I respectfully dissent from the decision as rendered by the majority.
The Supreme Court of Ohio, in State v. Andrews (1991),57 Ohio St. 3d 86, 565 N.E.2d 1271, held that there exists no "bright lines or easy answers" when dealing with a motion to suppress as based upon an investigatory stop and a protective search of a defendant. The Supreme Court of Ohio, however, has firmly established that a totality of the surrounding circumstances test, as based upon the surrounding circumstances viewed through the eyes of a reasonable and prudent police officer, must be applied to each motion to suppress upon appellate review.
"Since Terry, courts have struggled with the elusive concept of what comprises a reasonable suspicion that someone is engaging in, or about to engage in, criminal activity. `Terms like "articulable reasons" and "founded *Page 327 suspicion" are not self-defining; they fall short of providing clear guidance dispositive of the myriad factual situations that arise.' [United States v.] Cortez, supra, [449 U.S. 411] at 417 [101 S. Ct. 690, 694, 66 L. Ed. 2d 621, 628]. Fleshing these terms out, courts have concluded that an objective and particularized suspicion that criminal activity was afoot must be based on the entire picture — a totality of the surrounding circumstances.Id. at 417-418 [101 S.Ct. at 695, 66 L.Ed.2d at 629]; State v.Bobo (1988), 37 Ohio St. 3d 177, 524 N.E.2d 489; United States v.Rickus (C.A.3, 1984), 737 F.2d 360, 365. Furthermore, these circumstances are to be viewed through the eyes of the reasonable and prudent police officer on the scene who must react to events as they unfold. United States v. Hall (C.A.D.C.1976),525 F.2d 857, 859; State v. Freeman (1980), 64 Ohio St. 2d 291,295, 18 O.O.3d 472, 474, 414 N.E.2d 1044, 1047. A court reviewing the officer's actions must give due weight to his experience and training and view the evidence as it would be understood by those in law enforcement. Cortez, supra.
"The state urges that Martin's investigative stop of Andrews was reasonable under the standards set in the foregoing cases. Specifically they point to five factors: (1) the investigative stop took place in a high crime area, (2) it occurred at night and in a dark area, (3) Martin had twelve and a half years' experience on the police force, (4) Martin was away from this police cruiser and alone at the time of the stop, and (5) Martin saw the defendant running away from the direction of a police cruiser and into the dark courtyard.
"We believe that the facts support a reasonable suspicion by Martin that Andrews was engaged in criminal activity. Martin was an experienced police officer with twelve and a half years on the force and was familiar with the Roland Circle area. We must view the circumstances of the stop through his eyes. He was the `"reasonable and cautious police officer on the scene"' who is guided by his own experience and training. Freeman, supra, at 295, 18 O.O.3d at 474, 414 N.E.2d at 1047; United States v.Hall, supra, at 859." (Footnote omitted.) State v. Andrews,supra, 57 Ohio St.3d at 87-88, 565 N.E.2d at 1273.
In the case sub judice, the record clearly demonstrates that: (1) the Cleveland Police Department had received complaints of illegal drug usage and drug sales in the area of East 120th Street, Cleveland, Ohio; (2) the arresting police officer had over thirteen years of experience as a police officer; (3) the arresting police officer had made hundreds of drug-related arrests; (4) the area surrounding East 120th Street, Cleveland, Ohio, was under surveillance by two unmarked police automobiles; (5) two other police officers were involved in a chase of two drug-related suspects; (6) the arresting police officer and his partner were searching for the two male *Page 328 suspects when they turned onto East 120th Street; (7) two males were observed standing in a driveway located off East 120th Street; (8) the two males, upon seeing the unmarked police automobile, separated with the appellant slowly walking away; (9) the police officers identified themselves at which time the appellant walked away at a faster pace; (10) the appellant, while walking away from the two police officers, threw something to the ground and reached into his inside jacket pocket; (11) the police officers drew their weapons and instructed the appellant to place his hands in open view; (12) the appellant was searched for possible weapons; and (13) the investigating police officers feared that the appellant was reaching for a concealed weapon and that the appellant had discarded contraband.
Applying the totality of the surrounding circumstances test of Andrews to the facts before this court requires an affirmance of the judgment which denied the appellant's motion to suppress. These facts, when viewed through the eyes of a reasonable and prudent police officer, warranted an investigatory stop and search of the appellant. State v. Bobo (1988), 37 Ohio St. 3d 177, 524 N.E.2d 489.
It should be noted, however, that absent the continued refusal of the appellant to stop, absent the quickening of the appellant's retreat from the police and absent the furtive movements of the appellant vis-a-vis placing a hand into the inside pocket of his jacket, the police would not have possessed a reasonable suspicion of criminal activity to support an investigatory stop. It was the conduct of the appellant, subsequent to the initial appearance of the police, which provided a reasonable and cautious police officer with a reasonable suspicion of criminal activity. It must also be noted that the credibility of all witnesses, who testified during the suppression hearing, was primarily a matter for consideration by the trial court and nothing in the record before this court can be found to refute the credibility of the police officer who testified on behalf of the state of Ohio at the suppression hearing. State v. Eley (1978), 56 Ohio St. 2d 169, 10 O.O.3d 340,383 N.E.2d 132; State v. DeHass (1967), 10 Ohio St. 2d 230, 39 O.O.2d 366, 227 N.E.2d 212.
Therefore, the trial court did not err in denying the appellant's motion to suppress and the judgment of the trial court should be affirmed. *Page 329