dissenting. A citizen’s Fourth Amendment rights are the same regardless of his residence, station in life or where he happens to be when he encounters a police officer. The majority has repeated the error announced in State v. Bobo (1988), 37 Ohio St. 3d 177, 524 N.E. 2d 489, as to the concept of a “high crime area” exception to the Fourth Amendment. See Bobo at 182, 524 N.E. 2d at 493-494, *90Wright, J., dissenting. The majority grounds its case in the “stop and frisk” procedure permitted by Terry v. Ohio (1968), 392 U.S. 1. It then proceeds to graft innovations onto that procedure until the original concept is completely obscured. It was precisely that kind of analysis that resulted in a summary reversal by the United States Supreme Court in Smith v. Ohio (1990), 494 U.S. _, 108 L. Ed. 2d 464, 110 S. Ct. 1288, involving another questionable search and seizure.
The majority acknowledges that this case presents a “close question of fact.” As such, it is worth noting the salient facts in Terry. The officer who conducted the “stop and frisk” had thirty-nine years’ experience, thirty-five as a detective. (The officer in the instant case, while hardly a rookie, had less than a third that amount of experience.) Further, the detective in Terry watched at length while two suspects each made repeated trips up and down the sidewalk, stopping en route each time to peer into the same store window and then confer with each other. Based on his own lengthy experience and the observed conduct, the detective became convinced that the two men were planning to rob the store. He further surmised that if they were planning a holdup, one or both men were armed.
Compare those facts, if you will, with the ones cited by the state in the instant case and relied on by the majority in deciding that Officer Raymond Martin was justified in stopping and searching Christopher Andrews.
Martin was alone, in a dark courtyard, in a high crime area, when he saw a man running. Martin also saw a police cruiser driving nearby and thought the man might be running away from the cruiser. (This point is never pursued further, though it seems to loom large in the majority’s thinking about the propriety of what happened next.) When the running man was about ten feet away, Martin shined his flashlight on the man. The man immediately threw down the can of beer he was carrying. This movement, too, takes on sinister proportions in the majority’s view. Martin then pulled out his gun and grabbed the man. After telling the man to keep his hands up, Martin holstered his gun and conducted a frisk, finding a small automatic pistol in Andrews’ back pants pocket.
The United States Supreme Court, in Terry, noted: “A search for weapons in the absence of probable cause to arrest, however, must, like any other search, be strictly circumscribed by the exigencies which justify its initiation.” Terry at 25-26. And what were those “exigencies” in this case?
A veteran police officer found himself alone in the dark in a high crime area with a man running towards him.
There is an alternative explanation for what occurred that just as easily fits these facts, but with a different result when the dictates of the Fourth Amendment and Terry are followed.
A veteran police officer, caught off guard by a running man, acts to defend himself from a potential threat. He shines his flashlight on that threat, tells the man to put his hands up and pulls out his gun. The “threat” turns out to be a man with a beer can. Nothing more. The man has stopped abruptly and thrown down his beer. Hardly the kind of suspicious activity that would warrant a frisk! There is nothing in the facts that reveals a conversation at this point. Andrews is standing there with his hands up, at Martin’s order. Now, this veteran officer, alone in a dark courtyard in a high crime area with a man the majority says was *91engaging in suspicious activity, grabs the man, holsters his weapon and searches him. Terry permits a search for weapons, without probable cause for arrest, where the officer “has reason to believe that he is dealing with an armed and dangerous individual * * *.” Terry at 27.
Given the location, the time of night and the fact that Martin was alone, it stretches credibility beyond reasonable limits to argue that the officer would holster his weapon if he had had any belief that he was confronting an “armed and dangerous individual.”
The permissible “stop and frisk” in Terry occurred after considerable surveillance. This court, in Bobo, noted that the officers had had time to observe the defendant’s purportedly suspicious behavior inside his car. In the instant case, the time lapse from initial observation to search could probably have been measured in heartbeats (escalating, no doubt, geometrically between the “stop” and the “frisk”).
If that kind of time frame and those circumstances are to become the bases for analyzing the reasonableness of future searches, of what value is the Fourth Amendment? Little, I think, and I must therefore vigorously dissent.
Sweeney, J., concurs in the foregoing dissenting opinion.