COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69284 STATE OF OHIO : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION MAX NIEVAS : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: CHARACTER OF PROCEEDING: CRIMINAL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CR-316865 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor BY: JOHN GALLAGHER (#0036750) Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: JAMES A. DRAPER Cuyahoga County Public Defender BY: ARTHUR A. ELKINS (#0061094) Assistant Public Defender 100 Lakeside Place 1200 West Third Street Cleveland, OH 44113-1569 - 3 - SPELLACY, C.J.: Defendant-appellant Max Nievas ("appellant") appeals his con- viction for one count of drug abuse in violation of R.C. 2925.11. Appellant raises the following assignment of error: THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT'S MOTION TO SUPPRESS THE PHYSICAL EVIDENCE SEIZED AT THE TIME OF HIS ARREST. Finding the assignment of error to be without merit, we affirm. I. At the suppression hearing, Vice Detective Bernard Norman, a nine year veteran of the Cleveland Police Department, testified that on September 30, 1994, at approximately 1:00 p.m., he was patrolling the area of West 30th and Althen. Norman testified that this area was one which was known for heavy drug trafficking. In fact, the area in question was the subject of numerous complaints regarding high drug activity and "at one time it was the hottest area for drug sales in the entire Second District." (Tr. 7). On the date in question, Detective Norman was traveling down Clark Avenue in Cleveland, Ohio. As the detective was driving by W. 30th and Althen, he noticed a car stopped on the corner with the engine still running. Detective Norman also observed appellant walking toward the car with a clenched fist. To further observe the situation, Detective Norman proceeded to pull up behind the stopped car. At that point, the stopped car sped away and appel- lant began walking away. - 4 - Detective Norman, believing that he had interrupted a drug sale, stepped out of his vehicle and called for appellant to come over to him. Appellant turned his back to the detective and was observed putting something into his mouth. Detective Norman knew that, "It's common, very common in this area, that the drug dealers carry their cocaine in their mouth, both because a lot of people don't know to check there, and then because it can be easily swallowed and the evidence not obtainable." (Tr. 10). Appellant then proceeded to make his way to Detective Norman, at which time Detective Norman asked appellant, "What did you put in your mouth? Let me see." (Tr. 10). Appellant opened his mouth and a rock of cocaine was on his tongue. Detective Norman removed the rock and placed appellant under arrest. II. In his first assignment of error, appellant contends that his motion to suppress should have been granted because Detective Norman lacked the sort of articulable facts and circumstances which would give rise to a reasonable suspicion that criminal activity was taking place. Appellant further contends that his behavior of approaching a parked car with his fist clenched did not rise to the requisite level of reasonable suspicion necessary to justify an investigative stop. According to appellant, a mere hunch was not enough. - 5 - A. This court has held that where a police officer has the requi- site reasonable and articulable suspicion, he may make an investigatory stop. See, State v. Victor (1991), 76 Ohio App.3d 372; State v. Kinds (October 28, 1993), Cuy. App. No. 65243, unreported. The court in Terry v. Ohio (1968), 392 U.S. 1, has provided that an investigative stop must be reasonable from its inception based upon "specific articulable facts, which, taken together with rational inferences from those facts, reasonably warrant intrusion." Terry, at 21-22. It has been further held that courts must also take into consideration the totality of the circumstances when determining whether an investigative stop was reasonable. A court must base its assessment upon all of the circumstances, including various objective observations, information from police reports, if such are available, and consideration of the modes or patterns of operation of certain kinds of lawbreakers. United States v. Cortez (1981), 449 U.S. 411, at 419. An assessment of the whole picture "must yield a particularized suspicion *** that the process just described must raise a suspicion that the particular individual being stopped is engaged in wrongdoing." Id. The court in State v. Bobo (1988), 37 Ohio St.3d 177, [certiorari denied (1988), 488 U.S. 910] set forth specific factors for courts to consider when determining whether an investigative stop was justified: - 6 - 1) the area was characterized by high drug activity; 2) it was nighttime; 3) the police officer was experienced; 4) the police officer knew how drug transactions took place; 5) the officer saw the defendant do something suspicious; 6) the officer's experience led him to recognize the suspicious act of defendant as the type of act usually done when defendant is involved in an illegal activity; 7) the police officers were away from the protection of their vehicle. In the case sub judice, the investigative stop of appellant was reasonable. The incident took place in an area of high drug activity. In fact, the area had been characterized in the summer of 1994 as "the hottest area for drug sales in the entire Second District." Furthermore, Detective Norman had spent six of his nine years with the Cleveland Police Department in the vice unit, where "about 90% of our work is drug-related work." (Tr. 5). Detective Norman's particular role was surveillance in connection with drug trafficking. In the area of W. 30th and Althen Ave., Detective Norman testified that he had "conducted hundreds of hours of surveillance in that area *** and observed over a hundred drug sales right there at that corner." (Tr. 7). Detective Norman's experience led him to recognize the suspicious acts of the - 7 - appellant as the type of acts usually done when one is involved in illegal drug activity. Accordingly, based upon the totality of the circumstances, the detective possessed, at minimum, the requisite reasonable cause to detain the appellant, and investigate further the circumstances that aroused his suspicions. See United States v. Place (1983), 462 U.S. 696, See also, State v. Lane (July 11, 1991), Cuyahoga App. No. 58827, unreported. "The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. *** A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time. ***" Bobo, 37 Ohio St.3d at 180. B. Appellant argues that the search conducted by Detective Norman was done without a search warrant and that Detective Norman lacked the requisite probable cause for a search warrant to be issued. This court has held in a case similar to the one sub judice, that a police officer possesses the requisite probable cause to believe defendant was committing or had committed a drug offense, where the officers, after revealing their identity to the defendant, observed the defendant turn his back towards them and place something into his mouth. State v. Victor (1991), 76 Ohio - 8 - App.3d 372. In Victor, this court found that the police officers, based on their observations of defendant's actions and the totality of the circumstances, had adequate constitutional grounds for the arrest of defendant. Similar to the facts presented in Victor, Detective Norman, after identifying himself as a police officer, observed appellant turn his back toward him and place something in his mouth. The suspicious movements made by the appellant and observed by the detective allowed the detective to reasonably infer that the appellant did, in fact, possess drugs which he attempted to hide in his mouth. Cf. Sibron v. New York (1968), 392 U.S. 40; State v. Woods (December 12, 1985), Cuyahoga App. No. 49892, unreported. Based upon the totality of the circumstances, including: Detective Norman's experiences and familiarity with the modus operandi of drug offenders; the fact that defendant's activities occurred in an area under investigation for drug sales; coupled with the observation of defendant's actions when Detective Norman ask appellant to come over to him, this court finds that Detective Norman possessed constitutionally adequate grounds for the investigative stop and subsequent search of appellant for drugs. Victor, 76 Ohio App.3d at 376. Accordingly, appellant's assignment of error is overruled. Judgment affirmed. - 9 - 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. SARA J. HARPER, J. AND DIANE KARPINSKI, J., CONCURS. LEO M. SPELLACY CHIEF JUSTICE 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 .