[Cite as State v. Olagbemiro, 2018-Ohio-3540.]

 

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. 

IN THE COURT OF APPEALS 

FIRST APPELLATE DISTRICT OF OHIO 

HAMILTON COUNTY, OHIO 

STATE OF OHIO, 

 Plaintiff-Appellee, 

 vs. 

AKINTOLA OLAGBEMIRO, 

 Defendant-Appellant. 

: 

: 

: 

: 

: 

APPEAL NOS. C-170451 

 C-170452 

TRIAL NOS. B-1504406 

 B-1606870 

 O P I N I O N.

 
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CUNNINGHAM, 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 B1606870 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 B1504406 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. C130069, 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. 

ZAYAS and DETERS, JJ., concur. 

Please note: 

 The court has recorded its own entry this date.