State v. Powell

[Cite as State v. Powell, 2017-Ohio-8668.]

IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY

STATE OF OHIO :
:
Plaintiff-Appellant : C.A. CASE NO. 027581
:
v. : T.C. NO. 2017-CRB-145W
:
AMOS POWELL, JR. : (Criminal Appeal from
: Municipal Court)
Defendant-Appellee :
:

...........

OPINION

Rendered on the 22nd day of November, 2017.

...........

J. JEFFREY HOLLAND, Atty. Reg. No. 040089, 1343 Sharon-Copley Road, P.O. Box
245, Sharon Center, Ohio 44274
Attorney for Plaintiff-Appellant

BRIAN D. HUELSMAN, Atty. Reg. No. 055444, 117 S. Main Street, Suite 400, Dayton,
Ohio 45422
Attorney for Defendant-Appellee

.............

DONOVAN, J.

{¶ 1} This matter is before the Court on the May 9, 2017 Notice of Appeal of the

State of Ohio. The State appeals from the trial court’s May 3, 2017 “Decision and Entry”
 -2-

sustaining Amos Powell’s motion to suppress. We hereby reverse the judgment of the

trial court and remand the matter for further proceedings consistent with this opinion.

{¶ 2} Powell was charged by way of complaint on February 3, 2017, in the

Municipal Court of Montgomery County, Western Division, with seven counts of cruelty

to animals, in violation of R.C. 959.13(A)(1), misdemeanors of the second degree.

Powell’s brother, Henry Powell, was also charged with seven counts of cruelty to animals

in Case No. 2017 CRB 00144W.

{¶ 3} On April 3, 2017, Powell filed his motion to suppress, and the State

responded on April 11, 2017. A hearing was held on the motion on April 17, 2017, at

which time the court also ruled upon Henry Powell’s motion to suppress. At the hearing,

Heather Concannon testified that she works for the Humane Society of Greater Dayton

as a humane agent, having been so employed since September of 2015. She testified

that there has been an ongoing investigation since 2015 of cruelty to animals at 6719

Dayton Liberty Road, property owned by the Powells. She stated that it has “been ongoing

with horses and one pig, at that time, that I was aware of.” Concannon testified that she

“was constantly getting complaints, both from the public, next-door neighbors, the news,

and, also, from the County Sheriff’s Office regarding horses not being fed and a pig being

stuck.” She testified further that the “horses would get out because there was no hay or

food. One horse in particular would get out; the rest would follow.”

{¶ 4} Concannon testified that on January 3, 2017, “while on my regular duties,”

she “drove by and pulled into the semicircle that’s on the property, checking to see if the

horses had hay.” She stated that there were previously three horses on the property,

and that on January 3, 2017, she observed only two of them. Concannon testified that
 -3-

she “heard what sounded to be an animal in distress. I was looking for the third horse

from the driveway that runs up the side of the property * * *.” According to Concannon,

she “walked up the driveway looking for the horse, thinking that it was down on the

property, * * * and that’s when I started hearing the squeals of pigs, obviously, and I had

not seen pigs there before.” Concannon stated that in her experience, the sound of a

farm animal in distress requires immediate attention. She testified that “there’s nobody

that lives on that property, so the fact that there is not food present or no one that lives

on that property to see what’s going on there, it definitely is a concern.” She testified

that it is life-threatening for a horse to be down if the horse is injured or sick.

{¶ 5} Concannon identified Exhibits 1, 2 and 3 as photographs taken by her of the

property. She testified that the home thereon has no windows and the roof is “caved in.”

She stated that the area where the horses are fed is one third or one half of the way up

the driveway from Dayton-Liberty Road. Concannon testified that Exhibit 3 depicted a

“tract of a road,” and when asked if it was on Powell’s property, she responded, “I don’t

know if it’s on the property, but it runs up the side of the property,” and that it is the access

she uses to the property. The following exchange occurred:

Q. Can you see where the pig enclosure is on this picture?

A. It’s right there (indicating).

Q. * * * So it’s - -

A. On the property.

Q. - - in the distance, a little bit back - -

A. Correct

***
 -4-

Q. * * * So was the pig enclosure - - did you finally get up to see it?

A. Yes.

Q. When you got up to see it, did it appear to be within the curtilage

of a - - of an active residence?

A. An active residence? No, it’s just on the property.

Q. Did it appear to be in anybody’s yard ever?

A. If somebody ever lived in that white house, it would have been,

but - -

Q. Well, how many feet away is it?

***

A. Probably * * * a football field or more.

Q. So would you say it’s more or less than a hundred yards away

from the house?

A. More.

{¶ 6} Concannon identified as Exhibit 4 a photograph of “a liquid mud that all the

pigs were standing in where the pigs were” on January 3, 2017. Concannon stated that

the pigs could not get out of the mud, and that every time the pigs “moved, it rippled like

an ocean.” Concannon testified that she smelled “fecal and urine ammonia” coming from

the pen, and that those substances are toxic for the pigs. Concannon testified that she

“did an infrared temp” of the liquid in the pen and it was 46 degrees. She stated that the

pigs were at risk of hypothermia.

{¶ 7} The following exchange occurred:

Q. * * * So this view that you had of the pigs that we showed you on
 -5-

Plaintiff’s Exhibit Number 4, was that an open view from the driveway?

A. Yes, it was.

Q. Was it concealed by any privacy fence?

A. No, sir.

Q. Was there any “No Trespassing” signs?

A. No, sir.

Q. Did you have to go through any locked gates to get there?

A. No, sir.

Q. Anybody who was walking up this lane could see it plainly?

A. Yes.

{¶ 8} Concannon testified that after observing the pigs, she contacted the

Montgomery County Sheriff’s Office, and deputies arrived at the property. She stated that

shortly thereafter, Henry and Amos Powell arrived, along with Henry Powell’s son. She

stated that she discussed with them the “condition of the pigs’ pen and the fact that it

needed to be remedied, along with their food and their water.” She stated that she

“explained to them that the conditions that the pigs were in was not acceptable, that it

was definitely a health hazard; they could not be kept that way.” Concannon stated that

“[w]e agreed on a timetable for them to fix that. Both Mr. Powells stated that they would

work on it through the week, because they also had another job. They agreed that it

would be fixed in a timely manner and that they would get them food and water.”

According to Concannon, the Powells advised her that they had gotten rid of the third

horse “because they deemed that horse to be the troublemaker.”

{¶ 9} Concannon testified that she returned to the property on January 4, 2017 to
 -6-

check on the pigs and horses. She stated that the pigs were in the same condition, and

that it “was getting colder outside.” Specifically, she stated that it was 27 degrees and

that the temperature dropped to 18 degrees that night. Concannon stated that she did

not see the Powells that day.

{¶ 10} Concannon testified that she returned to the property on January 7, 2017 in

the afternoon. At that time, she stated that “all of the pigs were cold. They still had

inadequate food. Their water trough had not been replenished; it was absolutely frozen.

And the piglets, their teeth were actually chattering and their ears were shaking.” As

someone trained in animal husbandry, Concannon testified that the pigs “were freezing.

They were actively freezing to death.” She stated that one of the pigs had a “medical

condition” that later was determined to be a “scrotal hernia.” According to Concannon,

the pigs “were all definitely, definitely very close to - - especially the smaller ones - - losing

their lives that night, absolutely.” Concannon stated that she “immediately went back to

my office and made arrangements to have them removed.” She stated that at the time

it was six degrees outside without accounting for the wind chill, and that her camera

“actually froze.”

{¶ 11} When asked if she was trained to identify life-threatening issues in animals,

Concannon stated that she is “recognized as an investigator by * * * Mike DeWine’s office.

I had just helped rewrite the Humane agent training as well as the Officers Training

Manual for OPOTA 1 that just went into effect for the new training standards.”

Concannon stated that she never placed the Powells under arrest or placed them in

custody, and that she did not engage in custodial interrogation with them. She stated

1
Ohio Peace Officer Training Academy
 -7-

that she did not read the Powells their rights.

{¶ 12} On cross-examination by counsel for Amos, Concannon stated that she had

not seen a pig on the property for the previous 18 months to two years. She stated that

on January 3, 2017, she asked the Powells “if they were going to get food and water out.

They said yes. I said I would be checking. They did not tell me not to come back on

the property.” Concannon stated that she returned to the property on January 7, 2017,

at 3:00 in the afternoon, and that the pigs were removed from the property around

“midnight, 12:30, 1:00-ish.” The following exchange occurred:

Q. * * * And you didn’t think to get a warrant? You’re taking

somebody’s livestock. Do you know the value on that property?

A. Yes, sir.

Q. You’re taking them without their consent?

A. Yes, sir.

Q. And you did it without getting a warrant?

A. Yes, sir.

Q. Even though you had four days where you’re going over to this

property saying you had concerns, and you didn’t take the time to go get a

warrant?

A. No, sir.

Q. Why not?

A. On Friday, the afternoon there was a storm that changed and

was coming in. The temperature was very rapidly dropping. These pigs

were freezing to death, and that was the earliest I could get transport. We
 -8-

could not get a vet out there. * * *

Q. What’s that got to do with you getting your time to go get the

warrant?

A. It was a matter of trying to get a transport, trying to facilitate

lodging.* * *

***

Q. You didn’t get a warrant at any time on any of this matter, did - -

***

A. I had made an agreement with Mr. - - both Mr. Powells for them

to upgrade the pen, move the pigs out of the pen they were in into a dry

pen, make housing, get the appropriate food and water sources.

During that week, again, I’m one officer for the entire county. The

temperatures were dropping. I was out checking on other livestock and

companion animals.

When I came back on Friday, knowing that the storm was coming in

and nothing had been done, it became a matter of life and death for - -

initially, it was ten pigs; three of them had been removed. I came back to

check on those seven pigs. They were literally freezing to death.

We do not have the facilities where we are [able] to house livestock,

especially pigs being as destructive as they are, so it was a matter of life

and death for those pigs to try to get them housed somewhere else. I can

only get those pigs moved and housed with a group of people.

Courts close at four o’clock, and I don’t have a prosecutor readily
 -9-

available to get a search warrant at the same time to get those pigs moved.

So no, sir, I did not get a warrant.

Concannon stated that she has obtained warrants before and is familiar with the process.

{¶ 13} On cross examination by counsel for Henry, the following exchange

occurred:

Q. You indicated, when Mr. Huelsman asked you, what - - that you

made an agreement with the Powells regarding the resolution of this

problem with the pen, right?

A. Yes, sir.

Q. * * * Let’s talk about that for a second. When did you make that

agreement?

A. That was on the 3rd when they showed up, the first day I was

there when I discovered that they actually had pigs. * * *

Q. And how long did you give them to get the pen squared away?

A. They were supposed to have it done by that Saturday, the 8th.

Q. * * * Would it surprise you to learn that Saturday was the 7th?

A. No.

Q. So * * * can we agree that that Saturday, January 2017 was the

7th of January?

A. I’ll agree.

Q. * * * Fair enough.

So you gave them until Saturday to get it squared away. When did

you seize the animals?
 -10-

A. Actually, I know that it was the 7th because it was after midnight,

so that would have been Saturday the 7th then.

Q. Saturday the 7th?

A. Yes, sir.

Q. So - - so was the agreement that it would be - - everything would

be fixed by midnight on Saturday, or by close of business on Saturday?

A. I believe we had agreed that it would be - - I believe it was four

o’clock on Saturday.

Q. So you seized them ahead of time?

A. That was before the storm change came through.

Q. So that would have been a good answer if I had asked you if it

was before the storm came through.

Did you seize them ahead of time, was my question.

A. I did.

Q. Thank you.

Did you have the Powells’ number at the time that you seized those

animals?

A. Yes, I did.

Q. Did you call them to advise them that you were going out there

to seize those animals?

A. Not on Friday, I did not.

***

Q. That you were reneging on the deal, that you were breaching the
 -11-

agreement that you had not to seize the animals until four o’clock on

Saturday.

A. No.

{¶ 14} In sustaining the motions to suppress, the trial court indicated as follows:

All evidence marked and presented is deemed admitted.

After considering the testimonies of the witnesses and the evidence

admitted for the purposes of said hearing, the Court does hereby find the

Motion to Suppress well taken.

The use of any and all evidence observed and recovered from 6719

Dayton Liberty Road is hereby suppressed. Any and all statements made

by the defendant and any subsequent evidence procured is hereby

suppressed.

{¶ 15} The State asserts one assignment of error as follows:

THE TRIAL COURT ERRED BY GRANTING DEFENDANT’S

MOTION TO SUPPRESS.

{¶ 16} According to the State, “[g]enerally, a person has an expectation of privacy

in one’s home and the surrounding curtilage. A person does not have an expectation of

privacy in open fields which are not part of the curtilage of a residence.” The State

argues that the pig pen was not within the Powells’ residence or its curtilage, and

“therefore [the Powells] had no reasonable expectation of privacy in the pig enclosure

located adjacent to the driveway.” The State argues that even “if an area is within the

curtilage of a home, there is no expectation of privacy in observations made in open view

from a driveway.” The State argues that “there was no evidence that the [Powells were]
 -12-

the owner[s] of or had any interest in the driveway where the observations were made. *

* * [T]he driveway ran alongside the property where the pig pen was located, but the

Officer was not able to tell if the driveway was part of that property. No other evidence

was admitted.”

{¶ 17} The State further argues that even if “arguendo, there were a

constitutionally protected Fourth Amendment interest in the outdoor pig pen, the humane

agent’s observations fall under the open view exception to the warrant requirement.”

According to the State, open view “applies where an officer views an object that is not

subject to a reasonable expectation of privacy. No search occurs when the owner of an

object has voluntarily exposed it to public view.” The State argues that “all relevant

observations of the pigs and their enclosure were in open view from the access driveway,

on a non-residential farm field, and were thus valid and constitutionally sound.”

{¶ 18} According to the State, “the observations of the Officer and subsequent

seizure were also permitted by exigent circumstances.” The State argues that the

“doctrine of exigent circumstances applies to removing animals which are in jeopardy

from neglect.” The State argues that Concannon “approached the pig enclosure in

response to a cry of an animal in distress. * * * She initially gave [the Powells] a warning

and a few days to make corrections, but a storm front moved in, dropping temperatures

over 40° into the single digits.” The State asserts that it “is unreasonable to suggest that

an officer may not respond in an open farm field to the cries of an animal in distress, or

to remove neglected animals from conditions which could reasonably be fatal.”

{¶ 19} Finally, the State argues that the Powells “arrived at the property of [their]

own volition, spoke to the Officer voluntarily, and [were] permitted to leave without
 -13-

restraint of any kind. There was no evidence indicating that [the Powells] were coerced

or that [their] statements were involuntary in any way.”

{¶ 20} Amos Powell responds as follows:

Appellee Amos Powell has a reasonable expectation of privacy

regarding his agricultural property and Agent Concannon does not have an

inherent right to enter his property without consent. Agent Concannon’s

observations were not the result of plain-view findings. She had to walk at

least fifty yards along the fenced property up hilly terrain before she could

see anything. The fifty yards in question are all on private property owned

by the Powells and not open to the public and certainly not viewable to the

public.

{¶ 21} As this Court has previously noted:

“Appellate review of a motion to suppress presents a mixed question

of law and fact. When considering a motion to suppress, the trial court

assumes the role of trier of fact and is therefore in the best position to

resolve factual questions and evaluate the credibility of witnesses.” State v.

Koon, 2d Dist. Montgomery No. 26296, 2015-Ohio-1326, ¶ 13 quoting State

v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8.

“Consequently, an appellate court must accept the trial court's findings of

fact if they are supported by competent, credible evidence. Accepting these

facts as true, the appellate court must then independently determine,

without deference to the conclusion of the trial court, whether the facts

satisfy the applicable legal standard.” Id. The application of the law to the
 -14-

trial court's findings of fact is subject to a de novo standard of review. State

v. Gordon, 5th Dist. Fairfield No. 14–CA–13, 2014-Ohio-5027, ¶ 14,

citing Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d

911 (1996).

State v. Turner, 2015-Ohio-4612, 48 N.E.3d 981, ¶ 10 (2d Dist.).

{¶ 22} “It is fundamental that searches conducted outside the judicial process,

without a warrant, are per se unreasonable, subject to a few specifically established and

well-delineated exceptions. Katz v. United States, (1967), 389 U.S. 347, 357, 88 S.Ct.

507, 19 L.Ed.2d 576. The burden is on those seeking an exemption from the constitutional

process to show the need for it.” State v. Peterson, 173 Ohio App.3d 575, 2007-Ohio-

5667, 879 N.E.2d 806, ¶ 11.

{¶ 23} As this Court further noted in Peterson, ¶ 12-17:

Analysis of Fourth Amendment law is primarily focused on whether

a person has a “constitutionally protected reasonable expectation of

privacy.” Katz, 389 U.S. at 360, 88 S.Ct. 507, 19 L.Ed.2d 576 (Harlan, J.,

concurring). “[T]here is a twofold requirement, first that a person have

exhibited an actual (subjective) expectation of privacy and, second, that the

expectation be one that society is prepared to recognize as ‘reasonable.’ ”

Id. at 361, 88 S.Ct. 507, 19 L.Ed.2d 576.

“[O]bservations of things in plain sight made from a place where a

police officer has a right to be do not amount to a search in the constitutional

sense. On the other hand, when observations are made from a position to

which the officer has not been expressly or implicitly invited, the intrusion is
 -15-

unlawful * * *.” Lorenzana v. Superior Court (1973), 9 Cal.3d 626, 634, 108

Cal.Rptr. 585, 511 P.2d 33.

In Oliver v. United States (1984), 466 U.S. 170, 104 S.Ct. 1735, 80

L.Ed.2d 214, the United States Supreme Court held that police did not

violate the defendant's Fourth Amendment rights when they trespassed

onto the defendant's farm field several hundred feet from the defendant's

farmhouse. Justice White noted that a person may not legitimately demand

privacy for activities conducted out of doors, except in the area immediately

surrounding the home. Id. at 178, 104 S.Ct. 1735, 80 L.Ed.2d 214. He noted

that open fields do not provide the setting for those intimate activities that

the amendment is intended to shelter from government interference or

surveillance. Id. at 179, 104 S.Ct. 1735, 80 L.Ed.2d 214. The court noted

that only the curtilage warrants the Fourth Amendment protections that

attach to the home. Id. at 180, 104 S.Ct. 1735, 80 L.Ed.2d 214.

Even if property is within the curtilage, a visual inspection of that

property from outside the curtilage does not constitute a search. United

States v. Hatfield (C.A.10, 2003), 333 F.3d 1189. In Hatfield, police officers'

observations of a back yard while standing on a paved parking pad next to

a house, during which an officer formed an opinion that marijuana plants

might be growing in [the] yard, did not constitute a search under the Fourth

Amendment because the driveway was open to the public. Circuit Judge

Ebel noted in the opinion: “Furthermore, the Court said that, ‘the fact that

the objects observed by the officers lay within an area that we have
 -16-

assumed * * * was protected by the Fourth Amendment does not affect our

conclusion.’ The court emphasized that ‘the officers never entered the barn,

nor did they enter any other structure on respondent's premises.’ Instead,

‘[o]nce at their vantage point, they merely stood, outside the curtilage of the

house and in the open fields upon which the barn was constructed, and

peered into the barn's open front.’ Thus, ‘standing as they were in the open

fields, the Constitution did not forbid them to observe the [drug] laboratory

located in respondent's barn.’ ” (Citations omitted.) Id. at

1197, quoting United States v. Dunn (1987), 480 U.S. 294, 304, 107 S.Ct.

1134, 94 L.Ed.2d 326. The court further observed at pages 1197 and

1198 of the opinion:

“Similarly, Fullbright [v. United States (C.A.10, 1968), 392 F.2d

432] involved law enforcement officers who, while trespassing on the

defendant's open fields, observed from a distance the interior of an open

shed located in the property's curtilage. 392 F.2d at 433–34. We held the

officers' observation of an illegal distilling operation in the shed was not a

search prohibited by the Fourth Amendment. Id. at 434. We explained,

however, that ‘[i]f the investigators had physically breached

the curtilage there would be little doubt that any observations made therein

would have been proscribed. But observations from outside the curtilage of

activities within are not generally interdicted by the Constitution.’ Id.; see

also 1 LaFave, [Search and Seizure (1996) 515, Section 2.3(g) ] supra, §

2.3(g), at 515 (reasoning that police observation of incriminating objects or
 -17-

activity ‘is unobjectionable—even if what is seen is itself within the protected

area called the “curtilage”—if the police vantage point was itself in the “open

fields” ’).”

The curtilage is an area around a person's home upon which he or

she may reasonably expect the sanctity and privacy of the

home. Oliver, 466 U.S. at 180, 104 S.Ct. 1735, 80 L.Ed.2d 214. Because

the curtilage of a property is considered to be part of a person's home, the

right of the police to come into the curtilage is highly circumscribed. State v.

Woljevach, 160 Ohio App.3d 757, 2005-Ohio-2085, 828 N.E.2d 1015, at ¶

29. Absent a warrant, police have no greater rights on another's property

than any other visitor has. Id. The only areas of the curtilage where the

officers may go are those impliedly open to the public. Id.

{¶ 24} As this Court further noted in State v. Little, 183 Ohio App.3d 680, 2009-

Ohio-4403, 918 N.E.2d 230, ¶ 18 (2d Dist.):

* * * “At common law, the curtilage is the area to which extends the

intimate activity associated with the ‘sanctity of a man's home and the

privacies of life.’ ” Oliver v. United States (1984), 466 U.S. 170, 180, 104

S.Ct. 1735, 80 L.Ed.2d 214, quoting Boyd v. United States (1886), 116 U.S.

616, 630, 6 S.Ct. 524, 29 L.Ed. 746. The protection afforded the curtilage is

essentially a protection of families and personal privacy in an area intimately

linked to the home, both physically and psychologically, where privacy

expectations are most heightened. State v. Jones, Lucas App. Nos. L–00–

1231, L–00–1232, and L–00–1233, 2003-Ohio-219. In some instances,
 -18-

however, the curtilage of an area of a residence may not be protected when

that area is open to public view. State v. Staton (Mar. 15, 1991), Greene

App. No. 90–CA–62, 1991 WL 35224.

{¶ 25} In State v. Martin, 5th Dist. Stark No. 2006CA00339, 2007-Ohio-4821,

Candy Martin was charged with two counts of cruelty to animals, and she filed a motion

to suppress. The facts were as follows, ¶ 1:

On August 24, 2006, Magnolia Police Officer Nicholas Kline received

a complaint about possible neglect involving dogs located in a barn in

Waynesburg, Ohio. Officer Kline went to the barn to investigate, and

entered the barn through an unlocked door. Based upon his observations

on the condition of the dogs, Officer Kline called the Humane Society. On

[the] same date, Humane Society Officer Ron Sheaks went to the barn and

posted a notice for someone to contact the Humane Society within twenty-

four hours. The next morning, Officer Neil Denzer from the Stark County

Dog Warden's Department went to the barn. He was joined by Officer

Sheaks. Based upon their observations, they contacted the Magnolia Police

Department for assistance. Sergeant Barbara Gardener arrived, as did the

Assistant Director of the Humane Society, Jackie Godbey. The officers

entered the barn through the unlocked door and removed the dogs, forty-

two in all.

{¶ 26} The trial court determined that “there was a limited expectation of privacy in

an unlocked barn five hundred feet from the home, and the decision to enter the barn was

reasonable given the conditions, thereby giving rise to exigent circumstances.” Id., ¶ 18.
 -19-

The trial court “further found under the plain view/plain smell exception to a warrant that

the search was reasonable.” Id. In affirming the judgment of the trial court on the

motion to suppress, the Fifth District conducted the following analysis at ¶ 20-31:

The first inquiry is whether the barn was within the curtilage of the

home. In State v. York (1997), 122 Ohio App.3d 226, 231, our brethren from

the Eleventh District discussed the concept of curtilage as follows:

“It has long been held that a person's house is his or her castle and

that law enforcement officials may not enter a person's residence to search

for evidence of a crime without a search warrant. Weeks v. United

States (1914), 232 U.S. 383, 389-390, 34 S.Ct. 341, 343, 58 L.Ed. 652, 654-

655. Fourth Amendment protections of the home generally extend to the

outbuildings located upon the curtilage, such as barns, and it can be fairly

said that property owners have legitimate expectations of privacy in

them. Oliver v. United States (1984), 466 U.S. 170, 180, 104 S.Ct. 1735,

1742, 80 L.Ed.2d 214, 225.”

The specific facts in the case sub judice establish the owner of the

home was not the lessee of the barn. Therefore, the curtilage rule is

inapplicable. It was not established in the record which of the three co-

defendants had leased the barn, but it was established the property owner

had moved out of state. October 30, 2006 T. at 9-10. The renter of the

smaller house on the property did not have any ownership interest in the

property or the barn. Id. at 11. We further conclude the expectation of

privacy that arises under the curtilage doctrine does not apply in this case
 -20-

even under the following four factors set forth by Justice White in U.S. v.

Dunn (1987), 480 U.S. 294, 301:

“Drawing upon the Court's own cases and the cumulative experience

of the lower courts that have grappled with the task of defining the extent of

a home's curtilage, we believe that curtilage questions should be resolved

with particular reference to four factors: the proximity of the area claimed to

be curtilage to the home, whether the area is included within an enclosure

surrounding the home, the nature of the uses to which the area is put, and

the steps taken by the resident to protect the area from observation by

people passing by.”

The barn sub judice was five hundred feet from the home, the barn

was not within an enclosure surrounding either the larger or the smaller

home, the barn was used to house some forty dogs, and although

padlocked in front, the barn was visible from the road and was unlocked via

the sliding door.

Even if other tribunals may find the barn, because it was leased by

separate parties, had some expectation of privacy, we further find that under

the plain view/plain smell exception and exigent circumstances doctrine, the

search was reasonable.

The York court addressed a fact scenario strikingly similar to the

facts in this case. In York, a Humane Society officer looked into a barn after

receiving complaints about a dead horse and after hearing moaning sounds

from the barn. The officer observed an emaciated, dehydrated and starving
 -21-

pony. The court concluded looking into the barn was not surveillance, and

any subsequent search was justified under the “open view” doctrine.

In this case, the officers heard the barking of numerous dogs which

was the genesis of the complaints. Standing alone, barking is not cause for

a search because “all dogs bark.” However, the ammonia smell caused by

excessive urine was readily apparent upon approaching the barn. The smell

was described as “overwhelming.” October 30, 2006 T. at 14. Dog Warden

Officer Denzer observed through a window seventeen animals confined in

cages or carriers stacked three high. Id. at 40. The temperature outside was

eighty degrees with high humidity. Id. at 16, 41. It was with these readily

open and observable facts that the officers entered the barn.

We conclude all of these collective factors led to a justified search

under either the open view exception or the exigent circumstances

doctrine. Further, the evidence in this case would clearly have been

discovered if a warrant had been obtained; therefore, the inevitable

discovery rule is applicable:

“If the prosecution can establish by a preponderance of the evidence

that the information ultimately or inevitably would have been discovered by

lawful means* * * then the deterrence rationale has so little basis that the

evidence should be received. Anything less would reject logic, experience,

and common sense.” Nix v. Williams (1984), 467 U.S. 431, 444.

The facts alone would have justified the issuance of a search

warrant: there were numerous complaints of barking dogs that were verified
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on two separate days, a twenty-four hour notice was posted with no

response, there was a noxious odor coming from the barn, and there was

verification of numerous dogs stacked in cages.

Upon review, we find the trial court did not err in denying appellant's

motion to suppress.

{¶ 27} We initially conclude, reading Concannon’s direct and cross examination

testimony together, that she first observed the pigs on January 3, 2017, a Tuesday, at

which time she reached an agreement with the Powells to remediate the conditions of the

pen by the upcoming Saturday, January 7, 2017. Concannon returned to the property

on January 4, 2017, and found that no action had yet been taken by the Powells. While

she testified on direct that she next returned to the property on January 7, 2017, based

upon her testimony on cross-examination, she appears to have initially believed that the

eighth of January was a Saturday, when in fact January 7, 2017 was a Saturday. It

appears that Concannon returned to the property on Friday, January 6, 2017, in the

afternoon, and then had the pigs removed early in the morning on January 7, 2017.

{¶ 28} As noted above, the curtilage is considered part of a person’s home, and

only the curtilage is entitled to the Fourth Amendment protections that attach to one’s

home. Concannon testified that the only “home” on the property was uninhabitable due

to a fallen in roof and lack of windows. Concannon was clearly familiar with the property,

having been there multiple times, and she testified that “there’s nobody that lives on that

property.” The pig pen is one hundred yards from the vacant home, according to

Concannon, and it does not appear to be within an enclosure surrounding the vacant

home. There is a fence that runs along the side of the unpaved lane, but that fence does
 -23-

not appear to enclose the pen. Concannon testified that she does not know who owns

the lane. The pen was used to contain pigs, and there is no evidence of steps taken to

protect the area from observation from the adjacent lane, such as a privacy fence, locked

gates or “No Trespassing” signs. In other words, Powell did not exhibit an expectation

of privacy in the pen; Concannon testified that anyone walking up the lane along the side

of the property from Dayton-Liberty Road could plainly see the pig pen. Concannon did

not enter the pig pen. We agree with the State that the pig pen was not within Powell’s

residence or its curtilage, and that Concannon’s observation of the pigs was not a search

for purposes of the Fourth Amendment.

{¶ 29} Concannon testified that she responded to the area based upon only seeing

two of the three horses she knew to be there and following the sound of an animal in

distress, a sound she recognized in her experience as a humane agent. Concannon

stated that when she first observed the pigs on January 3, 2017, they were standing in

“liquid mud,” and that she smelled “fecal and urine ammonia” coming from the pen, which

is toxic to pigs. She further stated that the pigs were at risk of hypothermia due to the cold

weather. On that date, the Powells arrived voluntarily and spoke to Concannon. She

testified that she did not interrogate them, and we have no basis to conclude that their

statements were subject to suppression. Concannon testified that when she returned to

the property on January 4, 2017, the pigs were in the same condition, and the weather

was getting colder. Finally, on her third trip to the property, Concannon stated that the

pigs lacked food and fresh water, and that they were “actively freezing to death.” One of

them had a scrotal hernia. The outside temperature had fallen to six degrees, according

to Concannon. We do not read her testimony regarding the agreement she reached with
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the Powells to in any way prohibit the removal of the pigs, as suggested by counsel for

Henry on cross examination; the Powells were on notice that the pigs were in danger and

that Concannon was continuously monitoring the situation, and as the condition of the

pen remained unchanged, temperatures plummeted and created what Concannon

termed a life or death situation for the pigs, who “were literally freezing to death.” As in

Martin, we conclude that based upon all of these facts, the observation and removal of

the pigs was justified under both the open view exception and the exigent circumstances

doctrine. Accordingly, the State’s assignment of error is sustained, the judgment of the

trial court is reversed, and the matter is remanded for proceedings consistent with this

opinion.

.............

HALL P.J. and FROELICH, J., concur

Copies mailed to:

J. Jeffrey Holland
Brian D. Huelsman
Hon. Adele M. Riley