{¶ 39} On this appeal from an order of Judge Carolyn B. Friedland that denied Carol A. Jones's motion to suppress, I dissent. The report of the undercover narcotics detective, Cleveland Police Detective Ricardo Ruffin, expressly states that he personally requested a female officer to assist with the investigative stop because:
"[I]n this officers [sic] experience as a police officer it is knownthat female street level drug dealers often attempt to conceal narcoticsfrom law enforcement officials by placing suspected narcotics underneaththeir clothing so that male law enforcement officers can not [sic] detectthem during pat down situations.1"
{¶ 40} Police officers can properly conduct investigative searches to ensure their own safety when briefly detaining a suspect for questioning,2 and if evidence of crime is detected during a properly conducted search, it will not be suppressed.3 Unfortunately, the Terry doctrine, which began solely as a means to aid officer safety when questioning individuals,4 has been abused by law enforcement officers who employ it as a means to detect crime through searches of individuals, thus forcing judges to make hard decisions balancing the officer's need for safety against the individual's right to privacy.5 *Page 242
{¶ 41} There is little practical doubt that investigative stops are frequently used to conduct Terry searches that are designed to find drugs rather than ensure an officer's safety. Rarely, however, is a detective so frank that he will admit the tactic in his police report. Through it he admits that the female police officer was contacted as a means of enhancing the search for narcotics instead of aiding a male officer's weapons search. Moreover, even though this issue was not raised at trial or on appeal, the detective's report is extraordinary and justifies a finding of plain error.6
{¶ 42} Not only does the detective's report expressly admit that protective searches are routinely used as evidentiary searches, the circumstances of the stop also show that Jones was stopped not for questioning, but to be searched. The detective did not intend to question her at the scene after she was stopped, the officers on the scene who would have been capable of questioning her did not testify, and there is no indication that they had any substantial part in the stop. Officer Martina Latessa, the only officer at the scene who testified, stated that she had no knowledge of Jones's activities and was called solely to conduct the Terry search. Under these circumstances there can be no claim that the suspect was being detained for brief questioning, as was the case in Terry,7 because there is no indication that the officers who stopped Jones intended to ask any relevant questions concerning her conduct.8
{¶ 43} The State failed to carry its burden of proving the search lawful9 because the evidence showed the stop was made solely for the purpose of conducting the search, instead of the search being conducted as a means of protecting the officer after making a valid stop for questioning.10 There is no reason to make an investigatory stop if the police are not going to make an investigation, and stopping a suspect for a Terry search alone is not a proper "investigation." *Page 243
{¶ 44} I also disagree with the extent of the majority's deference to the judge's factual findings. Even though those findings are entitled to considerable deference, this standard should not be used as an excuse to accept all factual findings without regard to their unlikelihood.11 Although I do not credit the testimony of Jones's witnesses because of their relationship to her, the testimony of Officer Latessa, who conducted the Terry search, also lacked credibility.
{¶ 45} She first testified that Jones did not cooperate in the pat-down weapons search, and that she grabbed the waistband of Jones's sweat pants to keep her from pulling away. She stated that although she saw a plastic bag containing suspected drugs at that time, she did not remove the bag immediately because she did not have latex gloves. This justification might be acceptable, even though unlikely, if the remaining facts were straightforward, but they are not. Therefore, the failure to seize the bag immediately deserves further scrutiny.
{¶ 46} Pulling suspected contraband from a waistband does not immediately strike one as requiring latex gloves — this area is not so immediately adjacent to anal and genital cavities that one would consider latex gloves absolutely necessary, and it seems likely that officers routinely remove things from waistband areas without such protection. Furthermore, even if the bag was not seized as soon as it was seen, it would seem reasonable for the officer to remove the bag as soon as Jones was handcuffed and less able to resist. At that point the lack of latex gloves should not have been an issue even if one believed them necessary, because one would expect patrol cars to carry such equipment for first aid purposes.
{¶ 47} Therefore, although Officer Latessa's actions could be viewed as an acceptable variation from normal police conduct, her failure to remove the suspected drugs when they were first observed raises a suspicion about her credibility. This suspicion is heightened when one considers the testimony that Jones was wearing a shirt that extended below her waistline at the time.12 It is difficult to understand how Officer Latessa could have seen the drugs when she pulled the waistband of Jones's shorts — either the shirt was tucked into the sweat pants, allowing the waistband to be pulled but covering the waistband of the underwear, or the shirt was untucked, obstructing the waistbands of both the sweat pants and the underwear. *Page 244
{¶ 48} Officer Latessa's credibility is further undermined by her testimony concerning the removal of Jones's sweat pants. She first testified that Jones's pants were never below her knees. On cross-examination, however, she admitted that Jones's pants came down to her ankles, and then admitted that they came off completely. She testified that she examined the pants and then assisted Jones in putting them back on. Even though my dissent is not specifically concerned with Jones's being disrobed at the scene, Officer Latessa's inconsistent testimony concerning the events of the search casts doubt upon her entire testimony, and most critically casts doubt upon her testimony that she saw a bag of suspected drugs in Jones's possession, even though she did not remove the bag at the time she saw it.
{¶ 49} The factual questions about when the bag was observed are too great to ignore, and the lawfulness of the officers' subsequent conduct all depends on the validity of that testimony. Despite some inconsistent testimony about the officers' subjective perceptions, Jones was objectively under arrest when she was first handcuffed at the scene and placed in the zone car.13 The only legitimate basis for that arrest is the probable cause provided by Officer Latessa's alleged observation of contraband. The facts call her observation into serious question, which necessarily impugns the legitimacy of Jones's detention and the officers' subsequent searches. The deference given to factual findings cannot reconcile the inconsistencies here, and the State has failed to meet its burden.14
{¶ 50} Because Officer Latessa's version of events is not viable, and because Detective Ruffin's report admits that the search for drugs was conducted under the guise of a Terry stop, the motion to suppress should have been granted.
{¶ 51} I would reverse.
1 Det. Ruffin's "Departmental Information" report of the arrest of Carol Jones to Sgt. James Lewis dated Mar. 12, 2002.
2 Terry v. Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868,20 L.Ed.2d 889.
3 Cf. Minnesota v. Dickerson (1993), 508 U.S. 366, 378,113 S.Ct. 2130, 124 L.Ed.2d 334.
4 Terry, 392 U.S. at 29 ("The sole justification of the search * * * is the protection of the police officer and others nearby * * *.").
5 That the search produced evidence of criminal conduct makes it doubly difficult.
6 State v. Barnes, 94 Ohio St.3d 21, 27, 2002-Ohio-68,759 N.E.2d 1240.
7 Terry, 392 U.S. at 29-30.
8 I note, however, that while I disagree with the majority's suggestion that any officer can carry out a Terry stop even if uninformed of the reasons for suspicion, the record is sufficient to show that officers present at the stop had adequate information to question Jones about her conduct. Detective Ruffin testified that he spoke directly to the patrol officer who initially stopped Jones and told him of the reasons for the stop, and that he also spoke directly to another detective who arrived on the scene after the stop. Nevertheless, the detective's report and the remaining circumstances show that the stop was not based upon a desire to question Jones, but to search her.
9 Xenia v. Wallace (1988), 37 Ohio St.3d 216, 524 N.E.2d 889, paragraph two of the syllabus.
10 Terry, supra.
11 State v. Harris (1994), 98 Ohio App.3d 543, 546, 649 N.E.2d 7 (factual findings entitled to deference only when supported by competent, credible evidence).
12 This testimony was revealed during cross-examination of Jones's brother-in-law, who testified on her behalf. Although I do not otherwise rely on the testimony of Jones's witnesses, the majority has also noted this testimony and its neutrality and plausibility tend to make it worthy of credence.
13 See, e.g., State v. Nelson (1991), 72 Ohio App.3d 506, 508-509,595 N.E.2d 475 (finding of intent to arrest is based on objective manifestations). Once handcuffed, the officers were not going to release Jones until searching her thoroughly for contraband.
14 Xenia v. Wallace, supra. *Page 245