State v. White

674 N.E.2d 405, 110 Ohio App. 3d 347

• Court: Ohio Court of Appeals
• Decided: April 10, 1996
• Docket: No. 95 CA 2325.
• Status: Published

Opinions

Peter B. Abele, Presiding Judge.

This is an appeal from a judgment of conviction and sentence entered by the Scioto County Common Pleas Court finding Jay L. White, defendant below and appellant herein, guilty of aggravated trafficking in violation of R.C. 2925.03(A)(2), (C)(2) and (H)(6).

Appellant assigns the following error:

“The trial court committed reversible error by failing to sustain the defendant appellant’s motion to suppress the evidence in that evidence obtained as a result of the search should have been suppressed by the trial court as having been obtained in violation of the defendant-appellant’s Fourth Amendment rights under the United States Constitution.”

The Scioto County Grand Jury indicted appellant on one count of aggravated trafficking. On June 7, 1994, appellant filed a motion to suppress evidence. On July 15,1994, appellant filed an amended motion to suppress evidence.

In Ms motion to suppress evidence, appellant asserted that the officers did not have a sufficient constitutional basis to perform a warrantless search. At the hearing on the motion, the parties presented evidence regarding the officers’ encounter with appellant. The evidence adduced at the hearing revealed that on the mormng of March 8, 1994, Portsmouth Police Officer David Bennett was parked near the 1000 block of Waller Street in Portsmouth. An informant approached Ms car. Officer Bennett stated that he had received reliable information from the informant in the past. Officer Bennett further testified that the informant advised him that the appellant was selling crack cocaine at the corner of 14th and Waller Street and that he was armed. Officer Bennett testified that tMs particular street corner is located -within a Mgh-crime area.

Officer Bennett drove to the intersection of 14th and Waller where' he in fact encountered appellant. After telling appellant about the informant’s information, Officer Bennett attempted to pat appellant down. Officer Bennett testified that during the attempted pat-down, appellant “kept passing stuff from hand to hand and going in and out of his pockets.” In order to pat down appellant to Officer Bennett’s satisfaction, Officer Bennett placed appellant in the police cruiser and called for assistance. Officer Bennett did not, however, place appellant in the cruiser until Officer Bennett was “pretty well convinced he [appellant] didn’t have a weapon.”

Officer Todd Bryant and Captain William Hanley responded to Officer Bennett’s call for assistance. Upon request, appellant got out of the cruiser, turned around, and placed Ms hands on top of the cruiser. Officer Bryant testified that Officer Bennett indicated that appellant might be armed. When Officer Bryant patted down appellant, Officer Bryant found fourteen rocks of crack cocaine in appellant’s left sock.

When asked at the hearing to describe what he found, Officer Bryant said the crack cocaine was ball-shaped with a diameter slightly larger than a quarter. 1 Neither party asked Officer Bryant to testify whether the ball felt hard or soft, whether he thought it might be a weapon, or whether he knew from his prior experience as a police officer that what he felt was obviously and unmistakably crack cocaine. The officers did not find a weapon during their search of appellant.

On July 28, 1994, the court overruled appellant’s motion to suppress evidence. On September 7, 1994, appellant withdrew his plea of not guilty and entered a plea of no contest. The court found appellant guilty as charged. On December 5, 1994, the court sentenced appellant. Appellant filed a timely notice of appeal.

In his sole assignment of error, appellant asserts that the trial court erred by overruling appellant’s motion to suppress the evidence found on him during the pat-down search. Appellant does not contest the propriety of the Terry stop. Rather, appellant contends that the ensuing pat-down search for weapons exceeded the scope of a permissible protective search. Appellant asserts that the officers searched appellant for evidence of crime rather than for weapons. Appellee argues that the officers had a reasonable suspicion of criminal activity justifying the pat-down search. Appellee does not, however, discuss the permissible scope of the pat-down search.

Initially, we note that in a hearing on a motion to suppress evidence, the trial court assumes the role of trier of fact and is in the best position to resolve questions of fact and evaluate the credibility of witnesses. State v. Robinson (1994), 98 Ohio App.3d 560, 649 N.E.2d 18; State v. Rossiter (1993), 88 Ohio App.3d 162, 623 N.E.2d 645; State v. Lewis (1992), 78 Ohio App.3d 518, 605 N.E.2d 451; State v. Warren (Aug. 12,1991), Hocking App. No. 90CA7, unreported, 1991 WL 156521. Thus, the credibility of witnesses during a motion to suppress evidence hearing is a matter for the trial court. A reviewing court should not disturb the trial court’s findings on the issue of credibility. State v. Mills (1992), 62 Ohio St.3d 357, 582 N.E.2d 972; State v. Fanning (1982), 1 Ohio St.3d 19, 1 OBR 57, 437 N.E.2d 583. While we are bound to accept any findings of fact by the trial court which are supported by competent, credible evidence, we must independently determine as a matter of law, without deference to the trial court’s conclusion, whether the findings of fact meet the appropriate legal standard. See State v. Harris (1994), 98 Ohio App.3d 543, 649 N.E.2d 7; State v. Shelpman (May 23, 1991), Ross App. No. 1632, unreported, 1991 WL 87312; State v. Simmons (Aug. 3,1990), Washington App. No. 89CA18, unreported, 1990 WL 127065.

In the case sub judice, the facts are not in dispute. Officer Bennett stopped appellant based upon two factors: (1) the tip of a known informant that appellant was carrying a concealed weapon and selling drugs, and (2) the high level of criminal activity in the area in which Officer Bennett found appellant. Subsequently, the officers searched appellant and found money and cocaine.

The Fourth and Fourteenth Amendments to the United States Constitution as well as Section 14, Article I of the Ohio Constitution prohibit any governmental search or seizure unless supported by an objective justification. Terry v. Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889; State v. Lindway (1936), 131 Ohio St. 166, 5 O.O. 538, 2 N.E.2d 490; State v. Andrews (1991), 57 Ohio St.3d 86, 87, 565 N.E.2d 1271, 1272. “[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.’ ” Mincey v. Arizona (1978), 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290; S. Dakota v. Opperman (1976), 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000; State v. Halczyszak (1986), 25 Ohio St.3d 301, 25 OBR 360, 496 N.E.2d 925; and State v. Tincher (1988), 47 Ohio App.3d 188, 548 N.E.2d 251. If evidence is obtained in violation of the Fourth Amendment, exclusion of the evidence is mandated. Mapp v. Ohio (1961), 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081.

In Terry v. Ohio, supra, the United States Supreme Court ruled that an exception to the warrant requirement exists when a police officer has a reasonable suspicion that an individual is engaged in criminal activity. The police officer may briefly stop the individual for questioning. State v. Andrews, supra, 57 Ohio St.3d at 87, 565 N.E.2d at 1272-1273. In order to justify a brief investigative stop under Terry, 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. State v. Williams (1990), 51 Ohio St.3d 58, 60, 554 N.E.2d 108, 111. The propriety of an investigative stop by a police officer must be viewed in light of the totality of the circumstances. State v. Bobo (1988), 37 Ohio St.3d 177, 524 N.E.2d 489, paragraph one of the syllabus. The court must determine what a reasonable police officer would do in a given situation.

In the case sub judice, we agree with appellee and appellant that Officer Bennett was justified in stopping appellant for questioning. Under Terry, a police officer must have a reasonable suspicion that the detainee is committing or has committed a crime. At the suppression hearing, Officer Bennett testified about the information contained in the tip and about the high level of drug activity in the area. Officer Bennett stated that he knew the informant and that he had received reliable information from him in the past. Although there is no bright-line test for determining whether an informant’s information is sufficiently reliable to furnish a basis for an investigative stop, it is well established that information outside an officer’s own observations, including tips, may supply the reasonable suspicion necessary to justify initiating such a stop. State v. English (1993), 85 Ohio App.3d 471, 474, 620 N.E.2d 125, 127, citing Adams v. Williams (1972), 407 U.S. 143, 147, 92 S.Ct. 1921, 1923-1924, 32 L.Ed.2d 612, 617-618; State v. Wilks (Sept. 30, 1993), Montgomery App. No. 13654, unreported, 1993 WL 386246. Information supplied by a confidential informant may constitute an articulable fact upon which a reasonable suspicion may be based. State v. Haupricht (Aug. 3, 1990), Lucas App. No. L-89-202, unreported, 1990 WL 109965, citing United States v. Hensley (1985), 469 U.S. 221, 105 S.Ct. 675, 83 L.Ed.2d 604.

[5] In the instant case, Officer Bennett knew the informant, and the given information was specific as to both the person and the crime. In Adams, supra, the United States Supreme Court upheld the legality of a Terry stop-and-frisk search based on the tip of a known informant. 407 U.S. at 146-147, 92 S.Ct. at 1923-1924, 32 L.Ed.2d at 617-618. Drug activity and criminal activity in general are articulable facts that factor into the totality of the circumstances surrounding a stop to investigate suspicious behavior. Andrews, supra, 57 Ohio St.3d at 88, 565 N.E.2d at 1273-1274, citing Bobo, 37 Ohio St.3d at 179, 524 N.E.2d at 491, and State v. Freeman (1980), 64 Ohio St.2d 291, 18 O.O.3d 472, 414 N.E.2d 1044. Under the facts in this case, an investigative Terry stop of appellant was justified.

Our inquiry does not end at this juncture, however. We must now decide whether the ensuing pat-down search violated appellant’s Fourth Amendment rights. We again note that appellant does not contest the validity of the initial Terry stop. Appellant argues, however, that because the officers who searched him were looking for evidence as well as any hidden weapons, the search exceeded the scope allowed by Terry. Appellee does not address the issue regarding the permissible scope of a Terry pat-down search.

Under Terry, a police officer may conduct a protective pat-down search of a detainee’s person for concealed weapons when the officer has a reasonable suspicion that the suspect is armed and dangerous. Terry, supra, 392 U.S. at 24, 88 S.Ct. at 1881, 20 L.Ed.2d at 907-908; Bobo, supra. “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 * * *.” Adams, supra, 407 U.S. at 146, 92 S.Ct. at 1923, 32 L.Ed.2d at 617. Thus, Terry limits the search’s scope to looking for weapons that could pose a risk to the officer’s safety during the stop. 2

Additionally, in State v. Evans (1993), 67 Ohio St.3d 405, 618 N.E.2d 162, the court noted that contraband evidence found during a Terry search may be admissible in evidence. In Evans the court addressed situations in which a police officer feels a hard object and is unable to determine that the object is not a weapon. Under Evans, if the unknown object is hard, and its size or density is such that it might be a weapon, the officer may remove the object to ensúre his safety. 3 LaFave, Search and Seizure, at 523, Section 9.4(c), is instructive on this point as well:

“Under the better view, then, a search is not permissible when the object felt is soft in nature. If the object felt is hard, then the question is whether its ‘size or density is such that it might be a weapon. But because Veapons are not always of an easily discernible shape,’ it is not inevitably essential that the officer feel the outline of a pistol or something of that nature. Somewhat more leeway must be allowed upon ‘the feeling of a hard object of substantial size, the precise shape or nature of which is not discernible through outer clothing,’ which is most likely to occur when the suspect is wearing heavy clothing. Under this approach, courts have upheld as proper searches which turned up certain objects other than guns, such as a pocket tape recorder, a pipe, a pair of pliers, cigarette lighter, several keys taped together, or a prescription bottle. In making a judgment on this issue, some courts take into account other evidence bearing upon whether it appears the officer was acting in good faith, such as whether the object felt more like an item of evidence the officer apparently suspected the person might have on him than a weapon.” (Footnotes omitted.)

Thus, if during a pat-down search an officer feels a hard object that may be a weapon, but the object turns out to be contraband, that contraband may properly be admitted in evidence. In this type of situation the search involved no greater invasion of the detainee’s privacy than was already warranted by the pat-down.

In the instant case, we find no evidence in the record indicating whether the “balled up” object on appellant’s person was hard or soft, or whether the officers feared that this object might be a weapon. The record contains no evidence that when Officer Bryant felt the unknown object under appellant’s sock, he felt something hard of sufficient size and density to be a weapon. Officer Bryant testified that he searched appellant for both drugs and weapons. Terry does not permit searches for drugs. In State v. Moon (1991), 74 Ohio App.3d 162, 166, 598 N.E.2d 726, 729, the court discussed the permissible scope of a Terry frisk for weapons as follows:

“The trial court’s resort to the intermediate ‘stop and frisk’ standard is problematic. Officer Rewak did not suggest, and it does not appear likely, that he removed Moon’s cap and searched its lining because he feared that a readily accessible weapon was hidden therein. To the contrary, Detective Resendez indicated at the hearing that the search was for ‘contraband.’ As, far as we are aware, an investigative ‘stop and frisk’ of a person exclusively for drugs has never been constitutionally permissible absent ‘probable cause’ to suspect criminal activity.”

Thus, in the absence of evidence establishing the fact that an officer, while conducting a lawful Terry pat-down search, believed that an unknown object might be a weapon, the officer’s search of the suspect exceeds the permissible scope of the Terry search doctrine.

We note that other permissible bases may exist for the search beyond the Terry exception to the warrant requirement. In Minnesota v. Dickerson (1993), 508 U.S. 366, 113 S.Ct. 2130, 124 L.Ed.2d 334, the court addressed situations in which a police officer, while conducting a lawful Terry stop-and-frisk search, feels an object “whose contour or mass makes its identity immediately apparent.” In such situations, the court noted:

“[T]here has been no invasion of the suspect’s privacy beyond that already authorized by the officer’s search for weapons; if the object is contraband, its warrantless seizure [is] justified by the same practical considerations that inhere in the plain-view context.” (Footnote omitted.) Dickerson, 508 U.S. at 375-376, 113 S.Ct. at 2137, 124 L.Ed.2d at 346.

This “plain feel” exception to the warrant requirement allows the state to use evidence seized during a Terry search if the police officer, due to his experience arresting drug offenders, feels contraband whose contour or mass makes its identity “immediately apparent” to him.

In the case at bar, we note that the testimony adduced at the suppression hearing failed to shed light on what Officer Bryant thought he felt underneath appellant’s sock. We find no evidence in the record to establish that when Officer Bryant patted the crack cocaine, its identity was “immediately apparent” to him.

The result in this case is regrettable. We are keenly aware that the drug problem poses a great threat to our nation and that the deterrence of drug activity is an overwhelming public concern. We note, however, that in Weeks v. United States (1914), 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652, the United States Supreme Court adopted the exclusionary rule. The court held that evidence obtained in violation of an accused’s Fourth Amendment rights could not be used in a federal criminal prosecution against him. The court noted that while efforts to bring the guilty to punishment are praiseworthy, those efforts “are not to be aided by the sacrifice of those great principles established by years of endeavor and suffering which have resulted in their embodiment in the fundamental law of the land.” Id. at 393, 34 S.Ct. at 344, 58 L.Ed. at 655-656. In 1961, the court extended the exclusionary rule for Fourth Amendment violations to state criminal proceedings. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081. As an intermediate level appellate court, we are obligated to follow decisions rendered by the United States Supreme Court.

In State v. Carter (1994), 69 Ohio St.3d 57, 69, 630 N.E.2d 355, 365, the court quoted from Dworkin, Fact Style Adjudication and the Fourth Amendment: The Limits of Lawyering (1973), 48 Ind.L.J. 329, 330-331, regarding the exclusionary rule as follows:

“ ‘The critics [of the exclusionary rule] forget that neither the rule nor the fourth amendment exists to protect the criminal in whose case the rule is applied. Both exist to protect society — all those citizens who never break laws more serious than those prohibiting overtime parking. * * * Narrowly viewed, the exclusionary rule is very unattractive, because in the vast majority of cases in which it is applied the immediate result is to free an obviously guilty person. But the guilty defendant is freed to protect the rest of us from unlawful police invasions of our security and to maintain the integrity of our institutions. Thus to suggest that the exclusionary rule fails to aid the innocent or that society rather than the policeman suffers for the policeman’s transgression is nonsense. The innocent and society are the principal beneficiaries of the exclusionary rule.’ ”

Accordingly, based on the foregoing reasons, we sustain appellant’s assignment of error.

Judgment reversed.

Stephenson, J., concurs separately. Kline, J., dissents.

1 . At the suppression hearing, Officer Bryant testified as follows:

“By Mr. Hale:

“Q. And what was the purpose of that pat-down search?

"A. To search for guns or drugs.

"Q. Is that your understanding of the puipose of a patdown, is to search for a weapon and/or drugs?

“A. Based on the information that we had received, that’s what I was looking for, yes. "Q. And where did you locate the crack?

"A. In his left sock.

"Q. Now, how many rocks were there?

“A. Fourteen.

“Q. Just to give me some idea, how big of an object would 14 rocks of crack cocaine be?

"A. When it’s balled up, if you take — probably a little bit bigger than a quarter and round it out like a marble or something.”

2 . 3 LaFave, Search and Seizure (2d Ed.1987) 520, Section 9.4(b), is instructive on this point:

"The limited search permitted by Terry, it is important to remember, is to find weapons ‘for the assault of the police officer,' not merely to find weapons; thus there is no reason to cover every square inch of the suspect's body. The need is only to find the implements which could readily be grasped by the suspect during the brief face-to-face encounter, not to uncover items which are cleverly concealed and which could be brought out only with considerable delay and difficulty. By contrast, the on-the-scene search of a person who has been arrested and who is to be transported to the station (often unwatched in the rear of a police van), also frequently referred to as a 'frisk,' must be more extensive because the arrestee may well have an opportunity to get his hands on a carefully concealed weapon. The difference between the two situations is appreciated by the police, who normally pat down only around the armpits and pockets during a stopping for investigation, but make a more detailed search after arrest.

"If during a lawful pat-down an officer feels an object which obviously is not a weapon, further ‘patting’ of it is not permissible. Illustrative is State v. Hobart, where an officer, after feeling spongy objects in the suspect's pockets, squeezed them and determined they were balloons probably containing narcotics. The court concluded:

" 'However, from his own description of the search which he made, it is evident that its scope was not strictly limited to a search for weapons, but included an exploration of the possibility that the defendant might be in possession of narcotics. Having discovered "spongy” objects (which could not reasonably be feared as dangerous weapons) in the defendant's pockets, the officer squeezed them, with the obvious purpose of ascertaining whether they had the shape and consistency of balloons commonly used for narcotics. Such a search reaches beyond the scope permitted under the Fourth Amendment, adding to the search for weapons a search for evidence of crime.’

"Moreover, once the pat-down has determined that the suspect is not armed, the police may not without probable cause once again search the suspect and confiscate the contents of his pockets.” (Footnotes omitted.)