¶1 dissenting.
¶2 {¶ 34} I respectfully disagree with the majority’s holding that the fruits of the search of Buzzard’s garage must be suppressed.
¶3 {¶ 35} The majority concludes that Officer Keegan’s search of Buzzard’s garage constituted an illegal search because Buzzard had a reasonable expectation of privacy in his garage that was not defeated by a quarter-inch crack in the doors to the garage. The majority is particularly troubled by the lengths that Keegan went to in order to see between the doors, noting that it would have been necessary for Keegan to press his eye up against the garage and contort his head in order to see inside.
¶4*602 {¶ 36} In United States v. Elkins (C.A.6, 2002), 300 F.3d 638, the Sixth Circuit Court of Appeals determined the legality of a search in which a police officer observed marijuana being grown inside a building by bending down and peering inside through a gap of “somewhat less than an inch” around an exposed pipe. The appellate court determined that the property owners did have a reasonable expectation of privacy in the interior of the building, but such an expectation did not insulate the space against plain-view observation. Id. at 654. The court found that because the officer did not use a “sensory device,” but only looked through an exposed gap in the wall with his unaided eye, anything that was observed was done so by “plain view.”
¶5 {¶ 37} Neither did the court find that any contortions the officer made to see through the opening changed the “plain view” character of his observation. Id. “The fact ‘that the policeman may have had to crane his neck, or bend over, or squat, does not render the plain view doctrine inapplicable, so long as what he saw would have been visible to any curious passerby.’ ” Id., quoting James v. United States (C.A.D.C., 1969), 418 F.2d 1150, 1151, fn. 1.
¶6 {¶ 38} The majority herein properly concludes that Officer Keegan had a right to enter Buzzard’s property and curtilage in the course of his investigation and that, per a factual finding by the trial court, a person would be able to see through a quarter-inch crack without manipulating the doors of Buzzard’s garage. Based on these facts and the reasoning of the Sixth Circuit Court of Appeals in Elkins, I would find that any items inside the garage that Keegan could observe by peering through the crack in the doors would be in plain view.
¶7 {¶ 39} Further, I do not find that the character of the property viewed changed the nature of Keegan’s search. The facts demonstrate that when Keegan looked inside the garage, he saw a furnace. Even if Keegan could not identify that furnace as one stolen from Kinn Brothers, the observation of the furnace, coupled with the tire tracks leading from Kinn Brothers to Buzzard’s garage, would be sufficient for the issuance of a search warrant, which, as the majority acknowledges, was obtained before the police entered the garage.
¶8 {¶ 40} For these reasons, I would overrule Buzzard’s first assignment of error and hold that Officer Keegan’s plain-view observation of the items inside Buzzard’s garage did not constitute a search.