COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68349 STATE OF OHIO : ACCELERATED DOCKET : Plaintiff-appellant : : JOURNAL ENTRY -vs- : AND : OPINION ANDRE BADLEY : : Defendant-appellee : PER CURIAM : DATE OF ANNOUNCEMENT : OF DECISION : NOVEMBER 9, 1995 CHARACTER OF PROCEEDING : Criminal appeal from Court of Common Pleas : Case No. 311928 JUDGMENT : Affirmed. DATE OF JOURNALIZATION : APPEARANCES: FOR PLAINTIFF-APPELLANT: FOR DEFENDANT-APPELLEE: Stephanie Tubbs-Jones, Esq. Mark Rudy, Esq. Cuyahoga County Prosecutor 11510 Buckeye Road By: Kestra Smith-Crutcher, Cleveland, Ohio 44104 Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 -2- PER CURIAM: The Cuyahoga County Grand Jury indicted defendant-appellee, Andre Badley, on July 26, 1994 for violations of R.C. 2925.03, 2925.11, and 2923.24. Following the entry of not guilty pleas at his arraignment, appellee filed a motion to suppress evidence. The trial court heard the motion on December 16, 1994, and thereafter granted the motion on December 18, 1994. Plaintiff-appellant, the state of Ohio, now appeals from this ruling pursuant to Crim.R. 12(J). The state presented one witness at the suppression hearing, a city of Cleveland police officer, Detective Melvin Smith. Smith testified that he was assigned to basic patrol when he joined the city's police department in February 1987. Two years later, he was placed on the Sixth District Strike Force. One of Smith's duties as a strike force officer was responding to complaints received from the district's commander and citizens, and the offices of the Mayor and City Council. Within two to three months of being assigned to the strike force, Smith was charged with handling drug complaints exclusively. He testified that 95 percent of his work related to drug complaints; he made or assisted in approximately fifty drug arrests per month; and made about one thousand drugs arrests in his police career. Smith testified further that in a majority of his arrests which involved crack cocaine, the drug was packaged in some type of plastic. Additionally, he felt crack on numerous occasions as a result of these arrests and accompanying searches. -3- Smith moreover attended several drug-related classes. Smith testified that from these classes, he learned the origin of crack; how to identify the drug; "how it's made, *** how it's cooked up, how they cut it"; and how it feels to one's touch. Smith testified further that he felt cocaine while attending the classes, and the drug was typically packaged either in a plastic bag or something which resembled a plastic bag. According to Smith, he was familiar with the area of 6900 Superior Avenue, Cleveland, Ohio, because of the receipt of a variety of complaints concerning drug sales, alcohol use, and gambling in the vicinity. Specifically, he testified that a branch of the Cleveland Public Library is located in the area. Smith related how he received complaints from the library through the Mayor's office with regard to the presence of males in front of the library who sell drugs, gamble and drink alcohol. Smith testified that in addition to making arrests in the area of the library, he also arrested individuals around a barbecue restaurant which was on the same side of the street and just east of the library. In total, the detective testified that he made about thirty arrests in the general area. Smith was on duty on May 18, 1994. At approximately 8:30 p.m., when it was still "fairly light," he and five other detectives were in the area of 6921 Superior Avenue, Cleveland, Ohio. The officers were not responding to specific complaints at the time; they were merely patrolling the area. As they approached in three unmarked vehicles, the car in which Smith was present, -4- stopped for a traffic signal at East 68th Street and Superior Avenue. He observed five or six males standing together just outside the library. Smith testified that some of the males beckoned to passing cars, and he suspected that the beckoning meant drug sellers were looking for prospective buyers. Smith and his partner proceeded slowly toward the group after observing the males for a short time. Smith testified that upon their approach, the members of the group all turned their heads at the same time, and looked in the direction of the officers. Consequently, the group scattered, with the males walking away from the officers. The detectives continued their approach in order to investigate the group's activities by following an established procedure, as testified to by Smith. The detectives who were closest to the group, stopped and investigated the individuals who were still at the scene. The detectives who were farther away, attempted to stop and investigate the individuals who either fled or tried to flee the area. Smith testified that he investigated appellee. According to Smith, though appellee was present in the surveyed group, he was not seen beckoning to passing cars. While Smith watched appellee, appellee turned around, walked away and then entered the restaurant. Appellee almost immediately exited the restaurant. Smith testified that this activity heightened his suspicions because he believed appellee was merely trying to avoid him. The detective decided to stop and question appellee at this time. -5- Smith proceeded to pat down appellee. He explained at the suppression hearing that he did so for his own safety because, in his experience, at least one person in a group such as the group observed that evening, possesses a weapon. Since there is no way to determine which person possesses a weapon, the pat down was conducted on appellee. Smith described appellee's clothing as a very thin, lightweight, nylon jogging suit. Smith touched appellee's left jacket pocket, and according to his testimony, felt something which he immediately recognized as crack cocaine wrapped in plastic. The detective removed the object from appellee's pocket and arrested him for violation of state drug law. A pager and $382 in currency were also removed from appellee's person. Smith's cross-examination disclosed that once appellee entered the restaurant, the detective was going to give him the "benefit of the doubt." In other words, Smith did not intend to pursue appellee once he entered the restaurant because "[e]verybody out on the street is not necessarily in my opinion doing anything." However, when appellee almost immediately exited the restaurant, it aroused Smith's suspicion even more, leading to the pat down and the ultimate discovery of crack cocaine. The trial court granted appellee's motion to suppress following the hearing based upon its interpretation of State v. Evans (1993), 67 Ohio St.3d 405, certiorari denied (1993), U.S. , 114 S.Ct. 1195, 127 L.Ed.2d 544. Initially, the court questioned whether there was a lawful stop of appellee, but nonetheless proceeded to the issue of whether Detective Smith -6- conducted a lawful search of appellee's person without first determining the legality of the stop. Though the court acknowledged the "plain feel" exception to warrantless searches set forth in Minnesota v. Dickerson (1993), 508 U.S. , 113 S.Ct. 2130, 124 L.Ed.2d 334, it concluded that the Supreme Court of Ohio in Evans was reluctant to extend this exception to the state of Ohio. The trial court thus stated: *** *** "[sic] A search for weapons in the absence of probable cause to arrest, however, must like any other search be strictly circumscribed by the exigency, which will justify the intrusion. Thus, it must be limited to that which is necessary, again, for the discovery of weapons which might be used to harm the officers or others nearby. And obviously once the officer determines from his search or touch that an object is not a weapon, the pat down risk must stop. And indeed I am going to stop there. And there was clear testimony on this case from the officer that at no time did he think it was a weapon. He knew immediately that it was cocaine. I am going to grant your motion to suppress, *** This accelerated appeal followed with the state claiming as error: THE TRIAL COURT INCORRECTLY RELIED ON STATE V. EVANS, 99 OHIO ST.3D 1 [sic] IN DECIDING THAT CONTRABAND, NOT SEARCH [sic] FOR BUT DISCOVERED AND IMMEDIATELY RECOGNIZED BY THE OFFICER TO BE CONTRABAND DURING A VALID INVESTIGATIVE SEARCH, IS INADMISSIBLE AS EVIDENCE. The state submits that the trial court's interpretation of Evans is flawed insofar as the court concluded that the Supreme Court of Ohio was reluctant to extend the "plain feel" doctrine to the state of Ohio. The state proceeds to distinguish Evans from -7- the present case, arguing that once Det. Smith felt appellee's pocket during a lawful search for weapons, and immediately recognized that it contained crack cocaine, Smith was justified in removing the contraband. Our review of the trial court's reasoning for granting appellee's motion to suppress, reveals its misinterpretation of the relevant law. The permissible scope of a Terry search is "a narrowly drawn authority to permit a reasonable search for weapons for the protection of a police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime." Terry v. Ohio (1968) 392 U.S. 1, 27, 88 S.Ct. 1868, 1883, 20 L.Ed.2d 889, 909. The purpose of this limited protective search is to allow a police officer's investigation to proceed without fear of violence, not to allow the discovery of evidence of a crime. Evans, 408, citing Adams v. Williams (1972), 407 U.S. 143, 146, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612, 617; see, also, Smith v. Ohio (1990), 494 U.S. 541, 543, 110 S.Ct. 1288, 1290, 108 L.Ed.2d 464, 467; Sibron v. New York (1968), 392 U.S. 40, 63, 88 S.Ct. 1889, 1902, 20 L.Ed.2d 917, 934-935 (both setting forth that incident search may not precede arrest and serve as part of its justification); State v. Brown (1992), 83 Ohio App.3d 673 (lawful Terry search cannot be expanded to general search for evidence or contraband). Both the Supreme Court of the United States and the Supreme Court of Ohio explored the scope of a Terry search for weapons in -8- Dickerson and Evans, respectively. However, the two cases are distinguishable based upon the object felt by the investigating officer. The Supreme Court of the United States recognized a "plain feel" or "plain touch" exception to the warrant requirement in Dickerson: "if police are lawfully in a position from which they view an object, if its incriminating character is immediately apparent, and if the officers have a lawful right of access to the object, they may seize it without a warrant." Dickerson, 508 U.S. at , 113 S.Ct. at 2136-2137, 124 L.Ed.2d at 344-346. The exception was recognized based upon an analogy of the "plain view" doctrine of Coolidge v. New Hampshire (1971), 403 U.S. 443, 465- 471, 91 S.Ct. 2022, 2037-2041, 29 L.Ed.2d 564, 582. It is imperative to note that the contour and mass of the object in Dickerson made its incriminating nature apparent to the officer. The Evans court, however, addressed a much narrower situation, i.e., when a police officer, in conducting a lawful Terry stop and frisk, feels a hard object and is unable to determine from the pat- down that the suspect is not carrying a weapon. In other words, Evans concerned a situation where the incriminating nature of the object was not immediately apparent to the officer. Therefore, when an officer is unable to conclude that a hard object is not a knife or some other weapon based upon his sense of touch and experience, he is entitled to remove it. Evans, paragraph two of the syllabus; see, also, State v. McCulley (Apr. 28, 1994), Cuyahoga App. No. 64470, unreported; State v. Rahmon (Oct. 28, -9- 1993), Cuyahoga App. No. 63913, unreported. However, a Terry search must cease once the officer determines that the object detected in the outer clothing of a suspect is not a weapon, in the absence of probable cause and exigent circumstances. Dickerson, 508 U.S. at , 113 S.Ct. at 2137, 124 L.Ed.2d at 345-356; Evans, 416. The Supreme Court of the United States adopted a "totality of the circumstances" approach in determining whether an officer possesses the requisite probable cause to justify a warrantless search. Illinois v. Gates (1983), 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527, 548; see, also, State v. George (1989), 45 Ohio St.3d 325. [P]robable cause is a flexible, common sense standard. It merely requires that the facts available to the officer would "warrant a man of reasonable caution in the belief," *** that certain items may be contraband or stolen property or useful as evidence of a crime; it does not demand any showing that such belief be correct or more likely true than false. *** Texas v. Brown (1983), 460 U.S. 730, 742, 103 S.Ct. 1535, 1543, 75 L.Ed.2d 502, 514. Finally, probable cause "is to be viewed from the vantage point of a prudent, reasonably cautious police officer on the scene at the time of [the] arrest [or the search] guided by his experience and training." United States v. Davis (D.C.Cir., 1972), 147 U.S.App.D.C. 400, 458 F.2d 819, 821. The facts in the present case present a question under Dickerson since Det. Smith testified that he knew the object in appellee's pocket was not a weapon. Smith, instead, immediately recognized that the object was crack cocaine packaged in some form -10- of plastic. This is the point at which the trial court made the mistake of applying Evans; the present case is distinguishable from Evans insofar as the officer in Evans could not immediately identify the suspicious object as contraband. The trial court's interpretation of Evans was then incorrect when it concluded that the Supreme Court of Ohio failed to extend the "plain feel" doctrine to the state. Appellate courts in this state, including this one, have utilized the Dickerson "plain feel" doctrine since the release of Evans. See, e.g., State v. Richardson (1994), 94 Ohio App.3d 501; State v. Sutherland (1994), 92 Ohio App.3d 840; State v. Hunter (Nov. 3, 1994), Cuyahoga App. No. 66843, unreported; McCulley; Rahmon. We would not hesitate to reverse the trial court's grant of appellee's motion to suppress if only Det. Smith had conducted a lawful investigative stop of appellee. Assuming arguendo the stop was proper, the totality of the circumstances, including Det. Smith's immediate recognition of the object in appellee's pocket, would have supported a finding of probable cause, and thus the removal of the object. Dickerson; see, also, State v. Morris (1988), 48 Ohio App.3d 137 (a police officer may become aware of additional factors which increase the officer's reasonable suspicion into probable cause to believe that certain items may be contraband during a stop and frisk based upon reasonable suspicion). However, a police officer must have a reasonable suspicion supported by articulable facts that criminal activity is imminent -11- in order to justify an investigative stop and search under Terry. Under the totality of the circumstances approach, a court must consider the "whole picture" in determining the reasonableness of an investigative stop and search. State v. Andrews (1991), 57 Ohio St.3d 86; State v. Williams (1990), 51 Ohio St.3d 58; State v. Bobo (1988), 37 Ohio St.3d 177. Trial courts must also give due deference to the investigating officer's experience and training when considering the totality of the circumstances. The totality of the circumstances must be viewed through the eyes of a reasonable and prudent police officer. Andrews, 88; State v. Freeman (1980), 64 Ohio St.2d 291, 295. A reviewing court must furthermore recognize that under the totality of the circumstances, wholly lawful conduct, when taken together with other factors or circumstances, may amount to reasonable suspicion that criminal activity is imminent. United States v. Sokolow (1989), 490 U.S. 1, 9, 109 S.Ct. 1581, 1586, 104 L.Ed.2d 1, 11. Herein, under the totality of the circumstances, this court concludes that the stop and frisk of appellee was not reasonable and not supported by articulable facts demonstrating that Det. Smith had a reasonable suspicion that criminal activity was imminent and that appellee might be armed and dangerous. Initially, we acknowledge Smith's experience and training in the context and the fact that the arrest was made in an area of high drug activity. However, Smith was not present in the area as a result of a specific complaint that evening, but was merely on -12- routine patrol. It was still light outside, and though Smith observed a group of males, with some beckoning to cars, appellee was not seen beckoning, nor was there any interaction between passengers in cars and any member of the group. Smith admitted during the suppression hearing that he did not see appellee do anything illegal, including up until the time appellee entered the restaurant. Appellee's quick exit from the restaurant does not alter our conclusion that Smith could not identify specific and articulable facts which warranted an investigative stop. Cf. State v. Walker (1993), 90 Ohio App.3d 132 (this court routinely holds that investigative stops are not justified when defendant merely runs when approached by a police officer in an area of drug activity). We are fully aware that independent innocent acts, when combined, may amount to a reasonable suspicion of criminal activity, Sokolow, but we do not find this to be the case here. In conclusion, we reject the trial court's conclusion that Det. Smith could not remove the object from appellee's pocket once he realized the object was not a weapon. The "plain feel" doctrine set forth in Dickerson has been extended to this state, contrary to the court's interpretation of Evans. However, the "plain feel" exception to a warrantless search may only be applied when the officer's initial stop of a suspect meets the totality of the circumstances standard set forth in Bobo and its progeny. We do not find that Det. Smith's investigative stop of appellee was justified under this standard, and accordingly affirm the trial -13- court's grant of appellee's motion to suppress based upon an unreasonable investigative stop. The state's assignment of error is overruled. Judgment affirmed. -14- It is ordered that appellee recover of appellant his 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 Cuyahoga County 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. JOHN T. PATTON, CHIEF JUSTICE, DISSENTS DISSENTING OPINION ATTACHED. SARA J. HARPER, JUDGE 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 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 -15- NO. 68349 STATE OF OHIO : : DISSENTING Plaintiff-appellant : : JOURNAL ENTRY -vs- : AND : OPINION ANDRE BADLEY : : Defendant-appellee : : DATE NOVEMBER 9, 1995 PATTON, C.J., DISSENTING: While I agree the trial court properly admitted the seized crack cocaine under the plain feel exception enunciated in Minnesota v. Dickerson (1993), 508 U.S. ___, 113 S.Ct. 2130, I disagree with the majority's finding that the arresting officer failed to set forth a reasonable suspicion of criminal activity sufficient to justify an investigatory stop. I believe the facts presented at the suppression hearing showed the arresting officer had a reasonable suspicion supported by articulable facts that criminal activity may have been occurring. Consequently, I respectfully dissent. In United States v. Sokolow (1989), 490 U.S. 1, 9-10, the court stated: -2- "We said in Reid v. Georgia, 448 U.S. 438, 100 S.Ct. 2752, 65 L.Ed.2d 890 (1980) (per curiam), `there could, of course, be circumstances in which wholly lawful conduct might justify the suspicion that criminal activity was afoot.' *** Indeed, Terry itself involved `a series of acts, each of them perhaps innocent' if viewed separately, `but which taken together warranted further investigation.' ***We noted in Gates, *** that `innocent behavior will frequently provide the basis for a showing of probable cause,' and that `[i]n making a determination of probable cause the relevant inquiry is not whether particular conduct is `innocent' or `guilty,' but the degree of suspicion that attaches to particular types of noncriminal acts.' That principle applies equally well to the reasonable suspicion inquiry." (citations omitted). I find these legal principles apply to establish a reasonable suspicion of criminal activity. The stop occurred at 6921 Superior Avenue, an area of the city which had been the subject of numerous citizen and councilmanic complaints of drug sales, alcohol use and illegal gambling. In fact, the officer testified the presence of a public library frequented by both children and adults prompted the mayor's office to request additional surveillance in the area. Approximately thirty arrests had been made at that location, and officers of the police department's Sixth District routinely patrolled the area as a result of these continuing complaints. The arresting officer saw a group of five or six males standing on Superior Avenue, "waving in a beckoning motion to the cars that passed by ***." While the officer did not see defendant waving at passing cars, he explained why the beckoning motion was significant to him: -3- "*** I've made a lot of arrests connected with males beckoning for cars to stop. And this sort of connotates that I'm the seller and I have what you need if you're looking for drugs. And generally if a customer do come up that's what they're looking for, someone to come up. And they beckon to them and they point to themselves (so indicated) in that kind of manner. So it draws your attention to the fact that this might be a seller who's beckoning someone who's looking for drugs to draw attention to him." As the officers approached the group in their unmarked cars, the males all turned and met the officer's gaze. The males turned away from the officer and went the other way. The officer followed defendant and observed him walk into a restaurant. Defendant "walked in and turned around and walked back out." This took less than ten seconds. Although the officer did not assign any great importance to defendant's act of walking in the restaurant, "*** the fact that he turned around and came back out sort of aroused my suspicion, again, that he didn't go in there to take care of any business as far as the restaurant was concerned. I thought he was just trying to avoid us." Under the totality of the circumstances, these facts demonstrate the officer had a reasonable suspicion to suspect defendant had been engaging in criminal activity. State v. Bobo (1988), 37 Ohio St.3d 177, paragraph one of the syllabus. While standing with a group of males in an area known for drug sales, waving at passing cars, and hiding from the police are separately -4- 1 innocent acts , in this case they combined to give the arresting officer something more than a hunch that an investigative stop would have a fair probability of uncovering contraband or evidence of a crime. Sokolow, supra, at 7. He reached his conclusion in light of his extensive police experience with drug arrests and his knowledge of the area. See United States v. Cortez (1981), 449 U.S. 411, 418. Accordingly, I find the trial judge abused her discretion by denying the motion to suppress the cocaine seized in the investigative stop. Because I would sustain the assignment of error, I respectfully dissent. 1 While our cases have found running from police officers does not itself justify a Terry stop, see, e.g., State v. Walker (1993), 90 Ohio App.3d 132, this view may no longer be accurate under recent caselaw. See California v. Hodari D. (1991), 111 S.Ct. 1547, 1549, fn.1 ("That it would be unreasonable to stop for brief inquiry, young men who scatter in panic upon the mere sighting of the police is not self-evident, and arguably contradicts proverbial common sense. See Proverbs 28:1 [`The wicked flee when no man pursuath'] ***."); United States v. Lang (C.A.6 1990), 909 F.2d 895, cert. denied (1991), 498 U.S. 1093 (where two uniformed officers entered building and four males began running away from officers, their flight invited pursuit and supplied officers with reasonable basis for conducting investigative stop). In any event, this issue is not before us since the arresting officer affirmatively stated defendant's flight alone did not raise his suspicions. It was only after .