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Appeals court upholds judge’s order in Dayton ‘racial profiling’ case

An appeals court upheld a Montgomery County judge’s ruling that a gun and drugs Dayton police found in a traffic stop should be thrown out as evidence because officers had no justification for pulling over the driver.

The Second District Court of Appeals’ Dec. 29 ruling did not go into Montgomery County Common Pleas Court Judge Steven Dankof’s assertion that the traffic stop was “staged” and “suggests racial profiling.”

But it did agree with Dankof’s decision that Calvin Wilson didn’t cut off the Dayton police cruiser on the wet and rainy night of Oct. 1, 2016.

WATCH: Video released for Dayton traffic stop judge called ‘staged’

Officers alleged they “had to hit the (brakes) to avoid running into the rear of (Wilson’s) vehicle.” But cruiser cam video shows they “gently decelerated” from 43 mph to the posted speed limit of 35 mph to maintain a clear distance, the appeals court found.

“We cannot find error in the trial court’s legal conclusion that the officers lacked a reasonable suspicion of criminal activity… to justify the traffic stop,” says the opinion from the three-judge panel.

Wilson’s attorney Daniel O’Brien said it was clear from cruiser camera video that the officers contrived the reason for the stop and were planning from the beginning to attempt to search and possibly seize the car.

“It’s just a bold-faced lie,” O’Brien said of Wilson’s alleged traffic infraction. “It’s like the police either didn’t know the video was on, didn’t know it was playing or totally disregarded it.”

Dankof wrote that a remark from one of the officers that he was surprised Wilson had a driver’s license suggested racial profiling, considering Wilson is black and the stop was in west Dayton.

RELATED: Dayton officers’ remarks suggest racial profiling, judge says

The appeals court wrote that the issue of racial profiling was outside the bounds of their review, which focused on whether the traffic stop violated Wilson’s Fourth Amendment protections against unreasonable searches and seizures.

Dayton Police Chief Richard Biehl said in August that the department would conduct a “complete and thorough review” of the incident. The department has not responded to a request for the status of that review. This story will be updated once that information is received.

Wilson was charged in January 2017 with improper handling of a firearm in a motor vehicle and having weapons under disability after a pistol was found on his driver’s side floorboard. Cash and drugs were also found in the car.

Wilson is prohibited from having weapons because of a 2004 felony assault conviction.

O’Brien filed a motion in March 2017 asking for all of the evidence from the traffic stop to be thrown out. Dankof agreed in July, and the case was closed. The Montgomery County Prosecutor’s Office appealed and Dankof’s decision was upheld in December.

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Misdemeanor charges against Wilson of marijuana possession and failure to yield were also dropped.

In police video, Wilson admits to having marijuana in the car but said the gun was not his.

“I was convicted back in 2004. My life’s been alright since then,” he said while in the police cruiser.

Wilson currently has a warrant out for his arrest on felony assault charges stemming from an alleged domestic violence incident in October 2017. O’Brien said that Wilson contacted him Tuesday inquiring about the warrant.

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