Published: Friday, November 24, 2017 @ 4:39 PM
By: Cornelius Frolik - Staff Writer
A state appeals court has reversed a trial court’s decision to grant a motion to suppress in an animal cruelty case out of Drexel and involving pigs.
Two brothers were charged with seven counts of animal cruelty, a second-degree misdemeanor, after an agent with the Human Society of Greater Dayton seized seven pigs from their property at 6719 Dayton-Liberty Road.
On Jan. 7, Humane Society agent Heather Concannon removed seven pigs from a property that she says “we’re freezing to death,” including piglets whose teeth were chattering and their ears were shaking, according to her testimony in municipal court for the western division of Montgomery County.
She testified that it was 6 degrees outside, not accounting for the wind chill.
Concannon said there was an ongoing investigation into cruelty to animals at the property since 2015. She testified that on Jan. 3 she heard what sounded like an animal in distress and walked up the driveway where she discovered a pig enclosure, according to documents from the Second Court of Appeals of Ohio for the second appellate district.
The pigs were stuck in cold mud and were at risk of hypothermia, Concannon testified, and she told the property owners they needed to remedy the hazardous conditions of the pens by the weekend. She said the brothers had agreed to fix the problems by the afternoon of Jan. 7.
But Concannon removed the pigs sometime after 12:01 a.m. Jan. 7, which she claims was necessary to save their lives. She testified that a storm was coming in and she had to act quickly.
As a result of the seizure, animal cruelty charges were filed against the brothers.
The defendants argued that Concannon performed unconstitutional searches of their farm property, violating their Fourth Amendment rights. Concannon admitted in testimony that she never obtained a search warrant.
In April, a municipal court judge with the Western Division of Montgomery County granted a motion to suppress the evidence collected and observed by Concannon and the statements the brothers made.
But this week, an appeals court ruled that Concannon’s observation and removal of the pigs were not unlawful.
The state argued that her observations of the pigs and their pen were from the access driveway on a non-residential farm field, which lacks reasonable expectations of privacy. Her observation falls under the open view exception to the warrant requirements, and her observation was not an actual search, subject to Fourth Amendment protections, the court ruled.