gate and discovered an additional seven
or eight live tortoises in what was perceived by the officers to be the “typical
article hoarder backyard.” Although the yard was overgrown and there
were several puddles of water, there was no fresh food or water for the
tortoises. The officers photographed a tortoise eating its own feces, and did
not observe any other available food. The backyard contained a pool that
was empty and unfenced, such that tortoises could fall in and become
trapped.

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¶3 When the officers reached the back door of Mitchell’s house,
they detected a burning or smoldering smell, “like an electrical fire,”
coming from inside the home. The smell became stronger when the flap of
the dog door was opened. The officers then knocked on the front and back
doors, which induced barking and bird calls. After receiving no other
response, the officers entered the unlocked back door to investigate the
source of the “electrical fire” smell.

¶4 Inside Mitchell’s home, officers discovered an “animal
hoarding house” with narrow pathways, which required officers to turn
sideways between piles of debris to navigate the structure. They observed
animals throughout the home, including at least three birds living outside
their cages. The officers did not see any available dog or bird food, and
there was no indication anyone was actively caring for the animals. The
residence was littered with spider webs and debris across every available
surface, rodent and bird feces covered the walls and furniture, and there
were streaks, stains, and burn marks on the kitchen walls. Rat traps and
dead mice were present throughout the house. The floors were covered
with old birdseed and feces, and it was obvious to the officers that neither
the bird cages, nor the toilet, had been cleaned in a long time. Water bowls
had been left out, but by then contained only a small amount of water.

¶5 The birds themselves had greasy, tattered, and thinning
feathers, overgrown beaks and toenails, and did not appear healthy. One
was compared to a Thanksgiving turkey, as it had no feathers on its chest.
Some birds had no food in their cages; others had been provided animal
crackers and pretzels — items devoid of nutritional value.

¶6 The officers were unable to locate the source of the smell of
smoke, and requested the Scottsdale Fire Department respond. Upon
arrival, firefighters traced the burning smell to a shorted-out microwave,
which they unplugged and removed from the home. They described
Mitchell’s home as “a deathtrap” and posited it would have caught fire
within a couple hours had no one intervened. The City determined the
residence was “unsafe to occupy” and condemned the property.

¶7 By this time, Mitchell had been hospitalized for three days.
When questioned in the hospital, Mitchell told officers he had made no
arrangements for the animals’ care during his absence. Mitchell believed
he had provided the animals with enough food and water for thirty days.

¶8 The City seized fourteen living tortoises, thirteen birds and
one dog from Mitchell’s home, and removed five dead tortoises. A

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veterinarian examined the animals and testified they were “very stressed,
distraught, showing nervous behavior, vocalizing,” and exhibiting
behavior indicative of psychological damage. The dog was obese and in
need of antibiotics. Each bird suffered from some disease or medical
condition, was malnourished from a diet of cheese puffs, pretzels and
animal crackers, and one bird had tumors. The tortoises were generally
healthy, although several had paralyzed back legs. A veterinarian from the
Arizona Humane Society testified the tortoises were deprived of fresh
water, a proper diet, and a safe environment — one free from dogs, pools
and other dangers. The veterinarian described the conditions in Mitchell’s
home as “deplorable” and further stated she “would not send any animal
to those conditions again.”

¶9 Although it did not pursue criminal charges for animal
cruelty, the City filed a civil action to terminate Mitchell’s possessory rights
in the animals, pursuant to Scottsdale Revised Code (S.R.C. or Code) section
4-12(a).1 An evidentiary hearing was held, at which Mitchell admitted
neglecting his home and yard as a result of his congestive heart failure, but
denied neglecting the animals. He testified that he had anticipated his
hospitalization, and planned to be gone for approximately one week.
Contrary to statements made in the hospital, Mitchell testified he arranged
for a neighbor to check on the animals, but acknowledged he did not
anticipate the animals’ water or food would need to be refilled during that
time.

¶10 The neighbor testified the animal crackers were treats rather
than part of the animals’ regular diet. He blamed the City for emptying the
birds’ cages onto the floor of Mitchell’s home, maintained that what officers
described as rodent feces was actually birdseed, and testified Mitchell fed
the tortoises a bale of alfalfa every two weeks.

¶11 Mitchell self-identified as an expert on the raising of exotic
birds and animal behavior, and testified that the dead and decomposing
tortoises were left in the yard to provide the living tortoises with “toys” for
jousting, and that some of the tortoises were lame because they were
elderly. He stated the dog, a service dog, received recent veterinary care
and was losing weight, and, contrary to the witnesses’ observations, there
was dog food available in the home. He further challenged the testimony

1Absent material revisions from the relevant date, we cite the current
version of the code or statute.

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regarding proper care and behavior of birds and tortoises based upon his
personal education and experience.

¶12 The city court ultimately found the City had proven by a
preponderance of the evidence that Mitchell had neglected the seized
animals, entered Judgment for the City, and ordered Mitchell to pay $750.00
for the cost of their care following removal. On appeal, the superior court
found, first, that insufficient evidence had been presented to support the
city court’s findings and resulting forfeiture. It then suppressed all
evidence presented by the City, finding it had been illegally obtained
because the officers did not obtain a search warrant prior to entering
Mitchell’s property. The City petitioned this Court for special action
review.

JURISDICTION

¶13 “Whether to accept special action jurisdiction is for this court
to decide in the exercise of our discretion,” Potter v. Vanderpool ex rel. Cnty.
of Pinal, 225 Ariz. 495, 498, ¶ 6, 240 P.3d 1257, 1260 (App. 2010) (citing State
v. Campoy, 220 Ariz. 539, 542, ¶ 2, 207 P.3d 792, 795 (App. 2009)), and “[a]
primary consideration is whether the petitioner has an equally plain,
speedy and adequate remedy by appeal.” Am. Family Mut. Ins. Co. v. Grant, 222 Ariz. 507, 511, ¶ 9, 217 P.3d 1212, 1216 (App. 2009). Other
considerations include whether the case raises issues of statewide
importance, issues of first impression, pure legal questions, or issues that
are likely to arise again. Luis A. v. Bayham-Lesselyong ex rel. Cnty. of Maricopa,
197 Ariz. 451, 452-53, ¶ 2, 4 P.3d 994, 995-96 (App. 2000) (citing Andrade v.
Superior Court, 183 Ariz. 113, 115, 901 P.2d 461, 463 (App. 1995)).

¶14 Because this case arises from Mitchell’s successful appeal of
the city court’s order to the superior court, the sole avenue for appellate
review is through special action. See Ariz. Rev. Stat. § 22-375 (prohibiting
appeal from a final judgment of the superior court in an action appealed
from a city court unless the action “involves the validity of a tax, impost,
assessment, toll, municipal fine or statute”); State v. Superior Court ex rel.
Norris, 179 Ariz. 343, 344, 878 P.2d 1381, 1382 (App. 1994). Additionally, we
view the application of Fourth Amendment principles to the entry onto
Mitchell’s property to be a purely legal question. See State v. Estrada, 209
Ariz. 287, 289, ¶ 2, 100 P.3d 452, 453 (App. 2004) (stating the issue of
whether a search violated the Fourth Amendment was a legal conclusion
requiring de novo review). We therefore accept jurisdiction of this special
action.

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DISCUSSION

I. The City was Authorized by S.R.C. § 4-11(a) to Go onto Mitchell’s
Property to Perform a Welfare Check on the Animals.

¶15 We review de novo the legal determination of whether a
government actor’s entry upon private property in the absence of a warrant
was reasonable. State v. Davolt, 207 Ariz. 191, 202, ¶ 21, 84 P.3d 456, 467
(2004) (citing State v. Valle, 196 Ariz. 324, 326, ¶ 6, 996 P.2d 125, 127 (App.
2000)). The superior court suppressed “evidence about the birds, the
tortoises, and the dog” because it concluded the officers needed a warrant
to lawfully enter Mitchell’s property. We disagree.

¶16 As a matter of public health, safety and welfare, Chapter 4 of
the S.R.C. — the City’s animal cruelty code — manifests an explicit intent
to provide for the health and welfare of the animals. S.R.C. § 4-1. To help
promote this intent, S.R.C. § 4-11(a) provides:

A peace officer or a city agent may enter property pursuant to
a valid arrest or search warrant, under exigent circumstances
or if an animal is in plain view, and the officer has probable
cause to believe that an animal was subjected to or
instrumental in a violation of [Chapter 4, Article 1 (Animal
Cruelty)].

¶17 The Code expressly authorizes entry by law enforcement (a)
with a warrant, (b) under exigent circumstances, or (c) if an animal is in
plain view, and probable cause exists to support violation of the Code. In
the immediate case, it is undisputed that law enforcement officers were
advised that multiple animals were left unattended at Mitchell’s property
for a week-long period. The record is likewise clear that, upon arrival and
without entering Mitchell’s property, the officers looked over a six-foot
fence to observe two dead and decomposing tortoises in Mitchell’s
backyard.

¶18 Based upon these undisputed facts and application of the
specific provisions of S.R.C. § 4-11(a), upon their arrival at Mitchell’s
residence, but before entering the property, the officers observed the dead
and decomposing tortoises “in plain view.” See United States v. Wheeler, 641
F.2d 1321, 1328 (9th Cir. 1981) (Choy, J., concurring) (finding no legitimate
expectation of privacy from a visual intrusion into a yard where the “six
foot fence [surrounding the yard] . . . could easily be looked over by a
person six feet or taller in height”). Probable cause was established based
upon what was clearly apparent through personal, visual observation, “that

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an animal was subjected to . . . a violation of” the animal cruelty code. S.R.C.
§ 4-11(a). With that, the officers acted reasonably in entering Mitchell’s
property to perform a welfare check.

¶19 We specifically reject the suggestion that officers were
required to observe living animals in immediate distress to authorize entry
onto property. Accepting this argument would render the distinction
between the Code’s clearly alternative provisions allowing entry onto the
property where there were “exigent circumstances” or an animal “in plain
view” meaningless. We discern no reason to deviate from the plain
language of the Code. See Thomas & King, Inc. v. City of Phx., 208 Ariz. 203,
206, ¶ 9, 92 P.3d 429, 432 (App. 2004) (interpreting municipal ordinances
using the traditional rules of statutory construction); State v. McDermott, 208
Ariz. 332, 334-35, ¶ 5, 93 P.3d 532, 534-35 (App. 2004) (“[W]e . . . presume
that the legislature does not include statutory ‘provisions which are
redundant, . . . [or] superfluous . . . .’” (quoting State v. Moerman, 182 Ariz.
255, 260, 895 P.2d 1018, 1023 (App. 1994))).

¶20 Additionally, we need not reach the issue of whether the
officers’ “plain view” observation of the dead and decomposing tortoises
in the backyard was sufficient to permit entry into Mitchell’s home. While
lawfully within Mitchell’s yard, the officers observed a strong smell of
smoke emanating from the house that was enhanced when the dog door
was opened outward, and heard animal noises coming from within the
home. Based upon these facts, we agree with the superior court that
independent exigent circumstances existed, and therefore a warrant was
not required to enter the home. See Michigan v. Tyler, 436 U.S. 499, 508 (1978)
(“A burning building clearly presents an exigency of sufficient proportions
to render a warrantless entry ‘reasonable.’”); Mazen v. Seidel, 189 Ariz. 195,
197, 940 P.2d 923, 925 (1997) (recognizing fire or medical emergency as
exigent circumstances justifying warrantless search) (citations omitted).

¶21 The City was therefore authorized by S.R.C. § 4-11(a) to enter
Mitchell’s yard and, through the exigency discovered once they were
rightfully on the property, to enter into his home. Both “plain view” and
exigent circumstances are well-settled and long standing exceptions to the
Fourth Amendment’s warrant requirement. See, e.g., Washington v.
Chrisman, 455 U.S. 1, 5-6 (1982) (recognizing “plain view” exception to the
Fourth Amendment permits law enforcement to seize evidence “when it is
discovered in a place where the officer has a right to be”) (citing Coolidge v.
New Hampshire, 403 U.S. 443, 465-66 (1971), and Harris v. United States, 390
U.S. 234, 236 (1968)); New York v. Quarles, 467 U.S. 649, 653 n.3 (1984)
(discussing “long recognized . . . exigent-circumstances exception . . . where

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the ‘exigencies of the situation’ make the needs of law enforcement so
compelling that the warrantless search is objectively reasonable under the
Fourth Amendment”) (internal quotations and citations omitted).
Accordingly, we find no constitutional violation warranting suppression
under the circumstances presented, and conclude evidence obtained during
the welfare check was properly admitted during the termination hearing.

II. Substantial Evidence Supported Termination of Mitchell’s
Possessory Interest in the Animals.

¶22 Having determined there was no error in admission of
evidence at the termination hearing, we next consider whether the superior
court erred in reversing the city court’s order terminating Mitchell’s
possessory interest in the animals. The question of whether substantial
evidence exists to support the city court’s order raises a question of law.
Havasu Heights Ranch & Dev. Corp. v. Desert Valley Wood Prods., Inc., 167 Ariz.
383, 387, 807 P.2d 1119, 1123 (App. 1990) (citing Milton v. Harris, 616 F.2d
968, 975 n.10 (7th Cir. 1980), and Beane v. Richardson, 457 F.2d 758, 759 (9th
Cir. 1972)). Therefore, we review de novo whether substantial evidence
supported the city court’s decision.

¶23 Substantial evidence exists even if the record also supports a
different conclusion. DeGroot v. Ariz. Racing Comm'n, 141 Ariz. 331, 336, 686
P.2d 1301, 1306 (App. 1984) (citing Webster v. State Bd. of Regents, 123 Ariz.
363, 365-66, 599 P.2d 816, 818-19 (App. 1979)). The superior court errs when
it substitutes its own judgment for that of the factfinder — here, the city
court — and may not re-weigh the evidence upon which the decision was
based. Richard E. Lambert, Ltd. v. City of Tucson Dep’t of Procurement, 223
Ariz. 184, 187, ¶¶ 9-10, 221 P.3d 375, 378 (App. 2009). Thus, “our respective
roles begin and end with determining whether there was substantial
evidence to support the [underlying city court] decision,” Havasu Heights,
167 Ariz. at 387, 807 P.2d at 1123, and the city court’s determination may be
overturned only if it “is without any evidence to support it, or is absolutely
contrary to uncontradicted and unconflicting evidence upon which it
purports to rest.” Ariz. Dep’t of Pub. Safety v. Dowd, 117 Ariz. 423, 426, 573
P.2d 497, 500 (App. 1977) (citing E. Camelback Homeowners Ass’n v. Ariz.
Found. for Neurology & Psychiatry, 18 Ariz. App. 121, 126, 500 P.2d 906, 911
(1972)).

¶24 Often, where the record could support different conclusions,
the trial court’s decision rests upon its determination of the credibility of
the various witnesses. On such occasions, those determinations are entitled
to deference, whether explicitly stated or implicit in its ruling, where there

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is any support in the record. See id. (citing E. Camelback Homeowners, 18 Ariz.
App. at 126, 500 P.2d at 911). The rationale of this rule has been explained
as follows:

[T]he predicate upon which our deference is given to the
finder of fact is the assumption that he has indeed had the
opportunity to look the witness in the eye and reach a
conclusion with respect to his veracity or lack thereof. If this
underpinning of judicial review is withdrawn, the appellate
court has been deprived of the assistance which it demands
in cases of conflicting evidence. If the . . . decision-maker and
this court are both reaching a decision upon the “cold record”
the integrity of the legal process not only falters, it fails. In
cases of conflicting evidence, meaningful appellate review
requires that the conflict be resolved by something more
personal than a sterile resort to pages of hearing transcripts.

Ritland v. Ariz. State Bd. of Med. Examn’rs, 213 Ariz. 187, 190, ¶ 10, 140 P.3d
970, 973 (App. 2006) (quoting Adams v. Indus. Comm’n, 147 Ariz. 418, 421,
710 P.2d 1073, 1076 (App. 1985)); see also Hutcherson v. City of Phx., 192 Ariz.
51, 53, ¶ 12, 961 P.2d 449, 451 (1998) (“Our reason for deference is clear. ‘The
[fact finder] sees the witnesses, hears the testimony, and has a special
perspective of the relationship between the evidence and the [decision]
which cannot be recreated by a reviewing court from the printed record.’”
(quoting Reeves v. Markle, 119 Ariz. 159, 163, 579 P.2d 1382, 1386 (1978))).
Failure to give appropriate regard to the city court’s resolution of
competing facts and opinions precludes “meaningful appellate review,”
and is error.

¶25 Pursuant to S.R.C. § 4-3, and as pertinent here, a person
commits animal neglect by “failing to provide basic care for an animal . . .
[or] causing needless suffering or injury to the animal.” Basic care is
defined as “care sufficient to sustain the health and well being of an
animal,” and includes, inter alia, “[f]ood of sufficient quantity and quality
to allow for normal growth or maintenance of body weight,” “[o]pen or
adequate access to potable water in sufficient quantity to satisfy the
animal’s needs,”2 and “[f]reedom from . . . lack of sanitation . . . .” S.R.C.
§ 4-2(c)(1), (2), (6).

2The Code specifically states that “[a]ccess to a swimming pool is not
adequate access to potable water.” S.R.C. § 4-2(c)(2).

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¶26 Applying the principles stated above, it is clear the city court,
which took the testimony and “looked the witnesses in the eye,” did not
find Mitchell’s testimony credible, or accept that either the conditions of his
home or the circumstances surrounding the care to be provided the animals
during his week-long hospitalization complied with the Code or were
appropriate to protect the animals that were removed. Therefore, nor do
we.

¶27 Rather, we find there is substantial evidence in the record to
support the city court’s determination that the animals were neglected by
Mitchell’s failure to provide sufficient nutritious food or access to potable
water. Substantial evidence also existed to support the finding by the city
court that the animals were subject to grossly unsanitary conditions — the
dog and birds by virtue of being left in an environment of, among other
circumstances, “wall to wall feces,” and the tortoises for being left in a yard
containing at least five rotting animal carcasses “in various stages of
decomposition” — both facts which Mitchell does not dispute.

¶28 Although persons testifying on behalf of the City may not
have professed expertise in regard to rare species of birds or tortoises, what
was discovered at Mitchell’s property did not require specialized
knowledge. The circumstances at the property were apparent; animals,
whether rare and exotic or utterly commonplace, were dead and dying, and
witnesses testified to the poor condition and apparent neglect the animals
had suffered. Mitchell presented no evidence to counter the actual
observations of officers and laypersons, who were present when the
animals were discovered and removed, that sufficient appropriate and
nutritious food had not been provided for the duration of his hospital stay,
and the overall condition of the animals, specifically, and the condemned
property, generally, belied any argument that it was a recently created
condition. To the extent the animals experienced any adverse effect from
these conditions, such constituted “needless suffering or injury.”

CONCLUSION

¶29 We reverse the order of the superior court and remand with
directions to reinstate the city court’s order terminating Mitchell’s
possessory interest in one dog, fourteen tortoises and thirteen birds and
imposing a $750.00 penalty against Mitchell for the cost of their care.
Neither party requests fees on appeal, and therefore, none are awarded. As

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the prevailing party, the City is entitled to its costs on appeal contingent
upon its compliance with Arizona Rule of Procedure for Special Actions
4(g) and Arizona Rule of Civil Appellate Procedure 21.

:gsh

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