COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67846 STATE OF OHIO, : : Plaintiff-Appellee : : JOURNAL ENTRY vs. : and : OPINION LAWRENCE THOMPSON, : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION : JUNE 1, 1995 CHARACTER OF PROCEEDING : Criminal appeal from : Common Pleas Court : Case No. CR-299909 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: Joseph V. Hoffer Assistant County Prosecutor The Justice Center - 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: Brian T. Corrigan ROBERT E. SWEENEY CO., LPA 1500 Illuminating Building Cleveland, Ohio 44113 Michael J. O'Shea 1600 Illuminating Building Cleveland, Ohio 44113 -2- NAHRA, J.: Defendant-appellant Lawrence Thompson appeals from the trial court order which denied his motion to suppress evidence. The record reveals that on the evening of July 16, 1993, State of Ohio Park Ranger Kevin Erskine was on routine patrol in a marked car at Edgewater State Park in the city of Cleveland, Ohio. At approximately 8:45 p.m., Erskine was westbound on the park roadway when a van pulled out from a parking area in front of him. The van weaved as it proceeded westbound about a car length in front of Erskine's car. Erskine could see through the rear window of the van as it traveled; he noticed the driver, later identified as appellant, seemed preoccupied with attempting to place something beneath his seat. Thus, the van traveled less than a hundred feet before Erskine saw it go left of center twice and swerve once to the right onto the grass of the berm. Erskine therefore decided to stop the van for the traffic violations he had observed. When Erskine activated the lights of his car, appellant pulled over onto the berm. Erskine approached the driver's side and requested to see appellant's driver's license. Appellant reluctantly produced it and handed it to Erskine, asking why he had been stopped. Erskine at this time was looking into the van. He saw two male children, aged less than ten years, seated on the floor in the front passenger area. They were clad only in swim trunks or shorts and had traces of food on their faces. They were sitting "Indian-style" with their back against boxes. Erskine could see the boxes contained pornographic materials. Moreover, as -3- he looked in, Erskine estimated he saw several hundred pornographic magazines in boxes in appellant's van. The license appellant produced was from Georgia. After Erskine told appellant he had been stopped for a traffic violation, appellant repeatedly asked for a citation so he could be on his way. Erskine asked appellant if the children were his; appellant replied they were a neighbor's. However, appellant did not respond when Erskine asked for their names. Erskine then asked the children to tell him their names. They did not respond either. Erskine thought they looked "extremely fearful." He then returned to his car to check appellant's license. By this time, another park officer had arrived in his car to provide assistance. With this, Erskine went to the passenger side of the van and requested the children to exit. He placed them in his colleague's car and then returned to appellant's van. At that time, he arrested appellant for disseminating matter harmful to juveniles. Appellant was subsequently indicted on eight counts, viz., two counts of rape, R.C. 2907.02; two counts of kidnapping, R.C. 2905.01; two counts of disseminating matter harmful to juveniles, R.C. 2907.31; and two counts of gross sexual imposition, R.C. 2907.05. Prior to appellant's trial, appellant filed a motion to suppress evidence, contending Erskine's stop of him was improper. The trial court held a hearing on the motion. Three witnesses testified at the hearing: Officer Erskine, Thomas Dishon, who was -4- the elder of the children seated in appellant's van, and appellant. Thereafter, the trial court overruled appellant's motion. After a jury trial, appellant was ultimately convicted on all counts. The trial court sentenced him to consecutive terms of incarceration of life on counts one and two, eight to twenty-five years on counts three and four, and two years on each of the remaining counts. Appellant has filed a timely appeal in this court and presents the following as his sole assignment of error: THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION TO SUPPRESS EVIDENCE SEIZED, AS THE INITIAL STOP OF THE VEHICLE WAS A PRETEXTUAL STOP AND A RUSE TO SEARCH APPELLANT'S VEHICLE VIOLATING APPELLANT'S RIGHTS UNDER THE FOURTH AND FOURTEENTH AMENDMENT TO THE CONSTITUTION. Appellant argues the circumstances of this case indicate the stop effected by officer Erskine was actually pretextual, therefore, the trial court improperly denied his motion to suppress evidence. Appellant's argument is unpersuasive. 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 arrest, 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. -5- 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 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. State v. Williams (1990), 51 Ohio St.3d 58 at 60, 61. See, also, State v. Andrews (1991), 57 Ohio St.3d 86. Furthermore, a violation of a traffic law is clearly deemed to be "criminal activity" which may be sufficient to justify an investigative stop. State v. Evans (1993), 67 Ohio St.3d 405; State v. Keathley (1988), 55 Ohio App.3d 130. Appellant contends the following two factors indicate Erskine's stop was unreasonable and based only on a "hunch:" the minimal nature of the traffic violation committed by appellant and Erskine's action in removing the children from the van prior to removing appellant himself. The record, however, does not support appellant's contention. Although appellant intimates Erskine may have been surveilling him and the children prior to the stop, there is absolutely no basis for any such conclusion in any of the testimony given during the hearing on appellant's motion to suppress. State v. Richardson (1994), 94 Ohio App.3d 501. Rather, the evidence indicates Erskine was only on routine patrol before appellant pulled out in front of him and it was appellant's poor driving while he was "preoccupied" which initially -6- attracted Erskine's attention. Erskine saw appellant weaving all over the roadway right in front of his park officer's car as appellant tried to push something under his seat. Erskine stated he stopped appellant after following him for only about a hundred feet based upon the traffic infractions he had observed in that short length of time. Clearly, on the basis of the testimony adduced at the hearing, there were sufficient articulable facts upon which to base an approach and a stop of appellant. State v. Williams, supra; State v. Evans, supra. Appellant also contends Erskine's actions after the stop, especially in removing the children prior to arresting appellant, were "unreasonable" under the circumstances, thus demonstrating the pretextual nature of the stop. However, at the suppression hearing, Erskine stated that as he stood outside appellant's van, he looked inside it, a routine precaution he took for reasons of personal safety. This limited action was both reasonable and justified pursuant to Terry v. Ohio, supra, and Michigan v. Long (1983), 463 U.S. 1032. See, also, State v. Bobo (1988), 37 Ohio St.3d 177; State v. Chapman (1992), 73 Ohio App.3d 132. As he looked, Erskine could plainly see the following: 1) two young children seated on only the floor of the van, neither of whom was in a child safety restraint, neither of whom was clean or fully clothed and neither of whom would speak to him when he addressed them; and 2) boxes containing what Erskine could clearly recognize as pornographic within "millimeters" of these children. -7- It has long been the rule that where an initial intrusion by police officers is lawful, an incriminating object which comes into plain view during that intrusion may be seized without a warrant. State v. Williams (1978), 55 Ohio St.2d 82. See, also, Michigan v. Long, supra. Whether an object is in "plain view" is determined by the following analysis: In order for evidence to be seized under the plain view exception to the search warrant requirement it must be shown that (1) the initial intrusion which afforded the authorities the plain view was lawful; (2) the discovery of the evidence was inadvertent; and (3) the incriminating nature of the evidence was immediately apparent to the seizing authorities. State v. Williams, supra, at syllabus 1. The Ohio Supreme Court defined the last requirement of the plain view doctrine in the syllabus of State v. Halczyszak (1986), 25 Ohio St.3d 301, thusly: The "immediately apparent" requirement of the "plain view" doctrine is satisfied when police have probable cause to associate an object with criminal activity. In ascertaining the required probable cause to satisfy the "immediately apparent" requirement, police officers may rely on their specialized knowledge, training and experience. (Emphasis added.) In this case, when he saw the quantity and character of the material in the boxes in appellant's van and its proximity to the children, it is clear that based upon his experience as an officer, Erskine had probable cause to arrest appellant at least for disseminating matter harmful to juveniles. State v. Evans, supra; -8- State v. Claytor (1993), 85 Ohio App.3d 623; cf., State v. Zeh (1982), 7 Ohio App.3d 235. With this in mind and since Erskine stated he did not fear for his own safety since he did not think appellant had any weapons, Erskine was entirely justified in removing the children from the van as a protective measure for their safety prior to arresting appellant. State v. Bobo, supra; see, also, State v. Evans, supra; State v. Williams (1994), 94 Ohio App.3d 538. The record thus indicates only the reasonableness of Erskine's actions, rather than any pretext for the stop and search of appellant in this case. State v. Richardson, supra; State v. Keathley, supra. This court finds it significant that in Minnesota v. Dickerson (1993), 508 U.S. , 113 S.Ct. 2130, the United States Supreme Court intimated that so long as the search stays within the bounds marked by Terry, a police officer is not obligated to ignore incriminating evidence he perceives through his senses simply because a suspect was initially stopped for a different reason. State v. Evans, supra; State v. Vanscoder (1994), 92 Ohio App.3d 853; cf., State v. Younts (1993), 92 Ohio App.3d 708. Thus, since neither the initial stop nor the subsequent search of appellant's van was unreasonable for purposes of the Fourth Amendment, appellant's constitutional rights were not violated in this case. Therefore, the trial court did not err in denying appellant's motion to suppress evidence. -9- Accordingly, appellant's sole assignment of error is overruled and appellant's convictions are affirmed. 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 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. NUGENT, P.J., and O'DONNELL, J., CONCUR. JOSEPH J. NAHRA 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 .