State v. Jackson , 52 Ohio App. 3d 39 ( 1989 )

The state timely appeals the granting of Leslie Jackson's motion to suppress a packet of cocaine seized from his automobile.

On December 11, 1987, at approximately 8:30 p.m., eight to ten armed Cleveland police officers in two SWAT cars and four or five police cruisers arrived at 541 E. 117 Street to execute a search warrant. As the officers ran towards the house, Officer Andrew Charchenko observed the defendant, who was sitting in a parked automobile, lean over. The officer approached the defendant, asked him to leave the vehicle and found cocaine under the front seat of the auto.

The officer testified the defendant was parked in a high crime area and that individuals involved in drugs often have weapons. Charchenko admitted, however, that he had not observed the defendant involved in any drug transaction. Charchenko also stated he had never seen an individual surrounded by armed police officers alight from a vehicle shooting at the officers. More importantly, the officer told the court he had no reason to stop the defendant before the defendant leaned over in the automobile. In State v. Bobo (1988), 37 Ohio St.3d 177, 179,524 N.E.2d 489, 492, the Supreme Court noted that "[a] mere furtive gesture, standing alone, does not create probable cause to stop and search a vehicle without a warrant." We find the trial court reasonably could conclude that the officer relied on nothing more than the furtive movement to justify the search. Accordingly, the state's assignment is overruled and the judgment of the trial court is affirmed.

Judgment affirmed.

ANN MCMANAMON, C.J., and J.F. CORRIGAN, J., concur.

DYKE, J., dissents.