COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68934 : ACCELERATED DOCKET STATE OF OHIO : : : JOURNAL ENTRY Plaintiff-Appellant : : and -vs- : : OPINION DWIGHT GOODMAN : : : Defendant-Appellee : PER CURIAM : : DATE OF ANNOUNCEMENT OF DECISION : FEBRUARY 8, 1996 CHARACTER OF PROCEEDING : Criminal appeal from Common Pleas Court Case No. CR-320175 JUDGMENT : REVERSED AND REMANDED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellant: For defendant-appellee: STEPHANIE TUBBS JONES DAVID MAISTROS Cuyahoga County Prosecutor 800 Standard Building DENISE R. CAMERON, Assistant 1370 Ontario Street 8th Floor - Justice Center Cleveland, Ohio 44113 1200 Ontario Street Cleveland, Ohio 44113 - 2 - PER CURIAM: This matter is presented to our court upon the accelerated calendar pursuant to App.R. 11.1 and Loc.R. 25, which provide that the statement of the reason for the court's decision as to each assignment of error shall be in brief and conclusionary form or issued in a memorandum decision. The State of Ohio appeals the decision of the trial court granting appellee Dwight Goodman's motion to suppress evidence. As this decision was not in accord with law, we reverse. The circumstances which led to Goodman's arrest began on January 27, 1995, when Detective Sims of the Cleveland Police Department Fifth District Vice Unit observed Goodman talking and waving to motorists in the vicinity of East 97th Street and Cedar Avenue in Cleveland, Ohio. On three occasions, Sims, who was using binoculars, saw Goodman engage in conversation with stopped motorists and saw one transaction where something had been exchanged with the driver. At that point, Sims and his partner drove to Goodman's location to further investigate this suspected drug trafficking. As Goodman saw the vehicle approach, he began to walk away. Upon stopping appellee, Sims asked for identification, which Goodman failed to produce, so Sims patted him down for safety prior to placing him in the back seat of the police car. In conducting the pat-down, Sims felt a hard object in appellee's left front pocket which he believed could have been - 3 - a knife or other weapon, so he took it from appellee's pocket. The object, marked State's Exhibit 1, is described as a three- to four-inch-long glass vial with one jagged, pointed edge (commonly referred to as a crack pipe), which was confiscated by the officers, tested for drug residue and found to contain cocaine. The Cuyahoga County Grand Jury subsequently indicted Goodman for possession of cocaine, and the trial court, after holding a hearing, granted defendant's motion to suppress the evidence, finding the officers justified in conducting a pat-down under Terry v. Ohio (1968), 392 U.S. 1, but not justified in removing the object from the appellant's pants pocket. Pursuant to Crim.R. 12(J), the State of Ohio now appeals from this ruling and assigns the following as error for our review: THE TRIAL COURT ERRED IN SUPPRESSING THE EVIDENCE WHERE THE ARRESTING OFFICER CONDUCTED A TERRY PAT-DOWN SEARCH FOR WEAPONS AND DISCOVERED A HARD OBJECT THAT HE BELIEVED WAS A WEAPON. In Terry v. Ohio, supra, the Court, in dealing with a situation where a police officer patted down the outer surface of the petitioner's clothing, considered "whether the officer's action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place." The Court further stated the crux of the case concerned whether "there was justification for [the officer's] invasion of Terry's personal security by - 4 - searching him for weapons in the course of that investigation." In Terry, the Court held: The sole justification of the search in the present situation is the protection of the police officer and others nearby, and it must therefore be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer. The scope of the search in this case presents no serious problem in light of these standards. *** The Ohio Supreme Court, in State v. Evans (1993), 67 Ohio St.3d 405, stated in paragraph two of the syllabus: When an officer is conducting a lawful pat- down search for weapons and discovers an object on the suspect's person which the officer, through his or her sense of touch, reasonably believes could be a weapon, the officer may seize the object as long as the search stays within the bounds of Terry v. Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889. In this case, the judge stated in the transcript of proceedings that the officer "was entitled to make a Terry pat down." Here, then, we need to consider if, when making such a pat- down, an officer discovers what he believes to be a knife but which is, in fact, a three- to four-inch-long glass vial with a pointed, jagged edge, that officer may retrieve it. Under Evans, supra, the law says such officer "may seize the object as long as the search stays within the bounds of Terry ***." In Minnesota v. Dickerson (1993), 508 U.S. ____, 124 L.Ed.2d 334, the Court stated: - 5 - We have already held that police officers *** may seize contraband detected during the lawful execution of a Terry search. *** For the trial court, then, to require the officer who suspected an object to be a knife to then ask the suspect to either identify or remove it from his pocket neither fits within the Terry bounds nor is the law in the State of Ohio. Accordingly, the judgment of the trial court to suppress State's Exhibit 1 is reversed, and the matter is remanded to the trial court for further proceedings consistent with Terry v. Ohio, State v. Evans, and this opinion. Reversed and Remanded. - 6 - This cause is reversed and remanded to the lower court for further proceedings consistent with this opinion. It is ordered that appellant recover of appellee 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 Cuyahoga County Court of Common Pleas 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. JAMES D. SWEENEY, PRESIDING JUDGE TERRENCE O'DONNELL, JUDGE PATRICIA BLACKMON, JUDGE, DISSENTS (See Dissenting Opinion attached) N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment 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. - 7 - COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68934 : STATE OF OHIO : : Plaintiff-Appellant : : D I S S E N T I N G -vs- : : O P I N I O N : DWIGHT GOODMAN : : Defendant-Appellee : : DATE: FEBRUARY 8, 1996 BLACKMON, J., DISSENTS: For the following reasons, I respectfully dissent from the decision of the majority. I believe the trial court properly granted the motion to suppress. I agree with the trial court's reasoning that the officers were not justified in reaching into Goodman's pocket and removing the hard object. The U.S. Supreme Court has recognized that a police officer need not ignore contraband he finds during a lawfully conducted pat down search of a suspect. Minnesota v. Dickerson (1993), 508 U.S. ___,___, 113 S.Ct. 2130,2136, 124 L.Ed.2d, 334,345. If, during a lawful pat down search of a suspect's outer clothing, a police officer feels an object whose contour or mass makes it - 9 - immediately apparent that the object is contraband, the officer may seize the object without a warrant. Id. at 2137 (Emphasis added). In this case, Officer Sims did not know what the hard object was when he felt it. At the suppression hearing, he testified that he did not think the object was a gun. He said he did not know if it was a weapon or not. He stated it "could have been" or "may have been" a knife but also stated it "could have been" a crack pipe. Sims' testimony reveals he did not immediately recognize the object as contraband. Consequently, he failed the .