{¶ 2} The events giving rise to this matter began on October 25, 2006, at approximately 5:45 p.m., when City of Dayton Police Officers John Zimmerman and Ronald Velez, while on routine patrol in a marked cruiser, proceeded down an alley behind 43 Boltin Street. The officers observed a gray minivan with its back and side doors completely open. The van was parked facing the rear of 43 Boltin Street, behind a fence that enclosed the yard, and beside a pickup truck. The officers observed several animal crates containing dogs inside and next to the van, along with two dogs chained to the fence and an additional dog in the yard. There were three men near the van.
{¶ 3} The officers passed by but then backed up their cruiser, stopping near the van. They did not utilize their emergency lights and siren. Zimmerman and Velez exited their cruiser, approached the men and asked them for identification. The men produced drivers' licenses; they were Eric A. Lewis, who lived at 43 Boltin Street, Sharod Brasher, and Lungs. None of the men had any outstanding warrants. Zimmerman asked them "what was going on with the dogs." Lungs indicated that he owned the van and was in the business of transporting dogs, and that he had brought the dogs from Texas. Brasher stated that he was there to pick up a puppy he had purchased from Lungs. Brasher stated that he was on his lunch break and requested permission *3 to return to work. The officers allowed him to leave, but prohibited him from taking a puppy. There was no evidence as to the ownership or use of the area where the encounter occurred.
{¶ 4} Zimmerman testified at the hearing on the motion to suppress that he received permission from Lungs to look into the van; Lungs denied giving Zimmerman permission. Zimmerman also testified that Lungs was not under arrest or in custody when he provided his identification to Zimmerman, but that Lungs was "detained."
{¶ 5} The van contained approximately 22 crates and 22-25 dogs, some, if not all of which, were pit bulls. In the context of a previous raid, Zimmerman had been alerted by Montgomery County Animal Control personnel regarding certain indicia of dogfighting, including wounds on the animals, certain medications and injection devices, and large brass rings on the dogs' collars. While walking around the van and using his flashlight to look inside, Zimmerman observed a dog with a collar ring, injuries and scarring, and also a loaded hypodermic syringe. In the course of his observations, Zimmerman leaned into the van. As he walked around the back of the van, Zimmerman observed two weapon clips and loose bullets in the pockets of the open rear door.
{¶ 6} Zimmerman advised Velez "that there might be a gun somewhere close, either in the van, around the van, or on one of the people." At that point the officers patted down Lungs and Lewis and placed them in the rear of the cruiser. The men were not handcuffed, and they were orally advised of their Miranda rights and acknowledged that they understood them upon being placed in the cruiser. Zimmerman then walked around the van again, observing a duffel bag in the truck next to the van. Zimmerman asked Lewis if the truck was his, and Lewis affirmed that it was. Zimmerman obtained Lewis' permission to look in the truck, and he found *4 additional hypodermic syringes and medication in the duffel bag.
{¶ 7} At about 6:15, the officers called their supervisors and Animal Control. Dayton Detective Keith Coberly was also contacted, having recently been involved in the investigation of several dogfighting operations. At 8:45, Lungs signed a Consent to Search form authorizing the police to search his van. Coberly arrived at the scene at about 9:00 p.m. and interviewed Lungs and Lewis. At 12:35 a.m. on October 26, the police obtained a search warrant for 43 Boltin Street and they executed the warrant shortly thereafter. Lungs was not handcuffed while he was detained, until he was arrested and transported to jail. During his detention, he was fed and allowed to relieve himself.
{¶ 8} Lungs asserts one assignment of error as follows:
{¶ 9} "THE CONVICTIONS SHOULD BE REVERSED BECAUSE THE EVIDENCE WAS SEIZED IN VIOLATION OF THE
{¶ 10} According to Lungs, the "standard here should be probable cause and not reasonable suspicion, because the officers trespassed onto Mr. Lewis' property to make their detention." Lungs further argues, the "plain view or open view exception would not apply." Finally, Lungs avers that the officers did not "have a reasonable suspicion."
{¶ 11} As we have previously noted, "The
{¶ 12} "The first type is a consensual encounter. Encounters are consensual where the police merely approach a person in a public place, engage the person in conversation, request information, and the person is free not to answer and walk away. (Internal citation omitted). The request to examine one's identification does not make an encounter nonconsensual. (Internal citations omitted). Nor does the request to search a person's belongings. (Internal citation omitted). The
{¶ 13} `* * *
{¶ 14} "The second type of encounter is a `Terry stop' or an investigatory detention. The investigatory detention is more intrusive than a consensual encounter, but less intrusive than a formal custodial arrest. The investigatory detention is limited in duration and purpose and can only last as long as it takes a police officer to confirm or to dispel his suspicions. * * * A person is seized under this category when, in view of the circumstances surrounding the incident, by means of physical force or show of authority a reasonable person would have believed that he was not free to leave or is compelled to respond to questions. (Internal citations omitted).
{¶ 15} "The Supreme Court * * * listed factors that might indicate a seizure. These *6
factors include a threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person, the use of language or tone of voice indicating that compliance with the officer's request might be compelled, approaching the citizen in a nonpublic place, and blocking the citizen's path. (Internal citation omitted). A police officer may perform an investigatory detention without running afoul of the
{¶ 16} `* * *
{¶ 17} "Reasonable suspicion entails a minimum level of objective justification for making a stop. (Internal citation omitted). It entails more than an inchoate or unparticularized suspicion or `hunch,' but less than the level of suspicion required for probable cause. * * * In making a determination of reasonable suspicion, the relevant inquiry is not whether particular conduct is innocent or guilty, but the degree of suspicion that attaches to particular types of noncriminal acts."State v. Taylor (1995),
{¶ 18} Lungs initially argues that his encounter with the officers occurred on Lewis' private property, and that as Lewis' friend and "social guest," Lungs had "a legitimate expectation of privacy while in Lewis' yard."
{¶ 19} "[T]he extent to which the
{¶ 20} Further, as the trial court correctly noted, "`[N]o
{¶ 21} Lungs was clearly not Lewis' overnight guest; there was no evidence to suggest that Lungs even entered Lewis' fenced in yard, let alone his home. Lungs was merely present to complete a commercial transaction, namely to sell a puppy to Brasher. Lungs had no expectation of privacy in the area adjacent to the alley.
{¶ 22} Lungs further argues, "This is actually an `open view' and not a `plain view' case." The term "open view" is "descriptive of a situation in which there has been no search at all in the
{¶ 23} "The Plain View Doctrine is a well-established exception to the warrant requirement. Evidence in plain view is subject to seizure when the intrusion affording the plain view is lawful (or the officer is lawfully in place) and the incriminating nature is immediately apparent. (Internal citations omitted). `Immediately apparent' means the police have probable cause to associate an object with criminal activity. An officer may rely on training and experience in recognizing evidence of a crime." State v. Buckner, Montgomery App. No. 21892,
{¶ 24} The trial court's analysis discussed both open view and plain view, as this record reveals both doctrines are in play in this case. Under either analysis, no
{¶ 25} Additionally, we note, it is clear from the record that a reasonable person in Lungs' position would have felt free to terminate the encounter with the officers. Lungs was in an area adjacent to an alley, and his liberty was not restrained by physical force or a show of authority. Brasher was clearly able to terminate the encounter and go home. Instead of doing so, Lungs conversed with the officers while Zimmerman walked around the open van, observing significant evidence of dogfighting, along with weapon clips and bullets.
{¶ 26} Upon observation of the evidence, the officers had a reasonable articulable suspicion, and not a mere hunch, that criminal activity was afoot and thus were permitted to detain Lungs and Lewis while they continued to investigate. The discovery of weapon clips and bullets indicated safety concerns as well. As the trial court correctly noted, "[a]ll the contacts in this case were consensual until the Defendants were placed in the cruiser."
{¶ 27} Lungs later signed a consent form, granting the officers permission to search his van. There is no evidence of duress or coercion; Lungs was not handcuffed while in the cruiser, he was given food and he was taken to the police station to use the bathroom. Lungs' sole assignment of error lacks merit. There being no
*1BROGAN, J. and GRADY, J., concur.