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State v. Gregory

Court of Appeals of Ohio, Second District, Montgomery

July 26, 2019

STATE OF OHIO Plaintiff-Appellee
v.
MICHAEL GREGORY Defendant-Appellant

          Trial Court Case No. 2018-CR-3012 (Criminal Appeal from Common Pleas Court)

          MATHIAS H. HECK, JR., by LISA M. LIGHT, Atty. Reg. No. 0097348, Assistant Prosecuting Attorney, Montgomery County Prosecutor's Office, Appellate Division, Attorney for Plaintiff-Appellee

          CHRISTOPHER C. GREEN, Atty. Reg. No. 0077072, Attorney for Defendant-Appellant

          OPINION

          WELBAUM, P.J.

         {¶ 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.

         I. 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 lights activated.

         {¶ 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 out.

         {¶ 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 ...


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