However, Mike’s Two Gun Possessions Were Caught on Video so those had a Different Outcome
State v. Allen
2021 – Ohio – 3047
Second District Appellate Court
Montgomery County, Ohio
September 3, 2021
Mr. Allen’s First Arrest
On Tuesday September 18, 2018 at 11:15 p.m., Dayton Police Officers Scott Myers and Brian Rolfes were patrolling the area around the Shell gas station at the southwest corner of Free Pike and North Gettysburg Avenue in Dayton. The police had received complaints from, and requests for increased patrols, of the gas station due to loitering, trespassing, and drug activity. Officer Rolfes described the gas station as a high drug and crime area.
After driving around the area, the officers paused in the Veterans of Foreign Wars (VFW) lot to the west of the Shell station. While the officers watched from their cruiser, they observed a male, later identified as Mr. Michael Allen walk from the gas station across Free Pike, not using a crosswalk located nearby. Officer Myers did not see anything suspicious about Mr. Allen, except the jaywalking. Mr. Allen admitted at the suppression hearing that he had jaywalked. He stated that he lived across the street from the gas station and that walking straight across Free Pike was a more direct route. However the more direct route was the first harmful event that led to this appeal.
Mr. Allen jay walked near the Shell Gas Station which led to his detention, pat down and CCW charge.
Officer Rolfes, who was driving, activated the cruiser’s overhead lights and pulled up beside Mr. Allen, who was then walking on the sidewalk on the north side of Free Pike. Both officers exited the cruiser and approached Mr. Allen. Mr. Allen had already taken out his identification, an indicator he had been stopped before. Officer Myers obtained Mr. Allen’s identification and returned to the cruiser to run the information through the on-board computer while Officer Rolfes remained with Mr. Allen. Officer Rolfes admonished Mr. Allen to use the crosswalk, saying he did not want Mr. Allen to be hit by traffic. Mr. Allen and Officer Rolfes chatted while they waited.
According to Officer Myers, the computer search revealed that Mr. Allen had been arrested for carrying a concealed weapon, which may have been an indicator as to why he had his identification ready-at-hand upon first approach by the officers. Officer Myers exited the cruiser and walked up to Mr. Allen. The cruiser video reflects that Officer Myers asked Mr. Allen, “Hey, you don’t mind if I pat you down for weapons, do you?” Mr. Allen responded, “Aw, no.” Officer Myers testified that he felt a “large solid object” in Mr. Allen’s right short’s pocket. He did not know what it was, but suspected that it possibly could be a weapon. Mr. Allen stated to the officers that he had a license to concealed carry.
Officer Myers reached into Mr. Allen’s pocket and removed a black SCCY 9mm handgun. Officer Rolfes explained to Mr. Allen that he had needed to inform the officers immediately that he was carrying a firearm. Mr. Allen and the officers then discussed the need for Mr. Allen to obtain a license before he could carry a concealed weapon, as opposed to openly carrying a weapon. Mr. Allen stated that he had taken a concealed carry class but had not applied for a license because the class did not inform him that he needed to apply for a permit. Is this statement even remotely believable? Mr. Allen acknowledged at the suppression hearing that he did not have a concealed carry license.
Officer Myers checked to see if the gun was loaded, and found that it was. He then asked the dispatcher to check for prior weapons convictions. Soon after, the dispatcher informed Officer Myers that Mr. Allen “didn’t really have anything.” The dispatcher indicated that he had been arrested for a few felonies but did not have any convictions. This stop would soon modify Mr. Allen’s lack of convictions record. Officer Myers asked the dispatcher to check on the SCCY firearm that he had recovered from Mr. Allen.
At the suppression hearing, Officer Myers testified that he performed the pat down due to Mr. Allen’s arrest record and the facts that the area was known for drugs and people who carry drugs are known to carry weapons. Officer Myers identified the high-crime area as “the entire west side.” In contrast, Officer Rolfes testified that Mr. Allen consented to the search of his person.
Do dispatchers really order officers what to do with suspects?
Mr. Allen provided a different version as to how the weapon was found. He testified that he did not realize when the stop began that he was carrying his gun. This is a classic case of “How did this gun get in my shorts?”. While speaking with Officer Rolfes, Mr. Allen testified that he repeatedly heard the dispatcher say, “Let him go.”. Mr. Allen surprisingly demonstrated a finite recall of what a dispatcher ‘ordered’ an officer to do at the scene. This is surprising because Mr. Allen is the same suspect who was befuddled how a handgun got in his shorts.
A stop and smack?
Mr. Allen asked to leave and requested the return of his identification. Mr. Allen testified that, instead of letting him leave, the officer said, “F*ck that. What you got in your pockets?” and then “smacked” his pocket. The cruiser video belies [disproves] Mr. Allen’s version of events.
At the hearing, Mr. Allen denied that he consented to the search. He testified that he had a gun for his family’s protection. In November 2018, Allen was indicted for carrying a concealed weapon, and a warrant was issued for his arrest. The warrant was not immediately served.
Mr. Allen’s Gettysburg Flip and Second Arrest
On Saturday January 19, 2019 at 12:30 a.m., Dayton Police Officers Vincent Carter and Cody Hartings were patrolling North Gettysburg Avenue, an area known for high drug activity and gun violence. Their cruiser and a second cruiser were stopped in the parking lot of a Dollar General store at the intersection with Queens Avenue, where they could easily watch northbound and southbound traffic. According to Officer Carter, the officers saw a Mercedes approach Gettysburg eastbound on Queens, “pull out onto Gettysburg to head northbound,” and then quickly put the car in reverse and drive in reverse back down Queens Avenue. Officer Carter testified that improperly backing in a street is a traffic violation.
Mr. Allen completed his Gettysburg Flip near the intersection of North Gettysburg Avenue and Queens Avenue. Because this flip was not captured on law enforcement video the Second District Court jumped on the video bandwagon.
Officer Hartings, who was driving, pulled the cruiser onto Gettysburg and headed toward Queens. Officer Carter testified that the officers could see the Mercedes on Queens do a three-point turn to face westbound and then park along the curb. The officers believed that the vehicle’s driver had seen the cruisers and changed direction to avoid detection by the police, a practice that Officer Carter stated was common, “especially on Gettysburg.” Officer Carter referred to the maneuver as the “Gettysburg Flip.” The officers pulled up behind the parked Mercedes. The cruiser video showed that the cruiser’s overhead lights were not activated.
The officers approached the Mercedes and found two occupants: Mr. Allen, the driver, and a female passenger. As Officer Hartings spoke with Mr. Allen, Officer Carter looked in the vehicle’s windows using his flashlight and saw a black handgun, a Taurus 9mm, on the rear floorboard. Officer Carter advised Officer Hartings to get Mr. Allen out of the car. Mr. Allen complied and, after a few moments, was taken to the cruiser. Officer Carter then had the passenger exit the car. At this juncture, another cruiser arrived and parked a short distance in front of Mr. Allen’s vehicle.
The officers requested an evidence technician to retrieve the gun. Upon searching the vehicle, no drugs or other unlawful items were found. The officers learned that Mr. Allen had a warrant for his arrest on a carrying a concealed weapon charge. Officer Hartings informed Mr. Allen of his Miranda rights, and Mr. Allen said that he wanted to talk. Mr. Allen admitted the gun was his and stated that he had purchased it from a pawn shop. He expressed that he was lawfully carrying the weapon because it was out in the open and not concealed. Mr. Allen’s analysis of Open Carry and the Ohio Revised Code definition of Open Carry are distinguishable.
Testifying on his own behalf, Mr. Allen stated that he and his companion were “just sitting” in his parked car when the police cruiser “rolled past” his car. Allen stated that the officers looked in the front windshield, looked at Allen and his friend, and then turned on the cruiser’s overhead lights. When asked if his car “ever back[ed] up in any way,” Allen responded, “No, I wasn’t doing anything. I was just sitting there.” Mr. Allen acknowledged that he had a gun on the rear floorboard that was readily visible.
In March 2019, Mr. Allen was indicted for improper handling of a firearm in a motor vehicle (loaded/no license). Mr. Allen acknowledged that he had received a traffic citation and appeared in municipal court related to this incident, although it is not clear whether the citation was for improper backing.
The trial court held a joint hearing on the motions on June 28, 2019. A week later, the trial court denied the motions. Mr. Allen proceeded to separate jury trials in his two cases, following which he was found guilty of the charged offenses. In each case, the court sentenced him to up to five years of community control.
Mr. Allen filed two Motions to Suppress his firearms
First Arrest
Mr. Allen claims that the pat down [as opposed to his claim of stop and smack] in his first arrest was unlawful and, therefore, the trial court erred in denying his motion to suppress.
Mr. Allen was stopped by Officers Myers and Rolfes after the officers observed his crossing Free Pike from the Shell gas station without using the nearby crosswalk. Mr. Allen admitted at the suppression hearing that he had jaywalked. The officers’ observation of the jaywalking provided reasonable and articulable suspicion that Mr. Allen had engaged in criminal activity, albeit a minor misdemeanor. Accordingly, the officers’ stop of Mr. Allen was lawful.
Mr. Allen argues that there was no evidence to justify a pat down. He emphasizes that there was nothing suspicious about his appearance or actions; he was compliant, had no bulging pockets, made no assertive movements, was not belligerent or verbally abusive, and had not discarded anything. Mr. Allen noted that he produced his identification and provided it to the officers before they requested it.
Officer Myers testified that he ran Mr. Allen’s identification through the cruiser’s on-board computer and learned that Mr. Allen had a prior arrest for carrying a concealed weapon. The officers and Mr. Allen all agreed that the area where the stop occurred was a high-crime and high-drug activity area, and the officers indicated that the owner of the Shell gas station had requested patrols due to loitering, trespassing, and drug activity in the lot.
The officers’ testimony and the cruiser video supported Allen’s assertion that he did not engage in suspicious behavior. Mr. Allen was cooperative with the officers, and he and Officer Rolfes engaged in friendly conversation while Officer Myers ran Mr. Allen’s identification. Nevertheless, while Mr. Allen’s presence in a high-crime and high-drug activity area did not, alone, provide a sufficient basis for Officer Myers to perform a pat down for weapons, the information that Allen had previously been arrested for carrying a concealed weapon created a reasonable individualized suspicion that Mr. Allen may be armed and dangerous. Officer Myers conceded on cross-examination that the weapons arrest was several years old. Nevertheless, we cannot conclude that the officer acted unreasonably when he patted down Mr. Allen for his and Officer Rolfes’s safety. Consequently, the motion to suppress the gun in the first arrest was overruled. D
Second Arrest – Gettysburg Flip and Open Carry that was not.
Mr. Allen claims that the trial court erred in denying his motion to suppress in his Gettysburg Flip case because the officers did not have probable cause to conduct a traffic stop of his vehicle.
The court concludes that the officers’ initial approach constituted a consensual encounter, not an investigatory detention. The officers’ cruiser stopped to the rear of Mr. Allen’s vehicle, and the video reflects that the cruiser’s overhead lights were not activated. No other vehicles were in front of the Mercedes, and Mr. Allen could have driven away without difficulty or obstruction. Although the cruiser video did not include audio until after Mr. Allen was taken to the cruiser, the video substantiated Officer Carter’s testimony that he looked through the Mercedes windows with his flashlight while Officer Hartings spoke with Mr. Allen, who was then seated in the driver’s seat. At that time, Officer Carter saw the gun in plain view, a fact that Mr. Allen does not dispute. Contrary to Mr. Allen’s amateur legal opinion, this is not an example of open carry.
The court held “Accordingly, we conclude that the officers lawfully approached Allen’s parked vehicle and saw through the car window, in plain view, a firearm on the rear floorboard. The trial court thus properly denied Allen’s motion to suppress.”.
Information for this article was obtained from State v. Allen, 2021 – Ohio – 3047.
This case was issued by the Second District Appellate Court and is binding in Champaign, Clark, Darke, Greene, Miami and Montgomery Counties.
Lessons Learned:
- This case supports that the officer’s articulation in the arrest narrative and on the stand was THE difference in refuting the Motion to Suppress. The officers did well to articulate all the actions taken when encountering Mr. Allen in two different firearm encounters.
- This case further demonstrates that the Broken Windows theory to crime suppression works. In both instances the officers initiated contact for either a minor crime or a consensual encounter. Both encounters resulted in firearms arrest. Not only should all of these officers be commended for professional policing, but also their actions underscore the importance of utilizing the city and state codes to suppress crime. We will never know if the removal of these two firearms saved specific lives but what we do know is that the firearms did not end any lives on these nights. For this reason alone, these officers should be commended!
- This is the second case I have discovered in the last two years where two different courts have rejected officers’ testimony on suspects’ behavior because it was not captured on video. In this case the court stated “The cruiser video did not capture the alleged traffic violation [Gettysburg Flip]; the video began with the officers approaching the parked Mercedes. The video showed Allen’s vehicle parked on a residential street with virtually no vehicular traffic.”. The other time this occurred was in Wright v. Euclid, No. 19 – 3452, (6th June 18, 2020). In that case the Sixth Circuit Appellate Court held “The officers maintain that at both turns, Wright failed to use his turn signal, but there is no dash-cam footage or other evidence to confirm the officers’ word. Wright insists that he did use his turn signal in both instances.”. See The Sixth Circuit Holds Mr. Wright was Wronged. This is a disturbing trend because not all suspects’ or officers’ actions are going to be video. I believe that more courts are going to jump on the video bandwagon as police encounters are being captured on video at a higher and higher rate.
Does your agency train on Investigative Detention?
Don’t fail your training.
Don’t let your training fail you!
Be safe, smart and Objectively Reasonable!