COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68643 STATE OF OHIO, : : Plaintiff-Appellee : : JOURNAL ENTRY vs. : and : OPINION ALEX L. SMITH, : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION : JANUARY 18, 1996 CHARACTER OF PROCEEDING : Criminal appeal from : Common Pleas Court : Case No. CR-311685 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: Blaise D. Thomas Assistant County Prosecutor The Justice Center - 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: Richard H. Drucker 1468 W. Ninth Street Suite 810 Cleveland, Ohio 44113 -2- NAHRA, J.: Appellant, Alex L. Smith, is appealing his conviction for possession of heroin in over three times the bulk amount, transportation of heroin, possession of criminal tools, carrying a concealed weapon and possession of a weapon while under a disability. He contends the police discovered the heroin and weapon by violating his fourth amendment rights. For the following reasons, we affirm. Patrolman Martin Rudin testified that while he was patrolling the area of East 101st and Cedar, a citizen not known by Rudin, flagged down his vehicle. The citizen stated that a few minutes ago, shots had been fired from the passenger side of a red van with dark tinted windows, driving in the area of 105th and Cedar. He further stated that the passenger of the van was an "older male." The informant refused to identify himself. Within ten minutes of leaving East 101st, Rudin spotted a red van on East 105th, with tinted windows, containing two occupants, appellant and his father. The van was not observed violating any laws. The father was seated in the passenger seat. Rudin and other police officers, who had responded to Rudin's call for back- up, blocked in the van. Appellant and his father were ordered out of the van. Rudin conducted a pat down search of appellant's father. Patrolman Joseph Bujnak, who had responded as back-up, testified that he looked into the open van door to see if anyone -3- else was in the van. Bujnak did not enter the van. He observed the butt of a gun between the two front seats, in plain view. The appellant and his father were then arrested. The heroin was discovered during an inventory search of the van. Appellant presents two assignments of error, which are discussed together in his brief. They state: THE TRIAL COURT ERRED WHEN IT DENIED THE DEFENDANT'S MOTION TO SUPPRESS. THE STOP AND SEARCH OF THE DEFENDANT'S VEHICLE CONSTITUTED A VIOLATION OF HIS RIGHT TO BE FREE OF UNREASONABLE SEARCHES AND SEIZURES UNDER THE FOURTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 14 OF THE OHIO CONSTITUTION. WHERE A STOP IS A PRETEXT TO ENABLE OFFICERS TO SEARCH FOR DRUGS AND WEAPONS THE SEARCH IS UNREASONABLE AND VIOLATES THE FOURTH AMENDMENT OF THE UNITED STATES CONSTITUTION. EVIDENCE FROM THAT STOP MUST BE SUPPRESSED. An investigative stop may be performed based upon an officer's reasonable suspicion that the individual is or has been involved in criminal activity. Terry v. Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889. The officer may conduct a limited search for weapons, if the officer reasonably believes the suspect is armed and dangerous. Id. The propriety of an investigative stop must be viewed in light of the totality of the circumstances. State v. Bobo (1988), 37 Ohio St.3d 177. Where specific details of an anonymous tip are corroborated by police, they have reasonable suspicion to make an investigatory stop and weapons search. Alabama v. White (1990), 496 U.S. 325, 110 St.Ct. 2412; Terry v. Ohio (1968), 392 U.S. 1; State v. Andrews (1991), 57 Ohio St.3d 86. State v. Martin (March 14, 1991), Cuyahoga App. No. 59976, unreported. The fact that the tipster was an eyewitness to a crime -4- that had just occurred may be considered in the totality of the circumstances. See Adams v. Williams (1972), 407 U.S. 143, 147, 92 S.Ct. 1921, 1924, 32 L.Ed.2d 612, 617, State v. Hilliard (Sept. 22, 1994), Cuyahoga App. No. 66270, unreported, at 14. State v. Campbell (1990), 68 Ohio App.3d 688, People v. Tooks (S.C. Mich. 1978), 403 Mich. 568, 271 N.W.2d 503. In this case, the tipster was a citizen who had just observed shots being fired from a van. The police located the van in a short time span, in the area designated by the informant. The van matched the description given by the informant: a red van with dark tinted windows, containing an older male passenger. The incident occurred at 2 a.m., when traffic was light. Under these circumstances, the officers had reasonable suspicion to believe it was the same van. Bobo, Hilliard, supra. The stop was not pretextual but was justified by a reasonable suspicion based on articulable facts; namely, an informant's tip corroborated by police observation. The police had reason to believe appellant and/or his father were armed, so it was reasonable to order appellant and his father from the van, and conduct a pat down search. Seizure of the gun and the heroin was permitted under the plain view doctrine. Horton v. California (1990), 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112, State v. Halcyczak (1986), 25 Ohio St.3d 301. Appellant's Fourth Amendment rights were not violated. Accordingly, appellant's assignments of error are overruled. The decision of the trial court is affirmed. -5- 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. PORTER, 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 .