Pursuant to R.C. 2945.67 and Crim.R. 12(J), the State has timely appealed from the trial court's decision suppressing evidence in this case.

THE DECISION OF THE TRIAL COURT SHOULD BE OVERTURNED BECAUSE THE INITIAL INTERACTION BETWEEN THE APPELLEE AND DEPUTY STATZER WAS A CONSENSUAL ENCOUNTER.

On April 19, 2000, at approximately 9:24 p.m., the deputy observed an occupied Ford Explorer parked behind the Washington Township Recreation Center. Upon illuminating the vehicle with his spotlight, the vehicle began to move forward, and in doing so traveled over a wood parking block and into a gravel/grassy area.

The deputy stopped the vehicle, which contained the Defendant operator and three other males. The deputy requested and received identification in the form of picture ID's from all except the Defendant. While waiting for the individuals to produce identification, the deputy detected the odor of burnt marijuana emanating from the interior of the vehicle. The deputy had the Defendant exit the vehicle and brought him in his cruiser, where he patted the Defendant down as a safety precaution. During the pat down, the deputy detected a bulge in the Defendant's waistband, which he described as "mushy to the touch", and "making a crinkling sound". His experiences as an officer indicated the bulge was contraband, probably drugs. He inquired if the Defendant had drugs in his pants, to which the Defendant responded "yes". The Defendant, at the request of the deputy, retrieved a packet of marijuana.

The deputy placed the Defendant in his cruiser. The deputy and a back up officer searched the Explorer and found a warm pipe with suspected drug residue in the bowl. The Defendant subsequently was questioned by the deputy, and admitted ownership of the pipe.

Upon cross-examination, the deputy stated he thought the Center may have been open, that the vehicle was properly parked in an unrestricted area, and that he had not received any report of criminal or suspicious activity in that area.

The deputy stopped the vehicle because it was in a very dark area not traveled at that time of evening; and because it started moving without lights on being spotlighted, then illuminated the headlights on contacting the wooden parking blocks.

The Defendant, lacking identification, gave the deputy his name and social security number. The deputy acknowledged he was checking the Defendant for possession of a weapon when he encountered the contraband, which he knew was not a weapon.

The deputies conducted a search of the vehicle because the smell of burnt marijuana emanating from the passenger compartment indicated criminal activity therein.

Both the Defendant and another passenger were arrested and taken to the Sheriff's substation to complete the investigation, and because the deputy felt both had smoked the marijuana and it would be unsafe to release either. Relatives were summoned to pick up the individuals.

At the substation, the Defendant claimed ownership of the pipe. His comment was not the result of interrogation. The Defendant was issued citations for possession of drug paraphernalia and possession of marijuana.

Q. All right. Why did you, why did you activate your lights and formalize the stop?

A. The vehicle was parked in a very darkened area which is, in my experience, not traveled at that time in the evening. The vehicle upon being spotlighted by myself, the vehicle quickly started, drove forward without any lights, and as it went over the top of the parking area, the parking center island, the vehicle then turned on its lights. Those, those actions brought suspicion.

A. Well, suspicion of possible illegal activity being conducted in that area.

(T. of Hearing at p. 12). The trial court's conclusion is further bolstered by the fact that whenhe first encountered Defendant and the other occupants of the vehicleDeputy Statzer requested proof of their identities. Had he beenattempting to aid them in their distress, that wouldn't have beenrequired. It plainly indicates an investigative purpose. Furthermore, onthe Mendenhall standards, it constitutes a show of authority whichcreated a restraint of the Defendant's liberty in such a way that areasonable person in Defendant's position would not have felt free toinstead merely drive away. Id.

The trial court correctly found that the encounter between the Defendant and Deputy Statzer was a search subject to Fourth Amendment requirements. The first assignment of error is overruled.

THE TRIAL COURT'S DECISION SHOULD BE REVERSED BECAUSE DEPUTY STATZER POSSESSED A REASONABLE SUSPICION TO JUSTIFY CONDUCTING A BRIEF INVESTIGATORY STOP OF THE APPELLEE.

Warrantless searches are per se unreasonable under the Fourth Amendment, subject to only a few well recognized exceptions. Katz v.United States (1967), 389 U.S. 347. In this case the search and seizurebeing challenged by Defendant was conducted without a warrant. Thus, itbecomes the State's burden to demonstrate that this search/seizure wasjustified under one of the recognized exceptions to the FourthAmendment's warrant requirement. City of Athens v. Wolf (1974),38 Ohio St.2d 237; City of Xenia v. Wallace (1988), 37 Ohio St.3d 216.

The investigative stop sanctioned in Terry v. Ohio (1968), 392 U.S. 1,is one of the well recognized exceptions to the Fourth Amendment'swarrant requirement. Under that doctrine, a police officer may stop andbriefly detain an individual in order to investigate possible criminalbehavior, if the officer is able to point to specific and articulablefacts which, taken together with the rational inferences from thosefacts, give rise to a reasonable suspicion that criminal activity isoccurring or is about to occur. Id. Whether reasonable suspicion existsis measured by an objective standard: would the facts available to theofficer at the moment of seizure or search warrant an officer ofreasonable caution in the belief that the action taken was appropriate.State v. Bobo (1988), 37 Ohio St.3d 177. An unparticularized suspicionor mere hunch is not sufficient to constitute reasonable suspicion.Terry, supra. Deputy Statzer was unable to articulate any specific, particular typeof offense he suspected was afoot at the time he stopped Defendant.Statzer testified that the vehicle was parked in a dark parking lot notnormally used by the public at that time of night. The vehicle beganmoving forward without its lights on when spotlighted by Deputy Statzer,and then its headlights were turned on when it came in contact with thewooden parking divider. These facts gave rise to "suspicion of possibleillegal activity." This, however, is nothing more than anunparticularized suspicion or hunch. The evidence adduced at the suppression hearing reveals that theRecreation Center may have been open at the time; that parking is notprohibited or restricted in the area where Defendant's vehicle wasparked; that Deputy Statzer had no reports of any crime in that area atthat time; that Statzer did not observe the occupants of the vehicle doanything illegal; and, that Defendant did not violate any traffic laws bymoving the vehicle forward in the parking lot without its headlights on. The trial court concluded that the investigative stop conducted byDeputy Statzer in this case was not supported by specific, articulablefacts giving rise to reasonable suspicion that criminal activity wasafoot, and hence was illegal. The facts as found by the trial court,which are supported by competent, credible evidence in this record,supports the trial court's legal conclusion. The evidence seized fromDefendant's person and his vehicle are fruits of the illegalinvestigatory stop, and must be suppressed. Wong Sun v. United States(1963), 371 U.S. 471. The second assignment of error is overruled. The judgment of the trialcourt will be affirmed. WOLFF, P.J. concurs. FAIN, J., concurs in the judgment, only.

Although I concur in the judgment affirming the trial court'ssuppression order, my reasoning differs somewhat from that expressed inthe opinion of this court. To begin with, I agree with the opinion of this court that when DeputyStatzer turned on his overhead lights, the encounter that resulted was astop, rather than a consensual encounter. However, I base my conclusionnot upon the purpose for the encounter, which was plainly investigative,but upon the common understanding that when a police officer turns on hiscruiser's overhead lights, a motorist is not free to ignore the officer,but is under a duty to stop and permit the officer to approach. When apolice officer approaches someone and addresses him or her, without anysurrounding circumstances that suggest that the person is not free todecline to talk to the officer, the encounter that results is consensual— not a seizure — regardless of the officer's purpose.I.N.S. v. Delgado (1984), 466 U.S. 210, 104 S.Ct. 1758, 80 L.Ed.2d 247. The "uncommunicated intention" of the officer in initiating the encounter is not dispositive. 4 LaFave, Search and Seizure (Third Edition), § 9.3(a), at 91.

As noted, I agree that once Deputy Statzer turned on his overhead lights, a stop occurred. A brief, investigative stop is a seizure requiring a reasonable, articulable suspicion, based upon facts specifically pertaining to the encounter, that "criminal activity may beafoot." Terry v. Ohio (1968), 392 U.S. 1, at 30, 88 S.Ct. 1868, at 1884 (emphasis added). In my view, it is not necessary that the police officer be in a position to determine the particular criminal offense that may have been committed — that determination may await the result of the officer's investigative stop — so long as the facts upon which the officer's suspicion is predicated are specific to the particular encounter.

Flight cases — that is, stops resulting from the suspect's sudden flight upon noticing a police officer — frequently involve a suspicion that some criminal activity has occurred, or is occurring, without a determination of the specific criminal activity. See, for example, Illinois v. Wardlow (2000), 528 U.S. ___, 120 S.Ct. 673. In that case, however, the analysis by both the majority of the court and the dissenting justices included a consideration whether the suspect appeared to have noticed the police officer before fleeing. Chief Justice Rehnquist, in his opinion for the court, noted that the suspect "looked in the direction of the [uniformed] officers and fled," and then characterized that conduct as "unprovoked flight upon noticing the police." Id., at 120 S.Ct. 675, 676. For their part, the dissenting justices stressed the assumption, urged by the State of Illinois, that the suspect's flight was motivated by the presence of the police officer. Id. at 679. I agree with Professor LaFave that "surely * * * the burden is on the prosecution to establish * * * that the flight was motivated by the presence of the police officer." 4 LaFave, Op. Cit., § 9.4, 2001 pocket part, at 48.

In the case before us, I cannot say that the State met its burden to establish that the abrupt departure of the Ford Explorer that Blazek was driving was motivated by the presence of Deputy Statzer's cruiser. The evidence established that it was very dark in the area of the encounter, and that Blazek took off only after Statzer turned his spotlight on the Ford Explorer. Blazek may have recognized, earlier, that the other vehicle was a deputy sheriff's cruiser, but that is entirely speculative, and it seems unlikely that Blazek could have recognized it as a cruiser after the spotlight was turned on him — the glare of the spotlight would have made it unlikely that Blazek could have distinguished the vehicle shining it on him as a cruiser. I conclude, then, that the State failed to establish that Blazek's sudden departure was motivated by a desire to evade a police officer; Blazek may have been understandably concerned about the possibility that the occupant or occupants of the vehicle shining the spotlight on him were not police officers, but private individuals with ill intentions.

Had I been persuaded that the State had succeeded in establishing that Blazek's abrupt departure from the scene, without turning his lights on, driving over a wood parking divider, was in response to his awareness that a police officer was interested in his activities, I would uphold Statzer's decision to make an investigative stop as reasonable. Although the issue is close, the time of day, the semi-private nature of the parking area, at least at that hour, and the fact that some car theft, drug and sex offenses had been committed in that location, combined with an abrupt departure upon noticing the presence of a police officer, would, in my view, support a brief investigative stop. Without satisfactory evidence that the abrupt departure followed the driver's noticing that it was a police officer who had approached, I agree that there is not enough in the totality of the circumstances, based upon this record, to justify an investigative stop.