COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 61108 STATE OF OHIO : ACCELERATED DOCKET : Plaintiff-appellant : : JOURNAL ENTRY -vs- : AND : OPINION HENRY L. DAVIS : : Defendant-appellee : PER CURIAM : DATE OF ANNOUNCEMENT : NOVEMBER 7, 1991 OF DECISION : CHARACTER OF PROCEEDING : Criminal appeal from Court of Common Pleas : Case No. CR-9548 JUDGMENT : REVERSED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellant: For defendant-appellee: S. RON PAPALARDO, ESQ. STEPHANIE TUBBS JONES, ESQ. 922 Leader Building Cuyahoga County Prosecutor Cleveland, OH 44113 FRANK GASPER, ESQ. Asst. Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, OH 44113 - 2 - PER CURIAM: This cause came to be heard upon the accelerated calendar pursuant to App. R. 11.1 and Local Rule 25, the record from the Cuyahoga County Court of Common Pleas, the briefs and the oral arguments of counsel. The state appeals the trial court's grant of defendant's motion to suppress. For the following reasons, we reverse. On the evening of April 27, 1973, John Hutton, a Cleveland police officer, was on routine patrol in the City of Cleveland. While patrolling, he and his partner received a radio broadcast of an armed robbery. It was reported that two black males had fled the scene of the robbery in a 1973 Chevrolet. A few minutes later, another patrol car reported that the 1973 Chevrolet had stopped in a driveway on Price Road, which was located in the same general area the armed robbery had occurred. Two suspects matching the description of the robbers reportedly exited the 1973 Chevrolet and entered an Oldsmobile. In addition, a description of the Oldsmobile, along with its license plate number, was broadcast over the police radio. Approximately one or two minutes later, Officer Hutton and his partner observed the Oldsmobile that had been described over the radio. At that point, Officer Hutton and his partner pulled the Oldsmobile over and ordered the occupants out of the car. The officers searched the occupants because they feared for their own safety. After searching the occupants, Hutton searched the - 3 - interior of the car. He uncovered a loaded .38 caliber revolver under the front seat and a .32 caliber revolver under an armrest in the back seat. The officer was unable to recall if the occupants were placed under arrest prior to the search of the car. In any event, the occupants were arrested. The state's sole assignment of error alleges the trial court improperly suppressed the weapon. An investigative stop is permissible under the Fourth Amendment in limited circumstances. The propriety of an investigative stop by a police officer must be viewed in light of the totality of the surrounding circumstances. State v. Bobo (1988), 37 Ohio St. 3d 177, paragraph one of the syllabus. In order to conduct an investigatory stop, the police need not have probable cause to arrest. Terry v. Ohio (1968), 392 U.S. 1. However, the police officer must be able to point to specific, articulable facts which would lead a reasonable person to suspect criminal activity is afoot. State v. Freeman (1980), 64 Ohio St. 2d 291, 294. The Supreme Court of Ohio, in State v. Fultz (1968), 13 Ohio St. 2d 79, held that information received via a police radio may form the basis of probable cause to make an arrest. If this form of information can be the basis for an arrest, it may also be the basis for a stop and search such as the one presented herein. See, State v. Durrah (Feb. 18, 1988), Cuyahoga App. No. 54321, unreported; State v. Lackey (1981), 3 Ohio App. 3d 239. - 4 - Further, in Michigan v. Long (1983), 463 U.S. 1032, 1049, it was recognized that the search of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden, is permissible if the police officer possesses a reasonable belief based on specific and articulable facts which, taken together with the rational inference from those facts, reasonably warrant the officer in believing that the suspect is dangerous and the suspect may gain immediate control of the weapons. See, also, State v. Bobo, supra, at 180. In the instant case, the police officers were alerted to the occurrence of an armed robbery. Fellow officers reported that the suspects exited a 1973 Chevrolet and entered an Oldsmobile which contained a third male. The description of the Oldsmobile broadcast over the police radio included the vehicle's license number. A minute or two later, Officer Hutton and his partner sighted the Oldsmobile and pulled it over. Initially, we note that armed robbers commonly abandon the vehicle used in the commission of the offense in the hopes of eluding police detection. In light of the above, and in consideration of the evidence presented at the suppression hearing, we conclude the officers possessed a reasonable suspicion that the occupants of the Oldsmobile participated in an armed robbery. Bobo, supra; Freeman, supra. It follows that the police were justified in conducting an investigatory stop based on the information which was made available to them via the radio - 5 - broadcast. See, State v. Duncan (Dec. 22, 1988), Cuyahoga App. No. 54726, unreported; State v. Pettry (Aug. 9, 1990), Jackson App. Nos. 617 and 618, unreported. Furthermore, the officers were aware of the possible possession of firearms justifying the pat-down searches of the vehicle's occupants. When these searches uncovered no weapons, the search of the vehicle became necessary to ensure the safety of the officers since the occupants may have been permitted to re-enter it. Such a search is specifically authorized by Long, supra, at 1051-1052. See, also, State v. Willingham (Feb. 16, 1989), Cuyahoga App. Nos. 54767 and 56464, unreported at p. 8. Accordingly, we find that the investigatory stop and subsequent search were justified. Thus, the trial court erred in suppressing the evidence. Judgment reversed. - 6 - This cause is reversed and remanded to the lower court for further proceedings consistent with this opinion. It is, therefore considered that said appellant recover of said appellee its costs herein taxed. 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. JOHN T. PATTON, JUDGE FRANCIS E. SWEENEY, PRESIDING JUDGE SARA J. HARPER, JUDGE DISSENTS (SEE DISSENTING OPINION) 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. COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 61108 : STATE OF OHIO : : : Plaintiff-Appellant : : DISSENTING -vs- : : OPINION HENRY L. DAVIS : : : Defendant-Appellee : : : DATE OF ANNOUNCEMENT NOVEMBER 7, 1991 OF DECISION: HARPER, J., DISSENTING: I respectfully dissent from the majority opinion. The majority, in its considered attempt to justify an illegal search that has no basis in constitutional law, reversed a proper judgment made by the trial court and unnecessarily broadened police powers to operate outside the confines of the United States and Ohio Constitutions. "Instead of considering what judgment we ought to pass on an action after it has been done, and when many of its results are already known, let us consider what judgment we ought to pass on it beforehand, and when the - 2 - question is which among several course[s are] still open to a man, he ought to chose."/1\ The state contends that Detective Hutton made an investigatory stop of the defendant and was, therefore, required to search him. The state further argues that since the investigatory stop was legal within the guidelines of Terry v. Ohio (1968), 392 U.S. 1, the trial court erred in suppressing the weapons discovered in the search of defendant's automobile. I disagree. This court in State v. Ball (Dec. 27, 1990), Cuyahoga App. No. 57707, unreported, citing Adams v. Williams (1972), 407 U.S. 143; Terry v. Ohio, supra, held that: "In order to conduct a lawful investigatory stop, the investigating police officer must be able to point to specific and articulable facts which when taken together with rational inferences from those facts reasonably warrants the investigatory stop. Adams v. Williams (1972), 407 U.S. 143 ***." In United States v. Cortez (1981), 449 U.S. 411, the United Supreme Court held that: "The idea that an assessment of the whole picture must yield 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 consider- ation 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. /1\ Moore, G.E., Ethics 1963, Oxford University Press, Amen House, London, p. 120. - 3 - "*** "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." Id. at 419. The state's argument is centered on Detective Hutton's testimony that he stopped the defendant's automobile based on a radio broadcast of an armed robbery that occurred in the area, and that two black males were allegedly involved in the robbery. The state cites State v. Bobo (1988), 37 Ohio St. 3d 177, as controlling. While I agree with the holding in Bobo, I do not see the similarity of the Bobo case to the within case. The Ohio Supreme Court in Bobo, supra, held that an investigatory stop must be viewed in light of the totality of the surrounding circumstances. The Bobo court went on to cite the circumstances that would warrant a justifiable stop as follows: "1)the area in which the investigatory stop occurred was an area of very heavy drug activity in which weapons were prevalent; "2)it was night time, when weapons could be easily hidden; "3)the investigatory officers had numerous years of experience in the surveillance of drug and weapons activity; "4)the investigating officers had knowledge of how drug transactions occurred in the area; "5)the investigating officers observed the defendant disappear and reappear from view; - 4 - "*** "7)the investigating officers were away from the protection of their vehicle." See Ball, supra. My review of the record reveals that none of the circumstances of the Bobo court's ruling is present in the within case. Detective Hutton, in his testimony, stated that he did not arrest the occupants of the car after he stopped them because they could be innocent. This admitted doubt negates the state's argument that the officers had specific articulable facts which, when taken together, gave them an inference that the defendant was involved in the armed robbery. See Recznik v. Lorain (1968), 393 U.S. 166. This court held in State v. Smartt (Mar. 9, 1989), Cuyahoga App. No. 55946, unreported, that: "Where an investigative stop is made in response to a police radio broadcast, the burden is upon the state to show the factual basis for the stop, at a hearing on a motion to suppress. State v. Hill (1981), 3 Ohio App. 3d 10, 14; State v. Borecki (Apr. 28, 1988), Cuyahoga App. No. 53665, unreported. The specific nature of the information contained in a police bulletin cannot alone be used to prove that the action of the police was based upon reliable information. State v. Hill, supra." (Emphasis added.) The state's argument that Detective Hutton was justified under Terry, supra, to stop the defendant was a misapplication of the Terry doctrine. Terry stands for the proposition that officers are constitutionally permitted to pat suspects for weapons after a stop to protect officers from harm, if the officers have - 5 - reasonable articulable facts based on the totality of the circumstances to believe that a suspect is involved in any type of recognizable criminal activity. Terry does not stand for the proposition that an officer is free to search everything he sees without a warrant. The majority, by following the state's reasoning in the within case, is thus holding that when an officer believes that his life is in danger he can frisk a suspect and when he finds no weapon and believes that the danger to his safety is no longer present, he can then proceed to his automobile to look for weapons, and when he finds none, he can then proceed to the individual's home or anywhere he can think of to search for weapons. Even the majority will agree that there is a limit to which the Constitution can tolerate unwarranted intrusions into the lives of citizens while attempting to accommodate the Terry exception. In my opinion, the limit was reached in the case sub judice and the stop and search of the defendants by Detective Hutton was outside the Terry exception. I refuse to join the majority in using Terry as a police license to search for evidence. See Bobo, supra, at 180. "The police department must preserve and advance the principles of democracy. Therefore, it is incumbent upon the police to enforce the law and deliver a variety of other services in a manner that not only preserves, but also extends precious American values. The police must not only respect but also - 6 - protect the rights guaranteed to each citizen by the Constitution."/2\ Detective Hutton testified that the car that he stopped was not the same car involved in the robbery. The police, five minutes after the first bulletin, saw a "Chevy" in the driveway on Prince and failed to stop and check on the Chevrolet in the driveway. A police car saw the Chevrolet and did not impound it. The police saw the suspects transfer from a Chevrolet to an Oldsmobile and did nothing. No chase of the vehicle was effected, and no names of the transmitting officers were given, nor were they called to testify. See Kratzev, infra, at 260. There was no radio message of a change in the number of people involved in the robbery. There were three men in the car when the defendants were stopped, as opposed to two men that committed the robbery. The suspects were not put under arrest when they were stopped. Detective Hutton frisked them and found no weapon on them, thereby eliminating the danger to his safety, which is the cornerstone to a Terry search. "At the point when they're out of the car with their hands on the trunk of the car and spread, and know they didn't have any weapons, were you at this point in fear for your safety? "A. No. "Q. All right. /2\ U.S. Department of Justice, Community Relations Services, Principles of Good Policing: Avoiding Violence Between Police and Citizens, U.S. Government Printing Office 1987-181- 49365034, p. 2. - 7 - "You then proceeded to search the inside of "A. Yes. "THE COURT: Okay. "So your answer is, with respect to the point in time where you recovered the guns, with respect to that point, you're not sure if you advised them they were under arrest beforehand or after that point? "Is that an accurate statement of your testimony? "THE WITNESS: Right. "THE COURT: And the reason you went into the car and searched the car was because you were specifically looking for weapons? "THE WITNESS: Definitely." The state cannot claim that the stop was justified by Terry when Officer Hutton testified that he went to the car looking for weapons and he found them. "Objects seized in the search of an individual made prior to his arrest by officers *** who are without apprehension of possible harm, a belief the individual is armed, or a suspicion a crime committed, are not admissible in evidence." State v. Kratzev (1972), 33 Ohio App. 2d 167. It may have been conceivable to allow a warrantless search of appellant's vehicle under the holding in U.S. v. Chadwick (1977), 433 U.S. 1, 14, 15, if the appellants were put under arrest after they were frisked. In Chadwick, the United States Supreme Court held that: "'*** When a custodial arrest is made, there is always some danger that the person arrested may seek to use a weapon, or that evidence may be concealed or destroyed. To safeguard himself and others, and to prevent the loss of evidence, it has been held reasonable for the arresting officer to conduct a - 8 - prompt, warrantless "search of the arrestee's person and the area 'within his immediate control'-- construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence." Chimel v. California [1969], 395 U.S. [752], 763 ***. "'Such searches may be conducted without a warrant, and they may also be made whether or not there is probable cause to believe that the person arrested may have a weapon or is about to destroy evidence. The potential dangers lurking in all custodial arrests make warrantless searches of items within the "immediate control" area reasonable without requiring the arresting officer to calculate the probability that weapons or destructible evidence may be involved. United States v. Robinson, 414 U.S. 218 (1973); Terry v. Ohio, supra. However, warrantless searches of luggage or other property seized at the time of an arrest cannot be justified as incident to that arrest either if the "search is remote in time or place from the arrest," Preston v. United States, 376 U.S. [364], at 367, or no exigency exists. Once law enforcement officers have reduced luggage or other personal property not immediately associated with the person of the arrestee to their exclusive control, and there is no longer any danger that the arrestee might gain access to the property to seize a weapon or destroy evidence, a search of that property is no longer an incident of the arrest.' (Emphasis added.) See, also, Terry, supra." Officer Hutton testified that he did not arrest them because they could be the "wrong people", nevertheless, with all these doubts Detective Hutton proceeded to the car in search of weapons. I am not aware of any court holding that the Terry exception was intended as a search and annihilate mission of constitutional rights, and this court should not hold that such intention exists. The Kratzev court, citing Sibron v. Newyoth (1968), 392 U.S. 40, held that when the search is not reasonably "'*** limited in scope to the accomplishment of the only goal which might conceivably have justified its - 9 - inception -- the protection of the officer by disarming a potentially dangerous man. Such a search violates the guarantee of the Fourth Amendment, which protects the sanctity of the person against unreasonable intrusions on the part of all government agents.' (Emphasis added.)" The majority, in citing State v. Fultz (1968), 13 Ohio St. 2d 79, stated "information received via a police radio may form the basis of probable cause to make an arrest. If this form of information can be the basis for an arrest, it may also be the basis for a stop and search ****." The majority's cavalier approach to warrantless searches of citizens and their property counterfeits justice and fosters discontent. Firstly, the Fultz decision does not stand for the proposition that information received via a police radio, which was so unreliable, as in the within case, can form a basis for probable cause to arrest a citizen let alone search his property. Secondly, while reliable police radio information can be a basis for an arrest, the power to arrest does not automatically confer the power to search, as the majority opinion demonstrates. A search, as in the within case, which was not incident to arrest, is illegal and unreasonable, and any attempt to make it legal is in conflict with the Constitution and case decisions, and therefore, is unacceptable. See United States v. Robinson (1973), 414 U.S. 218, see also Preston v. United States, supra; U.S. v. Chadwick, supra. The majority, in a further attempt to justify the conduct of the officers, concluded - 10 - "Furthermore, the officers were aware of the possible possession of firearms justifying the pat-down searches of the vehicle's occupants. When these searches uncovered no weapons, the search of the vehicle became necessary to ensure the safety of the officers since the occupants may have been permitted to re-enter it." This is a classical argument by a court determined to make a case for the state which it felt the state should have made. And like the state's argument, it, too, is unpersuasive. The officer testified, according to the record, that after he patted down the defendants, he was no longer afraid for his safety. He did not arrest the suspects but proceeded to the car in search of weapons. The officer's testimony, therefore, is inconsistent with the majority opinion. The majority stated earlier that the officers were sure that the defendants were the armed robbers which formed the basis for the stop of their vehicle, but concluded that the search of the vehicle was "necessary to ensure the safety of the officers since the occupants may have been permitted to re-enter it." I cannot imagine why a police officer who was sure that he stopped an armed robber would turn around and let him re-enter his car and drive away, unless, as the officer testified, "They could be the wrong people", which was why he did not arrest them. Therefore, the majority's attempt to justify the police searching expedition for suspects fails. Officer Hutton had many chances to arrest the suspects before a search of their vehicle, but did not. He did not arrest them after he received the police bulletin, and even after he - 11 - patted them, he still did not arrest them in spite of his belief that a crime was committed. When no weapons were found on the suspects, there remained no probable cause to search the vehicle. All Officer Hutton had left after all the doubts was an "inarticulate hunch" which was insufficient to conduct a warrantless search of the vehicle. See State v. Barrow (1978), 60 Ohio App. 2d 295. In the within case, the search of Mr. Davis' car was illegal. See State v. Crosby (Jan. 3, 1991), Cuyahoga App. Nos. 59711 and 59712, unreported; see also Ball, supra. This court should not indulge in a result-oriented decision that "the end justifies the means", see State v. Smith (1989), 45 Ohio St. 3d 255, 265, Douglas concurring in judgment, which could lead to an endorsement of a racist oriented enforcement of the law. Every black male in the within case was a suspect and a target, no matter how unreliable the police bulletin was. The police saw three black males, and not two, as the police bulletin indicated, and automatically concluded that they had made a "catch". A police stop must be based on legal motivation, which should be within constitutional boundaries. Anything short is unacceptable and has no place in upholding the constitutional principles of citizens' protection from unlawful search and seizure. The officers' testimony is fragmented and did not fit together. See State v. Mattison (1985), 23 Ohio App. 3d 10, 14. - 12 - Was there an outright attempt by the officers to fabricate stories to support an illegal search which the trial court could two black males was received but no proper description of the men was given, just that they were black. A second message came relating the fact that the two black males were seen entering another car parked in a driveway and that the car they were transferring from matched the car used in the robbery. What is confounding in the within case is the state's inability to state just who was relating these messages. (1) If he is another officer according to the testimony, why did he not check out the car parked in the driveway, and impound it; Why did he let the car drive away from the scene without a pursuit; (2) If the message came from an eyewitness civilian, why did he not call the police headquarters which is to relate the message to other squad cars; How did this civilian contact the other police car that related the message to the arresting officers; Did he run to the officers by foot or use the telephone to contact a squad car, or did he use civilian police radio linked to squad cars driving around the area; How did he know it was the same car used in the robbery that was being parked in the driveway, since the location of the robbery was quite a distance from the driveway. Finally, was he present when the robbery took place? The eyewitness had to have seen the robbery take place, seen the people responsible, followed their car from the robbery scene to - 13 - the driveway on Prince Avenue, which is more than two miles away, then had to have seen them change cars and then called a squad car, not the police headquarters. Nobody has to be a genius to know that this story is not a well reasoned fabrication and the trial court saw through it and "nipped it in the bud". I do not want to view this as a calculated assumption by the police that if one black male commits a crime all black males must pay for it even if it means stretching the law to accomplish this purpose. I want to view the police as professionals who maintain the highest standard of integrity in whom the people have invested the highest level of trust, to regard the life and liberties of the people, to use their office only in consonance with the prescribed law, and to aid in the prevention of crime and conviction of criminals. The framers of the Constitution knew how unreasonable, discriminatory, and oppressive the king's searches were in the colonies when they added those few words to the Constitution forbidding the government from unlawful searches and seizures of this nation's citizens. It was never intended to protect the criminals as some appeal to fright, it was intended to protect "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures ***." Fourth Amendment, U.S. Constitution; Article I, Section 14 of the Ohio Constitution. - 14 - If the provisions of the Fourth Amendment to the Constitution are to have any meaning, this court must speak out loud and clear. The police cannot create their own version of probable cause. The police officers' attempt to convince this court in the within case that being a black male was probable cause to stop and search appellant's car is outrageous and unacceptable. There can be no such thing as dealing justly with the black male criminal, as long as the rule is to deal unjustly with all black males. I would adopt the conclusion of this court in Smartt, supra, and hold that "the state presented no competent evidence establishing the reliability of the information leading to the issuance of the police bulletin. Nor does the testimony of the police officer reveal that he had any independent factual basis for stopping and frisking the defendant. ***" See State v. Smith (1978), 56 Ohio St. 2d 405; Michigan v. Long (1983), 463 U.S. 1032. This deliberate attempt to gradually strip citizens of their constitutionally protected rights in the name of result oriented law enforcement forces me to raise a lonely cry of "foul" and compels me to take a different and separate path from the majority. Accordingly, the trial court correctly determined that the police had illegally searched the defendant's vehicle and properly granted the defendant's motion to suppress. See also State v. Green (July 18, 1991), Cuyahoga App. No. 60683, unreported. .