COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59614 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION HENRY MARONE, JR. : : Defendant-appellant : : DATE OF ANNOUNCEMENT : DECEMBER 26, 1991 OF DECISION : CHARACTER OF PROCEEDING : Criminal appeal from Court of Common Pleas : Case No. 241955 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: STEPHANIE TUBBS JONES HYMAN FRIEDMAN Cuyahoga County Prosecutor Cuyahoga County Public Defender RONALD JAMES DONALD GREEN Assistant County Prosecutor Assistant Public Defender The Justice Center Marion Building, Rm. 307 1200 Ontario Street 1276 West Third Street Cleveland, OH 44113 Cleveland, OH 44113-1569 - 2 - PATTON, J., Defendant-appellant Henry Marone, Jr. ("defendant") appeals from the trial court's denial of his motion to suppress evidence. Because defendant's assignments of error lack merit, we affirm his conviction for which he pled no contest to one count of drug abuse (R.C. 2925.11) with a violence specification and one count of possession of criminal tools (R.C. 2923.24); to wit: a pipe. Both counts were accompanied by a violence specification. The relevant facts are as follows: Detective Adrian Candelaria ("Det. Candelaria"), a member of the Cleveland Police Department, testified he and his partner were in an unmarked police car and civilian clothes while patrolling an area known for high drug trafficking. It was during the afternoon on a hot summer day. Det. Candelaria observed defendant in the driver's seat of a green station wagon from a distance of not more than 200 feet. This vehicle was approached by three males. One of the males leaned into the car on the driver's side and defendant and this male had a brief conversation. Det. Candelaria then testified defendant exited the vehicle and made what appeared to be a drug transaction with the other two males who were standing in the street. Defendant then got back into his vehicle and drove away. Det. Candelaria also noticed other people in the car. Det. Candelaria testified he has been on the Cleveland Police force for eight years and has been in the narcotics unit - 3 - for three and one-half years. During that time, he has seen and made numerous drug transactions and is familiar with the way in which these transactions are accomplished. Det. Candelaria stated that the numerous drug transactions which he has either witnessed or taken part in as an undercover agent occurred in the same or similar fashion where someone would approach a vehicle then make the potential buyer exit his vehicle and purchase the requested drugs. Det. Candelaria witnessed this same scenario involving defendant. Det. Candelaria and his partner followed the vehicle to a stop sign where defendant had stopped. Det. Candelaria noticed a female in the passenger side and a male in the back seat. He was able to observe defendant's behavior for approximately one and one-half minutes as defendant was parked in the road at the stop sign. Defendant had his foot on the brake and was leaning over in the car. Det. Candelaria then approached the vehicle and ordered defendant to put the vehicle in park. At this moment, Det. Candelaria testified defendant looked "startled" and "dropped something." (T. 14). Det. Candelaria then requested defendant exit the vehicle. After defendant exited, Det. Candelaria saw a small package in plain view located at defendant's feet. The package later tested positive for crack cocaine. Defendant was placed under arrest. A pipe was also found in the vehicle. - 4 - After the trial judge overruled defendant's motion to suppress evidence, he pled no contest to the charges in the indictment. Defendant now appeals assigning two errors for our review: I. THE TRIAL COURT ERRED IN DENYING MR. MARONE'S MOTION FOR SUPPRESSION BECAUSE THE EVIDENCE SEIZED BY THE CLEVELAND POLICE WAS THE FRUIT OF AN ILLEGAL SEARCH AND SEIZURE IN VIOLATION OF ARTICLE I, SECTION 14 OF THE OHIO CONSTITUTION AND THE FOURTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION. II. MR. MARONE WAS DEPRIVED OF HIS LIBERTY WITHOUT DUE PROCESS OF LAW BY HIS CONVICTION AND SENTENCING FOR POSSESSION OF CRIMINAL TOOLS IN VIOLATION OF R.C. 2923.24, A FELONY OF [sic] FOURTH DEGREE. I. Defendant argues the trial court erred in denying his motion to suppress evidence. Specifically, he posits the police lacked probable cause to stop his vehicle and conduct a warrantless search. Defendant also argues the plain view doctrine is inapplicable in this case because there was no lawful reason for him to be initially stopped. We do not agree. The Fourth Amendment to the United States Constitution protects a citizen's right to be free from unreasonable searches and seizures and provides: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath and affirmation, and particularly describing the - 5 - place to be searched, and the persons or things to be seized. Warrantless searches are presumptively unreasonable under the Fourth Amendment to the United States Constitution, subject to certain well-defined exceptions. Coolidge v. New Hampshire (1971), 403 U.S. 443, 454-455; Katz v. United States (1967), 389 U.S. 347, 357. One such exception to the warrant requirement permits the search of an automobile if the police officer has probable cause to believe the vehicle contains contraband. United States v. Ross (1982), 456 U.S. 798; Chambers v. Maroney (1970), 399 U.S. 42. Probable cause exists when the facts and circumstances within the officer's knowledge would warrant a person of reasonable caution to believe that an automobile contains contraband. Carroll v. United States (1924), 267 U.S. 132, 162; State v. Kessler (1978), 53 Ohio St. 2d 204. The inquiry into probable cause is not technical, but deals with probabilities and the "practical considerations of everyday life." Brinegar v. United States (1949), 338 U.S. 160,175; see, also, Illinois v. Gates (1983), 462 U.S. 213, 231-2. Hence, a police officer may conduct an investigative stop of an individual where, under the totality of the circumstances, the officer has a reasonable basis to suspect criminal activity. State v. Andrews (1991), 57 Ohio St. 3d 86; State v. Bobo (1988), 37 Ohio St. 3d 177, 180-1. - 6 - Moreover: "The idea that an assessment of the whole picture must yield a particularized suspicion contains two elements, each of which must be present before a stop is permissible. First, the assessment must be based upon all of the circumstances. The analysis proceeds with various objective observations, information from police reports, if such are available, and consideration of the modes or patterns of operation of certain kinds of lawbreakers. From these data, a trained officer draws inferences and makes deductions--inferences and deductions that might well elude an untrained person. * * * "The second element contained in the idea that an assessment of the whole picture must yield a particularized suspicion is the concept that the process just described must raise a suspicion that the particular individual being stopped is engaged in wrongdoing." U.S. v. Cortez (1981), 449 U.S. 411, 419. Applying these principles to the facts of the instant case, we conclude Det. Candelaria possessed sufficient objective facts to support a particularized articulable suspicion that defendant was engaged in criminal activity. We find, as did the trial court, that the police had probable cause to stop defendant. In the instant case, the arresting officers reasonably suspected defendant possessed illegal substances. Det. Candelaria, a trained officer in the narcotics unit, testified that, based upon his experience observing and participating in numerous drug transactions, defendant was engaged in buying drugs. He testified the usual procedure for drug transactions is - 7 - that a vehicle stops in a known high drug trafficking area such as the one in this case, and is approached by one or more persons. Typically, the person in the vehicle exits and purchases the drugs. Significantly damaging to the defense was that defendant corroborated Det. Candelaria's testimony that this is indeed the typical procedure for drug transactions. This procedure occurred in the instant case. Moreover, defendant was observed stopped for an "unusually long" period of time at a stop sign when no other traffic was in the area. (T. 13). He was further observed leaning over in his vehicle looking as if he was "rolling a joint." As the arresting officers approached him, defendant appeared "startled" and "dropped something." (T. 13-14). Det. Candelaria requested defendant put the car in park and exit. Defendant complied. Det. Candelaria, in plain view, saw a package on the floor of the driver's side of the vehicle which later testified positive for crack cocaine. As a result, he could properly seize the package based on the plain view doctrine. Horton v. California (1990), 495 U.S. , 1106 L. Ed. 2d 112; Coolidge v. New Hampshire (1971), 403 U.S. 443; Ohio v. Halczyszak (1986), 25 Ohio St. 3d 301. Once he had determined the package appeared to contain crack cocaine, Det. Candelaria had probable cause to search defendant's car under the automobile exception to the warrant requirement. Carroll v. United States (1925), 267 U.S. 132; United States v. Ross (1982), 456 U.S. 798; State v. Welch - 8 - (1985), 18 Ohio St. 3d 88. As such, Det. Candelaria indeed had probable cause to stop and search defendant's vehicle. The first assignment of error is overruled. II. Defendant next posits the trial court erred in accepting his no contest plea for possession of criminal tools (R.C. 2923.24), a felony of the fourth degree; to wit: a pipe, because the court could only have accepted a no contest plea for possession of drug abuse instruments (R.C. 2925.12), a misdemeanor of the second degree. Specifically, defendant contends a general statute prohibiting possession and control of criminal tools such as R.C. 2923.24 cannot be used to charge and convict a person for promoting an activity which has already been classified a misdemeanor, such as possessing drug abuse instruments, R.C. 2925.12. The pipe, he argues, is a drug abuse instrument analogous to a syringe. Defendant relies on State v. Chandler (Nov. 22, 1989), Cuyahoga App. No. 57731, unreported, where this court held that the defendant was improperly convicted of possessing criminal tools (syringes), a general statute where the same conduct was governed by a special statute which made it a misdemeanor. The special statute, R.C. 2925.12, states: (A) No person shall knowingly make, obtain, possess, or use any instrument, article, or thing whose customary and primary purpose is for the administration or use of a dangerous drug, other than marijuana, when the instrument involved is a hypodermic or - 9 - syringe, whether or not of crude or extemporized manufacture or assembly, and the instrument, article or thing involved has been used by the offender to unlawfully administer or use a dangerous drug, other than marijuana, or to prepare a dangerous drug, other than marijuana, for unlawful administration or use. The statute specifically addresses syringes. Nowhere in the statutory language does it address pipes. Further, no decision has been brought to the attention of this court in support of defendant's proposition. He relies on State v. Delfino (1986), 22 Ohio St. 3d 270. However, a review of that case reveals the holding is inapplicable. That case holds the Double Jeopardy Clause is not violated when the defendant was charged and convicted of multiple offenses under R.C. 2925.11 for the simultaneous possession of marijuana and cocaine; two different types of controlled substances. Id., at syllabus. Accordingly, the second assigned error is overruled. Judgment affirmed. - 10 - It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Court of Common Pleas to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. DAVID T. MATIA, P.J. DYKE, J., CONCUR. JUDGE JOHN T. PATTON N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .