A Montgomery County judge has thrown out evidence against a man arrested on gun charges in an order saying the Dayton police officers “staged” their justification for pulling him over and made remarks “that strongly suggests racial profiling.”
The order from Montgomery County Common Pleas Judge Steven Dankof granted a motion to suppress evidence found in the traffic stop, including a loaded firearm. Prosecutors filed a notice Monday that they intend to appeal the order.
Defendant Calvin Wilson, 34, is charged with improper handling of a firearm in a motor vehicle and having weapons while under disability because of 2004 felony assault conviction.
The police incident report says officers found marijuana, thousands of dollars and cash and a pistol loaded with hollow-point bullets despite three prior convictions prohibiting him from carrying weapons.
Court records say that officers William Davis and Bryan Camden pulled Wilson over on Oct. 1, 2016, after he allegedly cut them off on Hoover Avenue. A search of the vehicle found the gun, those records said.
‘A dark and stormy night’
The case is assigned to Common Pleas Court Judge Barbara Gorman. Dankof presided over the May 26 suppression hearing because Gorman wasn’t available, according to county officials.
“It was a dark and stormy night,” Dankof’s order began with his description of what video of the stop showed.
Dankof wrote that the police cruiser was traveling 43 mph in a 35 mph zone.
He called Davis’ testimony that Wilson pulled out two or three car lengths ahead of him – forcing him to slam on his brakes – “flatly untrue” and calculated that the video showed the vehicles were at least 18 car lengths apart. He wrote the police vehicle gently decelerated to the speed limit.
Then, Dankof wrote, the officers began a “staged” discussion.
Davis: “He pulled out there, pulled right in front of me!”
Camden: “He pulled out in front of us.”
Davis: “Had to hit the brakes to avoid…”
Camden: “Yeah, failure to yield.”
Wrote the judge: “This conversation, quite clearly synthesized by the officers in an obvious attempt to bolster their traffic stop, would be comedic were it not so sad on any number of levels.”
‘Strongly suggests racial profiling’
The police incident report authored by Davis says “I had to hit the brakes in the cruiser to avoid a collision.”
The police report says after pulling the vehicle over they smelled marijuana inside the vehicle and saw “a large amount of cash money” and a container of some kind in the center console.
“I…asked Wilson what was in the center console near the cash. Wilson admitted it was marijuana,” the report says.
Based on this, officers searched the vehicle and found the gun on the driver’s side floorboard, the report says. Wilson told police it “must belong to his ‘girl’ and ‘she must have left it in the car when she drove it earlier.’”
At some point in the video, the judge wrote, Davis said he was surprised Wilson had a valid driver’s license.
“This remark strongly suggests racial profiling – defendant is African American and Hoover and Elmhurst are in Dayton’s West Community,” the judge wrote.
Dayton police officials say they are reviewing the October 2016 arrest.
“We are currently gathering both video and written records from the court proceedings as well as all records from within our department associated with this arrest and will conduct a complete and thorough review of the matter,” said department spokeswoman Cara Zinski-Neace in a statement.
Suspect had prior arrests
Wilson has a criminal record. The police report says he was convicted of felony assault and improper carrying of a concealed weapon in 2003, and possession of marijuana in 2001 – all three charges prohibit him from carrying a weapon, the report says.
The police report also says he served five years in prison for drug-related offenses.
Dayton municipal court records show additional misdemeanor drug and assault charges, as well as eight charges of driving under suspension or without a license.
“It’s really important that people’s rights be protected,” said Wilson’s attorney Daniel O’Brien, applauding the judge’s ruling.
“The prosecutors have the burden of proof,” he said. “They have to prove a stop is legal, and obviously in this case there were a lot of reasons for the judge to find it was not legal
Dankof ruled that the police cruiser, since it was speeding, didn’t have right of way and the officers’ explanation was “contrived,” therefore there was no reason to pull Wilson over, thus no justification for searching his car.
For this reason, the fruits of the search were inadmissible, he wrote.
In the state’s notice to appeal the judge’s order to the 2nd District Court of Appeals, Montgomery County Assistant Prosecutor Attorney Justin Sheridan wrote that “suppression of the state’s evidence has rendered the state’s proof with respect to the pending charge so weak in its entirety that any reasonable possibility of effective prosecution has been destroyed.”
Josh Sweigart is an investigative reporter at the Dayton Daily News. His stories have focused on government waste, fraud, abuse and accountability in southwest Ohio, as well as the statehouse and U.S. Capitol.