
    The State of Ohio v. Ramey.
    
      (No. 33139
    Decided December 9, 1971.)
    Common Pleas Court of Montgomery County.
    
      Mr. Leonard Zdara, assistant prosecutor, for plaintiff.
    
      Mr. Irvin O. Bieser, Jr., for defendant.
   Rice, J.

This cause came on to be heard upon the motion of the defendant for an order of the court:

1. Suppressing any and all physical evidence obtained by the Dayton Police Department from the defendant on the ground that same was taken from him by an illegal search and seizure;

2. Quashing the indictment on the ground that the defendant was arrested without probable cause and that the evidence obtained from him, or from the immediate premises, was taken in violation of his Constitutional Rights; and

3. Requiring the state of Ohio to turn over to the defendant, for inspection, all physical evidence obtained by the Dayton Police Department.

Upon due consideration, the court is of the opinion that the defendant’s motion is well taken in part and not well taken in other parts. Accordingly, the court will overrule the motion in part and sustain same in part.

A. The Facts:

On July 11, 1971, at approximately 12:50 a. m., the defendant was observed, by an officer on routine patrol, walking in a northerly direction on Hawthorne Street, near the vicinity of Germantown and Hawthorne, in Dayton, Ohio. The police officer stopped the cruiser immediately upon observing a chisel or a screwdriver in the defendant’s right rear pocket, which, apparently, was hung up upon his jacket. The defendant appeared to observe the cruiser. He did not attempt to flee the scene but simply stopped and waited for the officer to get out of the cruiser and to approach him. The defendant was not placed under arrest at this time. The defendant’s appearance was unusual in that his pupils were dilated, his eyes were watery and he appeared to have difficulty maintaining his balance. After ascertaining, visually, that the object he had viewed was a chisel, and realizing the neighborhood was one with a high burglary rate (although there were no specific burglaries, known to have occurred on that night which the officer was investigating), the police officer decided to interview the defendant. The officer advised the defendant that he was going to make a “pat-down” or frisk of his outer garments for his own personal safety. As he began to conduct the preliminary frisk, the defendant immediately put his right hand towards his right front jacket pocket. The officer advised the defendant to keep his hand away from his pocket and to put his hand upon the cruiser. However, the defendant continued to attempt to go to his right front jacket pocket, and it became necessary for the officer to restrain the defendant’s hand and place it on top of the cruiser. At that time, a check of the right front pocket (the pocket towards which the defendant had previously moved his right hand) discovered the items which form the subject matter of the indictment (an instrument for the subcutaneous injection of narcotics). A further frisk of the waistband in the small of the defendant’s back revealed other incriminating evidence, although not of the nature to form the subject matter of the present indictment. Upon this discovery, the defendant was arrested and advised of his rights.

It was not brought out in the testimony whether or not the officer knew the defendant or had had any prior dealings with him.

B. The Decision Discussed:

1. The motion to suppress the evidence is sustained.

The case of Mapp v. Ohio (1961), 367 U. S. 643, established the principle that evidence seized in violation of a defendant’s rights under the Fourth Amendment, made applicable to the states through the Fourteenth Amendment, is inadmissible in a criminal trial in a state court. That principle was farther refined in the case of Terry v. Ohio (1968), 392 U. S. 1, which is both applicable to and controlling of the instant case. In Terry, the United States Supreme Court, while upholding a “stop and frisk” of an individual in a situation where a reasonably prudent police officer is warranted, in the circumstances of a given case, in believing that his safety or that of others is endangered, placed limitations upon the circumstances under which a police officer may make such a search of the person in the absence of probable cause to arrest. In Terry, the court held, in pertinent part as follows:

“When an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others, it would appear to be clearly unreasonable to deny the officer the power to take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm.”
“We merely held today that inhere a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as. a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others’ safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him. Such a search is a reasonable search under the Fourth Amendment, and any weapons seized may be properly introduced into evidence against the person from whom they were taken.” (Emphasis added.)

In the case at bar, it is clear that, prior to the search, the officer did not have probable cause to arrest the defendant; the defendant at that time having done nothing to justify the belief in a prudent man, or the officer having no knowledge to justify the belief, that he had committed or was committing a felony offense, except to walk down the street, alone, late at night with a chisel stuck in his back pocket. We must, therefore, examine the facts of the instant case to determine if they are such as to bring the case within the “less than probable cause-Terry rationale” * ® * to determine if the defendant’s conduct was such as to leave the officer to reasonably conclude, in light of his experience, that criminal activity might be afoot and that the defendant might be armed and presently dangerous. The court holds that the facts of the instant case do not come within the Terry doctrine and hence the frisk or search was an unlawful one and any fruits of same must be suppressed,-.

a. The Fourth Amendment applies to stop and frisk procedures such as were followed in the instant case. A careful exploration of the outer surfaces of a person’s clothing in an attempt to find weapons is a “search” under that Amendment. See Terry v. Ohio, supra, at page 16.

b. The Terry case requires, prior to the frisk or search, that the officer must observe unusual conduct which leads him reasonably to conclude, in light of his experience, that criminal activity may be afoot and that the person with whom he is dealing may be armed and presently dangerous. In the instant case, the defendant’s only unusual conduct was to walk down the street, alone, late at night, with a chisel in the rear pocket. Even the further factors that the neighborhood was one with a high burglary rate and that the defendant appeared to be under the influence of drugs or alcohol do not serve to constitute circumstances indicating that criminal activity was afoot and that the defendant was armed and presently dangerous. There is nothing in the evidence to indicate that the officer was investigating a specific burglary, or that a burglary had in fact even been committed in that neighborhood on that night and reported to the police. No evidence appears in the record that the officer knew of the defendant or had ever heard of him before. Had such evidence been present, and had such evidence consisted of the knowledge of the past criminal record of the defendant or of his propensity to commit certain types of crimes, then such evidence could have been urged as a means of justifying the officer’s belief that the defendant might have committed or might then be committing a crime or that the defendant might be presently armed and dangerous. It is clear that the officer lacked the observable unusual conduct on the part of the defendant which would lead him to infer that criminal activity was afoot and that the defendant might be armed and dangerous. It is clear that the officer proceeded to search upon mere suspicion and hunch which was not only less than probable cause but also less than the limited circumstances allowed for a “less than probable cause” search in the Terry case.

c. The court notes the sequence of events leading up to the search of the defendant and the discovery of the evidence in question. A perusal of Officer "West’s testimony indicates that he had begun the frisk or search when the defendant, immediately, moved toward his right front pocket. (“I advised him that I was going to make a pat-down of his outer garments for my own personal safety. And with this, I began to do so, and he immediately put his right hand towards his right front jacket pocket * * *.”) Had the move toward the pocket been made first, or prior to the decision to search being made and the search actually being commenced, rather than immediately after the search began, the court would have no difficulty in upholding the search as a proper one under the Terry decision. Under those circumstances, the search would have been proper in that the move to the pocket, together with the other attendant circumstances (high burglary rate neighborhood, time of night, chisel in back pocket, unusual appearance of the defendant, etc.) would have comprised unusual conduct on the part of the defendant which would justify the policeman, in light of his experience, in the belief that criminal activity was afoot and that the defendant was armed and dangerous. In the instant case, the search having commenced prior to the move to the pocket, said move to the pocket cannot justify the illegal search. Probable cause to search, or the less than probable cause standard of search allowable under the Terry decision, depends upon the facts and circumstances within the officer’s knowledge at the time of the search— not the facts and circumstances which arose after the search began. In other words, a search (or frisk) cannot be justified by after the fact circumstances or factors.

d. It must be emphasized that the court is not denying the right of police officers to stop and question people, on the streets, under circumstances which would justify a suspicion or a hunch that criminal activity may be afoot under circumstances, in other words, which would not constitute sufficient cause for an arrest. The actions of the police in filling out “field identification cards” is standard operating procedure in all large city police departments. The court is stating, however, that if the situation goes beyond mere questioning to the point where a search or a frisk is attempted, then mere suspicion or hunch is no longer sufficient, and the officer must, consistent with the dictates of the Fourth Amendment, comply with the more stringent requirements of the Terry case which holds that such a search or frisk for one’s own personal safety cannot be made unless the officer observes unusual conduct which leads him reasonably to conclude, in light of his experience, that criminal activity may be afoot and that the person with whom he is dealing may be armed and presently dangerous. See also Sibron v. New York (1968), 392 U. S. 40, which holds that before a police officer can make a self-protective search for weapons, the officer must be able to point to particular facts from which he reasonably inferred that the person searched was armed and dangerous. Such circumstances and facts did not exist in the instant case; the search was an illegal one and the evidence must be suppressed.

2. The motion to quash the indictment on the grounds of the illegality of the arrest is overruled.

Assuming, arguendo, the illegality of the arrest in the instant cause, it is well established that an illegal arrest does not deprive the court of jurisdiction to try an offender. Frisbie v. Collins (1952), 342 U. S. 519. In Ohio, purusant to R. C. 2941.54, a motion to quash may be made where there is a defect apparent on the face of the record, including defects in the form of indictment and in the manner in which the offense is charged. An illegal arrest would not be such a defect apparent on the face of the record. Therefore, the court holds that, in Ohio, an illegal arrest (assuming the arrest to have been illegal in the instant case) is not a ground for a motion to quash the indictment.

The court realizes that, as a practical matter, the court’s decision to suppress the evidence in the captioned cause does, in effect, quash or do away with the indictment, since the prosecution will not be able to go forward without evidence.

The motion to quash the indictment is overruled.

3. The motion for inspection of the physical evidence in the captioned cause is moot and will not be ruled upon.

The court having determined to suppress the evidence in the captioned cause, said evidence cannot be used in a trial of this lawsuit, and the motion to inspect is, therefore, moot.

WHEREFORE, the court sustains the defendant’s motion to suppress the evidence in the captioned cause, overrules the defendant’s motion to quash the indictment because of the illegality of the arrest, and makes no decision upon the defendant’s motion to inspect the evidence, since said motion is now moot.  