Nahra, Judge.
On March 10, 1990, Detective Kenneth Patterson of the Narcotics Unit of the Cleveland Police Department was on patrol with his partner, Sergeant Gercer, in the area of East 120th Street and Benham Avenue in Cleveland, Ohio. They were trying to locate some suspects that other officers were chasing through the backyards of residential homes. Patterson and Gercer were riding in unmarked cars and were wearing civilian clothing.
As Det. Patterson pulled his vehicle onto East 120th Street, he observed two males standing on a driveway located at 3545 East 120th Street. Upon the vehicle’s approach, Taft Edwards, defendant-appellant, and Moses Durden split up and began to walk in opposite directions. Edwards began to walk toward the house more quickly once the officers identified themselves as Cleveland police officers. Detective Patterson testified at the suppression hearing that he observed Edwards discard something. Patterson admitted that the item could have been a gum wrapper but that, whatever it was, it was never recovered. Moses Durden testified that he did not observe Edwards discard anything. Edwards also was observed reaching into the breast pocket of his jacket.
The two police officers immediately drew their weapons and ordered Edwards to remove his hand from his jacket. Edwards then raised his hands into the air and Det. Patterson proceeded to conduct a patdown for a weapon. No weapon was found.
Det. Patterson then conducted another search of Edwards to look for contraband. As a result of the second search, Patterson found a small packet which contained marijuana and cocaine. Edwards was arrested thereafter.
Edwards was indicted on one count of drug law violation pursuant to R.C. 2925.11 and possession of criminal tools pursuant to R.C. 2923.24. Edwards filed a motion to suppress the evidence. After the trial court denied the motion, Edwards entered a plea of no contest. He was found guilty and sentenced to a term of one and a half years on each count to run concurrently. The sentence was suspended and Edwards was placed on probation for two years. This appeal follows.
Edwards’ sole assignment of error states:
“The trial court erred in overruling the defendant-appellant’s motion to suppress evidence, as the stop and search was wholly improper under the totality of the circumstances.”
Edwards maintains that Det. Patterson’s investigative stop and subsequent search surpassed permissible boundaries and were improper.
The United States Supreme Court established in
Terry v. Ohio
(1968), 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, that a police officer may make a warrantless investigatory stop without probable cause of an individual where the police officer reasonably suspects that the individual has been involved in criminal activity. The Supreme Court stated:
“[I]n justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion. The scheme of the Fourth Amendment becomes meaningful only when it is assured that at some point the conduct of those charged with enforcing the laws can be subjected to the more detached, neutral scrutiny of a judge who must evaluate the reasonableness of a particular search or seizure in light of the particular circumstances. And in making that assessment it is imperative that the facts be judged against an objective standard: would the facts available to the officer at the moment of the seizure or the search ‘warrant a man of reasonable caution in the belief’ that the action taken was appropriate? Cf.
Carroll v. United States,
267 U.S. 132 [45 S.Ct. 280, 69 L.Ed. 543] (1925);
Beck v. Ohio,
379 U.S. 89, 96-97 [85 S.Ct. 223, 228, 13 L.Ed.2d 142, 148] (1964). Anything less would invite intrusions upon constitutionally guaranteed rights based on nothing more than inarticulate hunches, a result this court has consistently refused to sanction.
See,
e.g.
Beck v. Ohio supra; Rios v. United States,
364 U.S. 253 [80 S.Ct. 1431, 4 L.Ed.2d 1688] (1960);
Henry v. United States,
361 U.S. 98 [80 S.Ct. 168, 4 L.Ed.2d 134] (1959).” (Footnotes omitted.)
Terry v. Ohio,
392 U.S. at 21-22, 88 S.Ct. at 1880, 20 L.Ed.2d at 906.
The record reveals that officer Patterson did possess specific and articulable facts upon which an investigatory stop of Edwards was justified. Such facts include the following: the area in question was known as a high drug area; Det. Patterson and his partner were searching for two male suspects in the area; Edwards separated from another male when the unmarked police car arrived and began walking away more briskly when the police officers identified themselves; Edwards apparently discarded something while he was walking down the driveway and reached into the pocket of his jacket. These factors considered together establish that the officers did
have reasonable suspicion based upon articulable facts to justify an investigatory stop and frisk for weapons.
Even though appellant’s behavior warranted Patterson to stop Edwards, Patterson’s search of Edwards’ person surpassed justifiable limits. The justification for a frisk after a stop rests upon the need to protect police officers who are engaged in investigative activity.
Terry v. Ohio, supra,
392 U.S. at 29, 88 S.Ct. at 1884, 20 L.Ed.2d at 911. A police officer may frisk the suspect if the officer has reasonable grounds to believe that the suspect is carrying a weapon or otherwise endangers the officer’s safety.
Sibron v. New York
(1968), 392 U.S. 40, 65-66, 88 S.Ct. 1889, 1904, 20 L.Ed.2d 917, 936;
State v. Moody
(1985), 30 Ohio App.3d 44, 30 OBR 99, 506 N.E.2d 256;
State v. Kratzer
(1972), 33 Ohio App.2d 167, 62 O.O.2d 257, 293 N.E.2d 104. Here, Patterson testified that he had observed Edwards reach into his jacket pocket. As a result, Patterson conducted a limited frisk for weapons. Patterson revealed that he found no weapons during the limited frisk; he then proceeded to search Edwards and discovered contraband. Inasmuch as Patterson’s second pat down was not prompted out of any concern for his protection, we believe that such search surpassed justifiable limits of a search following an investigative stop. See
State v. Hinerman
(Apr. 10, 1986), Cuyahoga App. No. 50353, unreported, 1986 WL 4397;
State v. Kratzer, supra.
As a result, Patterson’s search violated Edwards’ constitutional right against unreasonable searches and seizures.
We also do not believe that Patterson had probable cause to search Edwards.
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Nahra, Judge.
On March 10, 1990, Detective Kenneth Patterson of the Narcotics Unit of the Cleveland Police Department was on patrol with his partner, Sergeant Gercer, in the area of East 120th Street and Benham Avenue in Cleveland, Ohio. They were trying to locate some suspects that other officers were chasing through the backyards of residential homes. Patterson and Gercer were riding in unmarked cars and were wearing civilian clothing.
As Det. Patterson pulled his vehicle onto East 120th Street, he observed two males standing on a driveway located at 3545 East 120th Street. Upon the vehicle’s approach, Taft Edwards, defendant-appellant, and Moses Durden split up and began to walk in opposite directions. Edwards began to walk toward the house more quickly once the officers identified themselves as Cleveland police officers. Detective Patterson testified at the suppression hearing that he observed Edwards discard something. Patterson admitted that the item could have been a gum wrapper but that, whatever it was, it was never recovered. Moses Durden testified that he did not observe Edwards discard anything. Edwards also was observed reaching into the breast pocket of his jacket.
The two police officers immediately drew their weapons and ordered Edwards to remove his hand from his jacket. Edwards then raised his hands into the air and Det. Patterson proceeded to conduct a patdown for a weapon. No weapon was found.
Det. Patterson then conducted another search of Edwards to look for contraband. As a result of the second search, Patterson found a small packet which contained marijuana and cocaine. Edwards was arrested thereafter.
Edwards was indicted on one count of drug law violation pursuant to R.C. 2925.11 and possession of criminal tools pursuant to R.C. 2923.24. Edwards filed a motion to suppress the evidence. After the trial court denied the motion, Edwards entered a plea of no contest. He was found guilty and sentenced to a term of one and a half years on each count to run concurrently. The sentence was suspended and Edwards was placed on probation for two years. This appeal follows.
Edwards’ sole assignment of error states:
“The trial court erred in overruling the defendant-appellant’s motion to suppress evidence, as the stop and search was wholly improper under the totality of the circumstances.”
Edwards maintains that Det. Patterson’s investigative stop and subsequent search surpassed permissible boundaries and were improper.
The United States Supreme Court established in
Terry v. Ohio
(1968), 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, that a police officer may make a warrantless investigatory stop without probable cause of an individual where the police officer reasonably suspects that the individual has been involved in criminal activity. The Supreme Court stated:
“[I]n justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion. The scheme of the Fourth Amendment becomes meaningful only when it is assured that at some point the conduct of those charged with enforcing the laws can be subjected to the more detached, neutral scrutiny of a judge who must evaluate the reasonableness of a particular search or seizure in light of the particular circumstances. And in making that assessment it is imperative that the facts be judged against an objective standard: would the facts available to the officer at the moment of the seizure or the search ‘warrant a man of reasonable caution in the belief’ that the action taken was appropriate? Cf.
Carroll v. United States,
267 U.S. 132 [45 S.Ct. 280, 69 L.Ed. 543] (1925);
Beck v. Ohio,
379 U.S. 89, 96-97 [85 S.Ct. 223, 228, 13 L.Ed.2d 142, 148] (1964). Anything less would invite intrusions upon constitutionally guaranteed rights based on nothing more than inarticulate hunches, a result this court has consistently refused to sanction.
See,
e.g.
Beck v. Ohio supra; Rios v. United States,
364 U.S. 253 [80 S.Ct. 1431, 4 L.Ed.2d 1688] (1960);
Henry v. United States,
361 U.S. 98 [80 S.Ct. 168, 4 L.Ed.2d 134] (1959).” (Footnotes omitted.)
Terry v. Ohio,
392 U.S. at 21-22, 88 S.Ct. at 1880, 20 L.Ed.2d at 906.
The record reveals that officer Patterson did possess specific and articulable facts upon which an investigatory stop of Edwards was justified. Such facts include the following: the area in question was known as a high drug area; Det. Patterson and his partner were searching for two male suspects in the area; Edwards separated from another male when the unmarked police car arrived and began walking away more briskly when the police officers identified themselves; Edwards apparently discarded something while he was walking down the driveway and reached into the pocket of his jacket. These factors considered together establish that the officers did
have reasonable suspicion based upon articulable facts to justify an investigatory stop and frisk for weapons.
Even though appellant’s behavior warranted Patterson to stop Edwards, Patterson’s search of Edwards’ person surpassed justifiable limits. The justification for a frisk after a stop rests upon the need to protect police officers who are engaged in investigative activity.
Terry v. Ohio, supra,
392 U.S. at 29, 88 S.Ct. at 1884, 20 L.Ed.2d at 911. A police officer may frisk the suspect if the officer has reasonable grounds to believe that the suspect is carrying a weapon or otherwise endangers the officer’s safety.
Sibron v. New York
(1968), 392 U.S. 40, 65-66, 88 S.Ct. 1889, 1904, 20 L.Ed.2d 917, 936;
State v. Moody
(1985), 30 Ohio App.3d 44, 30 OBR 99, 506 N.E.2d 256;
State v. Kratzer
(1972), 33 Ohio App.2d 167, 62 O.O.2d 257, 293 N.E.2d 104. Here, Patterson testified that he had observed Edwards reach into his jacket pocket. As a result, Patterson conducted a limited frisk for weapons. Patterson revealed that he found no weapons during the limited frisk; he then proceeded to search Edwards and discovered contraband. Inasmuch as Patterson’s second pat down was not prompted out of any concern for his protection, we believe that such search surpassed justifiable limits of a search following an investigative stop. See
State v. Hinerman
(Apr. 10, 1986), Cuyahoga App. No. 50353, unreported, 1986 WL 4397;
State v. Kratzer, supra.
As a result, Patterson’s search violated Edwards’ constitutional right against unreasonable searches and seizures.
We also do not believe that Patterson had probable cause to search Edwards.
Probable cause exists when an arresting, officer has sufficient information to warrant a prudent man in believing that a felony has been or is being committed and that it has been or is being committed by the accused.
Henry v. United States
(1959), 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134;
Brinegar v. United States
(1949), 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879;
State v. Hill
(1977), 52 Ohio App.2d 393, 6 O.O.3d 436, 370 N.E.2d 775.
Det. Patterson’s observations of Edwards did not warrant a prudent man in believing a felony was in progress. Patterson testified that he observed Edwards standing at the end of a driveway standing next to another person. Patterson did not observe anything exchanged. Upon arrival of the unmarked car, Edwards began walking toward the house there. Edwards did not make any furtive glances. Edwards did begin to walk more rapidly; according to Patterson, Edwards did discard an object. However, Edwards’ behavior did not give rise to a reasonable inference that he was a participant in a felony.
Sibron v. New York, supra.
Therefore, based on the totality of
the circumstances, we find that Patterson did not have probable cause to believe Edwards was committing or had committed a drug offense.
As a result of the foregoing, we find that the trial court erred in denying appellant’s motion to suppress. Appellant’s assignment of error is sustained.
Accordingly, the judgment of the trial court is reversed and remanded for further proceedings consistent with this opinion.
Judgment reversed and cause remanded.
Harper, J., concurs.
Matia, C.J., dissents.