United States District Court, S.D. Ohio, Western Division, Dayton
ENTRY AND ORDER DENYING DEFENDANT'S MOTION TO
SUPPRESS. ECF 26.
M. ROSE UNITED STATES DISTRICT JUDGE
before the Court is Defendant's Motion to Suppress. ECF
September 15, 2016, the Dayton Police Department received an
anonymous tip indicating suspected drug trafficking
activities were occurring at 2826 McCall Street. (Tr. @ 9,
12-13, 25-28, 31-32, 49-50, 62, 81-82). This residence is
located in a depressed section of West Dayton that has
historically suffered from a high crime rate fueled by drug
activity. (Tr. @ 8-10). At approximately 1:30 PM on said
date, Officer Mark Orick initiated surveillance of the
residence from an unmarked vehicle located approximately one
half block away. (Tr. @ 8, 10-12, 23, 34, 62). Officers Jacob
Rillo and Zachary O'Diam maintained a backup position in
a marked police cruiser parked approximately a half mile
away. (Tr. @ 13-14, 64). Each of these police officers were
then assigned to a counter-narcotics unit known as the
Community Problem Response Team. (Tr. @ 22-23, 80). At
approximately 2:00 PM, Officer Orick observed a bright yellow
2004 Dodge Neon automobile bearing Ohio license plate
“816YQL” arrive and park in front of the
residence. (Tr. @ 10-11, 19, 49, 67). He observed two males
inside the Dodge Neon. (Tr. @ 11-12, 19, 67). A person later
identified to be Defendant Joseph Edward Conner, Jr exited
the passenger side of the Dodge Neon and entered the front
door of the residence. (Tr. @ 15-17). Conner remained inside
for between approximately 5-7 minutes while the white male
driver, later identified to be Kenneth Grieshop, remained
inside the Dodge Neon. (Tr. @ 15-17, 25, 63-64, 124-25, 135).
soon exited the residence and re-entered the Dodge Neon. (Tr.
@ 112, 126, 135). The Neon began heading eastbound on McCall
Street. (Tr. @ 16, 127).
Orick's opined that the observed behavior was consistent
with other drug trafficking activities observed at other drug
houses existing in the City of Dayton, although he did not
exclude innocent explanations. (Tr. @ 6-7, 10, 16-17, 25).
Officer Orick proceeded to follow the Dodge Neon as it
departed the scene. (Tr. @ 14, 16-18, 20, 29- 4 30, 52-53,
63, 65, 100-101). He simultaneously advised Officers Rillo
and O'Diam of the Neon's actions via an encrypted,
non-recorded police radio channel. (Id.).
Officer Orick observed the Neon fail to use a turn signal
while making a right turn from Eleanor Ave. onto Germantown
St. (Tr. @ 18, 49, 51-52, 64, 85-6). This traffic infraction
violated Ohio Revised Code § 4511.39. (Tr. @ 18-19).
Officer Orick requested that Rillo and O'Diam initiate a
traffic stop of the Neon which they did near the intersection
of Germantown St. and Derby Rd. (Tr. @ 20-21, 25, 51-52, 54,
65, 85). As the Neon rolled to a stop, Officers Rillo and
O'Diam observed Conner engage in what they describe as
“furtive movements” towards the front passenger
side floorboard. (Tr. @ 66-69, 88-89, 100). Officers Rillo
and O'Diam approached the stopped Neon and removed both
Conner and Grieshop from the vehicle. (Tr. @ 21, 54-55).
arresting officers noticed that Conner was not wearing a seat
belt. As Conner exited the subject vehicle, he held two cell
phones. (Tr. @ 75, 133). Moreover, he had no identification
documents. (Tr. @ 69-70, 107, 129, 136). Grieshop lacked a
valid driver's license and also had an active warrant for
a prior traffic violation. (Tr. @ 77, 79-80, 116, 129). The
Neon was registered to a third party named Roberta Wells.
(Tr. @ 21, 44, 68, 107). Pursuant to Dayton Police Department
procedures, the Neon was impounded and an inventory search
was conducted. (Tr. @ 70-73; GE #1). While searching the
front passenger area where Conner had been seated, the
officers found three additional cell phones laying on the
front passenger seat where Conner had been. (Tr. @ 71).
both occupants were secured, Officer Rillo more thoroughly
searched the front passenger side floorboard area and
discovered a fully loaded and chambered semi-automatic SCCY
9MM handgun bearing serial number 192286 adjacent to a clear
sandwich baggie containing a large amount of a chunky white
material that was suspected to be cocaine. (Tr. 75-76; GE # 4
& # 5).
months later, on July 11, 2017, Dayton Police Detective
Dustin J. Phillips, in his capacity as a task force officer
assigned to the FBI's Dayton Safe Streets Task Force,
swore out a criminal complaint against Defendant Joseph
Edward Conner, Jr. (See Case No.3:17-mj-318). (Doc. # 1).
U.S. Magistrate Judge Sharon L. Ovington issued an arrest
warrant. (Doc. # 2). On July 12, 2017, Conner was taken into
police custody. On August 8, 2017, a Federal Grand Jury
sitting in Dayton, Ohio returned a three-count indictment
against the defendant. (Doc. # 18). Count 1 alleges felon in
possession of a firearm in violation of 18 U.S.C. §
922(g)(1), Count 2 alleges possession of a firearm in
furtherance of a drug trafficking crime in violation of 18
U.S.C. § 924(c)(1)(A) and Count 3 alleges possession
with intent to distribute a mixture or substance containing a
detectable amount of cocaine, a Schedule II controlled
substance in violation of 21 U.S.C. §§ 841(a)(1)
October 13, 2017, Conner filed a motion to suppress all
evidence seized from the 2004 Dodge automobile. (Doc. # 26).
On November 30 and December 11, 2017, this Court convened
evidentiary hearings to consider the merits of the
suppression motion. On February 21, 2018, the defense filed
its post-hearing brief. (Doc. # 34). The Government responded
with a post-hearing brief in opposition to said defense
motion to suppress.
has also moved the Court to suppress the fruits of the search
of his residence.
order to effect a traffic stop, an officer must first possess
probable cause to believe a traffic infraction has in-fact
been committed. Gaddis ex rel. Gaddis v. Redford
Twp., 364 F.3d 763, 771 n.6 (6th Cir. 2004). Failure to
use a turn signal while making a right turn at an
intersection is a violation of Ohio Revised Code §
4511.39. “[A]n officer may stop a vehicle for a traffic
violation when his true motivation is to search for
contraband, as long as the officer had probable cause to
initially stop the vehicle.” United States v. Hill, 195
F.3d 258, 264 (6th Cir.1999). “Thus, even if [the
officer] used the failure to signal as a pretext to initiate
a traffic stop of an otherwise-suspicious vehicle, ...