CONCURRING OPINION I concur in judgment only with the majority opinion. As an initial matter, I note that it is not the general practice of this court to name trial judges in appellate opinions. Therefore, I adopt the concurring opinions in State v. Latson (1999),133 Ohio App.3d 475, 483, 728 N.E.2d 465, 471; and State v. Thomas (May 13, 1999), Cuyahoga App. Nos. 72536, 72537, unreported.
As for substantive matters, the majority apparently presumes that the police officers did not have sufficient grounds to stop Clark. A police officer may make a brief investigatory stop of an individual without a warrant or probable cause where the police officer reasonably suspects that the individual is or has been involved in criminal activity. See Terry v. Ohio (1968),392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889. Unlike an anonymous tip, a tip from a known, reliable informant *Page 193 exhibits sufficient indicia of reliability to provide reasonable suspicion to make the investigatory stop. Florida v. J.L. (2000), 529 U.S. 266, 269-270, 120 S.Ct. 1375, 1378, 146 L.Ed.2d 254, 260.
Officer Ramsey and his partner were assigned to the Morris Black Place area because of complaints about ongoing drug activity, gambling and loitering. In addition, the police received a tip from a known, reliable informant specifically regarding Clark's activities. The tip included an accurate description of Clark and his clothing. The officers' suspicions were further predicated on their own observations of Clark's peculiar actions in a high drug area.
The majority places great weight on the fact that the prosecution failed to elicit detailed testimony about the clothing Clark was wearing. The majority evidently believes that an accurate description of a suspect is not reliable unless a police officer is able to provide an item-by-item description of the suspect's clothing at a suppression hearing held months later. The majority fails to cite to any case law in support of this proposition.
The majority opinion also indicates that, in order to effectuate a Terry stop, a police officer must actually observe the person engaging in criminal activity. In fact, reasonable suspicion is often premised upon conduct that is not itself illegal, such as loitering or acting suspicious. See United Statesv. Sokolow (1989), 490 U.S. 1, 9, 109 S.Ct. 1581, 1586,104 L.Ed.2d 1, 11-12.
Upon review of the suppression hearing transcript, I conclude that Officer Ramsey articulated specific facts which, under the totality of the circumstances, supported a reasonable suspicion that Clark was engaged in criminal activity. As such, the initial investigatory stop of Clark was justified.
The majority also finds fault with the police officers' protective search of Clark for weapons. An officer, for the protection of himself and others, may conduct a carefully limited search for weapons in the outer clothing of persons engaged in unusual conduct, where, inter alia, the officer reasonably concludes in light of his experience that criminal activity may be afoot and that the person in question may be armed and presently dangerous. Florida v. J.L., supra, 529 U.S. at syllabus (emphasis added).
The majority opinion suggests that the police officers stopped and searched Clark for loitering. This proposition belies the record. The record clearly indicates that the police officers stopped Clark because of suspected drug activity. "The right tofrisk is virtually automatic when individuals are suspected ofcommitting a crime, like drug trafficking, for which they arelikely to be armed." State v. Evans (1993), 67 Ohio St.3d 405,413, 618 N.E.2d 162, 169 (emphasis added). Moreover, Officer Ramsey indicated on several occasions during his suppression hearing testimony that he and his partner frisked Clark for weapons based upon safety concerns. *Page 194
During the valid Terry pat-down search of Clark's outer clothing, Officer Ramsey discovered the first bag of marijuana in Clark's right coat sleeve. Under the "plain feel" doctrine, contraband found during a lawful Terry search will not be suppressed where an officer pats down the suspect's outer clothing and feels an object whose contour or mass makes its identity immediately apparent. See State v. Cloud (1993), 91 Ohio App.3d 366,370, 632 N.E.2d 932, 934-935, citing Minnesota v. Dickerson (1993), 508 U.S. 366, 113 S.Ct. 2130, 124 L.Ed.2d 334.
At the suppression hearing, Officer Ramsey testified that based upon his experience, viz., a seven-year veteran of the police department with approximately three hundred drug arrests, he recognized that the object he felt in Clark's coat sleeve was a bag of marijuana. Thereafter, the police officers removed the marijuana from Clark's coat, arrested Clark, and discovered the subject crack cocaine incident to Clark's arrest.
Unfortunately, the majority insists on substituting its judgment for that of the trial court with regard to purely factual issues. See State v. Smith (1991), 61 Ohio St.3d 284, 288,574 N.E.2d 510, 515 (when reviewing a suppression hearing, an appellate court may not substitute its own judgment for that of the trier of fact).
Notwithstanding, I would reverse the judgment of the trial court based solely upon the recent opinion of the Supreme Court of Ohio in State v. Jones (2000), 88 Ohio St.3d 430, 727 N.E.2d 886.1 In Jones, the court held:
* * * [A]bsent one or more of the exceptions specified in R.C. 2935.26, a full custodial arrest for a minor misdemeanor offense violates the Fourth Amendment to the United States Constitution and Section 14, Article I of the Ohio Constitution, and evidence obtained incident to such an arrest is subject to suppression in accordance with the exclusionary rule.
Id., at 440.
In the instant case, Officer Ramsey and his partner arrested Clark for possession of marijuana, a minor misdemeanor. During further search incident to this arrest, the officers discovered the subject crack cocaine. Pursuant to Jones, supra, the evidence obtained incident to Clark's arrest must be suppressed.
1 The court decided the Jones case on May 17, 2000, subsequent to the suppression hearing and the oral arguments of this appeal. *Page 195