[Cite as State v. Gregory,

.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 28240 : v. : Trial Court Case No. 2018-CR-3012 : MICHAEL GREGORY : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :

...........

OPINION

Rendered on the 26th day of July, 2019.

...........

MATHIAS H. HECK, JR., by LISA M. LIGHT, Atty. Reg. No. 0097348, Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee

CHRISTOPHER C. GREEN, Atty. Reg. No. 0077072, 130 West Second Street, Suite 830, Dayton, Ohio 45402 Attorney for Defendant-Appellant

.............

WELBAUM, P.J. -2-

{¶ 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. -3-

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 dead-

ends 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- -4-

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. -5-

{¶ 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 currently was under supervision. These statements were volunteered and were

not in response to any questioning by Price.

{¶ 14} Eventually, while Gregory was still in the cruiser, Price did try to ask Gregory -6-

questions. Specifically, Price wanted to ask Gregory about the firing of the gun. At that

point, Price read Gregory his Miranda rights, and Gregory refused to answer any more

questions. Price ultimately transported Gregory to the jail. Because the driver of the

van had an outstanding warrant, he was also taken to the jail, and the van was towed.

{¶ 15} On August 2, 2018, the police filed two complaints in Dayton Municipal

Court. One complaint alleged that Gregory had violated R.C. 2923.13(A)(2) by having a

weapon while under disability, a third-degree felony. The other complaint alleged that

Gregory had violated R.C. 2923.16(B) by improperly handling a firearm in a vehicle, a

fourth-degree felony. Gregory was arraigned that day and asked for a preliminary

hearing. Following a hearing on August 10, 2018, the court filed an entry finding

probable cause for both charges.

{¶ 16} On August 31, 2018, the State filed an indictment in Montgomery County

Common Pleas Court, charging Gregory with the same crimes that had been filed in

Municipal Court. After pleading not guilty, Gregory filed a motion to suppress in

September 2018, and a supplemental motion to suppress in early October 2018. The

trial court then held an evidentiary hearing on October 12, 2018, at which time the court

heard testimony from Officers Carter, Hartings, and Price.

{¶ 17} On November 8, 2018, the trial denied the motion to suppress. Thereafter,

Gregory pled no contest to the crimes as charged, so that he could appeal the

suppression decision. In December 2018, the court sentenced Gregory to 24 months for

having a weapon under disability and to 18 months for improperly handling a firearm.

The court imposed the sentences concurrently, while giving Gregory 120 days credit for

time spent in confinement. This appeal followed. -7-

II. The Initial Stop

{¶ 18} Gregory’s First Assignment of Error states as follows:

The Trial Court erred when it overruled the defendant’s motion to

suppress [and] when it held that the initial stop of the vehicle in which Mr.

Gregory was a passenger was within Constitutional bounds.

{¶ 19} Under this assignment of error, Gregory contends that the trial court erred

in finding that the 911 call was not purely anonymous and that the tip was sufficient to

justify the stop of the vehicle. In particular, Gregory focuses on the fact that the officers

did not observe any illegal behavior and on their statements that the only reason they

stopped the van was because it was in the vicinity of Harold Drive.

{¶ 20} “Appellate review of a motion to suppress presents a mixed question of law

and fact. When considering a motion to suppress, the trial court assumes the role of trier

of fact and is therefore in the best position to resolve factual questions and evaluate the

credibility of witnesses.” State v. Burnside,

,

,

. “Consequently, an appellate court must accept the trial court's findings

of fact if they are supported by competent, credible evidence. * * * Accepting these facts

as true, the appellate court must then independently determine, without deference to the

conclusion of the trial court, whether the facts satisfy the applicable legal standard.”

{¶ 21} Both the Fourteenth Amendment to the United States Constitution and

Article I, Section 14, Ohio Constitution, protect persons from unreasonable searches and

seizures. State v. Leak,

,

,

.

“Under the Fourth Amendment to the United States Constitution, a search conducted -8-

without prior approval of a judge or magistrate is per se unreasonable, subject to certain

well-established exceptions.” State v. Adams,

,

,

, citing Katz v. United States,

,

,

(1967). (Other citation omitted.)

{¶ 22} “One such exception was recognized in Terry v. Ohio,

,

,

(1968), which held that ‘where a police officer observes unusual

conduct which leads him reasonably to conclude in light of his experience that criminal

activity may be afoot...,’ the officer may briefly stop the suspicious person and make

‘reasonable inquiries’ aimed at confirming or dispelling his suspicions.” Minnesota v.

Dickerson,

,

,

(1993), quoting

. However, “where an officer making an investigative stop relies solely upon a

dispatch, the state must demonstrate at a suppression hearing that the facts precipitating

the dispatch justified a reasonable suspicion of criminal activity.” (Emphasis sic.)

Maumee v. Weisner,

,

(1999).

{¶ 23} In general, the reasonableness of a search or seizure depends on the

circumstances and facts of each case, and “ ‘is measured in objective terms by examining

the totality of the circumstances.’ ”

, quoting Ohio v. Robinette,

,

,

(1996). Where the information the police possess

before a stop “stems solely from an informant's tip, the determination of reasonable

suspicion will be limited to an examination of the weight and reliability due that tip. * * *

The appropriate analysis, then, is whether the tip itself has sufficient indicia of reliability

to justify the investigative stop. Factors considered ‘ “highly relevant in determining the

value of [the informant's] report” ’ are the informant's veracity, reliability, and basis of -9-

knowledge.” Weisner at 299, quoting Alabama v. White,

,

,

(1990).

{¶ 24} While distinctions among categories of informants are “somewhat blurred,

courts have generally identified three classes of informants: the anonymous informant,

the known informant (someone from the criminal world who has provided previous reliable

tips), and the identified citizen informant.” Id. at 300. Typically, an anonymous

informant is “comparatively unreliable,” requiring “independent police corroboration,”

while “an identified citizen informant may be highly reliable and, therefore, a strong

showing as to the other indicia of reliability may be unnecessary * * *.” Id.

{¶ 25} In the case before us, the trial court concluded that the tip was not truly

anonymous because the dispatcher had recorded the caller’s cell phone number. The

court also found the call reliable because the caller had first-hand knowledge, the incident

was recent, and the caller gave the location where the shooting took place.

{¶ 26} According to Gregory, the mere fact that the police had the cell phone

number of the informant does not transform the caller from an anonymous informant into

a known citizen informant. As support for his position, Gregory relies on State v. English,

,

(2d Dist. 1993), and more specifically, State v.

Ramsey, 10th Dist. Franklin No. 89AP-1298,

(Sept. 20, 1990), which

English discussed.

{¶ 27} In English, an unidentified woman called the police to report that the

defendant was in a specific parking lot and had a gun on his person or in the glove box.

The caller gave the police her address and asked that they not come to her home. She

also said that the defendant and a confederate (who were in her view) were both dope -10-

dealers and kept dope in their cars. In addition, the caller told the police that there was

a gun in the defendant’s car, that he owned two guns, that the cars had exited the lot, and

that the defendant was in a particular car. Id. at 473. We concluded that the caller’s

information was sufficiently reliable to give the police justification to stop the defendant.

Id. at 474. We agreed with the State’s position that the caller’s provision of her address

added “reliability to her information because of a realization on her part that the police

could find her if her information proved to be false.” Id. at 473 and 475.

{¶ 28} During our discussion, we mentioned and distinguished Ramsey, which had

dealt with a somewhat similar situation. Id. at 474. In Ramsey, the police received a tip

about a possible drunk driver, and the caller described the license plate of the driver and

the vehicle. The caller also left her name and phone number. Ramsey at *1. After

locating the vehicle, the police followed it for about a quarter of a mile and observed no

traffic violations. They stopped in front of the defendant’s house, approached him as he

exited his vehicle, and concluded from their observations that he was intoxicated. Id.

The police then arrested the defendant for an OVI violation. Id.

{¶ 29} In Ramsey, the court noted that “leaving aside” the fact that the caller had

identified herself, the tip’s content provided “very little detail from which the

reasonableness of the stop may be reviewed.” Id. at *3. Specifically, the tip gave no

basis for the caller’s statements and provided nothing from which one could tell if the

caller was honest or if the information was reliable. Id. the court then said that:

The issue now clearly presented to this court is whether an otherwise

insufficient tip such as this one is invested with sufficient indicia of reliability

by the mere fact that the caller left her name and phone number. Such a -11-

tipster is often described as a citizen informant because these tips have

characteristics different from those provided by professional police

informants or anonymous informants. The reliability of police informants is

often established by their “track-record” with the police prior to the tip in

question. As a citizen-informant may have never reported a crime before,

this analysis is generally inapplicable. Citizen-informants also rarely have

access to inside information about a suspect and usually simply report their

observations. As a result, some courts have held that a citizen-informant

who is the victim of or witness to a crime is presumed reliable.

Commonwealth v. Weidenmoyer (P.A. 1988),

; State v. Ege

(Neb. 1988),

.

In each of these cases, however, the court required that the witness

or victim relate the basis for their knowledge or observations. This is

consistent with the totality of the circumstances approach as it satisfies the

basis of knowledge factor. Given this information, the police can conclude

that the caller is indeed a citizen-informant and thus have reason to believe

that the caller is honest as well.

(Emphasis added.) Ramsey, 10th Dist. Franklin No. 89AP-1298,

, at

*4.

{¶ 30} After making these comments, the court found that, because the tip was so

meager, provision of the caller’s name and phone number did not add significantly to the

tip’s reliability. Id. at *5. Among other things, “[u]nlike a crime scene report, the police

did not talk to the citizen-informant personally, nor did they even know for certain that a -12-

crime had been committed as is the case in the citizen-eyewitness cases.” Id.

{¶ 31} In English, we noted that “[i]n this case, as in Ramsey, it might be said that

the callers, having provided some personal information were thereby not totally

anonymous.” English,

,

. This is the same

comment that the trial court made in the case before us. See Doc. #26 at p. 7. Thus,

like the callers in English and Ramsey, the caller here is more like a “citizen informant”

than an anonymous caller.

{¶ 32} We found the tip reliable in English because the caller gave the police

enough information to identify and locate her. In addition, the caller “expressed great

concern about the police coming to her home and presumably thereby exposing her as

an informant, and further exposing her to possible recrimination.”

.

{¶ 33} Applying these principles here, the police had the caller’s cell phone

number, which means that she was not truly anonymous. Moreover, unlike the callers

in English and Ramsey, the caller actually observed a crime being committed and gave

the police details about the crime and the participants. The trial court stressed that the

recent nature of the event and the caller’s “first-hand knowledge of the event militates in

favor of reliability.” Doc. #26 at p. 7. We agree.

{¶ 34} Furthermore, even if we assume that the tip was anonymous, it was still

reliable, and the officers had reasonable suspicion to stop the van. In this regard,

Gregory argues that the officers lacked reasonable suspicion because the only reason

for stopping the van was that it was white and in the vicinity. Gregory notes that the

officers did not observe any criminal activity or traffic violations. They also could not see

an occupant in the van wearing the described clothes until after the van was stopped and -13-

the door was opened.

{¶ 35} Some factors that significantly support the reliability of an anonymous tip

include: “eyewitness knowledge”; a contemporaneous report”; the fact that an event is

startling; and use of the 911 emergency system, which allows for tracing of calls.

Navarette v. California,

,

,

(2014).

These factors are all present here. As noted, the caller was an eyewitness to the shooing

and called right after the incident happened. Witnessing an individual shooting guns

would obviously be a startling event. And finally, the caller used the 911 system, which

recorded her phone number. In view of this technology, “a reasonable officer could

conclude that a false tipster would think twice before using such a system.”

.

{¶ 36} “Even a reliable tip will justify an investigative stop only if it creates

reasonable suspicion that ‘criminal activity may be afoot.’ ”

, quoting Terry,

,

,

. Certainly, reports of gunfire from cars in

residential neighborhoods indicate that criminal activity is afoot. Furthermore, Gregory

is simply incorrect when he asserts that the presence of the white van near the crime

scene did not give rise to reasonable suspicion for a stop. The call occurred at about

11:29 p.m. at night, and officers arrived in the area very quickly thereafter. They

observed a large white work van similar to the one that was described coming from the

direction where the shooting had been reported. Significantly, the street on which the

van was traveling was the only means of exiting Harold Drive, and Stanford dead-ended

shortly after Harold Drive, meaning that the van could have come only from Harold Drive.

Seeing two large white work vans coming from the same street at that time of night is

theoretically possible, but extremely unlikely. Thus, based on the totality of the -14-

circumstances, the police reasonably suspected that the van contained the shooter, and

they were entitled to stop the van to make an inquiry.

{¶ 37} Accordingly, the First Assignment of Error is overruled.

III. Subsequent Statements and Evidence

{¶ 38} Gregory’s Second Assignment of Error states that:

The Trial Court erred in ruling that the initial stop of the vehicle was

lawful and [that] subsequent facts, statements or evidence to support the

State of Ohio’s criminal action against Mr. Gregory were not derived from

the initial unlawful stop.

{¶ 39} Under this assignment of error, Gregory contends that, because the initial

stop was unlawful, any statements he made to the police or any evidence obtained

thereafter should have been excluded.

{¶ 40} “The derivative-evidence rule, or fruit-of-the-poisonous-tree doctrine as it is

widely known, requires suppression of evidence that was seized in a seemingly lawful

manner but about which police learned because of a prior constitutional violation such as

an illegal search or seizure.” State v. McLemore,

,

,

(2d Dist.), citing Nardone v. United States,

,

,

(1939). (Other citations omitted.) The reason for excluding derivative

evidence “is the concern that if derivative evidence were not suppressed, police would

have an incentive to violate constitutional rights in order to secure admissible derivative

evidence even though the primary evidence secured as a result of the constitutional

violation would be inadmissible.” State v. Carter,

,

-15-

(1994).

{¶ 41} Because the initial stop was lawful, the exclusionary rule does not apply to

evidence that was later discovered. Consequently, the Second Assignment of Error is

overruled.

IV. Conclusion

{¶ 42} All of Gregory’s assignments of error having been overruled, the judgment

of the trial court is affirmed.

.............

HALL, J., concurs.

DONOVAN, J., dissents:

{¶ 43} I disagree. The United States Supreme Court in Alabama v. White,

,

,

, described its decision as a “close case.” See

also Navarette,

,

,

. If that case was

deemed close, this case presents too many unknowns to reasonably conclude that the

tip was reliable enough to support a Terry stop. The Fourth Amendment “is not so easily

satisfied.” Florida v. J.L.,

,

,

(2000).

{¶ 44} The Dayton police officers who stopped a “white work van” in the “general

vicinity” of the shooting 3 to 5 minutes after dispatch knew nothing about the anonymous

tipster on whose word – and that alone – Gregory was seized and the van searched. The

police did not know the tipster’s name, they did not know if she used her own phone to

dial 911, and they did not know her residential address. An unnamed tipster “can lie with

impunity.” J.L. at 275 (Kennedy, J., concurring). -16-

{¶ 45} I believe it is wrong to label and invent a novel theory characterizing the

caller as a “citizen informant.” Why do so? Because she reported “shots fired.” Terry does

not recognize a firearm exception despite an arguably justifiable sense of some urgency.

See generally State v. Davis, 2d Dist. Montgomery No. 22775,

, ¶ 20 and

State v. Hauston, Ohio Slip Opinion

, __N.E.3d__ (distinguishable in that

the police themselves heard the gunshots).

{¶ 46} An all’s-well-that-ends-well approach, one that excuses an unconstitutional

seizure and immediate search because it turns up some illegal activity, violates bedrock

Fourth Amendment principles. See Wong Sun v. United States,

,

,

(1963) (noting Court has “consistently rejected” proposition “that

a search unlawful at its inception may be validated by what turns up”).

{¶ 47} I would reverse.

Copies sent to:

Mathias H. Heck, Jr. Lisa M. Light Christopher C. Green Hon. Mary Lynn Wiseman