COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67108 : ACCELERATED DOCKET STATE OF OHIO : : : JOURNAL ENTRY Plaintiff-Appellant : : and -vs- : : OPINION WILLIAM BERRY : : : PER CURIAM Defendant-Appellee : : : DATE OF ANNOUNCEMENT OF DECISION: MARCH 16, 1994 CHARACTER OF PROCEEDING: Criminal appeal from Common pleas Court Case No. CR-303816 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellant: For Defendant-Appellee: STEPHANIE TUBBS JONES, ESQ. RICHARD AGOPIAN, ESQ. Cuyahoga County Prosecutor 800 Standard Building JOHN SMERILLO, ESQ. 1370 Ontario Street Assistant Prosecuting Attorney Cleveland, Ohio 44113 The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 - 2 - PER CURIAM: This appeal was filed and briefed as an accelerated case pursuant to App.R. 11.1 and Local R.25 of this court. Appellant, the state of Ohio, appeals the suppression motion granted in favor of appellee William Berry. For the reasons that follow, we affirm. Appellee was sitting on the porch. Detective Thomas observed him walk to a car, and hold a brief conversation with the occupant of the car. The car then drove off. The officer did not observe him do anything else. The officer then came up to appellee and patted him down. He put his hand into appellee's pocket and removed crack cocaine and then placed him under arrest. In State v. Rucker (1990), 63 Ohio App.3d 762, this court held that a stop and search is unconstitutional where the officer did not observe the defendant commit any crime or believed him to be dangerous. We observed that: "the record contains no evidence which would support an independent finding that the officer believed the appellee to be armed and dangerous. Rather, the record reveals that after an unconstitutional stop of the appellee, a police officer simply reached into appellee's jacket pocket and pulled out a bag which happened to contain cocaine. It is quite clear that neither of the Terry requirements was present in the stop and frisk of defendant-appellee." Under the totality of the circumstances, the investigative stop of William Berry in the instant case was not justified. State v. Walker (1993), 90 Ohio App.3d 132; see also State v. Chandler (1989), 54 Ohio App.3d 92. See also State v. Linson (1988), 51 - 3 - Ohio App.3d 49 (this court affirmed a motion to suppress where the reason for the stop and search was that the suspect was in the so- called area of high drug activities and the suspect had previously been arrested, including of course the police officer's years of experience in drug related arrests). Such weak excuse to justify an illegal search just will not do. In Broadview Hts. v. Abkemeir (1992), 83 Ohio App.3d 633, 636, this court noted: "The trier of fact is in an unique position to observe a witness face-to-face. Nonverbal behavior accounts for sixty percent of the total meaning of a transmitted message; another thirty percent of the meaning is gleaned from voice inflection. Only ten percent of the total message results from a witness' choice of words. Rasicot, New Techniques for Winning Jury Trials (1990), 10. A witness' information is, therefore, amazingly judged by focusing primarily on nonverbal communication." The trial court, as the trier of fact, had the discretion to believe or not believe the police officer's version of the events. State v. DeHass (1967), 10 Ohio St.2d 230, 39 O.O.2d 366, 227 N.E.2d at 212. In the insant case, the trial judge chose not to believe the officer's testimony. We fail to find an abuse of discretion here. Judgment affirmed. - 4 - 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. JAMES D. SWEENEY, PRESIDING JUDGE SARA J. HARPER, JUDGE DAVID T. MATIA, JUDGE DISSENTS WITH DISSENTING OPINION ATTACHED TO MAJORITY OPINION. 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. COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67108 STATE OF OHIO : : : PLAINTIFF-APPELLANT : D I S S E N T I N G : v. : O P I N I O N : WILLIAM BERRY : : : DEFENDANT-APPELLEE : DATED: MARCH 16, 1995 MATIA, J., DISSENTS: I respectfully dissent from the majority's judgment in this appeal. While the facts of this case are not in dispute, I believe a more detailed analysis supports the conclusion that Detective Thomas did in fact have a reasonable suspicion that criminal activity had occurred or was imminent. On the night of November 3, 1993, William Berry, defendant- appellee, was placed under surveillance by Detective Charles E. Thomas of the Cleveland Police Department. Detective Thomas, an officer with seventeen years experience, viewed appellee for approximately five to ten minutes on the porch of a boarded up "drug house" on East 95th Street in Cleveland, Ohio. The officers knew William Berry as they had "caught him before" and knew that he lived four houses up the street from the boarded up "drug house". - 6 - The house is one in a block of three boarded up houses which maintains a reputation of drug selling activity. In fact, Detective Thomas had made several arrests in the same area for the trafficking of drugs. Additionally, prior to this incident, numerous councilmanic complaints had been lodged with the police department concerning drug activity from that specific address. Knowing drug dealers would flee when they saw a police car, Detective Thomas approached defendant-appellee from behind the house. It was a cold night and Detective Thomas witnessed appellee sitting alone on the dark porch, waiting. An automobile pulled to the front of the house. Detective Thomas watched appellee walk over to the car, go to its side, engage in a conversation and walk back to the porch as the car pulled away. Based upon the events, Detective Thomas identified himself, approached appellee and asked him what he was doing there. Detective Thomas could not recall defendant-appellee's answer. Detective Thomas conducted a pat-down search. During the search, Detective Thomas felt what he believed to be crack cocaine in appellee's front coat pocket. The detective went in appellee's pocket and retrieved a plastic bag with seven rocks of crack cocaine. William Berry, defendant-appellee, was subsequently arrested and charged with trafficking in drugs pursuant to R.C. 2925.03 and drug abuse pursuant to R.C. 2925.11. In a suppression hearing, the state bears the burden of proof and must demonstrate the warrantless search and seizure were reasonable. State v. Bevan (1992), 80 Ohio App.3d 126. In - 7 - justifying a particular intrusion, a police officer must be able to point to specific and articulable facts which, taken together with reasonable inferences from those facts, reasonably warrant the officer's belief that criminal activity has occurred or is imminent. Terry v. Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889. It should be noted that the level of suspicion required for a Terry stop is less demanding than that required to establish probable cause. United States v. Montoya de Hernandez (1985), 473 U.S. 531, 105 S.Ct. 3304, 87 L.Ed.2d 381. Probable cause has been defined as "a fair probability that contraband or evidence of a crime will be found." Illinois v. Gates (1983), 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527. The United States Supreme Court has held since an effort to define "reasonable and/or articulable suspicion" creates unnecessary difficulty, therefore, when evaluating the validity of a stop such as this, a court must consider "the totality of the circumstances -- the whole picture". United States v. Cortez (1981), 449 U.S. 411, 417, 101 S.Ct. 690, 695, 66 L.Ed.2d 261. The process does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain common-sense conclusions about human behavior; ***. Finally, the evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement. Illinois, supra, at 231, 232. Thus, when considering whether or not there existed a reasonable suspicion for an investigatory - 8 - stop, a trial court must look at the totality of the circumstances, as viewed in the eyes of one versed in the field of law enforcement, and determine whether there is at least a fair probability that criminal activity occurred or is imminent. In ruling upon the motion to suppress, a review of the transcript indicates the trial court placed great weight upon this court's holding in State v. Fincher (1991), 76 Ohio App.3d 721. In that case we held when a defendant merely approaches an occupied car on foot in a high crime area followed by a retreat from the scene upon seeing police, it is not sufficient activity to justify an investigatory stop of said defendant. Similarly, the majority places great weight on the fact the officer did not actually observe defendant commit any crime. However, I believe the facts as stated above distinguish this case from Fincher and its progeny. Again, the boarded up drug house had a reputation for high drug activity. The officers knew defendant-appellee for they had "caught him before". The officers knew defendant-appellee lived approximately four houses up the street. It was a cold night and appellee was sitting alone, in the dark, on the porch of the boarded up "drug house". An automobile approached, stopped in front, appellee approached the side of the car, engaged in a conversation. The car drove off and appellee returned to the porch. All of these factors as well as the detective's seventeen years experience, are relevant in determining "reasonable - 9 - suspicion". See State v. Bobo (1988), 37 Ohio St.3d 177; State v. Duganitz (May 5, 1994), Cuyahoga App. No. 65328, unreported. Although the detective testified he did not actually see a transaction and/or exchange, I cannot help but recognize the actions of appellee, under these circumstances, are often made by those engaged in drug transactions. Detective Thomas testified to this fact. The majority's opinion has the effect of taking away the use of a law enforcement officers unique intuition developed through, in this case, seventeen years of service in the department. Under the totality of circumstances as viewed by an officer with considerable experience, there was a reasonable suspicion that criminal activity had taken place. As such, I believe the detective reasonably stopped appellee for investigative purposes. Next, when examining the search and subsequent seizure of the crack cocaine, the United State Supreme Court recognized in Terry that a police officer may make a limited search in order to protect himself and the public. "*** [W]e cannot blind ourselves to the need for law enforcement officers to protect themselves and other prospective victims of violence in situations where they may lack probable cause for an arrest. When an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others, it would appear clearly unreasonable to deny the officer the power to take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm. Terry, supra, at 24. - 10 - In this case the detective approached an individual suspected of selling drugs on the porch of a boarded up "drug house". Another factor to be considered is that the incident occurred in the evening. Under these circumstances and in light of today's high association between drug transactions and the use of firearms, Detective Thomas was justified in believing the appellee may have been armed. As such, we hold the search of William Berry, defendant-appellee, was appropriate. The purpose of such a search is not evidentiary in nature, but rather for protective purposes. If the protective search goes beyond what is necessary to determine if the suspect is armed, it is no longer valid under Terry and its fruits will be suppressed. Sibron v. New York (1968), 392 U.S. 40, 65-66, 88 S.Ct 1889, 1904, 20 L.Ed.2d 917. However, the United States Supreme Court recently recognized a "plain feel" or "plain touch" exception to the seizure of non- threatening contraband. In Minnesota v. Dickerson (1993), ___ U.S. ___, 113 S.Ct 2130, 2137, 124 L.Ed.2d 334, the Court stated: If a police officer lawfully pats down a suspect's outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect's privacy beyond that already authorized by the officer's search for weapons; if the object is contraband, its warrantless seizure would be justified by the same practical considerations that inhere in the plain view context. In the case sub judice, Detective Thomas testified not only had he made hundreds and maybe thousands of drug arrests in the - 11 - course of his seventeen years on the police force, but that during the pat down search he "felt what [he] believed was crack cocaine in his right front coat pocket". It was after this determination Detective Thomas further went into the right front coat pocket and found a plastic bag with seven rocks of crack cocaine. At that time, appellee was read his rights and arrested. Based upon the unrebutted testimony, Detective Thomas immediately believed what he felt in appellee's pocket was crack cocaine. He did not continue exploration of the pocket to make this determination. As such, the "incriminating character" of the contraband was immediately apparent to the detective. See State v. Crawford (September 23, 1993), Cuyahoga App. No. 64607, unreported. Detective Thomas had a lawful right of access to the object and was justified in seizing the contraband at issue. For the foregoing reasons Detective Thomas had a reasonable suspicion that criminal activity had taken place or was imminent. As such, the stop of defendant was appropriate. Furthermore, during a protective pat down search, the detective felt "what he believed to be crack cocaine". Thus, he had reached the prerequisite level of probable cause to seize the contraband under Dickerson, supra. The trial court's suppression of the evidence was in error. Accordingly, I would reverse of the decision of the trial court. .