¶1 dissenting.
¶2 I respectfully dissent. I agree that this search exceeded Terry v. Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889. However, I further believe that the officers had probable cause to suspect criminal activity.
¶3 If the officers had probable cause to arrest and search appellant, then the seized contraband would be admissible in evidence. See United States v. Robinson (1973), 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427; Chimel v. California (1969), 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685. Probable cause is determined by the totality of the circumstances. See Illinois v. Gates (1983), 462 U.S. 213, 232-233, 103 S.Ct. 2317, 2329, 76 L.Ed.2d 527, 544-545. The facts available to the officers at the time of the arrest must warrant a man of reasonable caution in believing that an offense has been committed. Beck v. Ohio (1964), 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142.
¶4 After reviewing the totality of the circumstances in the present case, it is my opinion that probable cause of criminal activity is established by the following facts that were available to the officers. First, the informant gave the one officer the following information: (1) the name of appellant, (2) appellant was selling crack, (3) the exact location, and (4) appellant had a weapon. The same officer had received reliable information from this same informant in the past. Furthermore, appellant, upon cross-examination of the officer, never questioned the reliability of this informant. Second, the reaction of the appellant when he saw the officer gave rise to reasonable suspicion. The officer testified that “when he saw me coming up, he turned around and started walking north.” Third, the location was known as the busiest corner for crack cocaine activity in the city. And, fourth, there was an adoptive admission by the appellant that he was selling drugs.
¶5 The unique part of the case sub judice is that the appellant inadvertently introduced the adoptive admission into evidence at the hearing on the motion to suppress. The appellant, not the officer, testified that the officer at the scene accused him of two things: (1) selling drugs, and (2) having a weapon. Appellant testified that he denied having a weapon. Appellant did not testify that he denied selling drugs. Specifically, appellant testified: “Well, when he arrived, he asked me, he said, T heard you was selling, that you had a gun,’ and I told him, T don’t — I don’t have a gun. I don’t even own a gun.’ ” Based on the adoptive admission rule, it is my position that the appellant admitted selling drugs because of his silence or lack of a denial of the officer’s allegation.
¶6*360 The adoptive admission rule is stated in Evid.R. 801(D)(2)(b). That rule provides that a statement is not hearsay, and thus admissible, if it is offered against a party and is a statement of which he has manifested his adoption or belief in its truth. However, the statement in the case sub judice was admitted at the hearing on the motion to suppress. Therefore, the issue is not whether the statement is admissible. Rather, the issue is whether the statement was an adoptive admission that helped to establish probable cause of criminal activity.
¶7 The Staff Note to Evid.R. 801(D)(2)(b) states as follows:
¶8 “ … An adoptive admission, or an admission by acquiescence, consists of a statement by a non-party which may be deemed to be that of a party by virtue of the failure of the party to deny the statement. … [I]n applying the rule, courts have been careful to consider the circumstances under which the utterance is made to insure that the party understood the utterance, that he was free to make a response, and that a reasonable person would have denied the statement.
¶9 Hi … 99
¶10 The Ohio Supreme Court has defined an adoptive admission as follows: A person admits the truth of a statement by adoption when that person hears, understands, and acquiesces in another person’s statement when a reasonable person could and would have spoken out in denial. 1 Zeller v. State (1931), 123 Ohio St. 519, 176 N.E. 81. See, also, State v. Kidder (1987), 32 Ohio St.3d 279, 513 N.E.2d 311.
¶11 The United States Supreme Court has held that every postarrest silence is inherently ambiguous because silence in the wake of Miranda warnings might mean that the arrestee is exercising his right to remain silent. See Doyle v. Ohio (1976), 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91, and Kidder, supra. In determining whether silence is an adoptive admission in criminal cases, courts should exercise the utmost care to see that the prerequisites have been proven. It is important to note in the case sub judice that the Miranda warnings were not given at the time the officer made the statement that appellant adopted.
¶12 The requirements for an adoptive admission pursuant to Zeller have been met. While the facts are unique because this testimony came from the appellant and not the officer, the fact that appellant testified about the statement is the very *361 thing that makes it easy to show that the requirements of Zeller are met. Appellant had to hear and understand the officer’s statement or he could not have testified about it. He acquiesced in the statement because he did not deny it as he did the weapon allegation. Why would he deny the weapon allegation and not the allegation of selling drugs? I cannot think of a good reason.
¶13 Therefore, it is my opinion that the requirements for an adoptive admission by the appellant of selling drugs have been met and that the adoptive admission is one factor that helped to establish probable cause of criminal activity. Accordingly, I would overrule the assignment of error and affirm the judgment of the trial court.
¶14 . There are five prerequisites:
1. the statement must be shown to have been heard by the opponent,
2. the statement must have been understood by the opponent,
3. the statement's subject must be something within the opponent’s knowledge,
4. there must be no physical or emotional impediment to a response by the opponent, and
5. the circumstances of the statement, the situation in which it is uttered, and the circumstances of the opponent himself must be considered. Gianelli, Ohio Evidence Manual (1982), Section 801.12; McCormick, Evidence (2 Ed. Cleary Ed.1972) 653, Section 270.
¶15 concurring.
¶16 I concur in the judgment of the principal opinion, but write separately in order to clarify my own reasons for ordering suppression of the evidence seized from appellant. Our first order of business should be to precisely define the narrow issue presented for review herein. There is no dispute in the cause sub judice concerning either the initial Terry-type investigatory stop of appellant or the subsequent pat-down he received to determine if he was carrying any weapons. Appellant has not challenged the propriety of either procedure in this case. Thus, while I generally agree with the principal opinion that the investigatory stop and subsequent weapons pat down were legally permissible in the present case, I would not dwell on the subject for too long. It tends to confuse the issues and distracts our attention from the real crux of this appeal.
¶17 The sole question before us in this case is whether the police exceeded the permissible scope of a weapons pat-down. We already know from a variety of seminal Supreme Court cases that such a search is permitted “for the protection of the police officer” where said officer has reason to believe that the suspect is armed and dangerous. See, e.g., Terry v. Ohio (1968), 392 U.S. 1, 27, 88 S.Ct. 1868, 1883, 20 L.Ed.2d 889, 909; Minnesota v. Dickerson (1993), 508 U.S. 366, 373, 113 S.Ct. 2130, 2136, 124 L.Ed.2d 334, 344. However, the permissible scope of this type of search is quite narrow. “The search for weapons approved in Terry consists solely of a limited patting of the outer clothing of the suspect for concealed objects which might be used as instruments of assault.” Sibron v. New York (1968), 392 U.S. 40, 65, 88 S.Ct. 1889, 1904, 20 L.Ed.2d 917, 936. A Terry- type frisk or search “is not a search for evidence; it is only a limited search for weapons.” (Emphasis added.) Katz, Ohio Arrest, Search and Seizure (1996 Ed.) 267, Section T 14.04. With this standard in mind, I would note the following admission by one of the police officers at the suppression hearing below:
¶18 “Q. And what was the purpose of that pat-down search?
¶19 “A. To search for guns or drugs.
¶20*358 “Q. Is that your understanding of the purpose of a patdown, is to search for a weapon and/or drugs ?
¶21 “A. Based on the information that we had received, that’s what I was looking for, yes.” (Emphasis added.)
¶22 As discussed above, the sole justification for a Terry-type pat-down is to search for weapons which could be used to assault police or someone else during the ensuing investigation. It cannot under any circumstances be used as a subterfuge to search a suspect for evidence. The admitted evidentiary search conducted by the Portsmouth police officers in the cause sub judice was clearly and unequivocally improper.
¶23 I concede that, under the so-called “plain feel” doctrine recently enunciated by the United States Supreme Court in Dickerson, supra, items seized during a Terry-type pat-down may still be used as evidence if the contour or mass of the items rendered it immediately apparent as contraband during the search. However, the Supreme Court has also made clear that this doctrine applies only to evidence/contraband found within the original and permissible scope of the search. Dickerson, 508 U.S. at 374, 113 S.Ct. at 2136, 124 L.Ed.2d at 344. It does not apply to contraband found and seized outside the scope of a permissible Terry-type pat-down. Thus, the pertinent inquiry in the cause sub judice is whether the crack cocaine discovered on appellant’s person was found within the original and permissible scope of a Terry pat-down. It seems manifestly obvious to me that it was not.
¶24 The uncontroverted evidence below was that the drugs were concealed between two layers of socks appellant wore on his left foot. He was also wearing high-top tennis shoes at the time he was searched. Given that the purpose of a Terry-type pat-down is to discover and remove weapons immediately available to the suspect, the search of appellant’s footwear at that juncture went way beyond what was necessary at that point in time. A review of case law construing the recent United States Supreme Court holding in Dickerson reveals that the contraband seized in those cases were “bulges” found in pockets or jackets. See, e.g., State v. Hunter (1994), 98 Ohio App.3d 632, 636, 649 N.E.2d 289, 292; State v. Richardson (1994), 94 Ohio App.3d 501, 510, 641 N.E.2d 216, 221-222. Such seizures are much more defensible than the one in this case because those “bulges” in pockets or jackets could just as easily have been a weapon. However, even if the crack cocaine in the cause sub judice had been a weapon, it posed little risk of harm to the police while it was secreted away between layers of socks inside hightop tennis shoes. An “effort to uncover contraband,” conducted under the guise of a Terry or Dickerson type search, will not be tolerated. See State v. Cloud (1993), 91 Ohio App.3d 366, 370, 632 N.E.2d 932, 934-935.
¶25*359 For all these reasons, I concur with the judgment of the principal opinion and join in reversing the conviction below.