Court of Appeals of Ohio, Second District, Montgomery
Court Case No. 2018-CR-3012 (Criminal Appeal from Common
MATHIAS H. HECK, JR., by LISA M. LIGHT, Atty. Reg. No.
0097348, Assistant Prosecuting Attorney, Montgomery County
Prosecutor's Office, Appellate Division, Attorney for
CHRISTOPHER C. GREEN, Atty. Reg. No. 0077072, Attorney for
1} Defendant-Appellant, Michael Gregory, appeals
from his conviction on one count of having weapons under
disability in violation of R.C. 2923.13(A)(2), and one count
of improper handling of a firearm in violation of R.C.
2923.16(B). Gregory contends that the trial court erred in
overruling his motion to suppress evidence because the
initial stop of the vehicle in which he was riding was
unconstitutional. According to Gregory, the trial court erred
in finding that the stop was lawful and in holding that
subsequent facts, statements, or evidence to support the
State's criminal action were derived from a lawful stop.
2} We conclude that the trial court did not err in
overruling Gregory's motion to suppress evidence. The
facts precipitating an emergency dispatch justified a
reasonable suspicion of criminal activity, and the tip to
police was reliable. Furthermore, the stop of the van in
which Gregory was riding was based on reasonable suspicion
that the van was the one described by the caller reporting
the emergency. Finally, because the stop was lawful, the
exclusionary rule did not apply. Accordingly, the judgment of
the trial court will be affirmed.
Facts and Course of Proceedings
3} On August 1, 2018, at around 11:29 p.m., a woman
called 911 to report that a drunken male was shooting a big
handgun in the air for no reason. She described the
individual as a black male wearing a khaki or tan-colored
work outfit, and said he was a passenger in a big white work
van. The caller stated that her location was at 1728 Harold
Drive, and the van was parked at the time near the dead-end
at the end of Harold Drive. She also said that the incident
occurred just before she called 911, and that when it took
place, she was outside with a friend at 1728 Harold Drive.
The caller refused to give her name, but her cell phone
number was recorded and was included in the incident report.
See State's Ex. 1 (recording of 911 call), and
State's Ex. 2 (Incident Details Report).
4} Two Dayton Police cruisers were dispatched to the
scene. Officers Vincent Carter and Cody Hartings were in one
cruiser, and Officer Mark Price was in the other. The
cruisers were both marked and were equipped with video
cameras, lights and sirens. In addition, the officers were
all wearing the uniform of the day.
5} Harold Drive is a dead-end street running north
to south, and the only access to it is from the south via
Stanford Place ("Stanford"), which runs east to
west. Harold Drive is also the last street to the west that
intersects with Stanford, and Stanford deadends right after
the intersection with Harold Drive. Otterbein Avenue
("Otterbein") is the next street to the east from
Harold Drive. Otterbein runs parallel to Harold Drive and
also intersects with Stanford. Unlike Harold Drive, Otterbein
does not dead-end on Stanford; instead, it continues to
Cornell Avenue, which runs parallel to Stanford.
6} To get to Harold Drive, the police drove down
Cornell Avenue, and then turned onto Otterbein. They arrived
around 11:39 p.m., about seven minutes after they were
dispatched. See State's Ex. 2, p. 1. At that
time, Price's cruiser was in the front; the other cruiser
was a few seconds behind and was also on Otterbein. As Price
turned onto Otterbein, he saw a white work van at the stop
sign on Stanford. The van was facing east on Stanford (in
other words, coming from Harold Drive), and was getting ready
to turn right onto Otterbein to go south. Price did not
notice any other vans in the area that matched the
description the 911 caller had provided. Price went wide to
make a U- turn, which he could not quite complete. The white
van went ahead and turned to go south on Otterbein.
7} Officer Carter, who was driving the other
cruiser, also saw the van. Officers Carter and Hartings also
said they did not see any other white vans in the area. When
Carter saw the van, he went head-on with the van and
activated his cruiser lights. His cruiser ended up being
hood-to-hood with the van. In the meantime, Price had backed
up his cruiser, and he was behind the van with the cruiser
8} After exiting his cruiser, Carter drew his gun,
which he held behind his hip and pointed downward. He then
approached the passenger side of the van, since his cruiser
was head-on with the van. As he approached, he could see
three people in the van. Because the 911 caller had said that
a passenger fired shots, Carter went straight to the rear
passenger door. It was a sliding door. When Carter got to the
door, he opened it and asked the individual in the back to
step out. This individual (later identified as Gregory) was a
black male wearing a tan pullover and tan work pants. The
clothing matched the caller's description.
9} Carter did not point his gun at Gregory, and he
spoke in a calm, authoritative voice. His voice was not loud,
nor was it argumentative. After Gregory got out of the van,
Carter turned Gregory over to Price. Carter then used his
duty flashlight to look into the van and observed a Hi-Point
.40 caliber pistol in plain view. He noticed that the paint
coloring on the gun was camouflage, which was unusual. At
that point, Carter told Price to ask Gregory if the gun was
real. Due to the nature of the call, there was more concern
for officer safety if the gun were real as opposed to a BB
gun. Gregory told Price that the gun was real.
10} In the meantime, Officer Price had ordered
Gregory to put his hands on his head. Price did not have his
gun out. He then patted Gregory down to make sure he did not
have any weapons on his person. During the patdown, Price
discovered that Gregory had a loaded magazine stuffed into
the right hip of his pants and had a holster on his belt.
Price also smelled alcohol on Gregory.
11} Gregory had been sitting alone in the back of
the work van on a lawn chair, and the gun was found in the
area where he had been sitting. The other two people in the
van were a female, who was in the front passenger seat, and a
male, who was in the driver's seat.
12} After the patdown, Gregory voluntarily stated
that he "was being honest" about the gun being real
and that the gun was his. At that point, since the police had
already found the gun, Price asked Gregory if he had a valid
permit to carry a concealed weapon (CCW). Gregory responded
that he did not have a CCW. Price then placed Gregory in the
back of his cruiser. Gregory was not handcuffed at that time,
but Price locked the cruiser so that no one could let Gregory
13} Subsequently, Price talked with the female
passenger and patted her down to make sure she was unarmed.
After identifying her and checking for warrants, Price told
her she was free to leave. When Price returned to the
cruiser, Gregory said, "Excuse me sir," and then
offered an explanation of why he had the gun. Gregory also
stated that he knew he should not possess the gun, that he
was fully responsible for the gun, and that he ...