COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67595 STATE OF OHIO : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION RICARDO VELEZ : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION MAY 4, 1995 CHARACTER OF PROCEEDING Criminal appeal from Court of Common Pleas Case No. CR-302735 JUDGMENT Affirmed DATE OF JOURNALIZATION APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS-JONES, ESQ. ROBERT E. LEE, ESQ. Cuyahoga County Prosecutor 4421 Granada Blvd. RICHARD R. NEFF, Assistant Suite 523 Prosecuting Attorney Warrensville Hts., OH 44128 1200 Ontario Street Cleveland, Ohio 44113 - 2 - JAMES M. PORTER, J., Defendant-appellant Ricardo Velez appeals from his conviction for drug abuse (R.C. 2925.11) following a no contest plea when his motion to suppress incriminating evidence found on his person was overruled. Defendant claims the trial court abused its discretion in denying his motion to suppress and his conviction was against the manifest weight of the evidence. We find no error and affirm the judgment below. On October 7, 1993, two Cleveland Detectives, David Santiago and David Shurosky, were assigned to the Second District Vice Unit and were on patrol around noon in the area of West 50th Street and Bridge Avenue in Cleveland. They testified that Bridge Avenue from West 47th to West 58th was a very high drug crime area where the unit had made hundreds of arrests in the past. While travelling eastbound on Bridge Avenue, Detective Santiago testified he noticed a car facing westbound parked on the north side of the street. He noticed the car because he recognized Joshua Stephens, a known drug dealer from previous arrests, who was leaning into the driver's side window of the auto. The car was occupied by a female in the driver's seat and defendant in the passenger seat. The detective observed defendant passing money across the female to Stephens. The detectives made a U-turn to further investigate and Stephens pitched something into the car and quickly crossed the street. - 3 - The police pulled up next to the car. Detective Santiago stopped the defendant and female from driving away, and Detective Shurosky apprehended Stephens. Detective Santiago asked the defendant and the female driver to exit the car. Detective Santiago patted down defendant for his safety before he continued his investigation. He had seen defendant stuff something in his pants pocket after he exited the car. As Detective Santiago patted defendant down, he felt a small rock like substance. Based on his six years experience as a police officer and detective, and his observations at the scene, he testified it was immediately apparent to him that the object in defendant's pants pocket was a rock of crack cocaine. The detective removed the contraband and placed defendant under arrest. Stephens also was arrested and indicted. He had the money that defendant passed to him still sticking out of his pocket at the time of his arrest. The defendant's two assignments of error will be addressed in the order asserted. I. A MOTION TO SUPPRESS THE SEARCH OF THE DEFENDANT-APPELLANT WAS TIMELY FILED AND HEARD BY THE COURT ON MARCH 8, 1944, [SIC] THE MOTION WAS DENIED. DEFENDANT-APPELLANT SAYS THAT THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN FAILING TO GRANT THE MOTION TO SUPPRESS. The scope of our review on a motion to suppress was recently set forth by this Court in State v. Curry (1994), 95 Ohio App.3d 93, 96: - 4 - In a motion to suppress, the trial court assumes the role of trier of fact and is in the best position to resolve questions of fact and evaluate witness credibility. State v. Clay (1973), 34 Ohio St.2d 250, 63 O.O.2d 391, 298 N.E.2d 137. A reviewing court is bound to accept those findings of fact if supported by competent, credible evidence. See State v. Schiebel (1990), 55 Ohio St.3d 71, 564 N.E.2d 54. However, without deference to the trial court's conclusion, it must be determined independently whether, as a matter of law, the facts meet the appropriate legal standard. State v. Claytor (1993), 85 Ohio App.3d 623, 627, 620 N.E.2d 906, 908. In Terry v. Ohio (1968), 392 U.S. 1, the United States Supreme Court held that a police officer may stop and investigate unusual behavior, even without probable cause to act, when he reasonably concludes that the individual is engaged in criminal activity. In justifying that conclusion, the officer "must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the intrusion." Id. at 21. The circumstances are to be viewed through the eyes of the reasonable and prudent police officer on the scene who must react to events as they unfold. State v. Freeman (1980), 64 Ohio St.2d 291, 295. As the Supreme Court stated in State v. Williams (1990), 51 Ohio St.3d 58, 61: The standard for reviewing such police conduct is an objective one: "would the facts available to the officer at the moment of the seizure or the search warrant a man of reasonable caution in the belief that the action taken was appropriate?" Terry, supra at 21-22; United States v. Wright (C.A.8, 1977), 565 F.2d 486, 489. That is, "[a]n - 5 - investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity." United States v. Cortez (1981), 449 U.S. 411, 417. See, also, State v. Andrews (1991), 57 Ohio St.3d 86, 87. The evidence below portrayed the following circumstances: the investigatory stop occurred in a high drug crime area; the arresting detective was very experienced in the narcotics trade; he observed a known drug dealer (Stephens) engaged in an obvious drug transaction with defendant with money changing hands at the parked car location; when the police arrived, Stephens threw something into the car and tried to leave the scene; defendant jammed something in his pocket; and the drug dealer had money sticking out of his pocket immediately following the transaction. On the basis of the detectives' testimony and the totality of the circumstances, there were sufficient articulable facts upon which to base a traffic stop of defendant. State v. Williams, supra; State v. Bobo (1988), 37 Ohio St.3d 177, paragraph one of syllabus; State v. Morales (1993), 92 Ohio App.3d 580, 583; State v. Perkins (Feb. 28, 1991), Cuyahoga App. No. 60234, unreported at 1. It is also well-settled that once an officer has made a reasonable investigative stop and has a reasonable suspicion that an individual may be armed, "the officer may initiate a protective search for the safety of himself and others." State v. Bobo, supra, at paragraph two of syllabus. - 6 - "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 ***." Adams v. Williams (1972), 407 U.S. 143 at 146. As the Supreme court explained in Terry: *** [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. ***[I]t would appear to be 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. Under the circumstances, therefore, we find that the initial stop, request to exit the vehicle, and the pat-down for weapons was within the constitutionally permissible range of Terry and its progeny. The issue remains, however, whether the detective was justified in going into defendant's pocket when he felt a rock, which he immediately knew to be cocaine. This issue was specifically addressed in Minnesota v. Dickerson (1993), 508 U.S. - ---, 113 S.Ct. 2130, 2136, where the Supreme Court stated: The question presented today is whether police officers may seize non-threatening contraband detected during a protective pat-down search of the sort permitted by Terry. We think the answer is clearly that they may, so long as the officer's search stays within the bounds marked by Terry. - 7 - The court resorted to the "plain view" analogy by holding that, if an officer by a "sense of touch" detects contraband, even while on a weapons pat-down, he has not exceeded the bounds of Terry: 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. Id. at 2137. We find that the circumstances of the instant case bring the seizure within the parameters of permissible conduct allowed by Terry and the "plain feel" doctrine of Dickerson. The detectives' initial stop and subsequent pat-down of defendant was justified. The confrontation occurred in a high drug and crime area; the defendant was passing money to a known drug dealer in broad daylight; when the police came on the scene the drug dealer threw an object into the car, and defendant stuffed something into his pocket. The evidence was sufficient to sustain the stop and the search. This assignment of error is overruled. II. APPELLANTS [SIC] CONVICTION ON COUNT ONE MUST BE REVERSED, BECAUSE IT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. The defendant pled no contest and cannot now assign error that his conviction, based on the plea, was against the manifest weight - 8 - of the evidence. City of Warrensville Hts. v. Glymph (Oct. 27, 1988), Cuyahoga App. No. 54577, 54578, 54579, unreported at 5. Crim. R. 11(B)(2) states: "The plea of no contest is not an admission of defendant's guilt, but is an admission of truth of facts alleged in the indictment ***." A plea of no contest made in compliance with Crim. R. 11, in which a defendant admits the truth of the facts alleged in the indictment waives any error about the sufficiency of the evidence the State might produce to support the charges. State v. Gilham (1988), 48 Ohio App.3d 293, 295; State v. McCool (1988), 46 Ohio App.3d 1, 2; State v. Thorpe (1983), 9 Ohio App.3d 12; State v. Morales (May 7, 1992), Cuyahoga App. No. 62075, unreported; State v. Willis (Dec. 16, 1993), Cuyahoga App. No. 64433, unreported. A conviction entered pursuant to a no contest plea "will be improper only when statements of factual matter presented to the court in support of the indictment negate the existence of an essential element of the offense charged." State v. Stow Veterans Assn. (1987), 35 Ohio App.3d 45, 46; see, also, State v. Kutz (1993), 87 Ohio App.3d 329, 331; State v. Mehozonek (1983), 8 Ohio App.3d 271, 273-74; State v. Cohen (1978), 60 Ohio App.2d 182, 184. The trial court was well within its discretion in accepting the defendant's no contest plea and finding him guilty on the facts - 9 - brought out at the suppression hearing and the State's proffer of evidence of his possession of one rock of cocaine in his pocket. Assignment of Error II is overruled. Judgment affirmed. - 10 - 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 Court of Common Pleas 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. NUGENT, P.J., and O'DONNELL, J., CONCUR. JAMES M. PORTER 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 .