COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69219 STATE OF OHIO, : : Plaintiff-Appellee : : JOURNAL ENTRY vs. : and : OPINION ETHEL HARDY, : : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION : MARCH 7, 1996 CHARACTER OF PROCEEDING : Criminal appeal from : Common Pleas Court : Case No. CR-315951 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: Leo Gorie Assistant County Prosecutor The Justice Center - 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: Donald Green Assistant Public Defender 100 Lakeside Place 1200 West Third Street, N.W. Cleveland, Ohio 44113-1569 -2- NAHRA, J.: Defendant-appellant Ethel Hardy appeals from the trial court order which denied her motion to suppress evidence. At the hearing on appellant's motion, the state presented the testimony of officer Guy Sako. Sako testified that the incident which led to appellant's arrest occurred at approximately 3:15 a.m. on August 14, 1994. Sako testified that at the time of the incident he was a five- year veteran of the Cleveland Police Department who had spent his whole career in the Fourth District. That district included an area known as the Garden Valley Estates. Sako personally had made over sixty drug arrests in Garden Valley Estates; fifteen of those arrests had occurred in the month preceding August 14, 1994. Moreover, the officers of his district received numerous complaints of drug activity in that area and received "almost nightly radio assignments to go down there and assist the security guards chasing the drug dealers away." On the night of the incident, Sako was in uniform and was with his partner in a marked zone car. The officers proceeded to Garden Valley Estates, exited their car, and set up an observation post near a fence which was screened by bushes. From their unobstructed vantage point, the officers could observe the area of the intersection of East 79th Street and Garden Valley, where the parking lot for the apartment buildings was located. The officers' post was approximately one hundred to one hundred fifty feet away from the buildings. -3- Sako was equipped for this enterprise with binoculars. He surveilled the well-lit parking lot, "particularly in front of [apartment building number] 7851." On cross-examination, Sako testified he focused most of his attention there because in his experience that address was "where 99 percent of the drug activity occurs." Sako had observed the area for only a short time before a vehicle arrived. It attracted his attention because it was "the only vehicle." It entered Garden Valley from East 79th Street, parked adjacent to the parking lot, and shut off its lights. Sako observed a woman, later identified as appellant, exit the car through the front passenger door. The driver remained inside of the vehicle. Appellant walked up to a man standing in front of number 7851 and spoke to him a brief moment. Then another man came from "between" 7851 and the next building and approached appellant and her companion. The man walked up to appellant; she hugged him a couple of times, then she stood back. The man put his hand in his left pants pocket and pulled out a plastic sandwich bag. With appellant "looking into" the bag, the man "pushed through" the objects which it contained. Finally, he pulled a small object out and handed it to appellant. Appellant "looked at it for a second," then she again hugged the man a couple of times before proceeding back to the car parked in the street. Sako testified that in his experience, people engaging in drug activity "almost always keep their drugs in a sandwich bag." He -4- further testified on recross-examination that in his experience, drugs were not exchanged for money in every case: if a female lacked funds, she could sometimes for a hug or a kiss receive from the drug dealer the "shake," i.e., the pieces of rock cocaine from "the bottom of the bag" which were broken too small for the seller to use. He testified appellant's encounter with the man lasted "maybe two minutes." He stated he had seen drug transactions done in the same manner "hundreds of times." As appellant returned to the car, a woman met her and they proceeded together to the street. The woman entered the back seat while appellant again sat in the front passenger seat. Meanwhile, the man "disappeared" between the apartment buildings. By this time, Sako had determined to stop the car because he suspected appellant had just received some cocaine. As the car drove away, he ran to the zone car, picked up his partner, who had been maintaining visual contact with appellant's vehicle, and shortly thereafter, pulled the vehicle over. Sako approached the driver's side of the vehicle while his partner approached appellant's door. Sako's partner was carrying a powerful flashlight, with which he illuminated the car as the officers stood next to it. As he was speaking with the driver, Sako observed appellant move her left hand from her lap down to the seat, place two small white objects next to her leg, then pull her hand back up to her lap. Sako believed the objects to be rocks of crack cocaine; therefore, appellant was asked to step out of the car and was -5- placed under arrest. Sako retrieved the objects, which later tested positive for cocaine. Subsequent to the hearing, the trial court overruled the motion. Thereafter, appellant notified the trial court that she desired to change her plea of not guilty to a plea of no contest. The trial court accepted appellant's no contest plea, found appellant guilty of the charge, and sentenced appellant accordingly. In this timely appeal, appellant presented the following as her sole assignment of error: THE TRIAL COURT ERRED IN NOT GRANTING APPELLANT'S MOTION TO SUPPRESS EVIDENCE SEIZED IN VIOLATION TO (SIC) THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION. Appellant contends that at the hearing on her motion to suppress, Officer Sako failed to state sufficient articulable facts to justify the investigatory stop of the car in which she was riding. This court finds appellant's argument 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 -6- to events as they unfold. State v. Freeman (1980), 64 Ohio St.2d 291, 295. 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; State v. Bobo (1988), 37 Ohio St.3d 177. Several factors may be taken into consideration when reviewing the police officer's actions pursuant to this standard. State v. Bobo, supra. When the circumstances of this case are considered in light of these factors, it is clear Sako and his partner were justified in stopping appellant. Sako was an experienced police officer who was not only familiar with the area, its reputation, and the complaints received about drug sales there, but who himself had made numerous arrests in the very location appellant was seen. It was 3:15 in the morning. Very few vehicles or people were moving around. As he thoroughly explained, Sako observed a car drive up, appellant go to that location, and then witnessed an episode between appellant and a man who appeared as if by appointment that "fit[] the characteristics of hundreds of drug deals that I've seen in my five years." -7- Appellant's action in hugging the man, the man's display and removal of an object from a small plastic bag, and the brevity of the encounter were all circumstances which gave rise to Sako's reasonable suspicion that a drug transaction had taken place. State v. Hunter (1994), 98 Ohio App.3d 632; State v. Gilbert (Sept. 22, 1994), Cuyahoga App. No. 66269, unreported; State v. Roberson (Dec. 8, 1994), Cuyahoga App. No. 66707, unreported; cf., State v. Lockett (1994), 99 Ohio App.3d 81. Thus, they constituted sufficient articulable facts upon which to base an approach and a stop of appellant. State v. Bobo, supra; State v. Andrews, supra; cf., Sibron v. New York (1968), 392 U.S. 40; State v. Eppinger (1991), 74 Ohio App.3d 503. Moreover, when Sako observed the rocks of crack cocaine on the seat next to appellant, he had probable cause for appellant's arrest. State v. Williams, supra. Furthermore, the foregoing recitation of articulable facts demonstrates State v. Carter (1994), 69 Ohio St.3d 57, upon which appellant relies as authority justifying reversal of the trial court's decision, is inapposite to this case; in Carter, no articulable facts were found. Accordingly, appellant's sole assignment of error is overruled and appellant's conviction is affirmed. -8- 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. SPELLACY, C.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 .