The opinion
Nahra, Presiding Judge,
dissenting.
I respectfully dissent. The facts of this case reflect that no seizure took place until after the police officers saw Nealen drop two rocks of cocaine, which provided probable cause for his arrest.
Detective Hancock was the only witness to testify at the suppression hearing. He stated as follows:
“As we pulled into the parking lot, which adjoins a courtyard, which is like the main hub of activity in that area, we observed a male coming from the courtyard approaching a Pontiac automobile.
“We then drove to where the car was. As the male was attempting to enter his car, we identified ourselves as policemen, and asked him what he was doing?
“At that time, we observed that he had his left hand closed in a tight fist. We asked him what he had in his hand?
He then attempted to enter the car,
and we
[sic,
he] put his hand on, like you call the doorjamb, and a rock of cocaine popped out onto the ground, and one popped out onto the driver’s seat.
*244
“We then exited our police vehicle. I retrieved the rock of suspected crack cocaine that fell to the ground. Detective Tim asked the male to step out of the car. He retrieved the rock that was on the driver’s side that had fallen inside the car.
“At that time Mr. Nealen was placed under arrest for VSDL, and read his rights.” (Emphasis added.)
Hancock also testified that the police officers did not get out of their vehicle, did not display any weapons, and did not touch Nealen in any way.
“An arrest requires
either
physical force * * *
or,
where that is absent,
submission
to the assertion of authority.” (Emphasis
sic.) California v. Hodari D.
(1991), 499 U.S. ---, ---, 111 S.Ct. 1547, 1551 , 113 L.Ed.2d 690, 697-698 . See, also,
State v. Smith
(1989), 45 Ohio St.3d 255 , 544 N.E.2d 239 , reversed on other grounds (1990), 494 U.S. 541 , 110 S.Ct. 1288 , 108 L.Ed.2d 464 (no seizure took place where police asked Smith to “come over here a minute” but did not display weapons, did not threaten Smith, and did not touch Smith or block his exit).
In this case, Nealen did not stop when the police asked him questions, but continued to get into his car. At that point, when reaching into his car, he dropped the rocks of cocaine. Since the initial encounter with police lacked physical force, and since. Nealen did not submit but continued on his way, the encounter was not a seizure and did not require reasonable suspicion pursuant to
Terry v. Ohio
(1968), 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 . Nealen’s subsequent arrest was not based on the fact that he was a white man in an all-black, high-crime neighborhood, but was based on the rocks of cocaine that he dropped. Therefore, no Fourth Amendment violations occurred, and the motion to suppress should have been denied.