OH8: Leaving the area after seeing police is not reasonable suspicion

Presence in a high crime area, waving at two women in a car, walking over to talk to them, and turning and going back to his car on seeing the police car is not reasonable suspicion. State v. Hodges, 2009 Ohio 3378, 183 Ohio App. 3d 160, 916 N.E.2d 527 (8th Dist. 2009):

[*P11] The propriety of an investigative stop by a police officer must be viewed in light of the totality of the surrounding circumstances. State v. Bobo (1988), 37 Ohio St.3d 177, paragraph one of the syllabus. Officer Hicks testified that he stopped appellee because he suspected the passenger of drug-related activity. His suspicion was heightened by the location of the gas station in a high drug area, and by the early morning hour. Hicks testified that his suspicion of drug-related activity was based upon his observance of the van passenger’s actions in waving to females in another car parked in the lot, walking toward that car, and then turning around and going back to the van when he spotted the police car. Hicks stated that if the passenger had continued on and kept talking to the females, he probably would not have done anything.

[*P12] This court has repeatedly held that an individual’s presence in a high drug area does not suspend the protections of the Fourth and Fourteenth Amendments. See, e.g., State v. Simmons, Cuyahoga App. No. 89309, 2007 Ohio 6636; State v. Scales, Cuyahoga App. No. 87023, 2006 Ohio 3946; State v. Chandler (1991), 54 Ohio App.3d 92, 97.

[*P13] Moreover, this court has previously held that “an individual’s walking toward an occupied car and then, upon observing the police, retreating from the scene, is not sufficient to justify an investigative stop, even in an area of high drug activity.” Simmons at 9114, citing State v. Fincher (1991), 76 Ohio App.3d 721.

The evidence at trial failed to show that defendant was guilty of DUI drugs because there was no blood test to confirm it. Alleged erratic driving shows nothing about driving under the influence of a particular drug. The question of the officers’ obtaining the drug from defendant is moot and not reached. Commonwealth v. Griffith, 2009 PA Super 120, 985 A.2d 230 (2009).*

The court finds that the officer did not first search defendant’s vehicle by sticking his head inside. The trooper smelled marijuana, and that justified the search. United States v. McMillin, 2009 U.S. Dist. LEXIS 58130 (D. Neb. July 8, 2009).*

Defendant’s consent was given 14 minutes into this stop, and it was found voluntary and not the product of an overlong detention. United States v. Davis, 645 F. Supp. 2d 541 (W.D. N.C. 2009).*

“Defendant’s custodial status alone, however, does not render her consent involuntary.” The facts show it was voluntary. United States v. Vargas-Garcia, 2009 U.S. Dist. LEXIS 57732 (W.D. Tex. May 15, 2009).*