State v. Hunter , 98 Ohio App. 3d 632 ( 1994 )

Because I believe the conduct of the police officers in this case offends the fundamental values of the Fourth Amendment, I respectfully dissent. The initial stop of Hunter was unreasonable and the attendant protective search of Hunter for weapons was a pretextual search for drugs.

The Fourth Amendment is the genius of an innocent time. It guards us from unreasonable stops (seizures) and searches and protects our right to privacy. The United States Supreme Court has held that it allows for a limited intrusion for investigation based on reasonable suspicion and protective searches for weapons of suspects when the police officer reasonably fears for his own safety. Terry v. Ohio (1968),392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889, and Sibron v. New York (1968), 392 U.S. 40, 88 S. Ct. 1889, 20 L. Ed. 2d 917. It is this limited-intrusion exception of Terry that is at issue in this case.

The majority opinion holds that the police may stop (seize) and search any person they see standing on the street at 1:30 a.m. in a high-drug activity area. Illustrating this holding, the police officer said that "they were just both in that area at that time." The majority's holding in substance means that time and place considerations alone are sufficient standards to justify a stop. With this I cannot agree.

Perniciously, the majority opinion swallows up the general rule of the Fourth Amendment, a potentiality warned of by Justice Brennan in his concurrence in Florida v. Royer (1983),460 U.S. 491, 103 S. Ct. 1319, 75 L. Ed. 2d 229. He cautioned us against broadly developing precepts and using the limited exception of Terry to justify them. He urged the limited use ofTerry, a sensible notion designed to ensure against vague and baseless suspicion as justification for a stop.

Besides the detriment the majority's holding causes to theFourth Amendment, it is as well antithetical to theFourth Amendment and to Terry. Terry requires an initial stop to be based on facts that adequately and reasonably show its basis. Here, the initial stop lacked these prerequisites.

Historically, the United States Supreme Court has rejected time and place considerations as reasonable indicators of criminal activity. Consistent with the notions of liberty and freedom the United States Supreme Court has held that a person may be stopped only if the officer has a reasonable suspicion based on objective facts that the person is involved in criminal activity. Brown v. Texas (1979), 443 U.S. 47, 99 S. Ct. 2637,61 L. Ed. 2d 357. This rule demonstrates the United States Supreme Court's refusal to use time and place considerations as the sole grounds for a Terry-type stop. In substance, the United States Supreme Court said time and place considerations do not meet the standard of "reasonable suspicion based on objective facts."

Contrarily, the majority believes the stop (seizure) occurred after the men were ordered against the zone car. The majority concludes that the stop (seizure) occurred after the police observed Richardson place the plastic into Hunter's pocket. It was the officer's observations of the plastic, the majority urges, that justified the stop and subsequent search.

I, on the other hand, believe Hunter was seized when the officers pulled their vehicle up to the two men. After all, the officer said the reason they pulled closer was because they suspected a drug transaction. Consequently, it is that moment that is crucial to the determination of the facts available to the officer at the time that caused him to reasonably believe a drug transaction was afoot. Based on the officer's testimony, he had none. He stated that "they were just both in that area at that time." Under Brown v. Texas, this is insufficient to justify a stop.

Now, I am not unmindful of our state Supreme Court's seemingly bottomless pit of acceptance of time and place considerations as sufficient grounds to stop. Yet, in Hunter's case, some concern has to be voiced for the arbitrary stopping of him on the public street when he was not engaged in observable criminal activity. After all, no drug house was nearby. No furtive movements were detected. No alley shielded their bodies from detection. No heads were bowed, poring over money in exchange for drugs. No evasive, nervous behavior was detected. No chase ensued. No money changed hands.

On recross, the officer admitted that his actions were all "hunches" not based on articulable, reasonable suspicion. When questioned on redirect by the prosecution, the officer said it was not his practice to assume a drug transaction by every person he sees standing. Yet, this is exactly what he did. He assumed a drug transaction by the two men because they were standing in that area at that time. Assumptions of this nature are dangerous because they do not allow for any other probable consequences. For example, did Richardson detect the police, and in an attempt to avoid consequence to himself, place the drugs in Hunter's pocket? This inference is reasonable in light of the officer's testimony that he found no money on either of the men and that Hunter was not doing anything with his hands. This brings me to what I think this case is really about, the search for drugs.

In a case involving a self-protective search for weapons, the officer must be able to point to particular facts from which he reasonably inferred that the individual was armed and dangerous. Here, as is too often the case, the officer took the witness stand and said, "We searched for weapons for our safety." He was not asked whether, nor was he required to articulate why, he believed that his safety was in jeopardy.

The majority, of course, is content to infer that in high-drug activity areas everyone is armed and dangerous. This may very well be true. However, I suggest the police officer explain this fact and provide information under oath to substantiate his belief that his life was in danger. Police officers still remain subject to scrutiny for credibility, regardless of our perception that the streets are dangerous.

The reality is that the officer was looking for drugs and he found them. He admitted that no object or weapon was detected during the patdown that might have been used to assault him. It was the officer's search for drugs that caused him to put his hand in Hunter's pocket. In Terry, it was only after the officer detected the object that he had put his hand in Terry's pocket. See Sibron v. New York, 392 U.S. at 65-66, 88 S.Ct. at 1904,20 L.Ed.2d at 936.

Finally, I disagree with the majority's attempt to characterize this case as a plain-feel case under Minnesota v.Dickerson (1993), 508 U.S. ___, 113 S. Ct. 2130, 124 L. Ed. 2d 334. The plain-feel exception still requires a reasonable reason for the stop and a reasonable belief of danger before a search for weapons can occur. Neither standard has been shown in this case.