State v. Edwards , 80 Ohio App. 3d 319 ( 1992 )

I concur with the majority that this case be reversed. However, I write further on the issue of investigatory stop. The majority found sufficient articulable facts to justify an investigatory stop of Edwards. I disagree. The majority states:

"The record reveals that officer Patterson did possess specific and articulable facts upon which an investigatory stop of Edwards was justified. Such facts include the following: the area in question was known as a high drug area; Det. Patterson and his partner were searching for two male suspects in the area; Edwards separated from another male when the unmarked police car arrived and began walking away more briskly when the police officers identified themselves; Edwards apparently discarded something while he was walking down the driveway and reached into the pocket of his jacket. These facts considered together establish that the officers did have reasonable suspicion based upon articulable facts to justify an investigatory stop and frisk for weapons."

This finding is in direct conflict with the trial court's observation and further broadens what constitutes articulable facts. The trial court made the following observation:

"There is no dispute as to the fact that Detective Patterson first observed the defendant standing in the driveway engaged in an apparently innocent conversation with Moses Darden. At that time, given the totality of the circumstances, I believe that the detective had no justification for even a Terry stop and frisk, since there were no facts observable to him to indicate any suspicious activity.

"The detective testified that the defendant walked away, reached into his jacket pocket and pulled out something, which he then threw to the ground. However, by his own admission, the detective stated there was no reference to this incident in his report, even though that report is now relied upon as the primary ground to support the arrest, search and seizure of the defendant."

We must not support a dangerous precedent that any police suspicion warrants an investigatory stop, seeing that almost any movement could be termed suspicious depending on who made the movement and where he or she is found. Both the United States Supreme Court and the Ohio Supreme Court have held that the officer must have more than a vague suspicion. "He must have a reasonable suspicion that criminal activity is imminent and must be able to state specific facts to justify the conclusion that the defendant is engaged in criminal activity." State v.Fincher (1991), 76 Ohio App. 3d 721, 603 N.E.2d 329. See Terry v.Ohio (1968), 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889; State v.Bobo (1988), 37 Ohio St. 3d 177, 524 N.E.2d 489. See, also, my dissent in State v. Smith (Aug. 29, 1991), Cuyahoga App. No. 58918, unreported, 1991 WL 185720.

This court held in State v. Chandler (1989), 54 Ohio App. 3d 92, 560 N.E.2d 832, that: "A person's mere presence in an area of high crime activity (so called) does not suspend the protection of the Fourth and Fourteenth Amendments to the United States Constitution."

In the case sub judice, the officers saw two black males standing in the driveway of the house belonging to one of the parties, holding an innocent conversation. The officers were in the neighborhood to assist other officers chasing certain individuals. There was no description given to the officers of those being chased. I cannot see how observing two citizens standing in their driveway gives the police an articulable reason to believe that they are criminals or that they are the individuals being chased by fellow officers. They were not seen running or making any overtures that justifies such thinking. ATerry interpretation must not be left to police imagination. This court should not be dragged into a false premise that if one black male is suspected of crime, all black males in the area are also suspects, thereby justifying an investigatory stop of every black male. Given the officer's presumption that anyone who is seen in an area of a drug sweep in the so-called high crime area is a suspect that must be questioned, it is not unreasonable to walk away when approached by a police vehicle. Our laws are not intended to be interpreted as requiring citizens who live in the socalled "high crime areas" to be confined to their homes or otherwise be stopped and seized by law enforcement officers either for standing still or for walking away when approached.

This court held in State v. Hewston (Aug. 2, 1990), Cuyahoga App. No. 59095, unreported, 1990 WL 109183, that "a stop is not justified when based on nothing more than the fact that the defendant had run upon being approached by a police officer in an area of drug activity." We also held in State v. Bryant (May 30, 1991), Cuyahoga App. No. 58621, unreported, 1991 WL 95067, that a citizen is not bound to respond to an officer's inquiry, and that the failure to so respond is not tantamount to a criminal act. See, also, Singletary v. State (Miss. 1975), 318 So. 2d 873. There is no reason for us in the case sub judice to justify an investigatory stop because a defendant merely walked away "briskly" from a police car when we could not justify it in prior cases for running away from a police car. In reversing the trial court's denial of a motion to suppress in Fincher, supra, this court concluded thus:

"We hold that approaching an occupied car on foot and then, upon seeing the police, retreating from the scene is not sufficient activity to justify an investigative stop, even in an area of drug activity. The motion to suppress was improperly denied."

I alluded in my dissent in Smith, supra, that we are not all privileged to live in affluent neighborhoods and those of us who are not so privileged are still full citizens of this great democracy and have the same constitutional protections as the privileged. The less privileged must be left alone and not be treated like common criminals because of their economic status or their skin colors. Where no facts exist to believe that the less privileged have committed or are about to commit a crime, the Constitution protects them from unreasonable searches and seizures by overzealous law enforcement officers, no matter where they may live. Accordingly, the investigatory stop of appellant is inappropriate and offensive, and his motion to suppress should have been granted.