Per Curiam.
The state appeals the trial court’s grant of defendants-appellees’ motions to suppress.
On March 23, 1989, at approximately 9:00 p.m., two Cleveland Police officers who were patrolling the area near East 101st Street and St. Clair Avenue in Cleveland, Ohio saw fifteen to twenty juvenile males congregated in that area. The officers got out of their car and went towards the group. Someone in the group allegedly told one of the officers that defendant Andre Spinks was a drug dealer. The officer then spoke with Spinks who, according to the officer, cooperated and allowed the officer to search him. The search did not reveal drugs or a weapon.
The police then left, but returned to the area at approximately 10:15 p.m. They observed a car parked at the curb and saw defendant Spinks sitting in the passenger side and defendant Michael Crosby in the driver’s seat. They observed a male standing outside the car, on the passenger’s side, leaning in the car window.
Detective Carosielli testified he did not see any drug transaction occur on that date, nor did he see anyone with money in his hands. Detective Carosielli admitted he did not see any movements between the individuals that would indicate something was being exchanged. Detective Carosielli further admitted he did not witness any drug transaction or exchange, and that it was “very possible that the three people he observed were engaged in legal activity.” The record at the motion to suppress hearing indicates the detective investigated the behavior because it was “indicative of drug trafficking.”
The record shows that as the officers approached the car, the male leaning inside the car stood up and ran. This individual was not apprehended.
Detective Carosielli claimed that as he approached the vehicle he saw Spinks lean forward and reach across his body with his right hand and place something on the floor. Upon cross-examination, however, Detective Carosielli admitted he did not see Spinks place anything on the floor and that Spinks’ behavior could be consistent with not placing anything on the floor.
Spinks was ordered out of the car and patted down. Neither weapons nor drugs were found on his person.
Detective Carosielli testified that his fellow officer Sergeant Gercar asked Crosby if he possessed any drugs. Crosby, allegedly, made a quick movement with his hand to his jacket pocket. Sergeant Gercar grabbed his arm and reached into his pocket and pulled out a plastic bag which contained suspected cocaine.
The police arrested Crosby and both he and Spinks were taken to the rear of the car and detained. Detective Carosielli testified that he and Sergeant Gercar then looked into the car where he saw Spinks bend and found a vase with seven packets of suspected cocaine. Spinks was then arrested. The substances were later found to be cocaine.
The trial court found that the arrests were subsequent to the search and that the police lacked probable cause to arrest at the time of the search. The court further ruled that the totality of the circumstances was not sufficient to give the police a reasonable suspicion that criminal activity was occurring or about to occur and therefore the search could not be justified as a valid stop and frisk procedure pursuant to
Terry v. Ohio
(1968), 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889.
The issue in the present case is twofold: whether the facts constituted probable cause both for the search and for the subsequent arrest without reference to the evidence discovered by the search and, if the arrests were invalid, whether there existed articulable facts and circumstances to give rise to a reasonable suspicion that appellees were involved in criminal conduct so as to justify the searches made.
We find that, excluding the evidence resulting from the first searches, the record does not contain the existence of facts sufficient to constitute probable cause to arrest the defendants.
In
State v. Fahy
(1988), 49 Ohio App.3d 160, 551 N.E.2d 1311, the court held in its syllabus:
“Police may not search persons based solely on their reputation as drug users and their ambiguous movements at the trunk of a car.
“Mere association and conversation with known drug users are not enough to warrant an inference of current possession or sale of drugs. Also, mere
association or conversation without knowledge of the content of the conversation is not a sufficient basis for an inference of current drug related activity.”
Absent the evidence resulting from the first searches, the record demonstrates that the arrests were made because the defendants’ activities,
i.e.,
sitting in a parked car in an area known for drug activity, talking to an individual outside of the vehicle, were indicative of drug trafficking. This type of activity is insufficient to amount to probable cause to arrest.
Fahy, supra.
The issue then becomes whether there existed articulable suspicion to justify the detention and search of the appellees.
In
State v. Bobo
(1988), 37 Ohio St.3d 177, 524 N.E.2d 489, the Supreme Court found that an
investigatory stop and subsequent protective search
for the safety of police officers was proper given the totality of the circumstances. The specific circumstances were as follows:
(1) the area was one in which heavy drug activity occurred, and 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 whether 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;
(7) the police were away from the protection of their vehicle when they approached defendant Bobo.
In
Bobo
it was evident that all the above factors played a role in the officer’s decision to investigate. Unlike
Bobo,
the record in the present case indicates that the police officers stopped defendants solely because their actions in the officer's opinion amounted to drug trafficking. We find that the trial court reasonably could conclude that the officers relied on
nothing more
to justify their search than the fact that two occupants of a car were engaged in some sort of conversation with an individual leaning against the vehicle. This activity in and of itself does not amount to the articulable suspicion sufficient to justify a stop and search of the defendant. In
State v. Arrington
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Per Curiam.
The state appeals the trial court’s grant of defendants-appellees’ motions to suppress.
On March 23, 1989, at approximately 9:00 p.m., two Cleveland Police officers who were patrolling the area near East 101st Street and St. Clair Avenue in Cleveland, Ohio saw fifteen to twenty juvenile males congregated in that area. The officers got out of their car and went towards the group. Someone in the group allegedly told one of the officers that defendant Andre Spinks was a drug dealer. The officer then spoke with Spinks who, according to the officer, cooperated and allowed the officer to search him. The search did not reveal drugs or a weapon.
The police then left, but returned to the area at approximately 10:15 p.m. They observed a car parked at the curb and saw defendant Spinks sitting in the passenger side and defendant Michael Crosby in the driver’s seat. They observed a male standing outside the car, on the passenger’s side, leaning in the car window.
Detective Carosielli testified he did not see any drug transaction occur on that date, nor did he see anyone with money in his hands. Detective Carosielli admitted he did not see any movements between the individuals that would indicate something was being exchanged. Detective Carosielli further admitted he did not witness any drug transaction or exchange, and that it was “very possible that the three people he observed were engaged in legal activity.” The record at the motion to suppress hearing indicates the detective investigated the behavior because it was “indicative of drug trafficking.”
The record shows that as the officers approached the car, the male leaning inside the car stood up and ran. This individual was not apprehended.
Detective Carosielli claimed that as he approached the vehicle he saw Spinks lean forward and reach across his body with his right hand and place something on the floor. Upon cross-examination, however, Detective Carosielli admitted he did not see Spinks place anything on the floor and that Spinks’ behavior could be consistent with not placing anything on the floor.
Spinks was ordered out of the car and patted down. Neither weapons nor drugs were found on his person.
Detective Carosielli testified that his fellow officer Sergeant Gercar asked Crosby if he possessed any drugs. Crosby, allegedly, made a quick movement with his hand to his jacket pocket. Sergeant Gercar grabbed his arm and reached into his pocket and pulled out a plastic bag which contained suspected cocaine.
The police arrested Crosby and both he and Spinks were taken to the rear of the car and detained. Detective Carosielli testified that he and Sergeant Gercar then looked into the car where he saw Spinks bend and found a vase with seven packets of suspected cocaine. Spinks was then arrested. The substances were later found to be cocaine.
The trial court found that the arrests were subsequent to the search and that the police lacked probable cause to arrest at the time of the search. The court further ruled that the totality of the circumstances was not sufficient to give the police a reasonable suspicion that criminal activity was occurring or about to occur and therefore the search could not be justified as a valid stop and frisk procedure pursuant to
Terry v. Ohio
(1968), 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889.
The issue in the present case is twofold: whether the facts constituted probable cause both for the search and for the subsequent arrest without reference to the evidence discovered by the search and, if the arrests were invalid, whether there existed articulable facts and circumstances to give rise to a reasonable suspicion that appellees were involved in criminal conduct so as to justify the searches made.
We find that, excluding the evidence resulting from the first searches, the record does not contain the existence of facts sufficient to constitute probable cause to arrest the defendants.
In
State v. Fahy
(1988), 49 Ohio App.3d 160, 551 N.E.2d 1311, the court held in its syllabus:
“Police may not search persons based solely on their reputation as drug users and their ambiguous movements at the trunk of a car.
“Mere association and conversation with known drug users are not enough to warrant an inference of current possession or sale of drugs. Also, mere
association or conversation without knowledge of the content of the conversation is not a sufficient basis for an inference of current drug related activity.”
Absent the evidence resulting from the first searches, the record demonstrates that the arrests were made because the defendants’ activities,
i.e.,
sitting in a parked car in an area known for drug activity, talking to an individual outside of the vehicle, were indicative of drug trafficking. This type of activity is insufficient to amount to probable cause to arrest.
Fahy, supra.
The issue then becomes whether there existed articulable suspicion to justify the detention and search of the appellees.
In
State v. Bobo
(1988), 37 Ohio St.3d 177, 524 N.E.2d 489, the Supreme Court found that an
investigatory stop and subsequent protective search
for the safety of police officers was proper given the totality of the circumstances. The specific circumstances were as follows:
(1) the area was one in which heavy drug activity occurred, and 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 whether 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;
(7) the police were away from the protection of their vehicle when they approached defendant Bobo.
In
Bobo
it was evident that all the above factors played a role in the officer’s decision to investigate. Unlike
Bobo,
the record in the present case indicates that the police officers stopped defendants solely because their actions in the officer's opinion amounted to drug trafficking. We find that the trial court reasonably could conclude that the officers relied on
nothing more
to justify their search than the fact that two occupants of a car were engaged in some sort of conversation with an individual leaning against the vehicle. This activity in and of itself does not amount to the articulable suspicion sufficient to justify a stop and search of the defendant. In
State v. Arrington
(1990), 64 Ohio App.3d 654, 582 N.E.2d 649, we stated, “It is not illegal for four males to assemble by a car and engage the occupant in
conversation. * * * It is not unreasonable for a young, black male living in a neighborhood with drug sales and liable to be stopped to run when approached by a police car whose officers assume a drug sale whenever someone speaks to someone in a car and believe the mere act of congregating justified a seizure.”
Id.
at 657-658, 582 N.E.2d at 651-652. This court went on to state: “This is not to deny the reality the officers face in combating the drug sellers. But although drugs are often sold to occupants of cars by people who gather near them it is just as likely that those merely by a car are engaged in an innocent activity as it is that they are engaged in an illegal one.”
Id.
at 658, 582 N.E.2d at 652.
The record supports the trial court’s conclusion that reasonable suspicion did not exist to justify a stop and frisk.
The state’s assignment of error is overruled and the judgment of the trial court is affirmed.
Judgment affirmed.
Dyke and Ann McManamon, JJ., concur.
Patton, C.J., dissents.