COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70900 STATE OF OHIO : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION CORDELL FELLOWS : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION MAY 22, 1997 CHARACTER OF PROCEEDING Criminal appeal from Court of Common Pleas Case No. CR-330890 JUDGMENT Affirmed DATE OF JOURNALIZATION APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES MYRON P. WATSON, ESQ. Cuyahoga County Prosecutor Courthouse Square Building LISA REITZ WILLIAMSON, Asst. 310 Lakeside Avenue Prosecuting Attorney Suite 350 1200 Ontario Street Cleveland, Ohio 44113 Cleveland, Ohio 44113 - 2 - JAMES M. PORTER, J., Defendant-appellant Cordell Fellows appeals from his convictions following a bench trial for drug trafficking (R.C. 2925.03), drug abuse (R.C. 2925.11) and possession of criminal tools (R.C. 2923.24). Defendant contends the trial court erred in not granting his motion to suppress evidence procured at the time of arrest and in not granting defendant's motion to acquit under Crim.R. 29(A). We find no error and affirm. At the suppression hearing, Officer Franklin Thompson, a Cleveland police officer, testified to his experience with drug related crimes. He stated his familiarity with such activity in the East 123rd and St. Clair Avenue area and the Shell gas station there. It was a well known, drug-infested area and he had been instructed at roll call to give it special attention. He had observed at least 20 or 30 drug transactions occur in this area prior to the incident at issue. At approximately 2:00 a.m. on July 9, 1995, Officer Thompson and his partner, Kennedy Jones, were traveling eastbound on St. Clair near the intersection of E. 123rd when Thompson noticed a Buick stopped in the middle of the street hindering the flow of traffic on East 123rd Street. There were two occupants in the front seat of the vehicle. The Buick took off and Thompson, suspicious of drug activity, decided to follow it. Thompson ran the license plate and learned the temporary tag on the vehicle was "expired." Using overhead lights and siren, the - 3 - officers pulled the Buick over on Locke Avenue. The officers learned the driver did not have a driver's license. They decided to arrest the driver and tow the car per customary procedure. Thompson recognized the driver as one formerly involved in drug activity. After the driver was placed in the zone car, Thompson removed the passenger, defendant herein, whom he did not recognize and patted him down for safety reasons and checked him for warrants. Thompson testified he felt something he believed to be crack cocaine in the passenger's rear pocket. Upon feeling this, Thompson asked the passenger, "What's this?", to which the passenger replied: "Only marijuana." Thompson then pulled out of the defendant's pocket a plastic bag with rocks of cocaine. Thompson identified the defendant in the courtroom as the passenger from whom he confiscated the cocaine. On cross-examination, Thompson testified that the Buick was parked in the middle of the street committing a traffic violation; that the expired plate was the probable cause for pulling the car over; and that the driver was arrested because he had no driver's license. Thompson testified that for his safety he pats down passengers in vehicles that are stopped for traffic violations. He also stated that he did not squeeze the object in the defendant's pocket, but tapped it with his fingertips. He also stated that in his experience, when he finds one individual in a vehicle who is - 4 - connected with drugs, other people in the vehicle are also somehow connected with drugs. No witnesses were called by defendant at the suppression hearing. The court overruled the motion. The trial court later issued findings of fact and conclusions of law holding the officers had probable cause to stop the Buick after discovering expired plates and the confiscation of the cocaine was proper. The court concluded: For the reasons set forth above, the Court concludes that the expired tag was sufficient to justify stopping the vehicle and questioning the driver; that the admission that he had no driver's license supported the decision to arrest the driver, tow the car, and frisk the passenger for the protection of the officers in the process of making a valid arrest; and that the admission by defendant that he had contraband (marijuana) in his pocket was sufficient to establish probable cause for Officer Johnson [sic] to pull that packet out of defendant's pocket. On May 29, 1996, a bench trial commenced. The testimony of Officer Thompson at the suppression hearing was incorporated as trial testimony. The State called Thompson's partner, Officer Jones, an experienced police officer, who essentially corroborated Thompson's testimony. Officer Jones identified defendant, Cordell Fellows, in the courtroom. Jones observed Thompson remove from defendant a small plastic bag with eleven rocks of what was later positively identified as cocaine. Jones stated the cocaine was in a plastic bag with the top ripped off, which he stated is customary, as he - 5 - previously described, and was removed from defendant's back pants pocket. A pager and approximately $170 were also confiscated. He thought it was in denominations of tens and twenties. Jones stated that drug sellers very commonly carry pagers, but those who use drugs, do not. Officer Jones stated that based on the amount of drugs and the way they were carried, he opined that the drugs defendant was carrying were carried for the purpose of being sold. Officer Jones stated on cross-examination, in his experience, usually when drugs and money are present on a person, the person is involved in narcotic trafficking. The trial court denied defendant's motion for judgment of acquittal under Crim.R. 29(A). Defendant called no witnesses. The court then found defendant guilty of all three counts in the indictment. Defendant was sentenced according to law and this timely appeal ensued. We will address defendant's assignments of error together where they are interrelated and for ease of discussion. I. THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT'S MOTION TO SUPPRESS EVIDENCE BECAUSE THE EVIDENCE HAD BEEN OBTAINED AS THE RESULT OF AN UNREASONABLE INVESTIGATORY SEARCH AND SEIZURE IN VIOLATION OF APPELLANT'S RIGHTS UNDER FAVOR OF THE FOURTH AMENDMENT. II. THE TRIAL COURT ERRED WHEN IT DENIED THE APPELLANT'S MOTION TO SUPPRESS EVIDENCE BECAUSE THE POLICE OFFICER HAD NO PROBABLE CAUSE TO SEARCH THE APPELLANT IN VIOLATION OF HIS FOURTH AMENDMENT RIGHTS. - 6 - The resolution of these assignments of error depends on the deference we are required to give the trial court's findings and the basis for the traffic stop and search. The scope of our review on a motion to suppress was set forth by this Court in State v. Curry (1994), 95 Ohio App.3d 93, 96: In a motion to suppress, the trial court assumes the role of trier of fact and is in the best position to resolve questions of fact and evaluate witness credibility. State v. Clay (1973), 34 Ohio St.2d 250, 63 O.O.2d 391, 298 N.E.2d 137. A reviewing court is bound to accept those findings of fact if supported by competent, credible evidence. See State v. Schiebel (1990), 55 Ohio St.3d 71, 564 N.E.2d 54. However, without deference to the trial court's conclusion, it must be determined independently whether, as a matter of law, the facts meet the appropriate legal standard. State v. Claytor (1993), 85 Ohio App.3d 623, 627, 620 N.E.2d 906, 908. 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 act, 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 to events as they unfold. State v. Freeman (1980), 64 Ohio St.2d - 7 - 291, 295. As the Supreme Court stated in State v. Williams (1990), 51 Ohio St.3d 58, 60-61: 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. See, also, State v. Andrews (1991), 57 Ohio St.3d 86, 87. It is well settled that once an officer has made a reasonable investigative stop and has a reasonable suspicion that an individual may be armed, "the officer may initiate a protective search for the safety of himself and others." State v. Bobo (1988), 37 Ohio St.3d 177, paragraph two of syllabus. "The purpose of this limited search is not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence ***." Adams v. Williams (1972), 407 U.S. 143 at 146. As the Supreme Court explained in Terry: *** [W]e cannot blind ourselves to the need for law enforcement officers to protect themselves and other prospective victims of violence in situations where they may lack probable cause for an arrest. *** [I]t would appear to be clearly unreasonable to deny the officer the power to take necessary measures to determine whether - 8 - the person is in fact carrying a weapon and to neutralize the threat of physical harm. Terry, supra, at 24. Under the circumstances, therefore, we find that the initial stop, the request to exit the vehicle and the pat down for weapons were within the constitutionally permissible range of Terry and its progeny. The testimony of Officer Thompson established that: the area where they observed defendant was well known to have a high incidence of drug trafficking; it was 2:00 a.m.; a Buick was stopped in the middle of the street hindering the flow of traffic in the area; the Buick took off when it appeared the driver noticed the marked zone car; the Buick's temporary tag was expired; the officer's suspicions were reasonably raised that the occupants of the vehicle may be involved in criminal activity, i.e., drug trafficking. When the temporary license for the vehicle was found to be expired, there was further suspicion of criminal activity and they had the right and the duty to stop the vehicle, determine the driver had no license, and perform a pat down for their safety. The issue remains, however, whether the officer was justified in going into defendant's pocket when he felt a rock, which he immediately knew to be cocaine. This issue was specifically addressed in Minnesota v. Dickerson (1993), 508 U.S. 366, 113 S.Ct. 2130, 2136, where the Supreme Court stated: The question presented today is whether police officers may seize non-threatening contraband detected during a protective patdown search of - 9 - the sort permitted by Terry. We think the answer is clearly that they may, so long as the officer's search stays within the bounds marked by Terry. The Court resorted to the "plain view" analogy by holding that, if an officer by a "sense of touch" detects contraband, even while on a weapons pat down, he has not exceeded the bounds of Terry: If a police officer lawfully pats down a suspect's outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect's privacy beyond that already authorized by the officer's search for weapons; if the object is contraband, its warrantless seizure would be justified by the same practical considerations that inhere in the plain view context. Id. at 2137. We find that the circumstances of the instant case bring the seizure within the parameters of permissible conduct allowed by Terry and the "plain feel" doctrine of Dickerson. Recently, in Maryland v. Wilson (Feb. 19, 1997), U.S. , 117 S.Ct. 882, the United States Supreme Court recognized that "danger to an officer is likely to be greater when there are passengers in addition to the driver in the stopped car." The Court, in holding that the removal of passengers from a lawfully stopped vehicle for a traffic violation was not violative of a passenger's Fourth Amendment rights, stated: [A]s a practical matter, the passengers are already stopped by virtue of the stop of the vehicle. The only change in their circumstances which will result from ordering - 10 - them out of the car is that they will be outside of, rather than inside of, the stopped car. Outside the car, the passengers will be denied access to any possible weapon that might be concealed in the interior of the passenger compartment. Id. Wilson holds that the "Mimms Rule," established in Pennsylvania v. Mimms (1977), 434 U.S. 106, that a police officer may, as a matter of course, order the driver of a lawfully stopped car to exit his vehicle, extends to passengers as well. It would seem that the possibility of a violent encounter stems not from the ordinary reaction of a motorist stopped for a speeding violation, but from the fact that evidence of a more serious crime might be uncovered during the stop. And the motivation of a passenger to employ violence to prevent apprehension of such a crime is every bit as great as that of the driver. Wilson at 886. Officer Thompson's retrieval of the drugs from defendant was proper as well. In Dickerson, supra, the United States Supreme Court held that during a protective search, police officers may seize non-threatening contraband, e.g., drugs, during a pat down search for weapons as long as the officer's search stays within the bounds of Terry. Officer Thompson testified that he felt what he recognized as a rock of cocaine in defendant's pants pocket. He stated that he used his fingertips to pat the pocket, and did not "squeeze" the contents. Since the identity of the pocket contents was immediately apparent to him, and defendant informed the officer that it was marijuana, which is also illegal to possess, Officer - 11 - Thompson was justified in removing the contraband from defendant's pocket, pursuant to the holding in Dickerson, supra. Assignments of Error I and II are overruled. III. THE APPELLANT WAS DENIED HIS FOURTEENTH AMENDMENT RIGHT TO DUE PROCESS OF LAW WHEN THE TRIAL COURT ERRED IN OVERRULING HIS MOTION FOR ACQUITTAL PURSUANT TO RULE 29(A) WITH REGARD TO THE DRUG TRAFFICKING CHARGE WHERE THE CONVICTION ON THAT CHARGE WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE. IV. THE APPELLANT WAS DENIED HIS FOURTEENTH AMENDMENT RIGHT TO DUE PROCESS OF LAW WHEN THE TRIAL COURT ERRED IN OVERRULING HIS RULE 29(A) MOTION FOR ACQUITTAL WITH REGARD TO THE POSSESSION OF CRIMINAL TOOLS CHARGE WHERE THE CONVICTION ON THAT CHARGE WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE. The standard of review with regard to the sufficiency of evidence is set forth in State v. Bridgeman (1978), 55 Ohio St.2d 261, syllabus: Pursuant to Criminal Rule 29(A), a court shall not order an entry of judgment of acquittal if the evidence is such that reasonable minds can reach different conclusions as to whether each material element of a crime has been proved beyond a reasonable doubt. See, also, State v. Apanovitch (1987), 33 Ohio St.3d 19, 23; State v. Davis (1988), 49 Ohio App.3d 109, 113. Bridgeman must be interpreted in light of the sufficiency test outlined in State v. Jenks (1991), 61 Ohio St.3d 259, paragraph two of the syllabus, in which the Ohio Supreme Court held: An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence submitted at trial to determine whether such - 12 - evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. (Jackson v. Virginia [1979], 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, followed.) Quoted and followed in State v. Garner (1995), 74 Ohio St.3d 49, 60. The statute under which defendant was indicted for drug trafficking states: R.C. 2925.03(A)(2) (A) No person shall knowingly do any of the following: * * * (2) Prepare for shipment, ship, transport, deliver, prepare for distribution, or distribute a controlled substance, when the offender knows or has reasonable cause to believe the controlled substance is intended for sale or resale by the offender or another ***. The evidence from which the trial court concluded that the defendant was guilty of drug trafficking was uncontroverted and substantial. Defendant possessed eleven rocks of crack cocaine. Officer Jones testified that in his experience, drug sellers usually have several rocks of cocaine on them, in small baggies with the excess plastic ripped off, as found on defendant. Buyers usually have one or two rocks at the same time. Officer Jones testified that drug transactions often take place from vehicles, - 13 - and may occur where the seller is in a vehicle, driving around to different drug spots. Officer Jones testified that based on the nature of the amount of drugs, and the way the drugs were carried and transported, that the drugs defendant was carrying were for sale. This conclusion is well supported by the authorities. See State v. Wilson (Oct. 3, 1996), Cuyahoga App. No. 69751, unreported, following State v. Jells (1990), 53 Ohio St.3d 22, cert. denied (1991), 111 S.Ct. 1020; State v. Norman (1982), 7 Ohio App.3d 17 (permitting police officer to offer opinion as experts that defendant possessed crack cocaine for purposes of resale); State v. Crenshaw (June 4, 1992), Cuyahoga App. No. 60671, unreported (police officers can testify that certain behavior indicates the intent to traffic in drugs, including the amount of drugs and how they are packaged). Defendant was in a vehicle stopped in the middle of the street at 2:00 a.m. in an area notorious for drug trafficking and across from a house where drug sales were known to take place. See State v. Coleman (Dec. 30, 1994), Cuyahoga App. No. 65459, unreported (appellant is passenger in automobile stopped in area of city known for drug trafficking and high in crime; the vehicle sped away when the police zone car was spotted by the occupants). See State v. Bryant (June 2, 1994), Cuyahoga App. No. 65614, unreported (defendant's behavior in walking away when noticing the police considered as an element of drug trafficking charge; one of the - 14 - arresting officers had on at least one previous occasion seen the driver of the Buick selling drugs on a nearby street corner). When asked what was in his pocket, defendant told the police, "it's just marijuana," a statement which the trial court could reasonably conclude was an effort to dissuade the police from discovering the large quantity of cocaine in his pocket. Additionally, there was no drug paraphernalia found in the Buick to suggest that the occupants were personally engaged only in cocaine use. The evidence therefore strongly indicated that defendant intended not to personally consume the cocaine, but knowingly prepared it for shipment or distribution. R.C. 2923.24, Possessing Criminal Tools, in pertinent part, states: (A) No person shall possess or have under his control any substance, device, instrument, or article, with purpose to use it criminally. (B) Each of the following constitutes prima- facie evidence of criminal purpose: * * * (3) Possession or control of any substance, device, instrument, or article commonly used for criminal purposes, under circumstances indicating such item is intended for criminal use. In certain circumstances, this Court has found both money and pagers to be criminal tools for drug trafficking. In State v. Tolbert (May 16, 1996), Cuyahoga App. No. 69158, unreported, the police found defendant at his girlfriend's apartment, sleeping on the couch. They found 94 rocks of crack - 15 - cocaine under the pillows of the couch. Thereafter, the police found two pagers and $480 on defendant who was convicted of aggravated trafficking and possession of criminal tools, money and a pager. This Court held that there was sufficient evidence to support the convictions. In State v. Williams (Sept. 2, 1993), Cuyahoga App. No. 63502, unreported, a drug trafficker was also convicted of possession of criminal tools for having on his person $278 and a pager. Although the defendant never used the money or the pager during what the police suspected was a drug transaction, this Court nevertheless upheld the criminal tools conviction, stating that "[t]he pager and large amount of money taken from appellant are further evidence of appellant's involvement with the narcotics." Id. at 5. See, also, State v. McShan (1991), 77 Ohio App.3d 781, specifically, finding a pager to be a criminal tool. In the instant case, defendant possessed $170 in tens and twenties, and a pager. Officer Jones testified that pagers are often used in the drug trade by sellers; while mere buyers/users do not carry pagers. Additionally, defendant had no rational explanation for possessing a large quantity of money or a pager; in fact, at booking, as Officer Jones testified, defendant stated that he was unemployed. See State v. Bryant, supra, where this Court stated upon affirming a conviction for possession of $199 as a criminal tool: "[l]arge amounts of cash are commonly used in drug - 16 - transactions." It is therefore reasonable for the court to conclude that the money and pager were criminal tools. Assignments of error III and IV are overruled. Judgment affirmed. - 17 - 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 Court of Common Pleas 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. DAVID T. MATIA, P.J., and ROCCO, J., CONCUR. JAMES M. PORTER JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .