COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60986 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION GEORGE BENTON : : Defendant-appellant : : : DATE OF ANNOUNCEMENT AUGUST 20, 1992 OF DECISION : _______________________ CHARACTER OF PROCEEDING : Criminal appeal from : Court of Common Pleas : Case No. CR-253000 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: For defendant-appellant: STEPHANIE TUBBS JONES, Cuyahoga DAVID M. MAISTROS County Prosecuting Attorney Reg. No. 0047390 RONALD JAMES, Assistant Standard Bldg., Suite 800 Prosecuting Attorney Cleveland, Ohio 44113 Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 - 2 - PATTON, P.J.: Defendant-appellant George Benton ("appellant") appeals from his conviction of one count of a violation of the drug law, to wit: possession of cocaine in an amount equal to or exceeding the bulk amount but in an amount less than three times that amount (R.C. 2925.03(A)(4)). Appellant challenges the denial of his motion to suppress and also avers that the trial court's instruc- tion to the jury regarding the quantity of cocaine possessed was erroneous. The relevant facts are as follows: Detective Melvin Smith ("Det. Smith") of the Cleveland Police Department's Strike Force testified on behalf of the state at the suppression hearing. He stated that he, along with his partner Detective John Moore ("Det. Moore") and two other patrolmen, decided to formulate a "strategy" for catching drug dealers in a known high drug traf- ficking area. (Tr. 8.) The strategy involved the blocking off of an alleyway on one side so as to force the occupants of the alley to run to the other side where they would be met by other offi- cers. The officers then gathered in order to effectuate their plan. As they approached, the males in the alley noticed the officers "trotting" towards them, "so they went the other direc- tion." (Tr. 15, 9.) However, the males, numbering five or six, were trapped on both sides of the alleyway. At this point, Det. Smith "observed [appellant] reach into his left pocket and throw something onto the ground." (Tr. 9.) Thereafter, the males were - 3 - rounded up. Det. Smith searched the area where he saw appellant discard something and discovered a clear plastic bag which contained suspected crack cocaine. Indeed, these substances later tested positive for cocaine. Det. Smith had observed appellant during the daylight hours discard the clear plastic bag from a proximity of six feet. (Tr. 11.) Appellant testified at the suppression hearing that he had left a pool hall and walked to the alleyway to meet his "buddies ***." (Tr. 19.) Appellant stated he resided approximately ten houses from the corner of this alley and that he was just talking with his friends when Det. Smith approached the scene. According to appellant's testimony, the officers "walked up" and told them to grab the fence as they were searched. (Tr. 20-21.) After about ten minutes of searching, Det. Smith discovered a "package" on the ground and made an inquiry regarding it. (Tr. 21.) Appellant stated Det. Smith did not produce the package as a result of a search of his person. (Tr. 21.) On appeal, appellant asserts two errors for our review: I. THE TRIAL COURT ERRONEOUSLY DENIED APPELLANTS [sic] MOTION TO SUPPRESS EVIDENCE WHICH WAS SEIZED WITHOUT A WARRANT AND ABSENT SPECIFIC AND ARTICULABLE FACTS. II. THE APPLICATION OF THE UNIT DOSE STANDARD TO DETERMINE THE QUANTITY OF CRACK COCAINE WAS ERRONEOUSLY APPLIED BY THE TRIAL COURT. I. - 4 - In appellant's first assignment of error, he asserts that Dets. Smith and Moore did not have specific and articulable facts which could have reasonably led them to believe that appellant was involved in specific criminal activity. Hence, the seizure of the plastic bag of crack cocaine was unlawful and the evidence should have been suppressed. The essential issue in this case is whether the officers' investigatory pursuit constituted a seizure implicating fourth amendment protection and, if so, whether there was sufficient facts to constitute reasonable suspicion which justified the seizure. See, Michigan v. Chesternut (1988), 100 L. Ed. 2d 565. A seizure has occurred when an officer, by means of physical force or show of authority, has in some way restrained a citizen's liberty. Terry v. Ohio (1968), 392 U.S. 1, 19. A citizen has been seized when, in view of the totality of the circumstances, a reasonable person would have believed that he was not free to leave. United States v. Mendenhall (1980), 446 U.S. 544, 554. In this case, a seizure had occurred. Under the circum- stances, the officers' conduct in "boxing" appellant and the other males in the alleyway would have communicated to a reasonable person that he was not at liberty to ignore the police presence and leave the scene. Chesternut, supra, at 569. The officers approached the males in an alleyway by "trotting" towards them. They came at them from one side of the alleyway - 5 - and when the males turned to run out the other side, the two other officers appeared and blocked the egress. If the officers' detention of appellant was justified by a sufficiently strong suspicion of criminal activity, then the temporary detention was lawful and the subsequent arrest, based upon probable cause ascertained after Dets. Smith and Moore not only observed appellant reach into his pocket and throw something on the ground but learned of its illegal contents, was indeed valid. State v. Avery (Nov. 30, 1989), Cuyahoga App. No. 57409, unreported, at 3, citing Terry, supra, at 21, and State v. McFarland (1982), 4 Ohio App. 3d 158, 160. Det. Moore testified at the suppression hearing that the officers had gathered and designed a strategy for approaching the alleyway because: (1) the area was a high drug trafficking area (Tr. 25); (2) citizens had complained of such activity on prior occasions (Tr. 25); (3) Dets. Moore and Smith had been approached by drug dealers soliciting their goods in this very alleyway before (Tr. 25-6); and (4) on this particular occasion, when appellant and the other males "spotted" the approaching officers, they "turned and tried to walk" in the opposite direction (Tr. 24). Taken together, the officers indeed had specific and articulable reasons for approaching the males in the alleyway. This court in Avery, supra, a factually similar case, applied the same reasoning and concluded that sufficient evidence existed to warrant the officers to "check out the situation and warrant a search of the" defendant. Avery, supra, at 3. In - 6 - Avery, three police officers were investigating drug activity in a particular area when they noticed several males standing on the corner. Upon seeing the officers, the defendant began to walk away and later ran as he noticed the officers were following him. After a chase, the defendant was "pinned up against a fence realizing that he was trapped by the police." Id. at 1. The defendant was then observed reaching into his pocket and tossing an object over the fence. A search of the area ensued while the defendant was temporarily detained. A gun was later retrieved and the defendant was arrested for carrying a concealed weapon. After a suppression hearing, the lower court ruled the gun suppressed and the state appealed. This court reversed and remanded and held that: "In this case, it is readily apparent that the police officers had a sufficient suspicion of criminal activity to detain the appellee. Based on the totality of these circumstances, there were sufficient facts to prompt the police officers to check out the situation and warrant a search of the appellee. Moreover, a defendant has no standing under the Fourth Amendment to object to a search and seizure of property that has been voluntarily abandoned. Abel v. United States (1960), 362 U.S. 217; State v. Brown (1984), 20 Ohio App. 3d 36. Thus, the appellee had no right to challenge the police officers' seizure of the loaded gun. "Therefore, the trial court erred in granting the motion to suppress the evidence." Avery, supra, at 3 (emphasis added). We are compelled to reach the same conclusion and overrule appellant's first assignment of error. - 7 - II. In appellant's second assignment of error, appellant argues the trial court gave an erroneous instruction regarding the application of the unit dose standard as it relates to the bulk amount of cocaine allegedly possessed by him. In particular, appellant avers that the instruction allowed the jury to determine bulk amount by simply counting the individual rocks of crack cocaine, when in fact the bulk amount is measured by weight in grams. That portion of the jury instruction is as follows: "Before you can find the defendant guilty, you must find beyond a reasonable doubt that on or about May 9th of 1990 in Cuyahoga County, Ohio, that the defendant did knowingly possess a controlled substance, to wit: cocaine, a Schedule II drug, in an amount equal to or exceeding the bulk amount, but in an amount less than three times that amount or three times the bulk amount. "I have used the words "bulk amount." Bulk amount relating to unit doses is 25 unit doses in Ohio. Therefore, three times the bulk amount would be 75 unit doses. Unit dose means an amount or unit of a compound mixture or preparation containing a controlled substance, such amount or unit being separately identifiable and in such form as to indicate that it is the amount or unit by which the controlled substance is separately administered or taken by an individual." (Tr. 182-3.) R.C. 2925.01(E)(1) defines "bulk amount" of cocaine as follows: (E) "Bulk amount" of a controlled substance means any of the following: (1) An amount equal to or exceeding ten grams or twenty-five unit doses of a compound, mixture, - 8 - preparation, or substance which is, or which contained any amount of *** cocaine; (Emphasis added.) The disjunctive term "or" is significant. It means the state is required to prove either weight or dosage but not both. State v. McCoy (1989), 63 Ohio App. 3d 644, 645, citing State v. Howell (1981), 5 Ohio App. 3d 92, 93. A "unit dose" is defined as follows: (F) "Unit dose" means an amount or unit of a compound mixture, or preparation containing a controlled substance, such amount or unit being separately identifiable and in such form as to indicate that it is the amount or unit by which the controlled substance is separately administered to or taken by an individual. Each individual rock or piece of crack cocaine constitutes a "unit dose" within the meaning of "bulk amount" of cocaine even though rocks may vary in size. Id. at 646. This is so because each rock of cocaine could be smoked separately by an individual regardless of lack of uniformity in size and weight. Id. at 645- 6. The trial court's instruction to the jury was proper and in line with statutory and case authority. Counsel for appellant argued to the court that a unit dosage is not tantamount to a readily identifiable rock of cocaine. (Tr. 191.) According to McCoy, counsel was clearly misled. Accordingly, the second assignment of error is overruled. Judgment affirmed. - 9 - 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. 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. FRANCIS. E. SWEENEY, J., and PATRICIA A. BLACKMON, J., CONCUR JOHN T. PATTON, PRESIDING 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. .