COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59506 : STATE OF OHIO : : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION DWAYNE EVANS : : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 19, 1991 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-238873 JUDGMENT: Reversed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. EDWARD S. WADE, JR., ESQ. Cuyahoga County Prosecutor 1276 West Third Street WILLIAM AILER, ESQ. Marion Building, Suite #1000 Assistant Prosecuting Attorney Cleveland, Ohio 44113 The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 - 1 - HARPER, J.: Defendant-appellant, Dwayne Evans, was indicted by the Cuyahoga County Grand Jury in a four-count indictment, to wit: three counts of drug violations (R.C. 2925.03, 2925.13), and one count of Possession of Criminal Tools (R.C. 2923.24). Appellant filed a motion to suppress evidence which was heard on January 5, 1990 and denied by the trial court on January 22, 1990. The appellant thereafter changed his previously entered not guilty plea to a plea of no contest. The trial court found him guilty of all counts as charged in the indictment. Appellant was subsequently sentenced to a term of eighteen (18) months under count one; eighteen (18) months under count two, along with a mandatory fine of $5,000; six (6) months under count three; and eighteen (18) months, along with a mandatory fine of $3,000 under count four. Said terms were to be served concurrently. Appellant now appeals from his conviction and sentence, and for the reasons that follow, we reverse. I. On April 23, 1989, at approximately 3:45 a.m., Officer Carl Green, then of the East Cleveland Police Department, and Officer Jamie Travano, were traveling northbound on Mount Vernon. As they approached the intersection at Glynn Road, the officers observed a vehicle with a burnt out headlight. The officers engaged the lights of the patrol car and stopped the vehicle at - 2 - the intersection of Glynn and Lee Roads. The appellant was the driver of the vehicle. Officer Green exited the patrol car and approached the driver's window. The officer sought to recover driver's information and a license, and to advise the appellant of the reason for the stop. The officers, while waiting to receive the requested information, heard a radio broadcast from dispatcher Ron Hubbard. The broadcast contained the information that a male, clad in a red jogging suit with "Reebock" written across the back, made/1/\ a drug transaction and was thought to be traveling westbound on Glynn Road. The broadcast further provided that the male was driving a gray Datsun 280Z. The appellant, who wore the clothing described in the broadcast, was driving a gray car. Officer Green, assisted by Officer Travano, requested that the appellant exit his vehicle. Officer Travano then patted the appellant down and recovered a large wad of money on which sat a small packet of cocaine from his pocket. The appellant was subsequently arrested for possession of a controlled substance and was advised of his rights./2/\ /1/\ Officer Travano testified at the motion to suppress hearing that the broadcast contained the information that there was a "possible drug transaction." /2/\ Contrary to the court's journal entry, fn.4, infra, the arrest was made subsequent and not prior to the search of the appellant. - 3 - II. Appellant's sole assignment of error is that: "THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION TO SUPPRESS CERTAIN ILLEGALLY ACQUIRED EVIDENCE WHERE THE POLICE BASED THEIR ARREST AND SEARCH ON UNVERIFIED INFORMATION GIVEN BY AN ANONYMOUS INFORMANT." Appellant initially contends that a defective headlight does not amount to probable cause to conduct an investigative search and, therefore, the trial court should have granted his motion to suppress. The state argues that the search was warranted based upon the following "specific and articulable facts": 1) the appellant was traveling westbound on Glynn Road at 3:45 a.m. in a vehicle with a burnt out headlight; 2) while advising the appellant of the reason for the stop, and learning that he was not carrying a driver's license, he was asked to step out of his vehicle; 3) a radio broadcast containing information about a drug transaction and a description of the male involved in the drug transaction, his clothing, and his vehicle, was received by the officers; 4) the appellant's clothing and vehicle matched the description in the broadcast; and 5) the officers' personal observations corroborated the information received by the dispatcher as to the male's clothing, vehicle, and location. Therefore, the state asserts that, "*** the court did not err in denying the appellant's motion to suppress because, under the totality of the circumstances, the officers had a reasonable basis to suspect criminal activity, ***, and the dispatcher's broadcast as corroborated exhibited sufficient indicia of reliability to justify the detention and more extensive search of - 4 - the appellant." (Emphasis added.) The appellant counters by asserting that "*** the fact that Defendant (assuming he was driving with a defective headlight) and/or that the officers had received a radio broadcast based upon an anonymous tip, did not provide them with the requisite probable cause which would enable them to stop and frisk the defendant and search his vehicle."/3/\ A. Initially, this court must determine whether the stop of the appellant was reasonable./4/\ "A police stop of a motor vehicle is a significant intrusion requiring justification as a 'seizure' within the meaning of the Fourth and Fourteenth Amendments to the United States Constitution. Delaware v. Prouse (1979), 440 U.S. 648, 653. At the very least, such justification requires that the stopping officer have '"specific and articulable facts"' indicating that the stop is reasonable. State v. Chatton (1984), 11 Ohio St. 3d 59, 61, 11 OBR 250, 251, 463 N.E. 2d 1237, 1239." /3/\ The trial court's journal entry in which the court overruled appellant's motion to suppress, states: "The court finds that the police officers properly stopped the defendant for a traffic violation. While questioning the defendant in connection with the traffic violation, the police were advised, by radio, that a man wearing the distinctive clothes of the defendant and driving an auto matching that of the defendant had just been observed participating in suspected drug violations. After a Terry pat-down, for weapons, the police arrested the defendant and conducted a search of the defendant and auto which revealed contraband in question." /4/\ Citing Terry v. Ohio (1968), 392 U.S. 1, the Ohio Supreme court in State v. Bobo (1988), 37 Ohio St. 3d 177, held that, "'[I]n determining whether the seizure and search were "unreasonable" our inquiry is a dual one -- whether the officer's action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place.'" - 5 - It is thus axiomatic that the detention of an individual by a law enforcement officer must, at the very least, be justified by "specific and articulable facts" indicating that the detention was reasonable. Terry v. Ohio (1968), 392 U.S. 1. Where police officers have a reasonable suspicion that a crime is being committed, they can make an investigatory stop. Id. Officers Green and Travano had authority to stop the appellant's vehicle after they observed a burnt out headlight. They then had authority to request him to produce his driver's license. R.C. 4507.35; Pennsylvania v. Mimms (1977), 434 U.S. 106, 111; See, State v. Harris (Feb. 26, 1987), Cuyahoga App. No. 51543, dissenting opinion, Markus, C.J., 3-4. B. In the instant case, the stop which was made for the purpose of issuing a citation was extended into an investigative stop and subsequent search. Having determined that the officers had authority to stop the appellant's vehicle, we must now address the subsequent search of the appellant and his vehicle. The officers' testimony is replete with discrepancies on three pertinent issues. First, it is unclear at what point the appellant was asked to exit his vehicle. Second, the reason for the request is not apparent. Third, the officers failed to articulate the motivating reason for the search of his person and his vehicle. In the within action, the state not only bases the search of the appellant on the radio broadcast received by the officers but - 6 - submits that the search would have been conducted and warranted even if they did not receive the radio broadcast. The police officers received the broadcast between the time they stopped the appellant and requested his driver's license and the time they were informed that he did not have his driver's license on his person. 1. The Radio Broadcast As stated supra, the state contends that the search of appellant and his vehicle would have occurred absent the radio broadcast. According to Officer Green, "Q. And would you have searched him for not having a "A. Yes, I would have. Prior to putting him in the rear of my car. " (Tr. 16.) The overall testimony, however, reveals that the officer would not have requested the appellant to exit his vehicle and would not have searched him if it were not for the radio broadcast. Officer Green testified as follows during direct examination at the motion to suppress hearing: "Q. Again with regard to the call, did you respond to the "A. Yes, I did. I did hear the call. "Q. And what did you do next, sir? "A. When I got the description, I noticed that the car that we had stopped was a gray car. I noticed the clothing, that Mr. Evans fit the description of the clothing he had broadcast over the radio. "Q. And what did you do from that point on? - 7 - "A. At that point I had him get out of the car, and Officer Travano assisted me. Officer Travano patted him down and Officer Travano produced some drug items." (Emphasis added.) (Tr. 10.) Upon cross-examination, Officer Green restated that they only requested the appellant to exit his vehicle after hearing the radio broadcast. "Q. That is when you wanted him to get out of the car after you received the broadcast? "A. Yes. "Q. Because at that point in time you intended to arrest him for the drug violation, correct? "A. At that time I don't know if there was a drug violation. "Q. But you were acting on that radio? "A. It was just an alleged violation at that time. "Q. And you were following it up to see whether or not it was true; isn't that correct? "A. Yes. "*** "Q. And the sole purpose of taking him out of the car and frisking him was based on the alleged information you received from the radio broadcast, correct? "A. Yes. "*** "Q. Would it be safe to say, but for the radio broadcast, you would have never taken him out of the car, out of the car and patted him down. That would be accurate, wouldn't "A. Correct." (Tr. 12, 14, 15.) - 8 - The state attempted to steer Officer Green from the obvious, that the request to exit the vehicle and the search were connected to the radio broadcast, during redirect examination. "Q. And your purpose for asking him to get out of the car was to do what? "A. He didn't have his driver's license on hand. "Q. He didn't have his driver's license. Is that why you asked him to get out of the car initially? "A. Yes. "Q. So is it that you received the call after he got out of "A. While he was getting out of the car, correct. "Q. So you responded to the call in addition to his not having a license; is that correct? "A. Correct." (Tr. 16.) However, when the trial court later in the proceedings, directly asked Officer Green, "*** what was the reason on this very occasion that you did conduct the search on the gentleman", the officer replied, "On this particular occasion, the reason he was searched, it was due to the radio broadcast." It is apparent from the record that the officers, after hearing the radio broadcast, proceeded to act on the broadcast alone. It was as if they made another stop separate and distinct from the original traffic stop. The Supreme Court, in Alabama v. White (1990), ___ U.S. ___, 110 S.Ct. 2412, re-examined the issue of whether an anonymous tip furnishes reasonable suspicion for a stop. The decision repeats - 9 - the findings of Illinois v. Gates (1982), 462 U.S. 213, and redefines the parameters for a valid stop which is based upon an anonymous tip where certain information from the informant is verified. In White, supra, an anonymous individual phoned the police and informed them that White would be leaving an apartment at a certain time. She would be driving a brown Plymouth station wagon with a broken right tail light to a specific motel with cocaine in her possession. An officer arrived at the apartment, observed the station wagon, and then followed the vehicle which traveled in the direction stated by the informant. The driver consented to a search after the vehicle was stopped; cocaine was found in the search. The court determined that sufficient indicia of reliability were present to justify an investigatory stop. It was thus stated that: "*** it is not unreasonable to conclude in this case that the independent corroboration by the police of significant aspects of the informer's predictions imparted some degree of reliability to the other allegations made by the caller. "We think it is also important that, as in Gates, 'the anonymous (tip) contained a range of details relating not just to easily obtained facts and conditions existing at the time of the tip, but to future actions of third parties ordinarily not easily predicted.' Gates, 462 U.S., at 245, 103 S. Ct., at 2335-6. The fact that the officers found a car precisely matching the caller's description in front of the 235 building is an example of the former. Anyone could have 'predicted' that fact because it was a condition presumably existing at the time of the call. What was important was the caller's ability to predict respondent's future behavior, because it demonstrated inside information -- a special familiarity with - 10 - respondent's affairs." White, supra, ___ U.S. ___, 110 S. Ct. 2417. (Emphasis in original.) In the instant case, the state presented no competent evidence establishing the reliability of the information which led to the issuance of the police bulletin. The dispatcher was identified, but there was no testimony as to the source of the information being broadcast by that dispatcher. Moreover, the testimony of Officers Green and Travano is totally absent of any independent factual basis for searching the appellant in relation to the broadcast. Since the officers only connected the appellant to the broadcast as a result of a clothing and vehicle description wihout personally observing any other suspicious behavior, the state only showed the nature of the broadcast and nothing else. Cf. State v. Howard (Nov. 16, 1989) Cuyahoga App. No. 55911, unreported (where this court affirmed the denial of a motion to suppress when police officers, after hearing a broadcast naming and describing the defendant and his vehicle, met and arrested the defendant as he emerged from his vehicle, and observed a gun tucked into the waistband of his pants). The anonymous tip only contained details which were in existence at the time of the tip, thereby lacking the requisite degree of reliability. Therefore, the only basis remaining for the search of the appellant and his vehicle is the burnt out headlight, and the failure to provide a driver's license. 2. The Search of the Appellant Assuming arguendo that the officers properly asked the appellant to exit his vehicle after learning he was not in - 11 - possession of his driver's license, the search of him and his vehicle remained unreasonable under the circumstances of this case. "Where a police officer, during an investigative stop, has a reasonable suspicion that an individual is armed based on the totality of the circumstances, the officer may initiate a protective search for the safety of himself and others." State v. Bobo (1988), 37 Ohio St. 3d 177, paragraph two of the syllabus. The protective search must, however, be limited in scope to a pat down search for concealed weapons when the officer has a reasonable suspicion that the individual being investigated is armed and dangerous. Terry, supra, 27; Andrews, supra, 89. The purpose of this protective search is to safeguard the officer(s) from any attempts of violence by the individual. Terry, supra, 24, 30; Andrews, supra; See, also, State v. Williams (1990), 51 Ohio St. 3d 58, 62; United States v. Smith (C.A. 6, 1978), 574 F. 2d 882, 885. Furthermore, where the situation presents a threat that at that time, evidence could be lost, destroyed or removed, the exigencies of the circumstances render the "needs of law enforcement so compelling that the warrantless search is objectively reasonable under the Fourth Amendment." Mincey v. Arizona (1978), 437 U.S. 385, 394; State v. Lewis (July 11, 1991), Cuyahoga App. No. 58827, unreported; State v. Elison (Jan. 11, 1979), Cuyahoga App. No. 38807, unreported. - 12 - a. The record in the case sub judice is devoid of any evidence that the officers had a reasonable suspicion that the appellant was armed and dangerous. Officer Green testified that the appellant did nothing to cause him fear when he was stopped. The appellant only "appeared nervous." Officer Green testified as a matter of fact that he was not afraid of the appellant. This testimony negates any assertion that the totality of the circumstances indicated that the officers were in fear of their safety. See, State v. Green (July 18, 1991), Cuyahoga App. No. 60683, unreported; cf. State v. Harris (Feb. 26, 1987), Cuyahoga App. No. 51543, unreported; State v. Romano (Nov. 18, 1982), Cuyahoga App. No. 44820, unreported. b. The state proceeds to buttress support for the search on the fact that the police department's policy was to search individuals prior to placing them in the back seat of the police cruiser. Since the officers wanted to run the appellant's name through the computer to verify the existence of his driver's license, the officers were going to place the appellant in their cruiser to avoid escape. According to Officer Travano, this type of search is generally limited to weapon discovery. The state argues that the subsequent search was reasonable for this purpose. As stated supra, this type of search is limited to a pat down for weapons to insure the officers' safety. Terry, supra. - 13 - Once the searching officer discovers that the individual is not carrying a weapon, the search must cease or else the officer exceeds the limits of the pat down search. See, State v. Eppinger (May 30, 1991), Cuyahoga App. No. 60980, unreported. Such is the case here. Officer Travano testified on cross examination: "Q. Officer, wouldn't it be accurate to say normally you just pat a person down. If they don't have a weapon, you send them in the back seat of the car? "A. Generally, yes, that is how we do it. "Q. As a matter of fact, that is the kind of police procedure out in East Cleveland? "A. True. "Q. You don't dig in the pockets for anything under those circumstances, do you? "A. It depends on what we feel when we pat them down. "Q. Wouldn't it be accurate to say in this case the reason that you dug in his pocket went beyond a weapon search because you received information from a radio broadcast; is that correct? "A. That is incorrect. Upon patting down the defendant over there, there was a large bulk in his pocket. While feeling the left front pocket, it felt like a rock substance might be in his pocket. That is when I dug in his pocket and I pulled out a large wad of money. On top of that was a little packet which was a white substance believed to be crack cocaine." (Emphasis added.) (Tr. 24-25.) Officer Travano knew that this "rock substance" was not a gun. However, he asserted that he thought it could have been a knife. The testimony of this officer demonstrates that the searching of the appellant's pocket would not have occurred without the receipt of the radio broadcast. Officer Travano did - 14 - not testify that he thought the "rock substance" was a knife until further allowed to elaborate on his belief. He initially testified that the felt object was a "rock substance" which connected his belief to the radio broadcast and nothing else. Hence, the officer would never have recovered the packet of cocaine. Officer Travano testified during direct examination as to what prompts the extending of a search beyond the limited search for weapons. "Q. Do you do a search for anything else? "A. If our call is like -- depending on the call. If it is drug related, the search could possibly be more extensive due to the fact we checked the back seat of the police car before and after we put somebody in. "So if the call came over that narcotics were involved or any kind of contraband, there would be a more, you know, search I would say. "*** "Q. In this particular instance, was there an indication of contraband being involved? "A. By the radio broadcast, yes. It gave us reason to believe that this male possibly had some contraband on his person." (Tr. 22, 24.) Even though Officer Travano testified that he would have found the cocaine in a search incident to placing the appellant into the back of the cruiser, the testimony of this officer leads this court to conclude that the searching of the appellant's pocket would not have occurred without the receipt of the radio broadcast. The state cannot argue that the officers's authority - 15 - for the search was the radio broadcast since we stated supra, that the radio broadcast was never shown to be reliable. Hence, the officer would never have recovered the packet of cocaine used as evidence in the state's case. The officers' generalized "suspicions"/5/\ do not amount to "a reasonable basis to suspect criminal activity" as asserted by the state. Nor do these generalized suspicions command a search of the appellant to the extent here. The state clumsily attempts to confuse the facts so that the police officers' search of the appellant has an appearance of reasonableness. This attempt, however, fails upon review. Recently, this court has been confronted with appeals dealing with the difficult and controversial issue of whether a defendant's constitutional rights were violated by arresting police officers. See, e.g., State v. Smith (Aug. 29, 1991), Cuyahoga App. No. 58918, unreported. This appeal differs from the preceding in that the basis for the search of the appellant was so questionable, that this court must stress we will not tolerate a blanket approval of a police officer's search of a citizen where the officer justifies the search by patently attempting to cover up discrepancies in the cause for the search and by patently attempting to create a perfect search scenario. Moreover, any attempt to justify the search on the ends in total disregard of a citizen's constitutional right to be free /5/\ The record fails to reveal that the appellant's conduct, as observed by the officers, amounted to suspicious criminal activity. - 16 - from an unlawful search and seizure, will likewise be met with minimal tolerance. As Justice Douglas stated in his concurring opinion in State v. Smith (1989), 45 Ohio St. 3d 255, "Result oriented Juris- prudence should be avoided even when it appears to be the 'right' thing to do." Further, the United States Supreme Court held in Henry v. United States (1959), 361 U.S. 98, 102, that: "'a search without a warrant is, within limits, permissible if incident to a lawful arrest, if an arrest without a warrant is to support an incidental search, it must be made with probable cause.' *** 'Probable cause exists if the facts and circumstances known to the officer warrant a prudent man in believing that the offense has been committed.' Id. 'To repeat, an arrest is not justified by what the subsequent search discloses.' Id. at 104. Rawlings v. Kentucky (1980), 448 U.S. 98, 111; Johnson v. United States (1948), 333 U.S. 10; Commonwealth v. Trenge (1982), 305 Pa. Super. 386, 403, 451 A.2d 701, 710, fn. 8." Just as friendly fire is a casualty of a war between nations, friendly fire is also a casualty of a distressing phenomenon in this country, a war on our own constitutions. Our fear is that a citizen who is constitutionally protected from an unlawful search and seizure, and is yet subjected to it due to an officer's overzealous attempt to find evidence of a criminal act, is a victim of friendly fire -- an innocent victim in the country's frenzy to seek out criminals by justifying the means by the ends. It should thus be noted that: "*** recent events around the country tell us that the police are no angels when dealing with citizens and too much reliance on subjective police rationale on what constitutes probable cause is dangerous, and should be given more consideration when legally analyzing police conduct." - 17 - Smith, No. 58918, dissenting slip op. at 10. In the case sub judice, the officers initially stopped the appellant to inquire of a burnt out headlight. Hearing a radio broadcast about a possible drug transaction involving a man fitting the description of the appellant, the officers, without any other reason, immediately patted him down for weapons without any reasonable suspicion that he was armed and dangerous. An officer unsuccessful in this quest acted further by searching in the appellant's pocket where a "rock substance" was felt by him. No weapon was discovered; the officer discovered money and a small packet of cocaine. We conclude by borrowing from Justice Wright's dissenting opinion in Smith, 45 Ohio St. 3d 255, 275: "The actions of the safety forces in this case may have been well intentioned, but what this case is about is whether their actions violated appellant's constitutional rights. In the words of Justice Sutherland, dissenting in Home Bldg. & Loan Assn. v. Blaisdell (1934), 290 U.S. 398, '[t]he only legitimate inquiry we can make is whether it is constitutional. *** If the provisions of the Constitution be not upheld when they pinch as well as when they comfort, they may as well be abandoned.' Id. at 483." Our endurance of the "pinch" in this case and our continued stress and display of minimal tolerance will hopefully stall and even reverse the erosion of the integrity of the United States and Ohio Constitutions and the rights embodied therein. Accordingly, the trial court erred in denying the appellant's motion to suppress evidence recovered from a search which was unreasonable in scope and in violation of the United States and Ohio Constitutions. - 18 - This cause is reversed. It is, therefore, considered that said appellant recover of said appellee his costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. DYKE, P.J., CONCURS IN JUDGMENT ONLY; NAHRA, J., DISSENTS (See Dissenting Opinion). SARA J. HARPER JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59506 STATE OF OHIO, : : : Plaintiff-Appellee : D I S S E N T I N G : vs. : O P I N I O N : DWAYNE EVANS, : : : Defendant-Appellant : DATE: DECEMBER 19, 1991 NAHRA, J., DISSENTING: The defendant was lawfully stopped for a traffic violation. The police then received a radio broadcast that a crime (drug transaction) had taken place. The broadcast gave a description of the suspect and his car and the direction of travel. This fit the defendant perfectly. Under these circumstances, not only was it reasonable for the police to detain the suspect, but not to do so, it seems, would be a dereliction of duty. (Assume, for example, that under the same circumstances the crime had been murder and the police had let the suspect go.) The indicia of reliability in this case are as strong as those found to be sufficient in Alabama v. White cited by the majority, and I would therefore affirm the trial court's overruling of the motion to suppress. .