COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 61280 : ACCELERATED DOCKET STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellant : : and -vs- : : OPINION : JENAE LEWIS : PER CURIAM : Defendant-Appellee : : DATE OF ANNOUNCEMENT DECEMBER 12, 1991 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-249820 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: FOR PLAINTIFF-APPELLANT: FOR DEFENDANT-APPELLEE: JOHN GALLAGHER GARY PUZIN Assistant County Prosecutor Public Defender Office 8th Floor, Justice Center 1st Floor, Justice Center 1200 Ontario Street 1200 Ontario Street Cleveland, Ohio 44113 Cleveland, Ohio 44113 -2- PER CURIAM: This appeal was filed and briefed as an accelerated appeal pursuant to Local R. 25 of this court. Appellee Jenae Lewis was charged with possession of cocaine, one to three times the bulk amount in violation of R.C. 2925.03 and for one count of trafficking, "Prepare for shipment" in violation of R.C. 2925.03. She moved for the suppression of the evidence that was seized and the trial court granted her motion. The State of Ohio, appellant, timely appeals the trial court's holding that the evidence was illegally seized and argues that probable cause existed for the stop, search and arrest of the appellee. The threshold question raised in this appeal is whether under the totality of the circumstances the search of the inside of the appellee's pouch exceeded the reasonable limits of a protective search as defined in Terry v. Ohio (1968), 392 U.S. 1. In compliance with App. R. 11.1, it is the opinion of this court that under the totality of the circumstances the search of the appellee's pouch was not reasonably limited in scope to a search for weapons by the officer for his protection; especially in this case, when the officer testified that his intent in searching the pouch was not limited to protecting himself, but was extended to the search for contraband. The decision of the trial court is affirmed. The following evidence was adduced at the suppression hearing: -3- The appellant presented one witness during the suppression hearing, a Cleveland Police Officer. He testified that he was on routine patrol with his partner on the evening of February 15, 1990. At approximately 9:15 p.m. in the area of the intersection of East 79th Street and Kinsman, a red 1990 Ford Escort was observed and the license plate was on the "hot sheet." A radio check of the license plate revealed that the car was "a wanted, locate for owner," which meant that the vehicle had been borrowed and not yet returned. Both officers approached the vehicle when it pulled into a parking lot at East 79th Street. Officer Chura, who was the officer that testified during the suppression hearing, stated that his partner approached the driver and he approached the appellee, a female passenger. There were no other occupants in the vehicle. Officer Chura ordered the appellee out of the vehicle and instructed her to keep her hands in plain view. According to Chura's testimony, the appellee got out of the car and reached toward her waistband in a fast motion. He grabbed her hands, removed a black pouch from her waistband, and placed the appellee in the back seat of the zone car. With the appellee secured in the back seat of the zone car, Officer Chura searched the black pouch and found a rock of cocaine that weighed 14.23 grams. Officer Chura testified that he conducted the search to obtain a weapon or contraband. The appellee was arrested for state drug law violations. The driver -4- was also arrested, after his failure to produce a driver's license, in connection with Grand Theft of a Motor Vehicle and No Driver's License. Appellant's sole assignment of error states: THE TRIAL COURT ERRED WHEN IT GRANTED APPELLEE'S MOTION TO SUPPRESS WHEN PROBABLE CAUSE EXISTED TO STOP, SEARCH AND ARREST THE APPELLEE BASED ON HER FURTIVE GESTURES. The issue in this case is whether Officer Chura unconstitu- tionally searched the appellee, incident to either an investiga- tive stop or incident to an arrest. If a police officer has a reasonable articulable suspicion that a person is engaged in criminal activity, the officer may stop the person for investigative questioning and conduct a limited search for weapons. Terry v. Ohio (1968), 392 U.S. 1. A police officer may make a limited search of an individual's person during an investigative stop in order to ensure that the person is not carrying any weapons. State v. Bobo (1988), 37 Ohio St. 3d 177. 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. Id. This analysis will initially address the question of whether the search of the appellee's pouch was constitutional because it was incident to an investigative or Terry stop. The appellant makes the argument that this was indeed a valid Terry search -5- based upon the appellee's furtive gesture towards her waistband. We do not agree. Clearly, the officers had probable cause to stop the vehicle in question. In addition, it is clear that the officers had a reasonable and articulable suspicion that there was criminal activity present. Furthermore, Officer Chura properly initiated a protective search by controlling the appellee's hands and taking the black pouch. However, it is apparent from the record that once the pouch was taken from the appellee, Officer Chura had dominion and immediate control over the potential weapons. In addition, the physical makeup of the bag was such that it was readily ascertainable whether the pouch contained a weapon, without having to open it. The trial court properly examined the black pouch to determine whether it was readily ascertainable that the pouch contained a weapon. The trial court found that the pouch was cloth and very flexible and was the kind of material that "if you wanted to find out whether there was a knife blade or something like that you could determine that without looking into the bag ***". Officer Chura's testimony was that, upon feeling the bag, it did not feel like a gun. At the time that Officer Chura opened the pouch, this was an investigative stop only. Bobo and Terry, supra are clear that an officer may conduct a limited search in order to protect himself and the public. The rationale being that the officer has the -6- power to take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm. Therefore, the search exceeded the permissible scope because the officer lacked probable cause to search the pouch. The remaining question is whether this was a valid search incident to an arrest. On the basis of Officer Chura's testimony, the appellee had not been placed under arrest when he opened the pouch. It, therefore, follows that this was not a search incident to a lawful arrest. Judgment affirmed. -7- It is ordered that appellee recover of appellant her 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 Common Pleas 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 F. CORRIGAN, PRESIDING JUDGE LEO SPELLACY, JUDGE PATRICIA A. BLACKMON, 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 journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .