No charges will be filed in connection with a July incident when a dog was found dead after being kept outside for hours on a 90-degree day.
The Henderson County Attorney’s Office said the probe conducted by the local Animal Control Office violated the 4th Amendment rights of the woman whom the ACO had been investigating, and therefore the vast majority of evidence gathered by ACO would be inadmissible in court.
“While it is a heartbreaking decision to have to make, in my opinion and those of the various other prosecutors who have also reviewed the case, there is not sufficient admissible evidence to bring a criminal charge in this case,” Henderson County Attorney Steve Gold wrote in an Aug. 13 email to Christa Bennett, the chair of the board of the Humane Society of Henderson County, which oversees Animal Control. “Frankly, had this investigation been completed properly, I believe charges could have been sustained.”
Gold cited a rule for prosecutors in the Kentucky Rules of Professional Conduct that precludes prosecutors from prosecuting a charge they know is not supported by probable cause.
“Therefore, I am ethically prohibited from recommending charges to the court in this case,” he wrote.
The incident blew up on Facebook shortly after pictures were posted of a dead dog in the back porch area of a home in the Braxton Park subdivision on July 21. Neighbors posted the picture of the dog and demanded justice for it, and hundreds of people, many outraged, left comments about the dog’s treatment and death.
A report completed by the Animal Control Office said that on July 21 an officer received a call at 12:03 p.m. that a dog had been chained outside with no food, water or shelter since 6 a.m.
The report, which the Hendersonian received after making an open records request, said that the officer went to the back patio, which had no fencing around it, where the dog lay. He surmised the dog was dead. He touched the dog and “found it to be stiff and lifeless,” said the report.
“The dog was hot to the touch, and the tongue was hanging out and dry. I noticed several scratch marks on the back door glass as if the dog had been scratching to come inside the home,” the ACO report said.
The officer attempted to speak to a woman at the house, who was identified as the daughter of the dog’s owner. After a conversation at the front door, the woman declined to continue talking. The animal control officer then went back to the dog with a black trash bag and placed the dog in the bag and put it in the ACO truck, said the report.
The officer then went to a neighbor’s residence where he completed an affidavit with the resident about what was witnessed. He returned to the residence where the dog had been found, attempting to make a final contact, and at this point, the dog’s owner came home, according to the report.
The officer asked if he had permission to take the dog to have a necropsy report done in order to determine the cause of death. The dog’s owner said she wanted to bury the dog in her back yard and did not want it cut up, said the report.
After calling another ACO officer, it was determined that the dog’s body be given back to its owner, said the report. “I then brought the dog to her garage for her and left the location,” the officer wrote in the report.
Neighbors told the Hendersonian that they witnessed that evening the dog being buried in the backyard.
The next day, according to the report, two ACO officers returned with a search warrant and Henderson Police Department officers to the get the dog’s body. When no one answered the door, an animal control officer read the search warrant out loud “on the front steps on body camera.”
Then they went around to the right side of the house where there was a fresh pile of dirt. One animal control officer began to remove the dirt from the hole until he reached a sheet covering the dog at about two feet deep, and then he put the dog into a black plastic bag, according to the report.
Shortly after, the dog’s owner arrived and the second animal control officer read the search warrant to her. Following that, the first animal control officer put the dog’s body in the ACO truck and drove it to the Breathitt Veterinary Center in Hopkinsville for a necropsy test.
The Animal Control Office had intended to seek a second-degree animal cruelty charge, said the ACO report. Temperatures that day reached 94 degrees with a heat index of 107 degrees, it said.
The necropsy report, which is also a part of the file from the ACO, said there was a foreign body in the stomach that could have caused a blockage had it remained, but “that was not likely the cause of death.” It also said the “state of decomposition decreased the value of the tissues to be used for diagnostic purposes” and “Due to the time of the year, death due to exposure to high ambient temperatures must be considered.” But the necropsy report did not state the heat was the cause.
Gold, in his correspondence with Bennett, said there were various deficiencies in the investigation.
Gold said Animal Control “improperly and illegally seized the dog’s remains without a warrant, then later realized they messed up, gave the dog back to the owner who buried the dog in the yard, then Animal Control waited until the next day to seek a warrant to dig up the animal’s remains.”
There were other problems with the investigation, including discrepancies in statements made by the animal control officer on bodycam and what the officer stated to the county attorney’s office, Gold wrote. Additionally, the necropsy test results—even if they were admissible in court—were inconclusive as to the cause of death, Gold wrote.
Both Gold and the Commonwealth’s Attorney’s Office believe the case wouldn’t be able to survive, especially in light of a recent suppression ruling concerning a case that recently made its way through Henderson Circuit Court. Gold wrote this 2024 case is “strikingly similar” to what occurred in Braxton Park in July.
In the 2024 incident, the former president of the board of the Henderson Humane Society and an ACO officer arrived at a Graves Drive residence, when they saw what appeared to be a dead dog in the backyard which was surrounded by a pallet fence, according to court records.
They stepped over the fence and went to the dog, and when they confirmed it was dead, the animal control officer placed the dog’s body in a bag and took it to a freezer at the Animal Control Office so it could be preserved as evidence, according to court documents.
The owner of the dog in that case argued that the warrantless entry onto his property was unconstitutional, according to the court documents. In the order signed by Circuit Judge Karen Wilson on Aug. 6, the judge wrote, “It gives the Court genuine displeasure to make this ruling. Based on the proof, what happened to the dog in this case was beyond any doubt deplorable. However, the Court is forced to conclude that the Commonwealth has not met its burden in proving the warrantless entry on the defendant’s property was justified.” She sustained the defendant’s motion to suppress.
Since the more recent Braxton Park incident and investigation, Gold has directed ACO staff to not conduct investigations in animal cruelty or torture cases, and has instead instructed those cases to be referred to and investigated by a sworn law enforcement agency. Gold said he has consulted both the Henderson County sheriff and Henderson Police Department chief and both are in agreement.
One neighbor said many in the neighborhood are upset that there will be no charges.
“I’m mad about it,” Greg Billiter said. “The whole neighborhood is mad about it.”
