State v. Evans

             OPINIONS OF THE SUPREME COURT OF OHIO
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The State of Ohio, Appellant, v. Evans, Appellee.
[Cite as State v. Evans (1993),     Ohio St.3d    .]
Criminal law -- Actions permissible under Terry v. Ohio if
     police officer is unable to determine from pat-down search
     that suspect is not carrying a weapon.
1. The driver of a motor vehicle may be subjected to a brief
         pat-down search for weapons where the detaining
         officer has a lawful reason to detain said driver in a
         patrol car.
2. When an officer is conducting a lawful pat-down search for
         weapons and discovers an object on the suspect's
         person which the officer, through his or or her sense
         of touch, reasonably believes could be a weapon, the
         officer may seize the object as long as the search
         stays within the bounds of Terry v. Ohio (1968), 

392 U.S. 1

, 

88 S.Ct. 1868

, 

20 L.Ed.2d 889

.
     (No. 92-311 -- Submitted February 17, 1993 -- Decided
September 22, 1993.)
     Appeal from the Court of Appeals for Cuyahoga County, No.
59506.
     In the early morning hours of April 23, 1989, East
Cleveland Police Officers Carl Green and Jamie Travano were on
routine patrol when they observed a vehicle being driven
westbound on Glynn Road with one of its headlights burned out.
The officers flashed the cruiser's lights and stopped the
vehicle by a nearby intersection. Both officers got out of the
patrol car and approached the vehicle, which they discovered
was being driven by the defendant-appellee, Dwayne Evans.
Officer Green advised defendant why he had been stopped and
asked that he produce his driver's license. Defendant did not
have his driver's license.
     While questioning defendant in connection with the traffic
violation, the officers received a broadcast over their
portable radios. Officer Green testified that they were
informed by the police dispatcher that a male wearing a red
jogging suit with "Reebok" written across the back "had just
made a drug transaction" and that he was believed to be driving
westbound on Glynn Road in a gray car. In addition, Officer
Travano was able to recall at the suppression hearing that the
dispatcher had stated that the car was a Datsun 280Z. The
officers observed that defendant's clothing and car matched the
description of the individual described in the radio
broadcast. Officer Green testified that he did not know
whether the tip had been given by an anonymous informant.
     Officer Green, assisted by Officer Travano, asked
defendant to step out of his car. While conducting a pat-down
search of defendant's person, Officer Travano felt a large bulk
in the left front pocket. Officer Travano placed his hand in
this pocket and removed a large wad of money on top of which
was a small packet of crack cocaine. Defendant was placed in
the cruiser and arrested.
     On June 5, 1989, defendant was indicted by the Cuyahoga
County Grand Jury in a four-count indictment, to wit, three
counts of drug violations (R.C. 2925.03 and 2925.13) and one
count of possession of criminal tools (R.C. 2923.24). After
defendant's motion to suppress evidence was denied by the trial
court, defendant changed his previously entered pleas of not
guilty to pleas of no contest. He was found guilty of all
counts as charged in the indictment.
     The court of appeals reversed defendant's convictions in a
split decision, with one judge concurring in judgment only and
one judge dissenting. The court of appeals held that the trial
court erred in denying defendant's motion to suppress.
     The cause is now before this court pursuant to the
allowance of a motion for leave to appeal.

     Stephanie Tubbs Jones, Cuyahoga County Prosecuting
Attorney, and George J. Sadd, Assistant Prosecuting Attorney,
for appellant.
     Edward S. Wade, Jr., and James R. Willis, for appellee.

     Moyer, C.J.    In determining whether defendant's
constitutional rights were violated, we must consider two
issues arising under the Fourth Amendment. First, having
lawfully detained defendant for a traffic violation, did the
police officers have the authority to conduct a pat-down search
of defendant's body after ordering him out of his car? Second,
if the officers had legal authority to search defendant, did
they exceed the permissible scope of that pat-down search for
weapons?
                               I
     The propriety of the initial stop of defendant's vehicle
cannot be reasonably disputed under the facts of this case.
The officers' suppression hearing testimony, indicating that
defendant was pulled over because of a burned-out headlight, is
uncontroverted and served as the lawful basis for the stop.
The focus of our inquiry, therefore, is on the officers'
request that defendant step out of the vehicle and on the
ensuing pat-down search for weapons.
     The United States Supreme Court, in Pennsylvania v. Mimms
(1977), 

434 U.S. 106

, 

98 S.Ct. 330

, 

54 L.Ed.2d 331

, held that a
police officer may order a motorist to get out of a car, which
has been properly stopped for a traffic violation, even without
suspicion of criminal activity. What is now referred to as a
"Mimms order" was viewed by the court as an incremental
intrusion into the driver's personal liberty which, when
balanced against the officer's interest in protection against
unexpected assault by the driver and against accidental injury
from passing traffic, is reasonable under the Fourth
Amendment. In this regard, the court stated:
     "*** We think this additional intrusion can only be
described as de minimis. The driver is being asked to expose
to view very little more of his person than is already
exposed. The police have already lawfully decided that the
driver shall be briefly detained; the only question is whether
he shall spend that period sitting in the driver's seat of his
car or standing alongside it. Not only is the insistence of
the police on the latter choice not a 'serious intrusion upon
the sanctity of the person,' but it hardly rises to the level
of a '"petty indignity."' Terry v. Ohio [(1968), 

392 U.S. 1, 17

, 

88 S.Ct. 1868, 1877

, 

20 L.Ed.2d 889, 903

]. What is at most
a mere inconvenience cannot prevail when balanced against
legitimate concerns for the officer's safety." Pennsylvania v.
Mimms, 

434 U.S. at 111

, 

98 S.Ct. at 333

, 

54 L.Ed.2d at 337

.
     Other courts have relied on Mimms in holding
constitutional a police officer's additional order that the
driver be seated in the patrol car. See State v. Mertz (N.D.
1985), 

362 N.W.2d 410, 413

, where the Supreme Court of North
Dakota held that this "additional increment of intrusion" into
a driver's personal liberty "does not outweigh public-policy
concerns for the safety of police officers and in North Dakota,
with its varying weather conditions, concerns for the
protection of both the officer and driver." See, also, United
States v. Manbeck (C.A.4, 1984), 

744 F.2d 360

, 377-378.
     Mimms merely dispenses with the requirement that the
police officer possess reasonable suspicion of criminal
activity before the officer may order the driver out of an
already lawfully stopped vehicle. Accordingly, the ordering of
defendant to get out of his car was proper even if the officers
were unable to articulate a reasonable suspicion which prompted
this action.
     Contrary to the lower court's opinion, the order to step
out of the vehicle is not a stop separate and distinct from the
original traffic stop. It is so minimal and insignificant an
intrusion that the Mimms court refused to apply the
requirements for an investigatory stop. Unlike an
investigatory stop, where the police officer involved "must be
able to point to specific and articulable facts which, taken
together with rational inferences from those facts, reasonably
warrant that intrusion," Terry v. Ohio (1968), 

392 U.S. 1, 21

,

88 S.Ct. 1868, 1880

, 

20 L.Ed.2d 889, 906

, a Mimms order does
not have to be justified by any constitutional quantum of
suspicion.
     We turn now to the propriety of a police officer's
pat-down search for weapons -- a search governed by the
dictates of Terry v. 

Ohio, supra.

 Under Terry, a limited
protective search of the detainee's person for concealed
weapons is justified only when the officer has reasonably
concluded that "the individual whose suspicious behavior he is
investigating at close range is armed and presently dangerous
to the officer or to others ***." 

Id. at 24

, 

88 S.Ct. at 1881

,

20 L.Ed.2d at 908

. Justice Harlan's concurring opinion in
Terry emphasizes that "the right to frisk must be immediate and
automatic" where the lawfully stopped detainee is under
suspicion for a crime of violence. 

Id. at 33

, 

88 S.Ct. at 1886

, 

20 L.Ed.2d at 913

. "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 v. Williams (1972), 

407 U.S. 143, 146

, 

92 S.Ct. 1921, 1923

, 

32 L.Ed.2d 612, 617

. "Where a police officer, during an
investigative stop, has a reasonable suspicion that an
individual is armed based on the totality of the circumstances,
the officer may initiate a protective search for the safety of
himself and others." State v. Bobo (1988), 

37 Ohio St.3d 177

,

524 N.E.2d 489

, paragraph two of the syllabus.
     A Mimms order does not automatically bestow upon the
police officer the authority to conduct a pat-down search for
weapons. In analyzing the ensuing Terry frisk, the question we
must ask is whether, based on the totality of the
circumstances, the officers had a reasonable, objective basis
for frisking defendant after ordering him out of the car. See
State v. Andrews (1991), 

57 Ohio St.3d 86

, 

565 N.E.2d 1271

.
"The touchstone of our analysis under the Fourth Amendment is
always 'the reasonableness in all the circumstances of the
particular governmental invasion of a citizen's personal
security.'" 

Mimms, supra,

434 U.S. at 108-109

, 

98 S.Ct. at 332

, 

54 L.Ed.2d at 335

, quoting 

Terry, supra,

392 U.S. at 19

,

88 S.Ct. at 1878-1879

, 

20 L.Ed.2d at 904

.
     The transcript of the suppression hearing reveals that the
officers' actions were motivated by two possible concerns: (1)
the information received from the radio broadcast, and (2) the
defendant's failure to properly identify himself by producing
his driver's license.1 Officer Green agreed with defense
counsel on cross-examination that the request to defendant to
step out of the car and the frisk were the result of what he
had heard from the police dispatcher. On redirect, however,
Officer Green stated that these actions were taken because
defendant's inability to produce a driver's license meant that
the officers had to place him in the back seat of the patrol
car. The apparent inconsistency was later clarified for the
fact finder by Officer Green's testimony that both concerns
prompted his actions.
     Next to testify was Officer Travano. According to his
suppression hearing testimony, after defendant was ordered out
of the car, he was patted down as an incident to his failure to
produce a driver's license. The officers wanted to run
defendant's name through the computer to verify the existence
of his driver's license as well as ascertain the car owner's
identity. Officer Travano further stated that the protective
search was conducted because he wanted to be sure that
defendant did not possess weapons while being detained in the
patrol car. Officer Travano stressed that defendant was
searched on this basis alone. The radio broadcast, according
to his testimony, was not the motivating reason for either
asking defendant to get out of his vehicle or the pat-down
protective search for weapons.
     We recognize that one of the realities of police work is
that an officer's conduct is not always guided by a single
objective. An additional motive, later determined to be
improper, will not taint an otherwise lawful search. Here, the
officers' pat-down search of defendant was in accordance with
standard police procedure which dictates that protective
measures be taken before a person is to be held in the back
seat of a squad car. A determination as to the reasonableness
of a particular police procedure depends "on a balance between
the public interest and the individual's right to personal
security free from arbitrary interference by law officers."
United States v. Brignoni-Ponce (1975), 

422 U.S. 873, 878

, 

95 S.Ct. 2574, 2579

, 

45 L.Ed.2d 607, 614-615

. Certainly, it is
reasonable that the officer, who has a legitimate reason to so
detain that person, is interested in guarding against an ambush
from the rear. "A court reviewing the officer's actions must
give due weight to his experience and training and view the
evidence as it would be understood by those in law
enforcement." 

Andrews, supra,

57 Ohio St.3d at 88

, 

565 N.E.2d at 1273

.
     We, therefore, find that the police officers' proffered
justification in patting down the driver -- their own personal
security -- is legitimate. When balanced against the driver's
minimal privacy interests under these circumstances, we can
only conclude that the driver of a motor vehicle may be
subjected to a brief pat-down search for weapons where the
detaining officer has a lawful reason to detain said driver in
the patrol car. Terry wisely instructs that "it would be
unreasonable to require that police officers take unnecessary
risks in the performance of their duties." Terry, 

392 U.S. at 23

, 

88 S.Ct. at 1881

, 

20 L.Ed.2d at 907

. The state's
obligation not to violate the individual's Fourth Amendment
rights does not command that the police officer forsake
reasonable precautionary measures during the performance of his
duties.
     The court of appeals, however, held that the police
officers' search of defendant's person was unlawful because
their actions were motivated solely by what was relayed to them
on the radio broadcast. We disagree. Officer Travano
testified contrary to this position. The testimony of Officer
Green, while at times inconsistent, can hardly be interpreted
with the court of appeals' degree of certainty. It is well to
note that only the trier of fact, who is in the unique position
to observe a witness face-to-face, can make such factual
inferences as elusive as the witnesses' subjective motives.
According to one expert on communication techniques for trial
attorneys, ninety percent of the total meaning of testimony is
interpreted through nonverbal behavior, such as voice
inflection, hand gestures, and the overall visual demeanor of
the witness. The witnesses' choice of words accounts for only
ten percent of the meaning of their testimony. Rasicot, New
Techniques for Winning Jury Trials (1990) 28-29. Therefore,
nonverbal information, incapable of being transcribed into the
record by the court stenographer, significantly influences the
fact finder's determinations. After reviewing the police
officers' suppression hearing testimony, we find that the court
of appeals' position cannot be maintained. The record is
simply not as unequivocal as the appellate court believed.
     Alabama v. White (1990), 

496 U.S. 325

, 

110 S.Ct. 2412

, 

110 L.Ed.2d 301

, heavily relied on by the court of appeals in
reversing defendant's conviction, presents facts bearing some
resemblance to the facts of the case sub judice. Both cases
concern a police officer's reliance on tips given by an
anonymous informant involving drugs. However, unlike the case
sub judice where defendant's car had already been lawfully
stopped for a traffic violation, the anonymous tip in White
formed the basis for stopping a car being driven by the
defendant. In White, an anonymous individual phoned the police
department and informed it that "Vanessa White" would be
leaving a certain apartment at a particular time. She would be
driving a brown Plymouth station wagon with a broken right
taillight lens to a specific motel with about an ounce of
cocaine in her possession. Police arrived at the designated
apartment, observed a woman get in the station wagon, and then
followed her as she drove the most direct route to the motel
identified by the caller. Police stopped the vehicle just
short of its destination and informed White that she had been
stopped for suspected cocaine possession. After White
consented to the search of the vehicle, the officers discovered
cocaine and marijuana.
     The issue in White was whether the anonymous tip exhibited
sufficient indicia of reliability to provide reasonable
suspicion to make the investigatory stop. In resolving this
issue, the court applied the "totality of the circumstances"
approach (which had been adopted as a test for probable cause
in Illinois v. Gates [1983], 

462 U.S. 213

, 

103 S.Ct. 2317

, 

76 L.Ed.2d 527

)2 to decisions involving the less demanding
standard of reasonable suspicion. The court observed that,
under the facts of the case, "significant aspects of the
informer's predictions" had been independently corroborated by
the police in the course of following the defendant. Alabama
v. White, 

496 U.S. at 332

, 

110 S.Ct. at 2417

, 

110 L.Ed.2d at 310

. This "imparted some degree of reliability to the other
allegations made by the caller." 

Id.

 The court observed that
the anonymous informant's tip under this set of facts generated
reasonable suspicion because the informant was able to
accurately predict White's "future behavior."3 (Emphasis
sic.) 

Id.

     The court of appeals' reliance on White is misplaced.
Initially, it is important to emphasize that the court in White
did not depart from its well-established "totality of the
circumstances" test. White does not establish a categorical
rule conditioning a Terry stop (when police are acting on an
anonymous tip) on corroboration of predictive information. The
critical inquiry is more broadly focused on the existence of
reasonable suspicion, as the following language from White
indicates:
     "Reasonable suspicion, like probable cause, is dependent
upon both the content of information possessed by police and
its degree of reliability. Both factors -- quantity and
quality -- are considered in the 'totality of the circumstances
-- the whole picture[.]'" White, 

496 U.S. at 330

, 

110 S.Ct. at 2416

, 

110 L.Ed.2d at 309

.
     Unlike the defendant in White, Evans was subjected to a
stop because of a traffic violation. The police officers'
testimony at the suppression hearing clearly reveals that they
were authorized to stop defendant's car because they witnessed
him driving with only one operable headlight, a violation of
R.C. 4513.04. Since the reason for the traffic stop was a
violation of traffic laws, the court of appeals erred in
finding White was the controlling authority.
     Even if we were to draw the same factual inferences from
the officers' suppression hearing testimony as did the court of
appeals -- that the pat-down search was motivated solely by the
information received by the radio broadcast -- we would
conclude that a rational trier of fact could find that the
officers had a reasonable suspicion to justify a Terry search.
Here, a routine and innocuous stop for an equipment violation
turned into a situation fraught with danger. While speaking to
defendant in regard to the burned out headlight, both officers
received a message over their portable radios that a person
fitting defendant's description -- a male wearing a red Reebok
jogging suit and driving westbound on Glynn Road in a gray
Datsun 280Z -- had participated in a drug transaction. Being
in close proximity to the officers, defendant may have even
been alerted by this information. Because these details of the
anonymous tip were corroborated by what the police officers had
already observed, they were justified in suspecting that the
remainder of the broadcast's information was accurate as well
-- namely, that defendant had been involved in a drug deal.
"[R]easonable suspicion can arise from information that is less
reliable than that required to show probable cause." White,

496 U.S. at 330

, 

110 S.Ct. at 2416

, 

110 L.Ed.2d at 309

. In
this regard, we observe that while this anonymous informant's
tip may not provide a sufficient basis either to arrest or to
stop a car lawfully driven, it is certainly reliable enough to
justify a pat-down search for weapons. The right to frisk is
virtually automatic when individuals are suspected of
committing a crime, like drug trafficking, for which they are
likely to be armed. See State v. Williams (1990), 

51 Ohio St.3d 58

, 

554 N.E.2d 108

. See, also, United States v. Ceballos
(E.D.N.Y. 1989), 

719 F.Supp. 119

, 126: "The nature of narcotics
trafficking today reasonably warrants the conclusion that a
suspected dealer may be armed and dangerous."
     The court of appeals' opinion implies that a critical
factor in determining whether the officer had reasonable
suspicion that the detainee was armed is whether the officer is
in fear for his or her safety. We disagree. The following
language from United States v. Tharpe (C.A.5, 1976), 

536 F.2d 1098

, is on point:
     "We know of no legal requirement that a policeman must
feel 'scared' by the threat of danger. Evidence that the
officer was aware of sufficient specific facts as would suggest
he was in danger satisfies the constitutional requirement.
Terry cannot be read to condemn a pat-down search because it
was made by an inarticulate policeman whose inartful courtroom
testimony is embellished with assertions of bravado, so long as
it is clear that he was aware of specific facts which would
warrant a reasonable person to believe he was in danger. Under
the familiar standard of the reasonable prudent man, no purpose
related to the protective function of the Terry rule would be
served by insisting on the retrospective incantation 'I was
scared.'
     "Some foolhardy policemen will never admit fear.
Conversely, reliance on such a litany is necessarily prone to
self-serving rationalization by an officer after the fact. It
would be all too easy for any officer to belatedly recite that
he was scared in situations where he neither had any reason to
be scared, nor was indeed scared. ***" United States v.
Tharpe, supra, 

536 F.2d at 1101

, overruled on other grounds,
United States v. Causey (C.A.5, 1987), 

834 F.2d 1179

.
     Therefore, had the radio broadcast been the sole reason
behind the officer's pat down of defendant, the limited search
would have been lawful and evidence subsequently discovered
would not be subject to the sanction of the exclusionary rule.
                               II
     Our final task concerns the scope of the pat down
conducted by the police. Because the court of appeals held
that the officers did not have the authority to frisk defendant
for weapons, it did not answer that question. As we have held
the officers were entitled to pat down defendant for weapons,
we must address this issue.
     Under Terry and its progeny, the police may search only
for weapons when conducting a pat down of the suspect. "A
search for weapons in the absence of probable cause to arrest,
however, must, like any other search, be strictly circumscribed
by the exigencies which justify its initiation. *** Thus it
must be limited to that which is necessary for the discovery of
weapons which might be used to harm the officer or others
nearby ***." Terry, 

392 U.S. at 25-26

, 

88 S.Ct. at 1882

, 

20 L.Ed.2d at 908

. The protective pat down under Terry is limited
in scope to this protective purpose and cannot be employed by
the searching officer to search for evidence of crime.4 See

Adams, supra,

407 U.S. at 146

, 

92 S.Ct. at 1923

, 

32 L.Ed.2d at 617

. Obviously, once the officer determines from his sense of
touch that an object is not a weapon, the pat-down frisk must
stop. The officer, having satisfied himself or herself that
the suspect has no weapon, is not justified in employing Terry
as a pretext for a search for contraband. The specific
question raised by the facts of this appeal concerns what
future actions are permissible under Terry if the searching
officer is unable to determine from the pat down that the
suspect is not carrying a weapon.5
     In answering this question, it is important first to
emphasize that Terry does not require that the officer be
absolutely convinced that the object he feels is a weapon
before grounds exist to remove the object. At the same time, a
hunch or inarticulable suspicion that the object is a weapon of
some sort will not provide a sufficient basis to uphold a
further intrusion into the clothing of a suspect. When an
officer removes an object that is not a weapon, the proper
question to ask is whether that officer reasonably believed,
due to the object's "size or density," that it could be a
weapon. 3 LaFave, Search and Seizure (2 Ed. 1987) 521, Section
9.4(c).
     "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 'weapons 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." (Footnotes omitted.) Id. at 523.
     Officer Travano testified that, upon patting down
defendant, he discovered a "large bulk" in the left front
pocket which "felt like a rock substance." The following
dialogue occurred between the officer and the defense attorney
on cross-examination:
     "Q. There was no question there wasn't a weapon?
     "A. At the time, to be honest with you, I didn't know due
to the fact of the big wad because he had like a thousand some
dollars on him all in the same pocket.
     "Q. But what I am saying is, when you felt his pocket, you
knew it wasn't a gun, didn't you?
     "A. Yes, I knew it wasn't a gun.
     "Q. And it would be accurate to say you knew it wasn't a
knife?
     "A. I couldn't say that because I've seen knives come in
all shapes and sizes."
     We conclude that Officer Travano acted within the scope of
Terry in reaching into defendant's pocket to retrieve the
object because it was reasonable for him to believe the object
could be a weapon. Here, through his sense of touch as well as
his experience on the police force, Officer Travano was unable
to conclude that the object was not a knife or other weapon.
"If by touch the officer remains uncertain as to whether the
article producing the bulge might be a weapon, he is entitled
to remove it." United States v. Oates (C.A.2, 1977), 

560 F.2d 45, 62

 (removal of an overstuffed wallet justified when the
officer could not determine what caused the bulge by feeling it
through defendant's outer clothing). Accordingly, we hold that
when an officer is conducting a lawful pat-down search for
weapons and discovers an object on the suspect's person which
the officer, through his or her sense of touch, reasonably
believes could be a weapon, the officer may seize the object as
long as the search stays within the bounds of Terry v. Ohio
(1968), 

392 U.S. 1

, 

88 S.Ct. 1868

, 

20 L.Ed.2d 889

. In this
case, what later was discovered to be a large wad of money and
a little packet of crack cocaine was of such size and density
that a reasonable officer could not discount the possibility
that it was a weapon. Officer Travano stayed within the proper
bounds of a Terry-type search.
     Our holding today does not authorize the removal of a soft
object that the officer knows or reasonably should know is not
itself a weapon on the grounds that it may contain a small
weapon such as a razor blade. "'[S]omething of the size and
flexibility of a razor blade could be concealed virtually
anywhere, and accordingly provide the pretext for any search,
however thorough.'" (Footnote omitted.) 3 LaFave, Search and
Seizure (2 Ed. 1987) 522, Section 9.4(c). Such a police
procedure would, therefore, be impermissible under Terry
because it would be tantamount to allowing the more intrusive
search incident to custodial arrest to be made without
reasonable grounds to arrest.
     For the foregoing reasons, we reverse the judgment of the
court of appeals and remand the cause to the trial court for
reimposition and execution of the original sentence.
                                    Judgment reversed
                                    and cause remanded.
     Douglas, Resnick and F.E. Sweeney, JJ., concur.
     A.W. Sweeney, Wright and Pfeifer, JJ., dissent.

FOOTNOTES:
     1 Pursuant to R.C. 4507.35, police have the authority to
request a driver of a lawfully stopped motor vehicle to display
a driver's license or furnish satisfactory proof that he or she
has such license. The provision also states that "[f]ailure to
furnish satisfactory evidence that such person is licensed
under sections 4507.01 to 4507.30 of the Revised Code, when
such person does not have his license on or about his person
shall be prima-facie evidence of his not having obtained such
license."
     Violation of R.C. 4507.35 is currently punishable under
R.C. 4507.99(F) as a misdemeanor of the first degree. Although
an issuance of a citation for a minor misdemeanor is the
general rule, R.C. 2935.26(A) explicitly authorizes the police
officer to make an arrest under certain exceptional
circumstances. One such circumstance, R.C. 2935.26(A)(2),
occurs when the offender cannot or will not produce a
satisfactory form of identification.
     2 Gates applied the "totality of the circumstances"
approach to determine whether an informant's tip established
probable cause for the issuance of a search warrant. In
abandoning the "two-pronged test" of Aguilar v. Texas (1964),

378 U.S. 108

, 

84 S.Ct. 1509

, 

12 L.Ed.2d 723

, and Spinelli v.
United States (1969), 

393 U.S. 410

, 

89 S.Ct. 584

, 

21 L.Ed.2d 637

, the United States Supreme Court, in Gates, nonetheless
emphasized that the informant's "veracity," "reliability," and
"basis of knowledge" remain "highly relevant" in probable cause
determinations. Gates, 

462 U.S. at 230

, 

103 S.Ct. at 2328

, 

76 L.Ed.2d at 543

.
     3 "*** What was important was the caller's ability to
predict respondent's future behavior, because it demonstrated
inside information -- a special familiarity with respondent's
affairs. The general public would have had no way of knowing
that respondent would shortly leave the building, get in the
described car, and drive the most direct route to Dobey's
Motel. Because only a small number of people are generally
privy to an individual's itinerary, it is reasonable for police
to believe that a person with access to such information is
likely to also have access to reliable information about that
individual's illegal activities. See [Illinois v. 

Gates, supra,

 462 U.S.] at 245, 

103 S.Ct. at 2336

, 

76 L.Ed.2d at 552-553

. When significant aspects of the caller's predictions
were verified, there was reason to believe not only that the
caller was honest but also that he was well informed, at least
well enough to justify the stop." (Emphasis sic.) 

White, supra,

496 U.S. at 332

, 

110 S.Ct. at 2417

, 

110 L.Ed.2d at 310

.
     4 "Terry states:
     "Suffice it to note that such a search, unlike a search
without a warrant incident to a lawful arrest, is not justified
by any need to prevent the disappearance or destruction of
evidence of crime. See Preston v. United States, 

376 U.S. 364, 367

, 

84 S.Ct. 881, 883

, 

11 L.Ed.2d 777, 780

 (1964). The sole
justification of the search in the present situation is the
protection of the police officer and others nearby, and it must
therefore be confined in scope to an intrusion reasonably
designed to discover guns, knives, clubs, or other hidden
instruments for the assault of the police officer."    

392 U.S. at 29

, 

88 S.Ct. at 1884

, 

20 L.Ed.2d at 910-911

.
     5 We are aware of Minnesota v. Dickerson (1993),
U.S.    , 

113 S.Ct. 2130

,       L.Ed.2d     , recently decided
by the United States Supreme Court. While Dickerson and the
case at bar both involve the reliability of the sense of touch
of a police officer conducting a protective pat-down search,
that is where the similarity ends. Dickerson answered the
question whether police may enter a suspect's pockets during
the course of a Terry pat down on the basis of something other
than a belief that the individual is carrying a weapon.
Drawing an analogy to the plain view doctrine, the court held
that police, conducting a lawful Terry-type search, may seize
nonthreatening contraband when its incriminating nature is
"immediately apparent" to the searching officer through his
sense of touch. 

Id.

 at     , 113 S.Ct. at      ,     L.Ed.2d at
345. In other words, the officer may not manipulate the
object, which he has previously determined not to be a weapon,
in order to ascertain its incriminating nature. This
limitation on the "plain feel" exception to the warrant
requirement of the Fourth Amendment ensures that police will
search only within the narrow parameters allowed for a
Terry-type search.
     Dickerson has no relevance to circumstances, like the ones
brought before our court, where personal safety is the reason
behind the officer's entering the suspect's pocket. Operating
under a reasonable belief that the object was a weapon, Officer
Travano retrieved the large wad of money and packet of crack
cocaine from the defendant's pocket. Therefore, since Officer
Travano removed this object in order to protect himself, the
seizure cannot be struck down under Dickerson.
     Wright, J., dissenting.     I must respectfully dissent
because the majority's analysis fails in two critical,
interrelated respects. First, it is apparent from the
testimony of the officers that they did not have a reasonable
belief there was a weapon in Evans's left front pocket. Thus,
the search of the interior of the pocket and the subsequent
seizure of a small amount of cocaine went beyond the
constitutional limits set by Terry v. Ohio (1968), 

392 U.S. 1

,

88 S.Ct. 1868

, 

20 L.Ed.2d 889

.
     Second, and more important, the record is clear that the
officer pressed beyond the limits of a Terry search when he put
his hand into Evans's pocket and removed the contents because
of his suspicion that the pocket contained drugs, not a
weapon. Therefore, the constitutionality of the search of the
interior of the pocket must be analyzed in light of the United
States Supreme Court's very recent ruling in Minnesota v.
Dickerson (1993), 508 U.S.     , 

113 S.Ct. 2130

, 

124 L.Ed.2d 334

. In Dickerson, the court held that an officer must have
probable cause, not just reasonable suspicion, to extend a
Terry pat-down search for weapons into a search for
contraband. I believe that Dickerson is dispositive of this
matter, yet the majority relegates Dickerson to a footnote. A
full analysis of Dickerson is contained infra.
                               I
     The majority bases its decision on Terry and its progeny.
There are three steps to a Terry analysis. First, to justify
the investigatory stop the officer must have a reasonable
suspicion that "criminal activity may be afoot." Terry, 

392 U.S. at 30

, 

88 S.Ct. at 1884

, 

20 L.Ed.2d at 911

. Next, if the
officer reasonably believes the person "may be armed and
presently dangerous," the officer may engage in a limited frisk
comprised of a pat down of the person's outer clothing to
discern whether the person is carrying a gun or other weapon so
that the officer may proceed with the investigation without
fear for the officer's safety. 

Id. at 30

, 

88 S.Ct. at 1884-1885

, 

20 L.Ed.2d at 911

. Finally, the officer is
permitted to proceed beyond this limited pat down of the outer
clothing of the detained person only if the officer has a
reasonable belief that the object he or she is reaching for is
a weapon.6 The determination of whether the officer's belief
is reasonable is an objective, not subjective, test. 

Id. at 21-22

, 

88 S.Ct. at 1880

, 

20 L.Ed.2d at 906

; State v. Williams
(1990), 

51 Ohio St.3d 58, 60

, 

554 N.E.2d 108, 111

. In other
words the mere incantation of the magic words "I believed the
object was a weapon" is not enough to make a warrantless search
constitutional.
     Applying the three steps of a Terry search to the present
case, I agree with the majority that the initial stop for the
broken headlight was permissible. However, I believe that
there is support for the conclusion by the court of appeals
that the officers never had a reasonable belief that Evans was
armed and, thus, a pat-down search was inappropriate. I reach
this conclusion based on a number of points raised by the
majority, with which I agree. I agree that "[a] Mimms order
does not automatically bestow upon the police officer the
authority to conduct a pat-down search for weapons" and the
officers must have "a reasonable, objective basis for frisking
defendant." (Emphasis added.) All must agree that Terry
requires that the officer reasonably conclude that "the
individual whose suspicious behavior he is investigating at
close range is armed and presently dangerous to the officer or
to others ***." 

Id.,

392 U.S. at 24

, 

88 S.Ct. at 1881

, 

20 L.Ed.2d at 908

. The majority correctly notes that we have
stated that an officer must have "a reasonable suspicion that
an individual is armed based on the totality of the
circumstances ***." State v. Bobo (1988), 

37 Ohio St.3d 177

,

524 N.E.2d 489

, paragraph two of the syllabus. But be that as
it may, these proper statements of the law do not lead the
majority to a correct conclusion in this case. Surprisingly,
the majority points to no evidence that the officers had an
objectively reasonable belief that Evans was armed.7
     This leads me to conclude, as did the court of appeals,
that the real motivation for the search was the radio broadcast
and the real purpose of the search was to look for drugs. The
majority appears to misunderstand or ignore the full
significance of the radio broadcast and its effect on the
actions of the police officers, a significance which Judge
Harper understood full well in her opinion for the court of
appeals. One can debate whether the radio broadcast was the
real reason for the Terry pat-down search or whether the reason
somehow involved a routine police procedure to frisk Evans
before placing him in the back of the police car while the
officers ran a computer check on his license and car
registration. One can, perhaps, debate whether the radio
broadcast, following a lawful stop, permitted a Terry pat-down
frisk.
     What cannot be debated, however, is the fact that the
radio broadcast, referring to an alleged drug transaction,
affected the officers' actions concerning the extent of the
search of Evans. This can be seen from the testimony of both
of the police officers. Officer Green testified that the real
reason for the search was the radio broadcast. Officer Travano
stated that he conducted an extended search because of the
radio broadcast's reference to drugs.
     Officer Green testified concerning police practice with
regard to persons who have been stopped on minor traffic
violations:
     "Q. They don't arrest on that?
     "A. No.
     "Q. You don't take people out of the car and search them
for that also, do you?
     "A. No.
     "Q. And the sole purpose of taking him out of the car and
frisking him was based on the alleged information you received
from the radio broadcast, correct?
     "A. Yes.
     "***
     "Q. Would it be safe to say, but for the radio broadcast,
you would have never taken him out of the car, out of the car
and patted him down. That would be accurate, wouldn't it?
     "A. Correct." (Emphasis added.)
     After this testimony during cross-examination, on redirect
Officer Green testified that the reason he initially asked
Evans to get out of the car was because Evans did not have his
driver's license and that he would have searched him for this
reason also. The trial court made its own inquiry to clarify
the officer's testimony:
     "Q. The question, Officer, is what was the reason on this
very occasion that you did conduct the search on the
gentleman.
     "A. On this particular occasion the reason he was
searched, it was due to the radio broadcast." (Emphasis added.)
     Officer Travano repeatedly testified that he intended to
conduct a more extensive search than a Terry pat-down frisk
because of the radio broadcast. In reality, Officer Travano
intended to conduct two searches: one, a Terry pat-down frisk
for weapons which he justified on the basis that Evans would be
placed in the back of the police vehicle while the officers ran
a computer check on his license and car registration and, two,
a more extensive search for contraband because of the
information contained in the radio broadcast. Officer Travano
testified:
     "A. Before we put anybody in the police car, we do a
weapon search.
     "Q. Do you do a search for anything else?
     "A. If our call is like -- depending on the call. If it
is drug related, the search could possibly be more extensive
due to the fact we checked the back seat of the police car
before and after we put somebody in.
     "So if the call came over that narcotics were involved or
any kind of contraband, there would be a more, you know, search
I would say."
     In a series of questions to Travano by the prosecutor
concerning the practice of detaining persons who do not have a
driver's license with them, the prosecutor asked:
     "Q. *** Would you normally search that person?
     "A. Yes.
     "Q. And the purpose of doing that, would it be
necessarily for a weapon?
     "A. Yes.
     "Q. Would it be for anything else?
     "A. Like I stated, depending on the call. You know,
especially if there's contraband possibly involved.
     "Q. In this particular instance, was there an indication
of contraband being involved?
     "A. By the radio broadcast, yes. It gave us reason to
believe that this male possibly had some contraband on his
person." (Emphasis added.)
     Subsequently, in response to questions from defense
counsel, Travano testified:
     "Q. Now, you also said that at certain times you do more
extensive searches than others.
     "A. Yes. Right. Right, based on the probable cause and
plus the radio broadcast. Our suspicion.
     "Q. Your suspicion?
     "A. Right.
     "Q. And the radio broadcast?
     "A. Yes." (Emphasis added.)
     Although Officer Travano denied that the radio broadcast
"triggered" the search, it is apparent that the radio broadcast
affected the scope of the search. Travano intended to engage
in an extended search for the purpose of finding contraband.
But Terry permits only a "strictly circumscribed" search, 

id.,

392 U.S. at 25

, 

88 S.Ct. at 1882

, 

20 L.Ed.2d at 908

, the
purpose of which "is not to discover evidence of crime, but to
allow the officer to pursue his investigation without fear of
violence ***." Adams v. Williams (1972), 

407 U.S. 143, 146

, 

92 S.Ct. 1921, 1923

, 

32 L.Ed.2d 612, 617

.
     Officer Travano's testimony describing the actual search
confirms that he went into Evans's pocket not because he had a
reasonable belief there was a weapon in the pocket, but because
he suspected there were drugs in the pocket. To reach its
contrary conclusion, the majority resorts to a selective
editing of the actual testimony. The majority appears to
distort the testimony when it states that the officer "upon
patting down defendant, [Officer Travano] discovered a 'large
bulk' in the left front pocket which 'felt like a rock
substance.'" The actual testimony of the officer was: "Upon
patting down the defendant over there, there was a large bulk
in his pocket. While feeling the left front pocket, it felt
like a rock substance might be in his pocket. That is when I
dug in his pocket and I pulled out a large wad of money. On
top of that was a little packet which was a white substance
believed to be crack cocaine." The officer never testified, as
the majority states, that the large bulk felt like a rock
substance. Instead, it is apparent from the officer's
testimony that he is describing two separate items: a large
bulk and a rock substance. We also know from the officer's
testimony that the large bulk was money. A wad of money is a
soft object. The majority states a rule it chooses not to
follow: "'Under the better view, then, a search is not
permissible when the object felt is soft in nature.'" The
second object, the rock substance, we know from the officer's
testimony was a little packet believed to be crack cocaine.8
Again, according to the majority's own rule, "'[i]f the object
felt is hard, then the question is whether its "size or
density" is such that it might be a weapon.'" It is not
objectively reasonable to believe, as Terry and its progeny
require, that a little packet of rock substance might be a
weapon. The purpose of Terry is to protect the officer from
danger. Not even the majority can suggest that the officers
were in danger from an object so small.
     Despite the majority's statement that "[o]ur holding today
does not authorize the removal of a soft object that the
officer knows or reasonably should know is not itself a weapon
on the grounds that it may contain a small weapon such as a
razor blade," that is indeed what the majority has done.9
                               II
     Since the officer's intrusion into Evans's pocket was not
justified under Terry as a pat-down search for weapons, it
remains to determine whether it was justified under the "plain
feel" exception recognized by the United States Supreme Court
in Dickerson. Because of its direct relevance to the
disposition of this case, as stated above, I will discuss
Dickerson in some detail.
     In Dickerson, the Minnesota Supreme Court had ruled that
the seizure of a small packet of cocaine from the defendant's
pocket during a Terry pat-down search was unconstitutional for
two reaons: First, the court refused to recognize a "plain
feel" exception to the warrant requirement of the Fourth
Amendment and, second, even if such an exception existed, the
intrusion into the defendant's pocket was outside the
permissible scope of Terry. The United States Supreme Court
affirmed the judgment of the Minnesota Supreme Court. The
court disagreed with the Minnesota Supreme Court concerning
recognition of a plain feel exception, but agreed that the
search exceeded the limits of Terry and was therefore
unconstitutional.
     In rendering its decision, the Supreme Court again
reviewed the requirements of Terry and its progeny. The court
stated:
     "Time and again, this Court has observed that
searches and seizures '"'conducted outside the judicial
process, without prior approval by judge or magistrate,
are per se unreasonable under the Fourth Amendment -- subject
only to a few specifically established and well delineated
exceptions.'"' One such exception was recognized in Terry v.
Ohio, 

392 U.S. 1

, 

88 S.Ct. 1868

, 

20 L.Ed.2d 889

(1968), which
held that 'where a police officer observes unusual conduct
which leads him reasonably to conclude in light of
his experience that criminal activity may be afoot' the
officer may briefly stop the suspicious person and make
'reasonable inquiries' aimed at confirming or dispelling his
suspicions.
     "Terry further held that '[w]hen 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,' the officer may conduct
a patdown search 'to determine whether the person is in fact
carrying a weapon.' '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 ***.'
Rather, a protective search -- permitted without a warrant and
on the basis of reasonable suspicion less than probable cause
-- must be strictly 'limited to that which is necessary for the
discovery of weapons which might be used to harm the officer or
others nearby.' If the protective search goes beyond what is
necessary to determine if the suspect is armed, it is no longer
valid under Terry and its fruits will be suppressed."
(Emphasis added and citations omitted.) Dickerson, 508 U.S.
at    , 

113 S.Ct. at 2135-2136

, 

124 L.Ed.2d at 343-344

.
     The Supreme Court then considered whether a plain feel
exception could be analogized to the plain view exception.
Under the plain view exception, "if police are lawfully in a
position from which they view an object, if its incriminating
character is immediately apparent, and if the officers have a
lawful right of access to the object, they may seize it without
a warrant. *** If, however, the police lack probable cause to
believe that an object in plain view is contraband without
conducting some further search of the object -- i.e., if 'its
incriminating character [is not] "immediately apparent,"' ***
-- the plain-view doctrine cannot justify its seizure."
(Citations omitted.) 

Id.

 at      , 

113 S.Ct. at 2136-2137

, 

124 L.Ed.2d at 345

.
     The court found that there was an analogy between the
plain view doctrine and "cases in which an officer discovers
contraband through the sense of touch during an otherwise
lawful search." 

Id.

 at      , 

113 S.Ct. at 2137

, 

124 L.Ed.2d at 345

. Just as with the plain view doctrine, the object's
identity must be "immediately apparent." "[T]he Fourth
Amendment's requirement that the officer have probable cause to
believe that the item is contraband before seizing it ensures
against excessively speculative seizures." 

Id.

     The court then applied the above principles to the facts
in Dickerson. The court found that "the dispositive question
before this Court is whether the officer who conducted the
search was acting within the lawful bounds marked by Terry at
the time he gained probable cause to believe that the lump in
respondent's jacket was contraband." Dickerson at       , 

113 S.Ct. at 2138

, 

124 L.Ed.2d at 347

. The court agreed with the
Minnesota Supreme Court that the officer "overstepped the
bounds of the 'strictly circumscribed' search for weapons
allowed under Terry. *** Where, as here, 'an officer who is
executing a valid search for one item seizes a different item,'
this Court rightly 'has been sensitive to the danger ... that
officers will enlarge a specific authorization, furnished by a
warrant or an exigency, into the equivalent of a general
warrant to rummage and seize at will.' *** [The search]
therefore amounted to the sort of evidentiary search that Terry
expressly refused to authorize, *** and that we have condemned
in subsequent cases." (Citations omitted.) Dickerson at      ,

113 S.Ct. at 2138-2139

, 

124 L.Ed.2d at 347-348

. This clear-cut
holding is why I must offer my vigorous dissent in this case.
     The Supreme Court's conclusion in Dickerson requires that
we also find that the search into Evans's pocket was outside
the strictly circumscribed limits of a Terry search. "Although
the officer [in Dickerson] was lawfully in a position to feel
the lump in respondent's pocket, because Terry entitled him to
place his hands upon respondent's jacket, the court below
determined that the incriminating character of the object was
not immediately apparent to him. Rather, the officer
determined that the item was contraband only after conducting a
further search, one not authorized by Terry or by any other
exception to the warrant requirement. Because this further
search of respondent's pocket was constitutionally invalid, the
seizure of the cocaine that followed is likewise
unconstitutional." Dickerson at      , 

113 S.Ct. at 2139

, 

124 L.Ed.2d at 348

.
     There is no testimony in this case that when the officer
patted down Evans's front pocket it was "immmediately apparent"
to him that either the soft wad or small rock substance items
were drugs. The state must carry the burden of proof to show
that the warrantless search and seizure were constitutionally
permissible. Xenia v. Wallace (1988), 

37 Ohio St.3d 216

, 

524 N.E.2d 889

, paragraph two of the syllabus. The officer had
only a "suspicion" that the items in the pocket were
contraband; he did not have probable cause to believe that the
items were contraband. Therefore, under Dickerson, the
intrusion into the pocket was unconstitutional as was the
subsequent seizure of the cocaine.
     I fear that today's decision will cause the lower courts
to grievously misapply -- or, worse yet, feel no need to apply
-- Dickerson. A majority of this court evidently does not
understand that the plain feel exception, like the plain view
exception, requires probable cause. This is an error that the
United States Supreme Court must quickly correct, lest the
plain feel exception devour the probable cause rule.
     Had I been in the majority I would have engaged in an
independent analysis of the Ohio Constitution to determine
whether our state Constitution would permit a plain feel
exception. This decision particularly troubles me because
other state supreme courts are analyzing their state
constitutions and finding protections greater than the
protections afforded under the United States Constitution.
With this decision, the majority is not affording Ohio citizens
even those rights which the United States Supreme Court
recognizes under the United States Constitution. As Justice A.
W. Sweeney said in his dissenting opinion in State v. Smith
(1989), 

45 Ohio St.3d 255, 268

, 

544 N.E.2d 239, 250

, reversed
(1990), 

494 U.S. 541

, 

110 S.Ct. 1288

, 

108 L.Ed.2d 464

:
     "While we as a society must endeavor to deal with the
scourge of illegal drugs in a quick and effective manner, we
must never sanction a solution that dispenses with the
constitutional guarantees and personal liberties that have made
ours the most enduring government on the face of the Earth."
     For all these reasons, I would affirm the judgment of the
court of appeals.
     A.W. Sweeney and Pfeifer, JJ., concur in the foregoing
dissenting opinion.

FOOTNOTES:
     6 For a discussion of the application of this standard,
see 3 LaFave, Search and Seizure (2 Ed. 1987) 521, Section
9.4(C), and Katz, Ohio Arrest, Search and Seizure (3 Ed. 1992)
244, Section 14.04. The majority recognizes this standard in
paragraph two of the syllabus.
     7 The majority justifies the search on two separate,
independent grounds: (1) police procedure to frisk individuals
for weapons prior to placing them in the back seat of the
cruiser, and (2) the radio broadcast description of a person
who had allegedly engaged in a drug transaction.
     The majority focuses on the proffered policy of frisking
suspects before placing them in the rear seat of the cruiser.
This may be a reasonable police procedure, but the majority
does not analyze whether it was reasonable to place Evans in
the back of the cruiser while checking for a valid driver's
license. I would conclude the officers did not need to place
Evans in the cruiser during such a check. As indicated by
Officer Green's testimony, the officers did not actually
consider Evans to be a threat while in his own car. Officer
Green testified that Evans "didn't do anything to make me feel
afraid of him, no." Moreover, there were two officers
present. One officer could have stayed with Evans while the
other officer went to the cruiser to obtain the information
they sought. Such a check would, and apparently did, reveal
that Evans did in fact have a valid driver's license.
     With regard to the second purported justification for the
search, contrary to the conclusion of the majority, the radio
broadcast did not provide the officers with the requisite
reasonable belief that Evans was armed and dangerous so as to
justify the search. The information available to the officers
from the broadcast and from their own observations
distinguishes this case from Alabama v. White (1990), 

496 U.S. 325

, 

110 S.Ct. 2412

, 

100 L.Ed.2d 301

. In White, the
information relayed in a telephone tip provided more details
concerning the defendant's conduct than the radio broadcast in
this case. Even if the radio broadcast justified detaining
Evans it did not provide the officers with any reasonable
belief that Evans was armed and dangerous. What the majority
fails to emphasize about White is that the defendant in that
case consented to the search after she was stopped by the
police, which certainly is not the case here.
     8 Officer Green agreed that it was "a very small amount"
of cocaine.
     9 This is the very type of justification proffered by the
police officer in this case. Officer Travano testified he knew
the object was not a gun but did not know whether or not it was
a knife "because I've seen knives come in all shapes and
sizes." A blanket statement such as this, that anything could
be a knife, does not meet the objective requirement that the
officer have a reasonable belief the item could be a weapon.
Acceptance of such a justification destroys even the illusion
that there are constitutional limits to a Terry pat-down
search.