State v. Berry , 104 Ohio App. 3d 301 ( 1995 )

Appellant, the state of Ohio, appeals the suppression motion granted in favor of appellee William Berry. For the reasons that follow, we affirm.

Appellee was sitting on a porch. Detective Thomas observed him walk to a car and hold a brief conversation with the occupant of the car. The car then drove off. The officer did not observe him do anything else. The officer then came up to appellee and patted him down. He put his hand into appellee's pocket and removed crack cocaine and then placed him under arrest.

In State v. Rucker (1990), 63 Ohio App.3d 762, 580 N.E.2d 59, this court held that a stop and search is unconstitutional where the officer did not observe the defendant commit any crime and did not believe him to be dangerous. We observed that "the record contains no evidence which would support an independent finding that the officer believed the appellee to be armed and dangerous. Rather, the record reveals that after an unconstitutional stop of the appellee, a police officer simply reached into appellee's jacket pocket and pulled out a bag which happened to contain cocaine. It is quite clear that neither of the Terry requirements was present in the stop and frisk of defendant-appellee." Id. at 764, 580 N.E.2d at 60.

Under the totality of the circumstances, the investigative stop of William Berry in the instant case was not justified.State v. Walker (1993), 90 Ohio App.3d 132, 628 N.E.2d 91; see, also, State v. Chandler (1989), 54 Ohio App.3d 92,560 N.E.2d 832. See, also, State v. Linson (1988), 51 Ohio App.3d 49,554 N.E.2d 146 (this court affirmed a motion to suppress where the reason for the stop and search was that the suspect was in the so-called area of high drug activities and the suspect had previously been arrested, including of course the police officer's years of experience in drug related arrests). Such a weak excuse to justify a search just will not do.

In Broadview Hts. v. Abkemeier (1992), 83 Ohio App.3d 633,636, 615 N.E.2d 656, 657, this court noted:

"The trier of fact is in an unique position to observe a witness face-to-face. Nonverbal behavior accounts for sixty percent of the total meaning of a transmitted message; another thirty percent of the meaning is gleaned from voice inflection. Only ten percent of the total message results from a witness' choice of words. Rasicot, New Techniques for Winning Jury Trials (1990) 10. A witness' information is, therefore, amazingly judged by focusing primarily on nonverbal communication."

The trial court, as the trier of fact, had the discretion to believe or not believe the police officer's version of the events. State v. DeHass (1967), 10 Ohio St.2d 230, 39 O.O.2d 366, 227 N.E.2d 212. In the instant case, the trial judge chose not to believe the officer's testimony. We fail to find an abuse of discretion here.

Judgment affirmed.

JAMES D. SWEENEY, P.J., and HARPER, J., concur.

MATIA, J., dissents.