California Court of Appeals, Second District, Eighth Division
from an order of the Superior Court of Los Angeles County No.
MA064988, . Eric P. Harmon, Judge. Affirmed.
Allison H. Ting, under appointment by the Court of Appeal,
for defendant and appellant Kevin R. Williams.
M. Crawford, under appointment by the Court of Appeal, for
defendant and appellant Pauline R. Winbush.
D. Harris and Xavier Becerra, Attorneys General, Gerald A.
Engler, Chief Assistant Attorney General, Lance E. Winters,
Assistant Attorney General, Scott A. Taryle and Tannaz
Kouhpainezhad, Deputy Attorneys General, for Plaintiff and
to a plea agreement, defendants and appellants Kevin R.
Williams and Pauline R. Winbush were each convicted of one
felony count of dog fighting, and one felony count of animal
cruelty. The sole issue on appeal is defendants'
contention the court erred in denying their joint motion to
suppress evidence and to quash and traverse the warrant
pursuant to Penal Code section 1538.5.
AND PROCEDURAL BACKGROUND
February 17, 2015, defendants Williams and Winbush were
charged by information with 29 separate counts, including
four felony counts of possession of fighting dogs (Pen. Code,
§ 597.5, subd. (a)(1); counts 1-4), and 17 counts of
animal cruelty (Pen. Code, § 595, subd. (b); counts
jointly filed a motion to suppress evidence seized during the
search of their residential property on November 26, 2014,
and to quash and traverse the warrant pursuant to Penal Code
section 1538.5. The People filed opposition. The motion was
heard on October 7 and 26, 2015, and concluded on November
18, 2015. We summarize the material facts as reflected in the
testimony received at the hearing.
before 3:00 p.m. on October 29, 2014, Ed Callaway, a field
officer with the Los Angeles County Department of Animal
Control (Animal Control), responded to a report of a loose
horse near the 7000 block of West Avenue A-14 in an
unincorporated rural area of Los Angeles county, near
Lancaster. When he arrived on the scene and saw the wandering
horse, he saw a car swerve to avoid hitting it, and several
other cars in the vicinity.
Callaway approached the horse, trying not to frighten it out
into traffic, but the horse headed back down Avenue A-14. He
followed the horse slowly in his vehicle until the horse
stopped at the property located at 7038 West Avenue A-14
(property later determined to be defendants' residence).
The horse attempted to reenter the property through a side
fence near where there was some sort of corral. Officer
Callaway noticed there were several broken or loose boards in
the fence, and presumed the horse had gotten loose from
there. The horse was unable to get back into the yard.
horse continued to try to push through the fence, Officer
Callaway heard several dogs begin to bark. He walked along
the outside of the fence toward the horse to try to determine
if the dogs were loose and could frighten or injure the
horse, or chase it back out onto the street where it would be
a serious hazard. Officer Callaway saw that the dogs were
confined in “makeshift” kennels of chain link
fencing and plywood inside the yard.
dogs continued barking, and the horse walked back toward the
front of the property. The horse stopped near the driveway
that led up to the garage attached to the home. There was an
open gate in a chain link fence that abutted the side of the
garage. The fence was about three feet high. The horse went
through the gate but appeared to have difficulty getting into
the back yard due to debris and weeds. It retreated back out
to the front yard and began to eat some weeds or spilled hay
on the ground near the garage. Officer Callaway moved his
vehicle and parked it in a location near the driveway, hoping
to block the horse from leaving that portion of the front
yard. Officer Callaway then walked through the open gate into
the back yard to see if there was a suitable corral, that did
not have broken fencing, in which to safely secure the horse.
He could not see any suitable corral and returned to the
Callaway called Sergeant Rachel Montez-Kemp, also of Animal
Control, and told her he needed a trailer to impound a loose
horse. While he waited for her to arrive, he yelled into the
yard announcing his presence in case the property owner was
out back. He also honked the horn of his vehicle. He got no
response. Sergeant Montez-Kemp arrived about 20 minutes later
with a horse trailer.
Sergeant Montez-Kemp arrived, they haltered the horse and
placed it inside the horse trailer. The horse looked
“thin.” Sergeant Montez-Kemp had brought a bucket
of feed, so they left the horse eating inside the trailer
while they attempted to determine if the owner was at home.
Sergeant Montez-Kemp has worked for Animal Control for 16
years and the department's normal procedure is to attempt
to make contact with an owner of livestock before impounding
an animal. Officer Callaway, who had seven years of
experience, confirmed that was the department's practice.
Montez-Kemp knocked on the front door of the home. No one
answered, but she heard the distinctive sound of puppies
barking from inside the home. She also knocked on the front
window of the home and the garage door but got no response.
Sergeant Montez-Kemp told Officer Callaway to call dispatch
to attempt to call the property owners. Dispatch left a
message on an answering machine after no one picked up the
heard several dogs barking in the back yard, as well as a dog
barking and “whining” from inside the garage.
There was a strong smell of “excessive” fecal
matter. Officer Callaway looked through a broken window in
the upper corner of the garage door. There was a dog inside,
in conditions that appeared “unhealthful.”
Officer Callaway also saw a treadmill and a “slat
mill” partially covered by a tarp. A slat mill is a
device used in the training of fighting dogs. Officer
Callaway said he was six feet one inch tall, but was a couple
of inches taller in his work boots, and was able to look into
the window of the garage door.
Montez-Kemp thought if the owner was out in the back yard,
the noise from the barking dogs could make it difficult to
hear them knocking and yelling out front. Both she and
Officer Callaway walked through the open gate near the garage
into the back yard. Officer Callaway looked into the
window at the back of the garage, as did Sergeant
in the back yard, Sergeant Montez-Kemp confirmed the corral
with the broken boards was not suitable for the horse as it
could plainly escape again and get injured or be a danger to
motorists. They walked a little further into the back yard
toward the kennels. She noticed that all of the dogs on the
property in makeshift kennels were pit bulls, the breed most
often used in dog fighting. One of the dogs had a missing
lip, and another smaller female pit bull had multiple scars
on her body. Another kennel contained a dog with a litter of
puppies. They saw no one in the back yard.
Montez-Kemp was familiar with defendants' property as she
had been called out to the property on prior occasions,
including in February 2008 on a report of excessive dogs on
the property and “possible dog fighting.” At that
time, she found approximately 30 pit bulls on the property
but defendants claimed to have the requisite permits or were
in the process of obtaining them. No further action was
taken. She was also aware that another Animal Control officer
had been called to the property in 2010 due to a report
regarding horses that were “thin” or in poor
condition. The officer who responded to the property in 2010
reported numerous pit bulls were kept in kennels filled with