COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71064 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : NOLAN HARRIS : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: APRIL 17, 1997 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, No. CR-336701. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor Mark Fellenbaum, Esq. Assistant County Prosecutor Justice Center - 8th Floor 1200 Ontario Street Cleveland, OH 44113 For Defendant-Appellant: Michael E. Murman, Esq. 14701 Detroit Avenue Suite 555 Lakewood, OH 44107 -2- DAVID T. MATIA, P.J.: Nolan Harris, defendant-appellant, appeals his conviction in the Cuyahoga County Court of Common Pleas, Criminal Division, on one count of drug abuse in violation of R.C. 2925.11. Defendant- appellant assigns one error for review. This court, finding no error, affirms defendant-appellant's conviction. I. STATEMENT OF FACTS The facts in this case are not in dispute. On January 28, 1996, Officers Masella and Jackson were on patrol in Cleveland's Fourth District. At approximately 3:00 a.m., the officers observed Nolan Harris, defendant-appellant, kneeling in the middle of a street having a seizure. Defendant-appellant was rocking back and forth and foaming at the mouth. The officers immediately called for EMS for medical assistance. The officers asked defendant-appellant if he had any identification but he was unable to answer them. In an effort to determine defendant-appellant's identity and find any specific information that the officers or EMS might need, the officers patted him down. Officer Masella testified that the search was also conducted in a concern for their safety as defendant- appellant was flailing his arms. The officers located a small vial in his left-pant pocket which they suspected contained PCP. After EMS arrived, a man subsequently approached the officers from a nearby house and identified defendant-appellant as his son, Nolan Harris. -3- After it was established that the vial did in fact contain PCP, defendant-appellant was indicted on one count of drug abuse in violation of R.C. 2925.11 with a furthermore clause for a prior conviction. After defendant-appellant pled not guilty, defense counsel filed a motion to suppress the evidence based upon an illegal search and seizure. A hearing was held and the motion was denied. Defendant-appellant retracted his former plea of not guilty and pled no contest to the charge. The trial court found defendant-appellant guilty of drug abuse. This appeal timely follows. II. ASSIGNMENT OF ERROR Nolan Harris, defendant-appellant, states as his sole assignment of error: I. THE TRIAL COURT ERRED IN OVERRULING APPELLANT'S MOTION TO SUPPRESS EVIDENCE. A. ISSUE RAISED: DID THE TRIAL COURT ERR IN DENYING DEFENDANT- APPELLANT'S MOTION TO SUPPRESS. Defendant-appellant argues his right to be free from an unreasonable search and seizure under the Fourth Amendment was violated. Specifically, defendant-appellant argues the search and seizure was illegal for the following reasons: 1) there existed no reasonable suspicion that defendant-appellant was armed and dangerous and 2) the incriminating nature of the vial was not apparent to the police officers until it was removed from his pocket. Defendant-appellant's sole assignment of error is not well taken. -4- -5- B. STANDARD OF REVIEW: SEARCH AND SEIZURE In a suppression hearing, the state bears the burden of proof and must demonstrate the warrantless search and seizure were reasonable. State v. Bevan (1992), 80 Ohio App.3d 126. In determining whether the seizure and search were reasonable under the Fourth Amendment, a court's inquiry is a dual one -- 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. State v. Bobo (1988), 37 Ohio St.3d 177, 178, citing Terry v. Ohio (1968), 392 U.S. 1, 19-20. Under Terry, supra, a limited protective search of the person for concealed weapons is justified only when the officer has reasonably concluded that "the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others ***." Id. at 24. See, also, State v. Bevan, supra at 408. "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. See, also, State v. Bobo, supra. If the protective search goes beyond what is necessary to determine if the suspect is armed, it is no longer valid under Terry, supra, and its fruits will be suppressed. Sibron v. New York (1968), 392 U.S. 40, 65-66. -6- C. THE TRIAL COURT DID NOT ERR IN DENYING DEFENDANT-APPELLANT'S MOTION TO SUPPRESS. In the case sub judice, it is not argued that the officers were not justified in stopping to lend assistance to defendant- appellant. However, defendant-appellant argues the subsequent police action violated his right to be free from unreasonable searches and seizures under the Fourth Amendment. The state's sole witness at the suppression hearing testified that the search of defendant-appellant was not only for purposes of identification, but also for safety concerns. Officer Masella testified on direct examination to the following: Q. And you also said that you also had another reason for patting -- for going through his pockets was to protect yourself; what was the specifics of that? [DEFENSE COUNSEL]: Objection. THE COURT: Overruled. Q. Why did you do that? A. Because at the time, between the time we called for EMS and the time EMS arrived, he started becoming combative. And to make sure that he had no objects that would be detrimental to the safety of my partner or myself or the EMS unit that was arriving, we patted him down to make sure he had no weapons. * * * On cross-examination, the officer testified in pertinent part: Q. Okay. So now, Officer, I'm curious; you already told us that when you approached him after you called EMS, you go down to -7- try to find some form of identification, I understand that. Tell me, did you, upon searching for the identification -- I'm assuming at that point you did not have the purpose in your mind for a safety search, right, cause your purpose was to try to find the identification, right? A. Both. We were searching for ID and to -- for our safety at the same time. * * * Q. Now, Officer, while your feeling for this -- feeling for this, this item that was several inches long, less than an inch thick, certainly it did not feel like any form of weapon that you know of? A. It could have been a knife. Q. Well -- A. It could have been a pocket knife. Considering the movement that he was making, it was hard to determine this unless we actually took it out and saw it. Although appellee's brief is devoid of any analysis or citation to relevant case law regarding protective searches and seizures, we find the following testimony of Officer Masella and the circumstances surrounding the incident demonstrate the search of defendant-appellant and subsequent seizure of the vial was reasonable under the Fourth Amendment. Again, defendant-appellant was kneeling in the middle of an intersection at 3:00 a.m. having a seizure and foaming at the mouth. When the officers attempted to communicate with defendant-appellant before the EMS unit arrived, he became "combative." For these reasons, we find the officers' search was -8- reasonably related in scope to its purpose, i.e., protection. For this reason, the trial court properly denied defendant- appellant's motion to suppress. Judgment affirmed. -9- It is ordered that appellee recover of appellant his 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. ANN DYKE, J. and AUGUST PRYATEL, J., CONCUR. (Judge August Pryatel, Retired Judge of the Eighth Appellate District, sitting by assignment.) DAVID T. MATIA PRESIDING 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 .