State v. Curry , 95 Ohio App. 3d 93 ( 1994 )

I respectfully dissent from the majority opinion, which is a continuous misapplication by this court of the Fourth Amendment protection against unreasonable search and seizure. The Constitution is a set of guarantees of freedom and a symbol of vigilance against the abusive use of the government's power over its citizens.

The majority recognizes that the so-called reasons for the seizure in the instant case were insufficient as a matter of law but concluded that all of the reasons when added together justified a stop. The majority states:

"The area of the incident is noted for its abundant narcotic activity. The detectives were there in response to numerous drug-related complaints and had made an arrest there within twenty-four hours of their encounter with appellant."

The majority also alludes to 12:20 a.m. on a weekend as being too late to be standing around. "Appellant was standing on the corner of an intersection of a known drug area in the middle of a winter's night." It must also be noted that the Cleveland Police Department, without any benefit of a study, drew their own biased boundaries around the areas of our city which they consider to be high-crime drug areas to the exclusion of others. The areas designated are all the areas where poor blacks, whites, and Hispanics of our county live. See my dissent inSmith, infra. Thus, these biased boundaries give law enforcement officers, with the blessing of this court, the authority to suspend the constitutional rights of the residents. The only place they can congregate that is not a high-crime area therefore is the City Hall.

My understanding of the law is that it does not matter how many arrests and complaints were made — a seizure must be based on the criminal activity observed of the individual seized. This court also must understand the diversity of the citizens of this county and stay clear of judging all citizens from the cultural experience of only one group. It is a common practice, which should not be made illegal, for people from that part of our county to be outside after midnight. They should not be rendered criminals, subject to seizure, when they are out after midnight merely because in other parts of the county people remain indoors after 10:00 p.m. The majority ignores an earlier decision by this court which held that:

"Police officers who had received complaints about drug sales near school did not have reasonable suspicion of criminal activity necessary to warrant investigatory stop of defendant after they observed defendant standing with several other males in school yard appearing to make some sort of exchange and observed defendant run away when he saw police officers exit their vehicle. U.S.C.A. Const. Amend. 4." State v. Eppinger (1991), 74 Ohio App.3d 503, 599 N.E.2d 709, headnote 2.

The law has remained unchanged that absent a warrant a search based on an investigatory stop must be based on the officer possessing a reasonable belief that a crime is being or about to be committed. Terry v. Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868,20 L.Ed.2d 889. The mere fact that one is associating with or conversing with known drug users is not enough to warrant an inference of possession or sale of drugs. Sibron v. New York (1968), 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917. A person's presence in the so-called high crime area does not suspend his constitutional right to be free from unreasonable intrusion into his personal security. State v. Chandler (1989), 54 Ohio App.3d 92, 560 N.E.2d 832. See, also, State v. Fahy (1988), 49 Ohio App.3d 160, 551 N.E.2d 1311.

In the instant case the officer's reason for seizing Mr. Curry was that he was in the so-called high crime area around 12:20 on Saturday morning. He was showing something to another male. He saw the officers and ran.

"Q. And then what did you do?

"A. At that time I exited my vehicle and detained the male. The male had his hands in his pocket. And I just wanted to detain him to identify him."

Citing State v. Crosby (1991), 72 Ohio App.3d 148,594 N.E.2d 110, this court held in State v. Fincher (1991),76 Ohio App.3d 721, 726, 603 N.E.2d 329,332, that:

"``In State v. Arrington (1990), [64 Ohio App.3d 654,582 N.E.2d 649], we stated, "It is not illegal for four males to assemble by a car and engage the occupant in conversation. * * * It is not unreasonable for a young, black male living in a neighborhood with drug sales and liable to be stopped to run when approached by a police car whose officers assume a drug sale whenever someone speaks to someone in a car and believe the mere act of congregating justified a seizure." * * * This court went on to state, "This is not to deny the reality the officers face in combating the drug sellers. But although drugs are often sold to occupants of cars by people who gather near them it is just as likely that those merely by a car are engaged in an innocent activity as it is that they are engaged in an illegal one." * * *'"

It is lamentable that courts, in a very rapid process, are taking away the constitutionally protected rights of every citizen to be free from unreasonable search and seizure in a failed attempt to fight the war on drugs. The irony and tragedy of it all are that at the end we shall become two-way losers of this lost cause. We shall become losers of a war that had an improper focus, and, above all, losers also of a fundamental right that was added to our Constitution to make it an acceptable document to all. What is more important, to maintain the integrity of our Constitution and judicial system, or to go outside the system on a witch hunt?

The reason for this avoidable tragedy is because courts like the majority have abdicated their neutrality and have joined in the latest frenzy and the sentiments of the times. We forget that times change, but the damages done when we fail to take proper measures stay with us forever, and oftentimes become more difficult if not impossible to correct. The examples abound: prohibition, which created organized crime that we cannot get rid of today in spite of all our might; also, racism, bigotry and intolerance that prevail in our society today. Somehow, somewhere when these problems arose, the courts consciously failed to properly interpret the Constitution but chose instead to join in the convenience of the day and make populardecisions. Benjamin Franklin summed it up with his usual pungency: "Those who would give up essential liberty to purchase a little temporary safety, deserve neither liberty nor safety."

I'd like to finish this dissent by pointing out what is wrong with decisions like the present case. The majority and other courts of similar schools of thought analyze theFourth Amendment protection from the viewpoint that it is the state against the criminal. I must confess with such a narrow viewpoint I am tempted many times to join in arriving at the so-calledpopular and expected decision. But each time I go back to the Constitution to see how and why that amendment was put in the Constitution, I am more convinced that such a narrow viewpoint is a failure in understanding why we have the amendment.

The Bill of Rights, in particular, the Fourth Amendment prohibition against unreasonable search and seizure, from the framers' point of view, was to protect all citizens, including the few individuals that may be considered the scum of the earth. It is very easy for the state to reach everybody by going through a few, for the violation of the rights of a few usually leads to the violation of the rights of all, guilty or not. It is the importance of this recognition that led the states of New York and Virginia to refuse to approve the United States Constitution until the federal government guaranteed freedom and justice for all the people. Thus this protection was added to guide against such indiscriminate actions of the state which are prevalent today in the poor neighborhoods of our state in the so-called war on drugs. These rights should not be discarded because a few criminals may benefit from them.

We cannot kid ourselves and hide behind an "end justifies the means" jurisprudence, pretending that since only criminals are subjected to these constitutional violations, it is okay. In a Plain Dealer interview by Karen Farkas following this court's decision in State v. Smith (Aug. 29, 1991), Cuyahoga App. No. 58918, unreported, 1991 WL 185720, she wrote:

"Cleveland police Lt. Martin Flask acknowledged that police daily stop and release people in high-crime and drug areas because of what they believe is suspicious activity. Many stops result in arrests.

"``We think our citizens would want those officers toinvestigate and make a determination if an illegal activityoccurred,' Flask said. ``To do otherwise would encourage police to turn a blind eye. We look at the totality of the situation, including whether or not it is a high-crime area.'

"Flask said some people become angry if they are stopped and released. ``But others say, "Thank you for being so alert,"' he said." (Emphasis added.)

I cannot understand how such acts of the state in law enforcement can pass constitutional muster and gain the endorsement of this court. Any law enforcement that is not uniformly applied but is strictly based on race, class or geographical location of the citizens is inherently evil and dangerous and should have no place in our constitutional democracy. Therefore, it is my opinion that law enforcement with false pretenses must be condemned and stopped.

Accordingly, I dissent.