LOGAN – An owner of dogs that were seized by Hocking County authorities in January has argued in a court filing that the seizure was done without probable cause, and the animals should be returned.
He also claims that by keeping the canines, which had been intended for training as guard and sniffing dogs, in custody for six months, the county has lowered their value.
The county has asked that the dogs’ owner be required to post a $15,000 bond to the Hocking County Humane Society to cover the cost of feeding and housing them, or in the alternative to release the dogs to be adopted.
Court hearings in two animal cruelty cases stemming from the seizure did not take place as scheduled in Hocking County Common Pleas Court on Thursday. Had they done so, they could have clarified the legal status of the dogs, which are reportedly all German Shepherds, and are currently being housed at the county animal shelter on Homer Avenue and the humane society facility on Hocking Drive.
A state Route 180 couple, Bobby and Tracey Fox, have each been charged with two counts of cruelty to companion animals, a fifth-degree felony. The indictments were issued in March after Hocking County Sheriff’s officers, accompanied by personnel from the Hocking County Health Department and the county humane society, executed a search warrant at the Foxes’ residence Jan. 22, seizing 42 dogs as well as weapons and marijuana.
In a document filed with the common pleas court Wednesday Bobby Fox’s attorney, Robert F. Krapenc, responded to a notice of the dogs’ seizure, which the county had filed April 26. The notice reportedly stated that county law enforcers had acted because they had probable cause to believe the dogs were being subjected to a violation of a section of Ohio law that forbids mistreatment of companion animals including dogs.
When animals are seized, Ohio law requires that a court hearing be held in fairly short order to determine whether there was probable cause to do so – which is what was supposed to happen Thursday, but didn’t. A hearing had first been scheduled for June 10, but was continued. In the meantime, the county had requested, and Judge John T. Wallace had approved, appointment of a special prosecutor to handle the case.
In the newly filed response to the seizure notice, Krapenc maintains that the dogs were seized in violation of Bobby Fox’s Fourth and Fourteenth Amendment rights (relating to search-and-seizure and due process).
The attorney noted that prior to the search of the Foxes’ property, Hocking County Sheriff’s Detective David Wright, who serves as the county’s chief dog warden, or someone in his office, had gotten a call from “a concerned citizen,” reporting that Bobby Fox had several dogs that were not being cared for properly. The caller also sent photos and video to support this claim, according to the affidavit Wright filled out to obtain a search warrant.
Krapenc states in his response that Wright’s affidavit does not indicate when the material was received, when the pictures and video were taken, or who the caller was. Wright’s affidavit does indicate that the officer did a drive-by of the Fox property, during which he claims to have seen “dogs tied to boxes with no apparent food or water vessels, in a distressed state,” and to have smelled “a terrible odor coming from the property.”
Krapenc notes in his court filing that in determining whether there is probable cause to issue a warrant, a judge is limited to considering what is contained in the warrant affidavit, as well as any sworn testimony. If the affidavit includes information from an informant, he adds, the judge must be given some reason to consider the informant reliable.
In this case, Krapenc contends, “there is no evidence that the video or photographs viewed by (Wright) were produced at or near the time of the request for a search warrant,” and Wallace was given no justification for considering the informant trustworthy.
“Without the hearsay information provided by the concerned citizen, the affidavit contains only that a single drive-by was conducted (for how long, and at what distance is unclear), during which officers could not see food or water vessels for dogs tied outside, heard barking from within the residence, and smelled a terrible odor coming from the property,” the attorney adds. Because the warrant was issued based largely on “possibly stale information,” he argues, probable cause was not properly established, and any evidence from the search, including anything the officers observed on the property, should be excluded.
In an incident report, searchers claimed to have found a number of dogs without food or water both inside and outside the home, as well as around 100 pigeons, two cows and a number of chickens, including one chicken that was reportedly alive but frozen to the ground. The report stated that five dogs inside the residence were being kept in wire cages too small for them to turn around in.
Krapenc also maintains that authorities did not provide Fox written notice, within the time required by law, that his animals had been seized, and in fact had still not done so as of July 21. In addition, he says, the state far exceeded the statutory 10-day time limit for setting a probable cause hearing.
“The state has maintained possession of the animals for six months,” Krapenc states. “The initial probable cause hearing date of June 10, 2021 was twenty weeks after the seizure, much more than the ten days contemplated by statute.” And by holding the dogs for so long, he claims, the county reduced their value.
“(M)any of the animals seized were puppies, only several weeks old,” he writes. “They were bred specifically to be trained as working dogs to be utilized as guard dogs, or sniffing dogs.” After the passage of six months, he adds, “these animals can no longer be used for these purposes,” making them less valuable.
To complicate matters further, Krapenc states that some of the dogs were not owned by Fox. These dogs’ owners have made several attempts to collect them from the humane society, he says, only to be told that the animals are evidence and can’t be released.
“The state’s failure to return seized animals to their rightful, innocent owners has increased the expenses relating to their care and keeping,” the attorney concludes. “The state now wishes to present the bill to (Fox), despite the fact that the state had no legitimate reason to retain those animals, and, in fact, directly caused this increase in cost by depriving others of their property rights without any semblance of due process.”
Wright reported Thursday that the bond hearing has been rescheduled for Aug. 20.
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