State v. Hunter , 98 Ohio App. 3d 632 ( 1994 )

This case came to be heard upon the accelerated calendar pursuant to App.R. 11.1 and Loc.R. 25 of the Eighth District Court of Appeals, the record from the trial court and the parties' briefs. Charles Hunter, defendant-appellant, was indicted for violation of one count of drug trafficking under R.C. 2925.03. On November 23, 1993, a hearing was held on appellant's motion to suppress. After the motion was denied, appellant pled no contest. The court amended the indictment and found appellant guilty of the lesser included offense of possession of narcotics under R.C. 2925.11. Appellant appeals the trial court's denial of his motion to suppress. This court, finding no error, affirms the decision of the trial court.

Charles Hunter's sole assignment of error states:

"The trial court erred by denying Mr. Hunter's motion to suppress evidence which was seized without a warrant and without exception to the warrant requirement in violation of Article I, Section 14 of the Ohio Constitution and the Fourth andFourteenth Amendments to the United States Constitution."

Appellant argues that based upon the evidence presented, the warrantless investigatory stop made by the police officers was not based upon any specific and articulable facts which would create a reasonable suspicion that appellant was involved in some form of criminal activity. Therefore, there was no legal justification for the officer's investigatory stop. Furthermore, appellant argues that since the officer did not believe the appellant was carrying any weapons, the search and subsequent removal of the plastic bag within appellant's coat was an illegal seizure.

At the hearing on appellant's motion to suppress, the arresting officer testified that on October 2, 1992, he and his partner were on a routine patrol of the Cleveland Police Department's Third District. At approximately 1:30 a.m., the officers saw appellant and another man talking in an area known for high drug activity. The arresting officer testified he had personally made approximately fifty drug arrests in that same area in the past two years. Acting upon this "hunch," the officers pulled their patrol car over and began getting out of the car. After seeing the officers approaching, the other man placed a small "wadded up" plastic bag in the inside of appellant's coat. The officer admits he did not actually see drugs inside the plastic but testified he suspected drugs were inside based upon his past experience. The two men had begun walking away when the officers stopped them.

The arresting officer further testified that after they stopped appellant and the other man, they patted them down for their own safety. The arresting officer did not feel a weapon but did retrieve the small wad of plastic from the appellant's coat in the same area he saw the other man place it. Upon examination, the officers discovered that it did in fact contain crack cocaine. It was at this time that appellant told the officers the other man had placed it inside his coat.

In a suppression hearing, the state bears the burden of proof and must demonstrate that the warrantless search and seizure were reasonable. State v. Bevan (1992), 80 Ohio App. 3d 126, 608 N.E.2d 1099. We note that although the results of the officer's search and seizure prove the officer's hunch to have been correct, we must, after considering the totality of the circumstances, focus independently upon the reasonableness of the officers' investigatory stop and subsequent search of appellant. SeeTerry v. Ohio (1968), 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889;State v. Freeman (1980), 64 Ohio St. 2d 291, 18 O.O.3d 472,414 N.E.2d 1044.

In justifying a particular intrusion a police officer must be able to point to specific and articulable facts which, taken together with reasonable inferences from those facts, reasonably warrant the officer's belief that criminal activity has occurred or is imminent. Terry, supra; State v. Ball (1991), 72 Ohio App. 3d 43, 593 N.E.2d 431.

"The reputation of the area for criminal activity is an articulable fact upon which a police officer may legitimately rely" in determining whether an investigatory stop is warranted.State v. Bobo (1988), 37 Ohio St. 3d 177, 179, 524 N.E.2d 489,491, citing United States v. Magda (C.A.2, 1976), 547 F.2d 756,758. Additionally, the time of night may also be a factor considered when determining the reasonableness of police conduct. Bobo, supra.

We recognize that a hunch standing alone is insufficient to justify a search under Terry and its progeny. See State v.Rucker (1990), 63 Ohio App. 3d 762, 580 N.E.2d 59. However, the officer's initial hunch, which was based on the high-crime area in which the two men were standing and the time of night the incident took place, was further substantiated by the two men's actions after they saw the officers pull over their patrol car and before the officers actually stopped the two men.

Again, the arresting officer testified that after the two men saw the officers, the one man put a small wadded up plastic bag in the appellant's coat and both began walking away. At this point, there was no stop as delineated by Terry. See Florida v.Royer (1983), 460 U.S. 491, 103 S. Ct. 1319, 75 L. Ed. 2d 229. It was only after these events that the officers detained appellant and the other man.

Based upon these observations and keeping in mind that we are to give due weight to the officers' experience and training in view of the evidence as it would be understood by those in law enforcement, United States v. Cortez (1981), 449 U.S. 411,101 S. Ct. 690, 66 L. Ed. 2d 621, we find that the officers did have a reasonable suspicion to conduct an investigatory stop of the appellant.

Next we examine the search of appellant and subsequent seizure of the crack cocaine. The arresting officer testified that after he and his partner stopped the appellant and the other man, a patdown search was conducted for their safety. The purpose for such a search is not evidentiary in nature, but rather for the protection of officers and others nearby. Adams v.Williams (1972), 407 U.S. 143, 92 S. Ct. 1921, 32 L. Ed. 2d 612. However, the United States Supreme Court has held that police may seize nonthreatening contraband detected through the sense of touch during a protective patdown search if its incriminating nature is immediately apparent to the searching officer.Minnesota v. Dickerson (1993), 508 U.S. ___, 113 S. Ct. 2130,124 L. Ed. 2d 334. See, also, State v. Cloud (1993), 91 Ohio App. 3d 366, 632 N.E.2d 932.

In the case sub judice, we find that under the totality of the circumstances, the officers were justified in conducting a patdown search "to determine whether the person is in fact carrying a weapon." Terry, supra, 392 U.S. at 24,88 S.Ct. at 1881, 20 L.Ed.2d at 908. Also, under the totality of the circumstances, we find that it was immediately apparent to the officer (1) that the small package he felt inside appellant's coat was the wadded up plastic bag the officers had witnessed the other man place inside appellant's coat, and (2) that the incriminating nature of the wadded up plastic bag was immediately apparent to the officer. Therefore, the trial court did not commit prejudicial error in denying appellant's motion to suppress.

Judgment affirmed.

MATIA and NUGENT, JJ., concur.

BLACKMON, P.J., dissents.