COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60217 STATE OF OHIO : : Plaintiff-appellant : : JOURNAL ENTRY -vs- : AND : OPINION SHAMARR STROUD : : Defendant-appellee : : DATE OF ANNOUNCEMENT OF DECISION: APRIL 2, 1992 CHARACTER OF PROCEEDING: Criminal appeal from Court of Common Pleas Case No. 249677 JUDGMENT: Affirmed DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: For Defendant-Appellee: JOHN F. CORRIGAN, ESQ. STUART H. LIPPE, ESQ. Assistant Prosecuting Atty. 922 Leader Building The Justice Center Cleveland, Ohio 44114 1200 Ontario Street Cleveland, Ohio 44113 - 1 - DYKE, J.: The State appeals from the trial court's decision to grant defendant's motion to suppress. The defendant was arrested for possession of cocaine on November 26, 1990. The arresting officers came upon the scene of the arrest and noticed a vehicle parked illegally in a fire lane. The defendant was about to enter the vehicle when he spotted the police and shouted, "vice." The police made a pat-down of the defendant ostensibly for their own protection (hearing trans. p. 8). The officer making the pat-down noticed a piece of a plastic baggie sticking out of the defendant's pocket and felt a bulge there that "could have been a small weapon." (p. 17) The bulge turned out to be a baggie containing crack cocaine. Under Terry v. Ohio (1968), 392 U.S. 1, an investigative stop by police must be reasonable from its inception based upon "specific articulable facts, which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Terry at 21-22. Citing Terry the Ohio Supreme Court has set forth guidelines for determining the reasonableness of the stop. State v. Bobo (1988), 37 Ohio St. 3d 177. The factors cited by the Court to justify the investigative stop of Bobo were: (1) the area was characterized by high drug activity (2) it was nighttime (3) the police officer was experienced (4) the police officer knew how drug transactions took place - 2 - (5) the officer saw the defendant do something suspicious (6) the officer's experience led him to recognize the suspicious act of defendant as the type of act usually done when defendant is involved in an illegal activity (7) the police officers were away from the protection of their vehicle. Applying these factors to the case at hand, the investigative stop of the defendant was reasonable. The incident took place in a known area of high drug activity at East 101st and Cedar Avenue. It was approximately 10:00 at night. The detective making the pat-down had six years of experience and had participated in numerous arrests in that area. The police heard defendant yell "vice" and recognized that as a signal to drug dealers that police were in the area. (trans. p. 8) Under the totality of these circumstances, the police were reasonable in making an investigatory stop of defendant to determine why he yelled out the warning and why he was parked illegally. The pat-down which was conducted by the police after making the investigatory stop was also justified under the tests laid out by Terry. 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. Bobo at paragraph 2 of the syllabus. - 3 - The reasonable suspicion that defendant was armed was based upon the fact that he yelled out the warning along with the other factors justifying the reasonableness of the investigative stop. More existed in this case than a "mere presence in an area of high crime activity." Cf. State v. Chandler (1989), 54 Ohio App. 3d 92 (paragraph 2 of the syllabus). The warning shouted out to drug dealers justified the belief held by the police that defendant was involved in drug activity and individuals involved in drug activity are often armed. State v. Perkins (February 28, 1991), Cuyahoga App. No. 60234, unreported. Once the reasonableness of the pat-down has been established, it is then necessary to determine whether the officer exceeded the scope of the search when he found the baggie of crack cocaine. Applying the analysis of Terry and Bobo, we find that the scope was exceeded in this case. The scope of the search is limited to the protection of the officers and the public. "`The purpose of this limited search is not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence.'" Bobo at 180, quoting from Adams v. Williams (1972), 47 U.S. 143, 146. Searches must be "reasonably designed to discover guns, knives, clubs, or other hidden instruments for an assault of the police officer." Terry at 25-26. Also see, State v. Kristoff (July 19, 1990), Cuyahoga App. No. 58922, unreported, and State v. Hewston (August 2, 1990), Cuyahoga App. No. 59095, unreported. - 4 - Detective Taylor's testimony is that he did not know whether or not the pocket with a baggie sticking out contained a weapon. However, he also testified that in "my experience a lot of drug traffickers do carry crack cocaine in plastic bags or film case bottles." At this point Taylor is clearly thinking about finding some drugs on defendant's person. When asked "Why did you pull the pocket open?" Taylor replied, " I observed the bag hanging from his pocket and I did feel an object in there and the defendant couldn't tell me what that object was." At a later point the court further questioned Taylor, "Did it feel like a weapon." This is an objective standard where the reasonable, experienced police officer's belief is the measure of reasonableness. The trial court's grant of the defendant's motion to suppress indicates that the lower court did not think that Detective Taylor's belief that a bag containing cocaine could have been a weapon was reasonable. This court agrees that a reasonable, experienced police officer would recognize the difference between a plastic bag of drugs and a weapon. In extending the search to retrieve the suspected drugs, Detective Taylor exceeded the limited scope of a protective search in violation of the defendant's Fourth Amendment rights. The trial court's decision to grant defendant's motion to suppress is affirmed. - 6 - 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 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. NAHRA, J., AND PATTON, J., CONCUR. PRESIDING JUDGE ANN DYKE 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 journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .