The state argues that the officers had probable cause to believe a criminal offense had occurred when, in plain sight, they observed part of a firearm protruding from underneath Mr. Grabe’s seat. For the reasons provided, the state’s argument has merit and the judgment of the trial court is reversed and remanded for further proceedings.
State v. Grabe
2021 – Ohio – 4666
Seventh District Appellate Court
Mahoning County, Ohio
December 22, 2021
Officers Christopher Stanley, Josh Rivers, and Joseph Burnich are members of the Youngstown Police Department Vice Unit. On the date of the incident [which is not provided by the court], the officers were patrolling an area near the intersection of Mahoning Avenue and S. Lakeview to conduct compliance checks on local bars in accordance with Governor DeWine’s COVID orders. The officers observed a grey Buick Regal car approach the area and illegally park on the sidewalk. The officers approached the driver and sole occupant of the vehicle, Mr. Kyree Grabe, and informed him that he would receive a parking ticket. Mr. Grabe asked the officers if he needed to sign the ticket, the officers responded that he did not. Mr. Grabe then walked away and approached the All City Sports Bar.
Mr. Grabe parked illegally outside the All City Bar located at 1698 Mahoning Avenue in Youngstown, Ohio. Youngstown Police Detectives identified the parking violation, which began an investigation that led to Mr. Grabes, arrest, a successful Motion to Suppress and an appeal to the Seventh District Appellate Court.
Apparently, at least two of the officers knew of Mr. Grabe from previous encounters. Officer Stanley testified at the suppression hearing that he thought he had encountered Mr. Grabe during a prior traffic stop but that was the only time he had seen him. Officer Rivers also testified to a prior interaction with Mr. Grabe but did not provide any information regarding that interaction. Neither officer appeared to have prior experiences or associated Mr. Grabe with either drugs or alcohol. Officer Stanley testified that he did not know at the time if Mr. Grabe was under a weapons disability. He was not but would be in any subsequent offenses following this conviction. The officers both testified that the incident occurred in a high-crime area. Specifically, Officer Rivers testified that “[T]hroughout the summer we definitely received a number of complaints from residents for fights, illegally parked vehicles, as well as gun fire.”.
After Mr. Grabe walked away from his vehicle, Officer Stanley noticed that the back passenger window was rolled down. Officer Stanley shined his flashlight into the vehicle for the stated of purpose of checking to see whether valuable items could be at risk of being stolen. Officer Stanley wrote in his report that he “could observe in plain view a silver and black semiautomatic handgun underneath the front passenger seat.” At the suppression hearing, Officer Stanley clarified that he observed “the slide of the gun sticking out and the barrel.” He explained that the “slide” is the part of the barrel that “works to eject the spent shell casing and reload another round from the magazine into the barrel.” While the gun had a magazine, both officers testified that it was impossible for them to know if it was loaded by merely looking at it. Defense counsel, Ms. Rachel Cerni, would make this the central point of her argument. Both officers testified that based on seeing this gun they believed a crime had been committed even though nothing else in the vehicle or about the situation in general indicated that a crime had occurred.
After the gun was discovered, Officer C. Kelly waited with the vehicle while Officer Stanley located Mr. Grabe near the bar, placed him under arrest, and then transported him back to the vehicle. Both officers testified that they arrested Mr. Grabe because of the gun. Officer Rivers testified that he did not know at that time whether the gun was loaded and could not tell without further investigation whether a criminal offense had occurred. Officer Stanley similarly testified that he believes a gun must be loaded to constitute a criminal offense but he had no way of knowing whether the gun was loaded at the time it was discovered.
Following Mr. Grabe’s arrest, Officer Rivers conducted a search of his person that revealed: one small baggie containing crack cocaine (front right pants pocket), a large sum of money (front right pants pocket), large sum of money (front left pants pocket), one baggie of marijuana (front left pants pocket). The officers then attempted an inventory search of his vehicle. Officer Rivers testified that “[N]ormally, we, you know, conduct our vehicle inventory at the scene, but due to the fact that we had a large crowd of individuals leaving the liquor establishment beginning to surround officers and we were clearly outnumbered, that we had to tow the vehicle from Mahoning and Lakeview to B&O Station to conduct a thorough investigation.” In addition to the gun, the search of the vehicle resulted in the seizure of drugs. Mr. Grabe was a walking carnival of felonies.
Mr. Grabe received a citation for the parking violation, however, it appears that offense was resolved separately in Youngstown Municipal Court. On September 10, 2020, Appellee was indicted on: one count of possession of cocaine, a felony of the second degree in violation of R.C. 2925.11(A), (C)(4)(d), with a specification for forfeiture of money in a drug case; one count of having weapons while under disability, a felony of the third degree in violation of R.C. 2923.13(B); one count of improperly handling firearms in a motor vehicle, a felony of the fourth degree in violation of R.C. 2923.16(B), (I); one count of possession of heroin, a felony of the fourth degree in violation of R.C. 2925.11(A),(C)(6)(b), with a specification for forfeiture of money in a drug case; and one count of illegal use or possession of drug paraphernalia, a misdemeanor of the fourth degree in violation of R.C. 2925.14(C)(1), (F)(1), with a specification for forfeiture of money in a drug case. The record is not entirely clear, but it appears that Mr. Grabe’s arrest resulted in a probation violation associated with prior case number 18 CR 1208.
On November 24, 2020, Appellee filed a motion to suppress. The state filed a response one week later. On December 29, 2020, the trial court held a hearing where Officers Stanley and Rivers testified. On January 19, 2021, the trial court granted the motion to suppress. In the court’s judgment entry, it explained that both officers testified they could not determine that a crime had been committed by the mere presence of the gun. As such, the court concluded that Mr. Grabe had been arrested and searched without probable cause that he committed a criminal offense.
At the hearing, Officer Rivers testified that he has experience arresting individuals for both concealed carry and improper handling violations. Despite this experience, Officer Rivers exhibited a misunderstanding of the law in his testimony.
Q. Was the fact that there was a weapon in the car at the time that you couldn’t tell was loaded, was that in and of itself a criminal offense?
A. Being that we couldn’t tell whether or not the weapon was loaded –
Q. Right. Without further investigation, where the weapon was lying, with
the information you had, was it a criminal offense?
Due to the fact that we didn’t know if it was loaded at the time —
Q. You didn’t know, that’s the point. So unless you did further investigation,
could you tell as it laid there whether or not there was a criminal offense?
A. No, sir.
On redirect, the prosecutor did not address the misstatement of law, and instead
questioned the officer as to whether Mr. Grabe’s car was parked out in the open. Then, the following exchange occurred between defense counsel and Officer Stanley:
Q. When you saw what you described as the barrel and the slide of the weapon and could not make a determination that the weapon was loaded, without any further investigation were you able to make a determination at that point whether or not there was a crime?
A. I believe there was a crime.
Q. I know you believe it, but what was it that caused you to believe it at the time? Because wouldn’t the weapon have to be loaded for it to be a criminal offense at that point?
Q. So at the time that you investigated, at the time that you entered that vehicle, at the time that you arrested [Mr. Grabe], what you had, the information before you, was a weapon in a vehicle, which in and of itself is not a criminal act, we agree?
Q. And no knowledge as to any other criminal activity. A Correct. The weapon and the ammunition need to be separated either by a locked case or in different – different areas of the vehicle. Or the weapon, if loaded, must be in the vehicle where you would have to exit the vehicle in order to obtain that weapon.
The trial court asked Officer Stanley to explain the correct way to lawfully handle a firearm in a vehicle. He responded that, if loaded, the gun must be stored in an area inaccessible to the driver. If unloaded, the gun must be stored separate from the ammunition. The court asked several questions to clarify the law and Officer Stanley reiterated the law of subsection (B), but did not mention the law as stated in subsection (C). The state did not attempt to correct any of these misstatements.
The trial court failed to apply the entire statute …
Officer Stanley’s testimony as to an unloaded gun is partially correct. It appears he believes the only requirement as to an unloaded gun is that it must be stored separate from the ammunition. However, R.C. 2923.16(C) requires an unloaded gun to be stored in a locked compartment, in an area inaccessible to the driver, or in a storage rack if in plain view. There is no question that a gun cannot simply be tossed underneath the seat of a vehicle, whether it is loaded or unloaded. Because the gun was laying on the floor underneath the front seat and was not properly stored, Mr. Grabe violated R.C. 2923.16(C) regardless of whether the gun was loaded. Thus, a reasonable officer in that situation would have believed that probable cause for arrest existed pursuant to R.C. 2923.16(C).
The Seventh District Appellate Court held:
“While it is true that the state and its witnesses never raised this aspect of the statute, this issue presents a question of law, not a question of fact. While the state should have taken some effort to clarify the law after both of its own witnesses misstated it, it is ultimately the trial court’s responsibility to resolve and apply questions of law. The state argues that the officers had probable cause to believe a criminal offense had occurred when, in plain sight, they observed part of a firearm protruding from underneath Mr. Grabe’s seat. For the reasons provided, the state’s argument has merit and the judgment of the trial court is reversed and remanded for further proceedings.”.
Information for this article was obtained from State v. Grabe, 2021 – Ohio 4666.
This case was issued by the Seventh District Appellate Court which is binding in the following Ohio counties: Belmont, Carroll, Columbiana, Harrison, Jefferson, Mahoning, Monroe and Noble.
- R.C. § 2923.16(C)(1) states “No person shall knowingly transport or have a firearm in a motor vehicle unless it is unloaded and is carried in one of the following ways: In a closed package, box or case.”. This is a fourth-degree misdemeanor. Mr. Grabe violated this statute as Officer Christopher Stanley observed the handgun in plain view. Though the officers misstated the law both the prosecutor and the judge should have caught the error during the Motion to Suppress. Because the error occurred the prosecutor properly appealed the case to the Seventh District Court. In a three to zero decision, the appellate court judges overturned the suppression of the firearm and returned the case to the trial court.
- The question going forward is whether this same incident would be unlawful given the upcoming CCW changes that are effective June 13, 2022. The answer is no it will mostly not be unlawful. If the person nestling a handgun underneath a seat, loaded or not, is a “qualifying adult”, then the transportation of a firearm does not have to comport with the aforementioned O.R.C. § 2923.16(C)(1). In the revised O.R.C. § 2923.111(B)(2) it states “Regardless of whether the person has been issued a concealed handgun license, subject to limitations … of this section, a person who is a qualifying adult may carry a concealed handgun that is not a restricted a firearm anywhere in this state in which a person who has been issued a concealed handgun license may carry a concealed handgun.”. As all law enforcement officers know, the various handgun laws are often lawful gateways to inhibit crime and criminal activity. Yet another example as to why and how the revised § 2923.111 is the felon protection act and makes our communities more dangerous. For more information on the upcoming changes to the new CCW law O.R.C. § 2923.111 see Governor Mike DeWine and the 134th General Assembly Felon Protection Act.
- Youngstown Police Detectives Christopher Stanley, Josh Rivers, and Joseph Burnich should be highly commended for their investigation and arrest of Mr. Grabe. The detectives may have inhibited a violent crime the evening of this incident. Grabe was clearly a drug dealer, loaded with both crack cocaine, the ability to makes lots of change and a firearm to protect his drug trade. On that night, the detectives made the City of Youngstown just one felon safer.
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Don’t let your training fail you!
Be safe, smart and Objectively Reasonable!