State v. Ball , 72 Ohio App. 3d 43 ( 1991 )

I respectfully dissent from the majority opinion since the police officers' limited search of the van encompassing the paper bag located in plain view in the front seat between the driver and passenger seat was entirely reasonable and appropriately conducted solely for the protection and safety of the police officers who performed the search.

Therefore, the limited search of the van was appropriate pursuant to the rationales and theories articulated in the following cases:

(1) As an investigative stop and limited protective search of a vehicle passenger compartment based on Terry v. Ohio (1968),392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889, 44 O.O.2d 383, and State v. Bobo (1988),37 Ohio St. 3d 177, 524 N.E.2d 489.

(2) As a protective limited search of the areas of the vehicle in which a weapon could easily have been hidden conducted for the police officers' safety before releasing a suspect who could gain immediate control of a weapon located inside the vehicle pursuant to Michigan v. Long (1983),463 U.S. 1032, 103 S. Ct. 3469, 77 L. Ed. 2d 1201.

At the outset it is noted the case sub judice involves the propriety of an investigative stop and frisk rather than a question of probable cause. The concurring opinion attached enlightens us that the facts in the instant case are exactly the same as those in State v. Chandler (1989), 54 Ohio App. 3d 92,560 N.E.2d 832, in which this court reversed the codefendant van owner's conviction granting co-defendant's motion to suppress. Although I was not on the Chandler panel, I would apply the same rationale to Chandler, supra, in finding the search of the van reasonable since exactly the same facts were developed in the transcript common to both cases. I concur only with the thought made in the concurring opinion that the facts are exactly the same in Chandler as in the case sub judice; therefore, the result should be the same. However, I do not believe just because the Chandler opinion was released first that the panel in the case sub judice should follow blindly and I believe an independent analysis is necessary. Hence, I would in effect also be dissenting from the Chandler opinion.

The Fourth Amendment to the United States Constitution provides that people are protected against unreasonable searches and seizures.

In the landmark decision of Terry, supra, the United States Supreme Court weighed the competing interests of personal privacy and crime detection by balancing and defining standards by which police detentions are tested in situations involving less than the probable cause required for a lawful arrest. Even a momentary or transient stop of an individual constitutes a seizure for Fourth Amendment purposes. Terry, supra.

The court in Terry stated as follows:

"* * * And in determining whether the seizure and search were 'unreasonable' our 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.

"* * *

"[F]or there is 'no ready test for determining reasonableness other than by balancing the need to search [or seize] against the invasion which the search [or seizure] entails.'" (Citations omitted.) Terry, supra, 392 U.S. at 19, 20-21, 88 S.Ct. at 1878, 1879-1880, 20 L.Ed.2d at 904, 905-906, 44 O.O.2d at 392, 392-393; see, also, Adams v. Williams (1972),407 U.S. 143, 92 S. Ct. 1921, 32 L. Ed. 2d 612.

The Ohio Supreme Court has clarified this state's position regarding the standard governing investigative stops in the syllabus of State v. Bobo, supra, as follows:

"1. The propriety of an investigative stop by a police officer must be viewed in light of the totality of the surrounding circumstances. (State v. Freeman [1980], 64 Ohio St. 2d 291, 18 O.O.3d 466 [472], 414 N.E.2d 1044, paragraph one of the syllabus, approved and followed.)

"2. Where a police officer, during an investigative stop, has a reasonable suspicion that an individual is armed based on the totality of the circumstances, the officer may initiate a protective search for the safety of himself and others."

When the suspect is an occupant of an automobile, police may search those areas of the passenger compartment which couldcontain a weapon if police have a reasonable articulable suspicion the suspect is dangerous or may gain immediate controlof weapons. Bobo, supra; State v. Willingham (Feb. 16, 1989), Cuyahoga App. Nos. 54767, 56464, unreported, 1989 WL 12924, citing Michigan v. Long, supra, 463 U.S. at 1039,103 S.Ct. at 3475, 77 L.Ed.2d at 1213; State v. Smith (1978), 56 Ohio St. 2d 405, 10 O.O.3d 515, 384 N.E.2d 280. The search must be "strictly circumscribed by the exigencies which justify its initiation."Terry, supra, 392 U.S. at 26, 88 S.Ct. at 1882,20 L.Ed.2d at 908, 44 O.O.2d at 395.

The majority contends the stop and subsequent protective search of the van which defendant occupied was invalid and thus the "trial court's application of State v. Bobo, supra, to the case herein was in error," since "there existed very few if any similarities with Bobo."

In order that the tests in Terry, Bobo, and Michigan v. Long may properly be applied to the facts in the case sub judice, a chronological overview of the events of the night of October 31, 1988 is necessary:

(1) Officer James Gneu testified that at approximately 10:45 p.m. on October 31, 1988 he was on patrol doing a drug sweep of the Outhwaite projects, an area the citizens and councilmen were complaining was teeming with drug activity.

(2) Officer Gneu testified he and his partner observed a van "sitting next to a tree in a vacant lot with no other vehicles around" in "weeds" and that "nobody under normal circumstances would normally park a car in there"; Gneu found this suspicious in itself.

(3) The officers observed two people in the van moving around.

(4) Officer Gneu testified he observed these two people through the front windshield of the van. As the officers approached Gneu testified the defendants saw them and then Gneu could see them "moving around in the front seat, bending around and bending back towards the rear of the van." Gneu testified he was concerned defendants "dumped a gun" and he looked behind the seats for a gun.

(5) Officer Gneu stated he approached the van with caution and had his gun drawn "in a ready position."

(6) Officer Gneu told defendants to exit the vehicle and conducted a pat-down of defendants in which no weapons were found.

(7) Officer Gneu then conducted a visual inspection of the front and back of the van in which no weapons were observed.

(8) Officer Gneu saw a brown bag in the front seat between the driver and passenger side, which, based on the officers' years of experience, he concluded could easily contain a weapon and the officer confined his search to that bag stating "that was my main reason for picking up the bag, to check that to make sure there wasn't a weapon inside."

The trial court as the factfinder, was entitled to believe Officer Gneu's testimony. State v. DeHass (1967), 10 Ohio St. 2d 230, 39 O.O.2d 366, 227 N.E.2d 212.

The first prong of the analysis of Terry and Bobo mandates we inquire whether the officers' stop of defendants was "justified at its inception." Terry, supra, 392 U.S. at 19, 20,88 S.Ct. at 1878, 1879, 20 L.Ed.2d at 904, 905, 44 O.O.2d at 392, 393.

Based on the "totality of the circumstances" the similarities between the facts in the instant case and Bobo are clearly analogous.

The seven circumstances postulated in Bobo to justify the investigatory stop and subsequent limited protective search of defendant for safety reasons follow:

(1) the area was known to have heavy drug activity in which weapons were prevalent;

(2) it was nighttime, when weapons could easily be hidden;

(3) one of the officers who approached the vehicle had previously made about five hundred arrests for guns or drugs city-wide and over one hundred arrests in the area where defendant Bobo was parked;

(4) that officer knew how drugs were transacted in that area;

(5) that officer saw defendant Bobo bend down as if to hide something in his car;

(6) that officer's experience of recovering weapons or drugs suggested that defendant Bobo's gesture of ducking was to conceal a gun or drugs; and

(7) the police were away from the protection of their vehicle when they approached defendant Bobo. See State v. Chandler (1989), 54 Ohio App. 3d 92, 96, 560 N.E.2d 832, 836-837.

Importantly, the facts are incredibly analogous to those of the present case:

(1) The area known as the Outhwaite projects at East 55th and Woodland is an area known for drug activity and Officer Gneu testified the citizenry and council alike were clamoring for the drug activity in the area to be curtailed.

(2) It was 10:45 p.m. (nighttime) when weapons could easily be hidden.

(3) Officer Gneu was a twenty-year veteran with the police force with ten years as a SWAT team member; he testified he was exposed to these circumstances "every day."

(4) Officer Gneu had experience in drug transactions.

(5) The officer saw movement "in the front seat, bending around and bending back towards the rear of the van" which he himself characterized as "suspicious." His concern was that "somebody dumped a gun" behind the front seat of the van.

(6) Officer Gneu's experience of recovering weapons or drugs suggested to him that "a lot of times" people "will conceal weapons inside a bag, thinking that somebody's not going to look there."

(7) Officer Gneu and his partner had both exited their vehicle when they approached defendant's vehicle and their backup unit had not, as yet, arrived.

The stop of defendants was absolutely justified as was the pat-down of defendant's outer clothing based on the totality of the circumstances. Terry, supra; Bobo, supra; Freeman, supra. Specific articulable facts existed to justify the stop of defendants. Terry, supra.

Officer Gneu testified as follows:

"Q. You said you watched the person on the driver's side. What was he doing?

"A. Just moving around in the front seat, bending around and bending back towards the rear of the van."

Although Officer Gneu did not articulate the exact words "as if to hide something in the back of the van," he did say he flashed his light and looked around the seats "to see if somebody dumped a gun."

Officer Gneu testified on cross-examination he limited the scope of his search of the van to a visual observation being concerned with "weapons on the floor" and also "if there was anybody else in there."

"A. Well, what I did was, I actually didn't search the entirevan, all I did was, after we got the two of them out of the van and the other backup car came, I just looked into the driver's side, just to see if there was [sic] any weapons on the floor, and the only thing that I could see was the bag that was just sitting up there in plain view right in between the seats there.

"Q. Was there anything in the entire van besides a bag in the front seat?

"A. I didn't inventory the van and I didn't tow the van, so I didn't check the rest of it. I just confiscated the bag that I observed and that was it.

"Q. Well, you've testified that they turned around andthey were doing something suspicious in the back, they werereaching behind them doing something suspicious in the back.

"Did you search the back for a gun?

"A. Excuse me? I looked behind the seats, that was it. You know, what I could when I went to the driver's side, I had a flashlight, I looked around the seats to see if somebody dumpeda gun.

"Q. Looked in the back for a gun also behind the seats?

"A. No, just, I looked for what I could see. * * *" (Emphasis added.)

At this point, no arrest of these two individuals could have been made and both defendants would have been free to re-enter their van and utilize any weapon contained therein against the police officers or others at any time.

The Supreme Court in Michigan v. Long, supra, has expandedTerry and the line of automobile search cases to allow a limited protective search of a vehicle for the safety of the officer and others before releasing a suspect into that vehicle. This court held in State v. Borecki (Apr. 28, 1988), Cuyahoga App. No. 53665, unreported, 1988 WL 39258, as follows:

"* * * During any investigative detention, the suspect is ``in the control' of the officers in the sense that he ``may be briefly detained against his will * * *' Terry, supra [392 U.S.], at 34, 88 S.Ct., at 1886 [20 L.Ed.2d at 913, 44 O.O.2d at 400] (WHITE, J., concurring). Just as a Terry suspect on the street may, despite being under the brief control of a police officer, reach into his clothing and retrieve a weapon, so might a Terry suspect * * * break away from police control and retrieve a weapon from his automobile. See United States v.Rainone, 586 F.2d 1132, 1134 (CA7 1978), cert. denied,440 U.S. 980, 99 S. Ct. 1787, 60 L. Ed. 2d 239 (1979). In addition, if thesuspect is not placed under arrest, he will be permitted toreenter his automobile, and he will then have access to allweapons inside. United States v. Powless, 546 F.2d 792, 795-796 (CA8), cert. denied, 430 U.S. 910, 97 S. Ct. 1185,51 L. Ed. 2d 588 (1977). Or, as here, the suspect may be permitted to reenter the vehicle before the Terry investigation is over, and again, may have access to weapons. In any event, we stress that a Terry investigation, such as the one that occurred here, involves a police investigation ``at close range.' Terry,392 U.S., at 24, 88 S.Ct., at 1881 [20 L.Ed.2d at 908, 44 O.O.2d at 395], when the officer remains particularly vulnerable in partbecause a full custodial arrest has not been effected, and the officer must make a ``quick decision as to how to protect himself and others from possible danger * * *.' Id., at 28,88 S.Ct., at 1883 [20 L.Ed.2d at 910, 44 O.O.2d at 397]. In such circumstances, we have not required that officers adopt alternative means to ensure their safety in order to avoid the intrusion involved in a Terry encounter." (Emphasis added and footnotes omitted.) Borecki, supra, citing Michigan v. Long,supra, 463 U.S. at 1051-1052, 103 S.Ct. at 3482,77 L.Ed.2d at 1221-1222.

It can be gleaned from the testimony of Officer Gneu on cross-examination that he was concerned with the safety of himself and his partner and that he knew a weapon could be hidden in the bag located in the front seat of the van where the former occupants would be allowed to re-enter and gain immediate access to such weapon.

Officer Gneu stated on cross-examination as follows:

"Q. [Defense counsel Kurtz] What was your reason for opening the bag?

"A. Well, number one is that a lot of times when you're dealing with people that are dealing drugs, a lot of times they will conceal weapons inside a bag, thinking that somebody's not going to look there, and that was my main reason for picking up the bag, to check that to make sure there wasn't a weapon inside."

Whether or not defendants were a threat to the officers at the time they were out of the van is inconsequential. The fact is the defendants would have shortly been free to leave, re-enter the van, gain access to weapons, if any, and use them if they so desired. Upon re-entry of the van, it must also be remembered, the vehicle itself could be used as a deadly weapon.

The touchstone of analysis of Fourth Amendment rights is the "reasonableness in all circumstances of the particular governmental intrusion of a citizen's personal security."Michigan v. Long, supra, at 1051, 103 S.Ct. at 3481,77 L.Ed.2d at 1221.

The rationale of Michigan v. Long is clear. Roadside encounters between police and suspects are extremely hazardous and police officers reasonably have the right to protect themselves from unseen dangers a vehicle may hold by way of possible presence of weapons hidden within. Id. at 1049, 103 S.Ct. at 3480, 77 L.Ed.2d at 1219.

It is unreasonable to prevent the police from taking reasonable steps to protect their safety. Id.; Chimel v.California (1969), 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685. Police officers are not required to adopt less intrusive means to ensure their safety in order to avoid a protective search during a brief detention. Id.¹ Lastly, if an officer discovers contraband other than weapons while conducting a legitimate protective search of the vehicle's interior during an investigative detention, he is not required to ignore the contraband and the Fourth Amendment does not require suppression under such circumstances. Michigan v. Long, 463 U.S. at 1050,103 S.Ct. at 3481, 77 L.Ed.2d at 1220.

The two officers in this case were initially investigating suspicious activity of two adult males in a van without assistance of their backup units. Detective Gneu and his partner had their weapons drawn and in a ready position for their own safety when they approached the van. In addition, Detective Gneu testified and articulated his main reason for checking the bag located on the front seat between the passenger and driver side was to check and "make sure there wasn't a weapon inside."

These field officers who were particularly vulnerable to harm should have been reasonably able to rely on the holdings of the Supreme Court to justify the limited passenger compartment search of the van defendants exited before releasing them to re-enter and gain access to weapons, if any, located therein.Michigan v. Long, supra, at 1052, 1053, 103 S.Ct. at 3482, 3483,77 L.Ed.2d at 1221, 1222.

In fact, as the Supreme Court stated in Terry: "It would have been poor police work indeed for an officer of [20 years' experience in crime detection and drug transactions] in the same [or similar neighborhoods] to have failed to investigate this behavior further." See, e.g., Terry, supra, 392 U.S. at 23,88 S.Ct. at 1881, 20 L.Ed.2d at 907, 44 O.O.2d at 394. As Terry so aptly indicates, the Fourth Amendment requires balancing the neutralization of a danger to the policemen in the field against the sanctity of the individual. Id. at 24, 25, 88 S.Ct. at 1881,1882, 20 L.Ed.2d at 907, 908, 44 O.O.2d at 394, 395.

A complete and thorough reading of Officer Gneu's testimony reveals the approach of the van was justified since the officer viewed suspicious activity with defendants' "moving around in the front seat, bending around and bending back towards the rear of the van." His concern was that "somebody dumped a gun" behind the seats. Officer Gneu's testimony also reveals his activity was prompted by his concern for his and his partner's safety in attempting to discover a weapon. This proposition is best personified by Officer Gneu's own words:

"Q. What was your reason for opening the bag?

"A. Well, number one is that a lot of times when you're dealing with people that are dealing drugs, a lot of times they will conceal weapons inside a bag, thinking that somebody's not going to look there, and that was my main reason for picking up the bag, to check that to make sure there wasn't a weapon inside."

Thus, considering the totality of the facts and circumstances presented and balancing the interests involved in the instant case, the stop of defendants and subsequent limited search of the van for a weapon by Officer Gneu after defendants exited the vehicle and before allowing defendants to re-enter upon their release from the brief stop was "reasonable" pursuant to theFourth Amendment, Terry, Michigan v. Long, Bobo, and Borecki and constitutionally permissible. Considering the majority opinion found in answering defendant's second and third assignments of error that the trial court's denial of defendant's Crim.R. 29(A) judgment of acquittal was proper, the trial court's denial of defendant's motion to suppress must be affirmed not only in this case sub judice but also in Chandler. As stated in the concurring opinion in the case sub judice, "[a]s the facts here are exactly the same, the result cannot be otherwise."

Therefore, based upon the above reasoning, I would affirm the trial court's decision denying defendant's motion to suppress.

In defendant's fourth assignment of error which the majority sustained, defendant argued he was erroneously convicted and sentenced for possession of criminal tools, viz., syringes found in a brown bag on the front seat, in violation of R.C. 2923.24, a felony of the fourth degree. Defendant argues he should be subjected to only a misdemeanor conviction pursuant to R.C.2925.12, i.e., possession of drug abuse instruments in the form of syringes. I disagree.

The majority relies on State v. Volpe (1988), 38 Ohio St. 3d 191, 527 N.E.2d 818, in support of defendant's argument. I also respectfully dissent from the majority's stance on this proposition since a clear reading of the plain language of the two statutes in question demonstrates they are not irreconcilable. Contra State v. Chandler, supra.

In Volpe, supra, 38 Ohio St.3d at 193, 527 N.E.2d at 820, the Ohio Supreme Court stated as follows:

"Well-established principles of statutory construction require that specific statutory provisions prevail over conflicting general statutes. R.C. 1.51 states that:

"``If a general provision conflicts with a special or local provision, they shall be construed, if possible, so that effect is given to both. If the conflict between the provisions isirreconcilable, the special or local provision prevails as an exception to the general provision, unless the general provision is the later adoption and the manifest intent is that the general provision prevail.'" (Emphasis added.)

R.C. 2923.24, the felony, possession of criminal tools, and R.C. 2925.12, the misdemeanor, possession of syringes, arenot irreconcilable.

R.C. 2923.24, possessing criminal tools, states in pertinent part as follows:

"(A) No person shall possess or have under his control any substance, device, instrument or article, with purpose to use itcriminally." (Emphasis added.)

On the other hand, R.C. 2925.12, possessing drug abuse instruments, states in pertinent part as follows:

"(A) No person shall knowingly make, obtain, possess, or use any instrument, article, or thing whose customary and primary purpose is for the administration or use of a dangerous drug, other than marihuana, when the instrument involved is ahypodermic or syringe, whether or not of crude or extemporized manufacture or assembly, and the instrument, article or thing involved has been used by the offender to unlawfully administeror use a dangerous drug, other than marihuana, or to prepare adangerous drug, other than marihuana, for unlawfuladministration or use." (Emphasis added.)

The plain language of the specific misdemeanor statute, R.C.2925.12, states the syringe "has been used by the offender to unlawfully administer or use a dangerous drug" (emphasis added), "or to prepare" a drug for use or administration.

Obviously, the legislative intent of the specific statute dealing with possession and use of syringes was to separate and lessen the punishment for conduct of an offender who merely personally uses the syringe to prepare or inject his own drug from the more opprobrious conduct of a drug pusher or dealer who peddles his wares as well as the criminal tools for their use.

In the case sub judice, defendant possessed scores of syringes in a brown paper bag along with drugs, viz., cocaine and Talwin. Defendant's transparent intent was to sell those syringes as well as the drugs. Thus, defendant possessed a "device, instrument or article, with purpose to use it criminally." R.C. 2923.24.

Defendant was properly convicted, in the case sub judice.

I would affirm the trial court's judgment in its entirety.

¹ Michigan v. Long, supra, suggests the entire passenger compartment search is valid whereas a trunk search is invalid since no immediate access to a weapon would occur. Id.,463 U.S. at 1054, 103 S.Ct. at 3483, 77 L.Ed.2d at 1223, fn. 17.