COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA No. 71577 STATE OF OHIO : : JOURNAL ENTRY Plaintiff-appellee : : AND vs. : : OPINION HEYWARD PRUDE : : Defendant-appellant : : : August 14, 1997 DATE OF ANNOUNCEMENT : OF DECISION : : CHARACTER OF PROCEEDINGS : Criminal appeal from : Court of Common Pleas : Case No. CR-335193 : JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: STEPHANIE TUBBS JONES, ESQ. JAMES A. DRAPER, ESQ. Cuyahoga County Prosecutor Cuyahoga County Public Defender LISA REITZ WILLIAMSON, ESQ. ROBERT M. INGERSOLL, ESQ. Assistant County Prosecutor Assistant Public Defender The Justice Center, 8th Fl. 100 Lakeside Place 1200 Ontario Street 1200 West Third Street Cleveland, OH 44113 Cleveland, OH 44113 2 PATTON, J. Defendant-appellant Hayward Prude ( defendant ) appeals the denial of his motion to suppress. Defendant argues the arresting officer could not point to specific and articulable facts which gave rise to a reasonable belief that he was engaged in criminal activity, thereby rendering his investigatory stop invalid. The arresting officer testified that on January 24, 1996, at approximately4:30 a.m. he and his partner received a priority-one call that shots were fired at 5212 Franklin. He and his partner arrived at the apartment building within a minute and one-half. When the officers pulled up to the building they saw defendant and two women leaving the building. Defendant had his right hand under his trench coat. Defendant and the two women were ordered to put their hands up. The two women complied with this order but defendant did not. The officers asked defendant to put his hands in the air a second and a third time. And after some coercing by the two women, defendant removed his hand from under his trench coat and dropped a phone on the ground. Defendant then told the officers that he had a gun. The arresting officer testified that the Cleveland Police Department policy dictates that everyone at a priority one call should be stopped and investigated. He explained the reason behind this policy is the officer's safety. The officer also stated this apartment building was located in a high crime area frequented by 3 prostitutes and drug users. When specifically asked why he had stopped defendant as he exited the building the officer related the following factors: it was 4:30 a.m., there was no one else on the street, only 90 seconds had elapsed since he received the priority one call, it was still a fresh call, and the location of defendant's hand under his trench coat as he exited the building. At the conclusion of the suppression hearing, the trial court cited the following factual factors in denying the motion to suppress: there was a report of a crime having been committed moments before with a gun, the incident occurred in a high crime area, the officers arrived within 90 seconds of the call, it was 4:30 a.m., and the officer saw defendant's hand was in his pocket. On appeal defendant states as his sole assignment of error the following: THE TRIAL COURT ERRED AND DENIED MR. PRUDE OF HIS RIGHT TO BE FREE FROM ILLEGAL SEARCHES AND SEIZURES, WHEN IT OVERRULED HIS MOTION TO SUPPRESS EVIDENCE. Defendant argues the officer did not describe any clear or articulable circumstances which gave him reasonable suspicion that defendant was engaged in any criminal activity sufficient to support his initial investigatory stop of defendant. He claims the officer testified to exactly the opposite, that he had no reason- able suspicion to stop him and only stopped him based on Cleveland Police Department policy. The state maintains, based on the totality of the circum- stances, the trial court properly decided the stop was reasonable 4 based on the officer's testimony. The Fourth and Fourteenth Amendments to the United States Constitution prohibit any governmental search and seizure, including a brief investigative stop, unless supported by an objective justification. State v. Andrews (1991), 57 Ohio St.3d 86, 87. [I]t is a cardinal principle that `searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amend- ment subject to only a few specifically established and well- delineated exceptions.' State v. White (1996), 110 Ohio App.3d 347, 352, citing Mincey v. Arizona (1978), 437 U.S. 385. If the evidence is obtained in violation of the Fourth Amendment, exclusion of the evidence is mandated. Mapp v. Ohio (1961), 367 U.S. 643. In Andrews, supra, the Ohio Supreme Court upheld the investi- gatory stop of a man who was running away from police late at night in an area with a reputation for crime. The Court stated: In Terry v. Ohio (1968), 392 U.S. 1, 21-22, 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 assessing 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 that intrusion.' Id. at 21. Further- more, the standard against which the facts are judged must be an objective one: `[W]ould the facts available to the officer at the moment of the seizure or search warrant a man of reasonable caution in the belief that the action taken was appropriate?' Id. at 21-22. In State v. Bobo (1988), 37 Ohio St.3d 177, paragraph one of 5 the syllabus, the Court stated an investigatory stop must be viewed in light of the totality of the circumstances. The Court cited the following factors as supporting a finding of reasonable suspicion: the reputation of the area for criminal activity, the officer's experience with drug transactions, the officer's familiarity with the area and how drug transactions occurred there, the officer's perception of the scene, the officer's observation of furtive movements, and the fact that it was night. Id. at 179-180. Defendant claims Bobo and Andrews do not apply here because these cases confer reasonable suspicion on criminal activity any time people are seen in a high crime area. He argues further his investigatory stop was based entirely on departmental policy rather than on suspicious behavior and thus the stop was invalid. We are not deciding whether the departmental policy, to investigate everyone at the scene of a shooting, is lawful. The specific facts of the present case support a reasonable suspicion of criminal activity justifying defendant's stop regardless of whether the stop was made pursuant to departmental policy or not. A reasonable suspicion of criminal activity and the departmental policy are not mutually exclusive. The priority-one call put the officer on notice that shots were fired at the apartment building. He arrived at the building within 90 seconds of receiving the call. He next saw defendant and two females leaving the premises. Defendant had his right hand under his trench coat. It was 4:30 a.m. in an area with a reputation for prostitution and drug activity. The officer stated 6 he was concerned for his safety because shots had been fired at the scene. We agree with the trial court that the foregoing facts support a reasonable suspicion of criminal activity and the investigatory stop of defendant was proper. Accordingly, defendant's sole assignment of error is overruled. Judgment affirmed. 7 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. DYKE, P.J. NAHRA, J., CONCUR. JUDGE JOHN T. PATTON 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 reconsidera-tion 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 .