Wednesday, September 28, 2011

Appeals Court Decides Search Invalid in Hoarding Case

By Ashley Meeks

An investigation that led to a couple’s arrest for allegedly hoarding cats relied on “a warrantless search,” the New Mexico Court of Appeals has ruled.
The Mesilla home of Lester and Carol Boyse, a New Mexico State University research assistant and a department head, respectively, first came to the attention of police in 2008, when someone reported a smell, which was coming from two dead horses on the property, off Mesilla Hills Drive.
Mesilla Marshal Jeff Gray “saw evidence of numerous problems” and because the courts were closed for the day, called Magistrate Court Judge Oscar Frietze and obtained verbal approval for a warrant, according to the appellate court’s decision, which was issued Sept. 19.
Inside the home, authorities reported finding about 101 cats, including four dead cats in the freezer.
But the warrant under which officers made the discovery “was invalid and the evidence should have been suppressed,” the appeals court decided, in ordering that the case be sent back to state court.
The appeals court had not previously determined that telephonic warrants are not permitted in New Mexico, according to the opinion. New Mexico does not recognize telephonic warrants because they lack “a written showing of probable cause,” required by the New Mexico constitution. “The mere existence of a sworn writing is not enough to satisfy the requirements of (the constitution),” the court wrote, adding that it construed the constitution’s rules to mean “not simply that a sworn writing must exist somewhere, but also that it must be shown to and considered by the issuing court before the warrant issues.”
The opinion states that “with appropriate protections, telephonic warrants may well be useful and advisable,” but that “under our current law, telephonic warrants are not permissible. If New Mexico is to adopt them, it is for our Supreme Court to formulate rules that would render them valid.”
After the search, three living horses were placed in foster care, two reportedly suffering from severe hoof problems requiring at least a year of therapy. Only seven of the cats were deemed healthy enough to be saved, while 96 had to be euthanized due to upper respiratory infections, mouth ulcers and fight wounds.
Carol Boyse told investigators she tried to medicate the cats and find them homes, according to court records.
Most of the seized cats were wild barn cats, defense attorney Jeff Lahann said last year.
“They might feed them or whatever, but basically, Ms. Boyse is very big into animal rescue,” he said in 2010. “She donates lots of money and time to lots of organizations — throughout the country — that deal with animal rescue.”
In 2009, the couple entered no-contest pleas to 107 misdemeanor counts of cruelty to animals related to cat hoarding. A no-contest plea means the defendant does not admit guilt but acknowledges that if the case were to go to trial, he or she likely would be convicted.
Last year, state District Court Judge Fernando Macias sentenced the couple to the minimum sentence: five year’s probation and ordered them to have no more than three pets and to avoid business ventures that involve the care or housing of animals. The two had faced up to 106 years in prison, which the District Attorney’s Office said wasn’t realistic due to their lack of criminal history..."  Link

2009:  Couple entered no contest pleas to 107 misdemeanor counts of cruelty to animals related to cat hoarding

A Mesilla couple indicted on multiple misdemeanor and felony charges last year have pleaded no contest to 107 misdemeanor counts of cruelty to animals related to cat hoarding, the Las Cruces Sun-News reported.
The newspaper said that according to a news release Thursday from the District Attorney’s Office, Lester Boyse, 59, and Carol Boyse, 58, entered their pleas Nov. 10. They face from five years’ probation to 106 years behind bars when sentenced.
No sentencing date has been scheduled, according to the Sun-News.
The newspaper said Lester Boyse is a research assistant in the New Mexico State University agronomy and horticulture department and Carol Boyse is department head of library systems at NMSU.
The charges against the couple came after authorities went to their home following a report of a smell, which was coming from a dead horse on the property, according to the Sun-News.
About 101 cats were found inside the home, including four dead cats in the freezer, the newspaper reported. Investigators also found three live and two dead horses, a pair goats, a peacock and other animals on the couple’s property..."  More

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