COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59919 : STATE OF OHIO : : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION RAPHAEL CRUZ : : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: MARCH 5, 1992 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-249050 JUDGMENT: Reversed and Sentence Vacated. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. BRETT J. PLASSARD, ESQ. Cuyahoga County Prosecutor Washington Square ROBERT H. GRANO, JR., ESQ. 111 E. Washington Street Assistant Prosecuting Attorney Suite #1 The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 - 2 - HARPER, J.: Defendant-appellant, Raphael Cruz, was indicted by the Cuyahoga County Grand Jury on one count of drug abuse pursuant to R.C. 2924.11. Appellant filed a motion to suppress which was heard on May 4, 1990 and subsequently denied by the trial court. He then entered a no contest plea to the charge and was found guilty. The trial court sentenced the appellant to a term of one year, execution of said sentence stayed pending this appeal. Appellant appeals the trial court's denial of his motion to suppress. I. The state's sole witness at the suppression hearing was Officer Brian Heffernan of the Cleveland Police Department Second District Vice Unit. Officer Heffernan was a member of a special detail in the Second District projects which was organized to combat the problem of crack cocaine. Officer Heffernan came on duty at 6:00 p.m. on January 29, 1990 and was assigned to the Riverview projects at West 24th Street and Bridge Avenue in Cleveland, Ohio. He and Detectives Shields and Dvorak worked in an undercover capacity. The detectives were operating in an unmarked police car when they observed a male at approximately 9:00 p.m. flagging down cars while holding a vial. The detectives stopped and exited the vehicle to investigate the individual who was later identified as Michael Ward. The detectives were recognized and another male yelled "vices". Ward and the man who yelled were then detained - 3 - by the detectives. Ward was eventually arrested whereas the unidentified male was released after a pat-down search. While the detectives conducted the pat-down search of the unidentified male, the appellant emerged from around the corner of a building. There was no indication that appellant was associated with either Ward or the unidentified male. According to Officer Heffernan, appellant's appearance startled the officers. His head was down and after Officer Heffernan turned his flashlight on him, appellant looked up and saw the detectives. Appellant's left hand was fisted and his right hand open. The officer testified that appellant then stuck his left hand in his pants pocket, brought it out and said, "I got nothing" without being spoken to by any of the officers. Officer Heffernan ordered appellant to stop and questioned him about his presence at Riverview. A pat-down search was conducted for weapons. The officer then asked appellant what he placed into his pocket, to which the appellant responded nothing. One loose rock of suspected crack cocaine was discovered in appellant's left pants pocket in a second search. Appellant informed Officer Heffernan that the suspected rock of crack was a dummy; the rock was negative for cocaine when tested by the Cleveland Police Scientific Investigation Unit. Appellant was arrested for possession of suspected crack cocaine. After advising him of his rights, Officer Heffernan conducted a custodial search incident to the arrest. The search of appellant's jacket's left inner pocket revealed a pipe with - 4 - suspected cocaine residue. Subsequent testing corroborated the suspicion that the pipe contained cocaine residue. Officer Heffernan could not recall the clothing worn by appellant although he remembered his actions. The appellant's testimony followed that of Officer Heffernan. Appellant described the clothing which he wore on January 29, 1990. He wore two pairs of sweat pants with the baggy outer pair having two front pockets with no back pockets. Appellant wore a sweatshirt under his jacket. He estimated that the temperature that evening was thirty degrees. Appellant, who was not wearing gloves, testified that he kept his hands warm by keeping them in his jacket pockets. II. Appellant's sole assignment of error provides: "THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN FAILING TO GRANT DEFENDANT APPELLANT'S MOTION TO SUPPRESS." Appellant asserts that the state's justification for his detention, arrest, and search was based solely upon geographical linking to a high drug area. He argues that this failed to amount to probable cause to conduct a warrantless search of his person and demands a reversal of the trial court's order denying his motion to suppress. In Terry v. Ohio (1968), 392 U.S. 1, the Supreme Court expressly set forth that investigatory stops may take place when an officer has reasonable suspicion that criminal activity is imminent. Id., 22. Such a stop, however, must be reasonable at - 5 - the inception and based upon specific and articulable facts that encompass the totality of the circumstances. State v. Bobo (1988), 37 Ohio St. 3d 177; State v. Freeman (1980), 64 Ohio St. 2d 291. Officer Heffernan explained his reasoning for stopping the appellant. Through his experience as an assigned officer with the special drug detail in the projects, the officer formulated a drug possessor profile. Street sellers and buyers oftentimes carry loose rocks of crack cocaine in a fist with their other hand open. The purpose of such a procedure is to quickly dispose of the drug when approached by the police. Therefore, when the appellant was initially seen with one fisted hand and an open hand, and was then seen placing the fisted hand into his pants pocket, removing it and saying, "I got nothing", Officer Heffernan had "a very good idea" why appellant acted in that manner. Officer Heffernan also testified that based upon his experiences he finds that drug dealers work in teams of two or three. One person possesses the drugs, a second person holds the money, and the third person acts as a lookout. Ward and the unidentified male who was later released by the officers were initially detained because they were believed to be acting together. It is important to stress that appellant was never linked to the other two individuals. Officer Heffernan moreover testified that he himself did not associate the appellant with the two individuals. Any inference that appellant - 6 - was working as part of a drug selling team is, therefore, unreasonable. The record reveals that the state failed to provide evidence in support of the officer's stop and search of appellant. This court is unyielding in its refusal to ignore the unmistakable language of the Federal and State guarantees of freedom from unreasonable or unlawful warrantless searches and seizures as embodied in the Fourth Amendment to the United States Constitution and Section 14, Article I of the Ohio Constitution. While appellant's behavior was arguably odd in that he placed his fist in his pocket, removed it and said, "I got nothing" without being asked if he had anything, this behavior fails to suggest criminal activity. Officer Heffernan also found appellant's behavior suspicious when he willingly approached the officers. This behavior is certainly an antithesis to the "normal suspicious behavior" of turning and fleeing from police officers and thus fails to sway our opinion. The officer's sole justification for stopping the appellant was that he acted in a particular manner in a particular part of town. Officer Heffernan's so-called "suspicious behavior" was indigenous to the projects. There was no evidence that appellant would have been stopped and searched if he acted in the manner in which he did in another section of town. Subjecting the many individuals who live below the poverty level in Cuyahoga County to a different constitutional standard for warrantless searches and seizures is an outright affront to the principles set forth - 7 - in Terry, supra. See, State v. Smith (Aug. 29, 1991), Cuyahoga App. No. 58910, unreported, dissenting opinion. A trial court's suggestion that the Terry principles be relaxed in a community composed of a certain race, class, or ethnic make-up will meet with systematic disregard. Police officers are still required to point to specific, articulable facts which would lead a reasonable person to suspect that there is ongoing or imminent criminal activity. An officer's generalized suspicions do not amount to a "reasonable basis to suspect criminal activity." See, e.g., State v. Evans (Dec. 19, 1991), Cuyahoga App. No. 59506, unreported. Furthermore, assuming arguendo, that the investigatory stop was proper, the search of appellant's person surpassed that allowed by Terry, supra. Such a search is limited in that there must be a reasonable suspicion that the person is armed. State v. Williams (1990), 51 Ohio St. 3d 58, 61, citing United States v. Smith (C.A.6, 1978), 574 F.2d 882, 885; the search is "limited in scope to this protective purpose." Adams v. Williams (1972), 407 U.S. 143, 146. Any protective purpose of the search of appellant herein was dispelled when Officer Heffernan felt no evidence of a weapon on appellant's person. The officer testified as follows with regard to the protective search. "Q. When you initially patted him down for weapons did you discover any weapons? "A. No. - 8 - "Q. Can you tell me did you pat down his entire body? "A. For weapons? "Q. Yes. "A. Yes. "Q. Did you find anything resembling or feeling like a weapon when you patted him down? "A. No. "Q. At this point was he free to leave? "A. No. "Q. What reason were you detaining him for at this point? "A. I wanted to check the motion he made to his pants pocket." The search of appellant thereby exceeded justifiable and constitutional limits. See, State v. Eppinger (May 30, 1991), Cuyahoga App. No. 60980, unreported; State v. Hewston (Aug. 2, 1990), Cuyahoga App. No. 59095, unreported. Moreover, any attempt to justify the search on the ends in total disregard of a citizen's constitutional right to be free from an unlawful search and seizure will meet with minimal tolerance. See, e.g., Smith, slip op., supra; Evans, supra. As Justice Douglas stated in his concurring opinion in State v. Smith (1989), 45 Ohio St. 3d 255, "Result oriented Jurisprudence 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 - 9 - 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." In conclusion, in light of this court's finding the stop of appellant was not based on probable cause, his arrest and the search incident to his arrest are likewise without a lawful basis. "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.'" State v. Smith, (1989), 45 Ohio St. 3d 255, 275 (Justice Wright, dissenting.) "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." Evans, supra. Accordingly, the trial court erred in denying the appellant's motion to suppress evidence recovered from a search which was unreasonable, unreasonable in scope, and in violation of the United States and Ohio Constitutions. - 10 - This cause is reversed and appellant's sentence is vacated. 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. FRANCIS E. SWEENEY, P.J., and PATTON, J., CONCUR IN JUDGMENT ONLY. 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. .