DocketNumber: No. 89062.
Judges: ANN DYKE, J.
Filed Date: 11/8/2007
Status: Non-Precedential
Modified Date: 4/18/2021
{¶ 21} I respectfully dissent from the Majority Opinion. The facts of the case mirror the facts in Terry v. Ohio1 with the exception of the type of crime and the absence of a pat-down search. Here, the officer was on surveillance at a gas station known to be a haven for drug activity. The officer observed Cobbs enter a van, exit the van, and walk away. He followed Cobbs, not the van. He did not see any money or drugs change hands. He did not recognize either of the men.
{¶ 22} Upon stopping Cobbs, he identified himself as a police officer. He informed Cobbs that he suspected a drug transaction. He continued the detention. Cobbs offered him an explanation; the officer did not believe him and restated his belief that a drug transaction had occurred. He then asked Cobbs if he could search his person. Cobbs agreed and a rock of crack was retrieved.
{¶ 23} The State argues and the Majority Opinion agrees that this stop did not implicate the
{¶ 24} In Florida v. Bostick,2 the United States Supreme Court drew a distinction between Terry stop-seizure and casual, consensual encounters. The distinction is whether under the surrounding circumstances of the encounter would a reasonable person feel free to decline the officer's requests, or terminate the encounter. If a reasonable person felt free to leave, the encounter does not implicate the
{¶ 25} In Florida v. Royer,4 the agents focused on the suspect, took his identification, and told him he was a suspect before obtaining his consent to search his luggage. In Florida v. Royer, the court held this was non-consensual. Here, Cobbs was stopped, detained, and questioned. When he offered an explanation, he was not believed, and the officer continued the detention and the investigatory *Page 12 interrogation. Under these circumstances a reasonable person could conclude that he was not free to leave.
{¶ 26} To take any other approach would result in what is becoming a commonplace thought; that thought is so long as the officer does not show force, the encounter is casual, and if the suspect does not walk away, the encounter is consensual. I believe the approach evidenced in this view weakens the