State v. Zampini , 79 Ohio App. 3d 608 ( 1992 )

I respectfully dissent from the majority's opinion.

I agree with the majority that appellant challenged the legality only of the initial stop; thus, what occurred after the stop and led to appellant's arrest is not relevant to determining the validity of the investigative stop. However, the trial court overruled appellant's motion to suppress, stating that:

"Based on the totality of the circumstances surrounding this stop, the Court finds that the Officer had probable cause to stop the Defendant." (Emphasis added.)

It is evident that the trial court applied the incorrect standard in deciding the motion to suppress. Probable cause is not necessary for an investigative stop. State v. Brandenburg (1987), 41 Ohio App.3d 109, 534 N.E.2d 906. However, an inarticulate hunch or suspicion is not enough to justify an investigative stop. Based on the totality of the circumstances, the officer must have a reasonable belief and specific facts upon which a reasonable suspicion could be based that appellant was violating or about to violate the law. Terry v. Ohio (1968),392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889, 905-906, 44 O.O.2d 383, 393; Brown v. Texas (1979), 443 U.S. 47,99 S.Ct. 2637, 61 L.Ed.2d 357; Delaware v. Prouse (1979), 440 U.S. 648,99 S.Ct. 1391, 59 L.Ed.2d 660.

Detaining and stopping an individual merely because he "looked suspicious" and demanding identification were held to be an illegal seizure in violation of the Fourth Amendment.Brown, supra. Thus, looking suspicious is not enough to justify an investigative stop. Furthermore, the officer's knowledge of prior crimes in the area which did not occur on the date of the stop or soon before such date is not an adequate basis for the stop. State v. Jackson (Mar. 7, 1986), Marion App. No. 9-84-50, unreported, 1986 WL 2979; State v. Bowling (Feb. 17, 1987), Warren App. No. CA86-06-038, unreported, 1987 WL 6706.

In Jackson, supra, the officer stopped a vehicle based on his observations that the vehicle had out-of-state license plates, that the driver changed his mind about turning into the entrance of an automobile repair shop at 3:25 a.m. and then proceeded into a residential neighborhood, and that the driver drove down two streets, turned around and proceeded to exit via the same route he entered. The officer was aware that burglaries had occurred in the neighborhood at that time of night in the past. Based on these facts, the court held that the basis for the stop was nothing more than an "inarticulate hunch" that the driver was engaged in suspicious conduct. The court stated:

"* * * The stop in this case appears to have been made in good faith. However, good faith, accompanied only by an inarticulate hunch is insufficient to justify even the temporary seizure involved in a stop. * * *" Id. at 3.

The court reasoned that:

"Perfectly legitimate reasons exist to explain the appellee's conduct. For example, the appellee could have been looking for an address in an unfamiliar neighborhood. At best, the appellee's actions may have been sufficient to justify continued surveillance of him. Considering the totality of the circumstances, the deputy was not justified in stopping the appellee for investigative questioning." Id.

The facts in the case sub judice are weaker than the facts inJackson, supra. In Jackson, the officer actually observed the alleged suspicious conduct of the defendant. In the case before this court, the officers only had the dispatch information, which was based on an anonymous call, of a suspicious dark truck and a white male knocking on doors. There were no facts presented to support a reasonable belief that appellant had done anything wrong or was about to break the law. Knocking on someone's door, even at three o'clock in the morning, is not an illegal or unlawful act. As stated in Jackson, there was a perfectly legitimate reason to explain appellant's conduct or presence in the street. Appellant could have been looking for an address or, as he stated, looking for the house of his girlfriend's mother who lived on the street. Thus, the stop was based on nothing more than an inarticulate hunch that appellant was going to commit a crime and, therefore, was improper.

Accordingly, the motion to suppress should have been granted.