COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 78583 STATE OF OHIO : ACCELERATED DOCKET : Plaintiff-appellant : JOURNAL ENTRY : AND -vs- : OPINION : JEROME FIELDS : : Defendant-appellee : DATE OF ANNOUNCEMENT OF DECISION: MAY 17, 2001 CHARACTER OF PROCEEDING: Criminal appeal from the Court of Common Pleas Case No. CR-389515 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: WILLIAM D. MASON, ESQ. CUYAHOGA COUNTY PROSECUTOR BY: SUZIE DEMOSTHENES, ESQ. ASST. COUNTY PROSECUTOR 8th Floor, Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellee: DAVID G. PHILLIPS, ESQ. Ninth Euclid Tower 710 Euclid Ninth Tower 2000 East Ninth Street Cleveland, Ohio 44115 ANN DYKE, J.: The State of Ohio appeals from the order of the trial court which suppressed the evidence gathered in connection with the arrest of defendant Jerome Fields. For the reasons set forth -2- below, we affirm. On April 5, 2000, defendant was indicted for one count of possession of drugs in the amount of five grams or less. Defendant pleaded not guilty and moved to suppress the evidence, asserting that he was subjected to an unconstitutional search. The trial court held a hearing on the motion on August 24, 2000. The evidence demonstrated that at approximately 4:20 a.m., on January 4, 2000, Cleveland Police Officer Brian Kazimer and his partner observed defendant riding a bicycle on the sidewalk of a business district. The officers stopped defendant in order to issue him a citation and requested identification from him. Defendant did not have identification and the officers conducted a pat down search. Officer Kazimer testified that defendant was patted down for safety and because one may be arrested for not having identification. Officer Kazimer admitted, however, that defendant was cooperative and the officer did not list any circumstances of the encounter which caused him to believe that defendant was armed and dangerous. The pat down revealed that defendant was carrying a crack pipe. The trial court granted defendant's motion to suppress. The State of Ohio now appeals and assigns the following error for our review: THE TRIAL COURT ERRED IN SUPPRESSING THE EVIDENCE WHERE THE STOP AND FRISK WAS SUPPORTED BY EVIDENCE THAT THE DEFENDANT VIOLATED A CITY ORDINANCE, DID NOT POSSESS ANY IDENTIFICATION, AND THE OFFICERS HAD TO DETAIN THE DEFENDANT TO ASCERTAIN HIS IDENTITY. Within this assignment of error, the state asserts that the -3- trial court erred in suppressing the evidence because the evidence was derived from a lawful search. The Fourth Amendment to the United States Constitution provides: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but on probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. These protections are applicable to the states via the Fourteenth Amendment, Mapp v. Ohio (1961), 367 U.S. 643, 650, 81 S. Ct. 1684, 6 L. Ed. 2d 1081; Ker v. California (1963), 374 U.S. 23, 30, 83 S. Ct. 1623, 10 L. Ed. 2d 726, and by Section 14, Article I, of the Ohio Constitution which is virtually identical to the Fourth Amendment. See State v. Pierce (1998), 125 Ohio App. 3d 592, 596, 709 N.E.2d 203. Further, "[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 Amendment-subject to only a few specifically established and well-delineated exceptions.'" State v. White (1996), 110 Ohio App. 3d 347, 352, 674 N.E.2d 405, citing Mincey v. Arizona (1978), 437 U.S. 385, 57 L. Ed. 2d 290, 98 S. Ct. 2408. If the evidence is obtained in violation of the Fourth Amendment, the evidence must be excluded. Mapp v. Ohio, supra. In Terry v. Ohio (1968), 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889, the United States Supreme Court held that a police officer may make a brief, warrantless, investigatory stop of an individual, -4- without probable cause, where the police officer reasonably suspects that the individual is or has been involved in criminal activity and is dangerous. The Supreme Court stated: *** We merely hold today that where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experiences that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others' safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him. Id., 392 U.S. at 30, 88 S. Ct. at 1884-1885. "[T]he issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger." Id., at 27. In Sibron v. New York (1968), 392 U.S. 40, a companion case to Terry v. Ohio, the Supreme Court also stated: "The police officer is not entitled to seize and search every person . . . of whom he makes inquiries. Before he places a hand on the person of a citizen in search of anything, he must have constitutionally adequate, reasonable grounds for doing so. In the case of the self-protective search for weapons, he must be able to point to particular facts from which he reasonably inferred that the individual was armed and dangerous." Sibron v. New York, supra, at 64. The state asserts that the instant stop and search were proper pursuant to State v. Bobo (1988), 37 Ohio St. 3d 177, 524 N.E.2d 489. In State v. Bobo, supra, paragraph one of the syllabus, the Supreme Court noted that the propriety of an investigative stop by -5- a police officer must be viewed in light of the totality of the surrounding circumstances. Citing State v. Freeman (1980), 64 Ohio St. 2d 291, 414 N.E.2d 1044, paragraph one of the syllabus. The Bobo Court concluded that the totality of the following circumstances supported 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. We further note that the police have the right to ask members of the public for identification, State v. Cooper (1989), 61 Ohio App. 3d 344, 345. Nonetheless, there is no indication that the failure to provide identification will justify the Terry search where it has not been shown that the officer is in reasonable fear for his own or others' safety. See Adams v. Metiva (31 F.3d 375 (C.A.6 1994); State v. Richardson (Dec. 7, 1999), Franklin App. No. 98AP-1500, unreported. In this instance, nothing was presented during the suppression hearing to show that Officer Kazimer had reason to believe that defendant was armed and dangerous. For example, defendant was cooperative and no evidence was presented to show that Officer Kazimer had reason to believe that this defendant was carrying a weapon. We therefore agree with the trial court that the foregoing facts do not support a reasonable suspicion of criminal activity and the investigatory stop of defendant was proper. Accordingly, -6- the state'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 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. DIANE KARPINSKI, A.J., CONCURS. FRANK D. CELEBREZZE, JR., J., DISSENTS (SEE ATTACHED DISSENTING OPINION) ANN DYKE 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.22. 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 clerk per App.R. 22(E). See, also S.Ct.Prac.R. II, Section 2(A)(1). -8- COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA No. 78583 STATE OF OHIO : : DISSENTING Plaintiff-appellant : : OPINION vs. : : JEROME FIELDS : : Defendant-appellee : : : DATE MAY 17, 2001 FRANK D. CELEBREZZE, JR., J., DISSENTING: I respectfully dissent from the decision of the majority as I feel that the facts and circumstances justified the actions of the police officers in conducting a pat-down search and the motion to suppress should have been denied. The appellant was pulled over while riding his bike in a business district at 4:20 a.m. on Lorain Avenue near West 50th. The officers pulled the appellant over for riding on the sidewalk, at which point the appellant stepped off his bike. Appellant was wearing a heavy jacket because it was the middle of winter. After being asked for identification, appellant stated he did not have any. At that point, the officers ran his name through the computer and while waiting for a response, and in accordance with their training and experience, the officers conducted a pat-down search of appellant for weapons to insure their safety. During the pat- down search, officers discovered a crack pipe. In State v. Ambers (September 30, 1982), Cuyahoga App. No. 44349, unreported, 1982 Ohio App. LEXIS 11366, this court found a pat-down search by police officers to be proper under similar circumstances. In Ambers, the appellant was pulled over while -9- riding his bike in the vicinity of East 21st Street and Prospect Avenue. The court noted in that case that: The arrest took place at a time and place where the police had reason to suspect that a substantial percentage of individuals whom they might stop might be inclined to be armed. n1 Prospect Avenue is not a safe place for pedestrians or automobile drivers, let alone for bicyclists riding alone at 5:00 a.m. on Sunday morning. The bizarre behavior of an individual riding along at this place and at that time on a bicycle would lead a prudent policeman to wonder whether the bicyclist was intoxicated or on drugs. Such a rider would be entirely imprudent if he were in the area alone without some kind of defensive item ***. The court concluded that the actions of the appellant gave the police a substantial reason to fear that the defendant might be armed and justified a pat-down search for their own protection. Further, *** when an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others, he may conduct a limited protective search for concealed weapons. [Terry, supra] 392 U.S., at 24, 88 S.Ct., at 1881. 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, and thus the frisk for weapons might be equally necessary and reasonable ***. State v. Johnson (Dec. 24, 1997), Cuyahoga App. No. 53805, unreported, 1987 Ohio App. LEXIS 10228, at 7-8. In one of the officer's testimony, he stated that anyone can be armed and dangerous and that until I pat him down, I have no idea if he is or not. Given the location of the stop, the time of -10- the stop, the fact that appellant was wearing a heavy winter coat which could have concealed a weapon and that he lacked any identification, the officers properly conducted a pat-down search for their own safety. Therefore, the evidence found should have been properly admitted and the motion to suppress should have been denied. .