State v. Olagbemiro

2018 Ohio 3540

• Court: Ohio Court of Appeals
• Decided: September 5, 2018
• Docket: C-170451, C170452
• Status: Published

Opinion

[Cite as State v. Olagbemiro, 2018-Ohio-3540.] IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NOS. C-170451 C-170452 Plaintiff-Appellee, : TRIAL NOS. B-1504406 B-1606870 vs. : O P I N I O N. AKINTOLA OLAGBEMIRO, :

Defendant-Appellant. :

Criminal Appeals From: Hamilton County Court of Common Pleas

Judgments Appealed From Are: Affirmed

Date of Judgment Entry on Appeal: September 5, 2018

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Melynda J. Machol, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Roger W. Kirk, for Defendant-Appellant. OHIO FIRST DISTRICT COURT OF APPEALS

C UNNINGHAM , Presiding Judge.

{¶1} After pleading no contest, Akintola Olagbemiro was convicted of

heroin possession and found guilty of a community-control violation. Prior to

entering his pleas, Olagbemiro had moved unsuccessfully to suppress evidence of the

drugs upon which the charges were based. In these consolidated appeals,

Olagbemiro challenges the trial court’s denial of his motion to suppress, maintaining

that the drugs were the fruits of an unconstitutional vehicle search during a traffic

stop. We hold that the trial court properly denied Olagbemiro’s motion to suppress

because the challenged vehicle search was reasonable under the principles of Terry

v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and therefore, performed

in conformity with Olagbemiro’s federal and state constitutional rights.

Consequently, we affirm.

Background Facts and Procedure

{¶2} At Olagbemiro’s suppression hearing, Kevin Butler, a 13-year veteran

officer of the Cincinnati Police Department, testified to the following facts. The

Cincinnati police had received information from a confidential informant that a black

male known as “Rico” was selling heroin out of a residence on Riverside Drive. Plain

clothed officers sent to perform surveillance of the residence observed several

individuals arrive at the residence and leave quickly, in a manner consistent with

drug trafficking. At about 2:00 p.m., the officers saw a black male and a woman exit

from the residence and enter a Lincoln sedan on the street. The male occupied the

front passenger seat and the woman occupied the driver’s seat. After the driver

failed to activate a turn signal before pulling away from the curb, Officer Butler was

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dispatched in his police sports utility vehicle (“SUV”) to stop the Lincoln for the

traffic violation.

{¶3} When Officer Butler effectuated the stop around the corner and up

the steep hill on Collins Avenue, he observed through the tinted rear window of the

Lincoln the silhouette of the passenger’s head moving from “side to side and up and

down.” From the pattern of that motion, Officer Butler concluded that the

passenger, later determined to be Olagbemiro, may have been trying to conceal a

weapon or contraband. Accordingly, Officer Butler waited for other officers to arrive

and provide him with cover. When they arrived, he approached the vehicle on the

driver’s side and requested that the driver and passenger present identifying

information. Olagbemiro did not present an identification card, but told the officer

his name was Akintola Olagbemiro, Jr. At that point, the driver of the vehicle

exclaimed, “Jesus, Rico, that’s your name?”

{¶4} Officer Butler returned to his police SUV and ran the names of the

occupants in his computer, finding no outstanding warrants for either. On his

second approach of the vehicle, Officer Butler asked Olagbemiro to exit, and

subjected him to a protective pat-down, which revealed no weapons. Olagbemiro

was detained but not handcuffed as Officer Butler searched the area in the passenger

compartment of the vehicle where he thought Olagbemiro could have been

concealing a weapon during the course of Olagbemiro’s earlier movements. When

Officer Butler opened the center console, he saw a digital scale used for drug dealing.

He then took Olagbemiro into custody for possession of drug paraphernalia, and

transported him to the Hamilton County Justice Center. During a strip search

undertaken at the time of booking, a deputy from the Hamilton County Sheriff’s

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Office discovered a bag containing a mixture of heroin and cocaine on Olagbemiro’s

person, the drugs that are the subject of the suppression motion.

{¶5} Olagbemiro was the only other witness to testify at the suppression

hearing. After testifying that he was the passenger in the Lincoln on the day of the

stop, he authenticated photographs he had taken at another time and place depicting

the tint on the rear window of the Lincoln. According to Olagbemiro, the tinting on

the window prevented Officer Butler from seeing inside the vehicle.

{¶6} Olagbemiro was later indicted in the case numbered B-1606870 for

possessing heroin and cocaine, and charged with violating the terms of his

community control in the case numbered B-1504406. He moved to suppress the

drugs seized from his person, in part on the ground that they were the fruits of an

illegal search of the Lincoln. In denying the motion, the trial court determined that

the protective search of the passenger compartment during the lawful traffic stop

was reasonable under Terry, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, that

Olagbemiro’s arrest for possession of drug paraphernalia was based on probable

cause, and that the drugs were discovered during a routine and lawful security search

of his person at the justice center.

{¶7} Olagbemiro then pleaded no contest to the drug charges in B-

1606870 and was sentenced to 12 months in prison for the possession of heroin. He

was also found to have violated the conditions of his community control in B-

1504406 and was sentenced to a nine-month prison term, to be served consecutively

to the sentence imposed in B-1606870. Olagbemiro challenges the denial of his

motion to suppress in his sole assignment of error.

Analysis

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{¶8} Olagbemiro maintains that the drugs recovered on his person must be

suppressed as the fruits of the illegal search of the Lincoln. The gist of his argument

is that Officer Butler’s testimony that he had seen movements inside the Lincoln was

not credible and not detailed enough to provide the necessary “probable cause”

justifying a warrantless search of the Lincoln during the traffic stop.

{¶9} Appellate review of a motion to suppress presents a mixed question of

law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71,

¶ 8. We defer to the trial court’s factual findings if they are supported by competent

and credible evidence, but we review de novo the court’s application of the law to

those facts. Id. Olagbemiro’s argument suggests that the trial court erred in making

its factual determinations and that it erred as a matter of law by applying the

“reasonable suspicion” standard to those facts when reviewing the validity of the

search.

{¶10} According to Olagbemiro, the search of the passenger compartment

of the legally stopped vehicle was unreasonable unless Officer Butler had “probable

cause” to believe that it contained evidence of a crime, such as the drug

paraphernalia that was recovered. This “automobile exception” is a well-established

exception to the constitutional warrant requirement. See State v. Moore, 90 Ohio

St.3d 47, 51, 734 N.E.2d 804 (2000); State v. Jones, 1st Dist. Hamilton No. C-

130069, 2014-Ohio-1201, ¶ 6, citing Carroll v. United States, 267 U.S. 132, 45 S.Ct.

280, 69 L.Ed. 543 (1925). But, as the trial court recognized, the “automobile

exception” is not the only warrant-requirement exception applicable to automobile

searches.

{¶11} Another firmly-established exception allows for a limited protective

search for weapons upon a standard of reasonable suspicion, which is a lesser

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standard than probable cause. This exception is based on the principles announced

in Terry, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889.

[A] search of the passenger compartment of an automobile, limited to

those areas in which a weapon may be placed or hidden, is permissible

if the police officer possesses a reasonable belief based on ‘specific and

articulable facts which, taken together with rational inferences from

those facts, reasonably warrant’ the officers in believing that the

suspect is dangerous and the suspect may gain immediate control of

weapons.

Michigan v. Long, 463 U.S. 1032, 1049-1050, 103 S.Ct. 3469, 77 L.Ed.2d 1201

(1983), citing Terry at 21, cited in State v. Bobo, 37 Ohio St.3d 177, 180-81, 524

N.E.2d 489 (1988).

{¶12} This court, following Long, has held that this concern for safety may

reasonably continue through the time the occupants reenter a vehicle at the

conclusion of a traffic stop. See Jones at ¶ 19, quoting State v. Smith, 1st Dist.

Hamilton No. C-110727, 2013-Ohio-2208, ¶ 16-17.

{¶13} Undisputedly, the purpose of the limited search for weapons, is “ ‘to

allow the officer to pursue his investigation without fear of violence,’ ” and not to

search for evidence of a crime. Bobo at 180, quoting Adams v. Williams, 407 U.S.

143, 146, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). However, if the officer should

discover contraband other than weapons while conducting a lawful and limited

Terry search, there is no constitutional provision requiring its suppression. Long at

1050; see State v. Evans, 67 Ohio St.3d 405, 618 N.E.2d 162 (1993).

{¶14} In this case, if Officer Butler’s search of the Lincoln was a valid Terry

search for weapons, then Olagbemiro’s fruits-of-the-poisonous-tree argument fails.

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Long at 1050. The trial court framed the issue as, “whether there was a reasonable,

articulable suspicion” related to “officer safety” “justifying a limited Terry search” of

the “area of the vehicle where [Olagbemiro] was [sitting]?”1

{¶15} When answering this question in the affirmative, the trial court cited

to the following facts. First, the police had an informant’s tip that a man named

“Rico” was selling drugs from the residence located at the Riverside Drive address

where Olagbemiro had emerged and then had entered a vehicle. Second, Olagbemiro

was linked to the name “Rico” by the driver of the vehicle, who had exclaimed in

front of Officer Butler, “Jesus, Rico, that’s your name!” And finally, Officer Butler

had observed Olagbemiro making “furtive” movements with his head—“right to left

and then up and down”—in a manner suggesting he was hiding a weapon.

{¶16} Olagbemiro urges this court, when reviewing the validity of the

search, to reject the trial court’s finding that Officer Butler had been able to see the

movement of his head through the tinted rear window of the Lincoln. But this

factual finding by the trial court is supported by competent, credible evidence. See

Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, at ¶ 8. The record

contains Officer Butler’s unequivocal testimony that when he was parked about 12 to

15 feet behind the Lincoln on a steep grade at about 2:00 p.m. on December 1, he was

able to see the silhouette of both occupants’ heads. The officer acknowledged that

the back window was tinted, but explained that the tinting was within the standard of

tinting allowed under the law. Accordingly, he had not cited the driver for illegal

window tinting, although he had cited her for failing to signal.

1 The state contended below that the warrantless search was reasonable under any standard, arguing that Officer Butler had “probable cause” to search the Lincoln for drugs. The trial court did not reach this issue, finding the search justified under Terry.

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{¶17} Olagbemiro’s testimony did not sufficiently diminish the credibility of

Officer Butler’s testimony. Olagbemiro testified that you could not see through the

tinted rear window, and offered into evidence two photographs depicting a view of

the Lincoln straight on from behind. While these photographs do not show the

silhouette of any occupants, Olagbemiro did not testify that there were any occupants

of the Lincoln at the time the photograph was taken. Additionally, Olagbemiro did

not establish that he had accurately captured Officer Butler’s perspective by taking

the photograph at the same time of day and at the same location of the traffic stop,

which occurred on hill.

{¶18} In light of this record, we defer to the trial court’s finding that Officer

Butler had observed Olagbemiro’s silhouette as it moved inside the Lincoln, even

though the rear window of the vehicle was tinted.

{¶19} Next, we address Olagbemiro’s concern that the vague movements of

the passenger observed by Officer Butler were not sufficient to trigger suspicion

because the movements were consistent with innocent behavior. The trial court

characterized this movement inside the vehicle as “furtive.” A furtive gesture can

include a situation where the police see a person in a vehicle “popping up and then

ducking down or leaning forward,” because this movement may suggest a person’s

attempt to quickly conceal an unseen weapon from police view. Bobo, 37 Ohio St.3d

at 179, 524 N.E.2d 489; see State v. Allen, 2d Dist. Montgomery No. 23738, 2010-

Ohio-3336, ¶ 31.

{¶20} Generally, furtive movements are merely a factor which may

contribute to an officer’s reasonable suspicion that a suspect might have immediate

access to weapons during a valid stop. See Bobo at 180; State v. Caldwell, 5th Dist.

Richland No. 2011-CA-0024, 2011-Ohio-5429, ¶ 43-51. Those facts must be

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substantial enough to reasonably support a conclusion that the movement is

furtive—that it can be characterized as an attempt to conceal a weapon from police

view, and not just normal and innocent behavior. See State v. Bird, 49 Ohio App.3d

156, 157-158, 551 N.E.2d 622 (11th Dist.1988).

{¶21} Ultimately, a court evaluates an officer’s reasonable suspicion under

the totality of the circumstances and considers those circumstances through the eyes

of a reasonable and prudent police officer. See Bobo at paragraph two of the

syllabus; Smith, 1st Dist. Hamilton No. C-110727, 2013-Ohio-2208, at ¶ 11. The

officer must articulate sufficient facts that would lead a reasonable person to

conclude a suspect may be armed and dangerous, but this objective standard does

not require the officer to testify to actual fear of a suspect. Evans, 67 Ohio St.3d at

413, 618 N.E.2d 162; Caldwell at ¶ 48.

{¶22} Finally, “[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.” State v. Andrews, 57 Ohio St.3d 86, 88, 565 N.E.2d 1271

(1991). Due to the nature of narcotics trafficking, it is reasonable to conclude that a

suspected narcotics dealer may be armed and dangerous. Evans at 413.

{¶23} Here, Officer Butler, a veteran officer, testified that when he

effectuated the stop of the Lincoln, he noticed “some movement from the passenger,

specifically the silhouette of a head moving side to side and up and down” that

suggested the passenger may have been “trying to conceal some weapon or

contraband.” Consistent with this perceived threat, Officer Butler waited for cover

before approaching the vehicle.

{¶24} Officer Butler’s subsequent interaction with the occupants in the

Lincoln added to the perceived threat and further corroborated the tip from the

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confidential informant. The passenger was identified as “Rico,” the individual who

was the subject of the investigation for heroin trafficking. This fact increased the

likelihood that the passenger would have been armed when he entered the Lincoln,

that he had concealed the weapon inside the vehicle at the time of the traffic stop,

and that he would have access to that concealed weapon upon the conclusion of the

traffic stop when he reentered the vehicle, as the pat down search had revealed no

weapons. Further, Officer Butler testified that the passenger did not produce any

identification card, creating the inference that the observed head movement was not

caused by a retrieval of such identification.

{¶25} Our evaluation of these facts and the rational inferences from those

facts leads us to conclude that the totality of the circumstances known to Officer

Butler at the time of the search provided reasonable suspicion to support the limited

protective search of the passenger compartment of the Lincoln during the valid

traffic stop. We hold, therefore, that the trial court properly denied Olagbemiro’s

motion to suppress the fruits of the protective search of the Lincoln, including the

drugs later found on Olagbemiro’s person. Consequently, we overrule the

assignment of error.

Conclusion

{¶26} Accordingly, the trial court’s judgments are affirmed.

Judgments affirmed.

Z AYAS and D ETERS , JJ., concur.

Please note: The court has recorded its own entry this date.