[Cite as State v. Oloye, 2018-Ohio-3182.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

State of Ohio, : 

 Plaintiff-Appellant, : 

v. : No. 17AP-902 

 (C.P.C. No. 17CR-378) 

Oluwasegun I. Oloye, : 

 (REGULAR CALENDAR) 

 Defendant-Appellee. : 

 

D E C I S I O N 

Rendered on August 9, 2018 

 

On brief: Ron O'Brien, Prosecuting Attorney, and Valerie 

Swanson, for appellant. Argued: Valerie Swanson. 

On brief: Yeura Venters, Public Defender, and George M. 

Schumann, for appellee. Argued: George M. Schumann. 

 

APPEAL from the Franklin County Court of Common Pleas 

TYACK, J. 

{¶ 1} The State of Ohio is appealing from the granting of a motion to suppress the 

evidence. It assigns a single error for our consideration: 

THE TRIAL COURT ERRED WHEN IT GRANTED 

DEFENDANT'S MOTION TO SUPPRESS. 

{¶ 2} Oluwasegun I. Oloye was sitting in the passenger seat of a motor vehicle when 

the vehicle was pulled over by Grove City police officers purportedly because the vehicle 

had no front license plate but also because the driver of the vehicle had engaged in illegal 

activity in a local Home Depot store involving the use of cloned credit cards. 

{¶ 3} Oloye was removed from the vehicle and placed in a police cruiser where he 

was held for a significant period of time. A police canine was summoned and the dog 
No. 17AP-902 2 

alerted, but a search revealed no illegal or controlled substances. The State of Ohio does 

not contest the fact that the detention constituted an arrest for purposes of the Fourth 

Amendment to the United States Constitution. 

{¶ 4} Based on items discovered after the arrest, criminal charges were filed. 

Counsel for Oloye filed a motion to suppress. 

{¶ 5} An evidentiary hearing was held at the conclusion of which the judge assigned 

to the case granted the motion to suppress. The State of Ohio then initiated this appeal. 

{¶ 6} No warrant of any kind was involved in the encounter between Oloye and the 

Grove City police. Therefore, we are guided by long-standing precedent from the Supreme 

Court of the United States which states that warrantless arrests and seizures are per se 

unreasonable, subject to a few well-delineated exceptions. See Katz v. United States, 389 

U.S. 347 (1967). 

{¶ 7} The State of Ohio argues that the applicable exception in Oloye's case is an 

arrest based on probable cause. The trial court judge assigned to the case was not convinced 

of the existence of probable cause and therefore sustained the motion to suppress. The trial 

court made the following findings: 

The Court has had the opportunity to observe the demeanor 

and credibility of the witnesses. The Court reviewed the DVD 

exhibit of the stop. The Court's [sic] also reviewed the exhibits 

and the credit cards. 

With regard to the exhibits, the Court will point out a few 

things. All the cards that I saw had logos on them. I don't know 

what else was confiscated, but every one of those cards had a 

logo. I looked at, like, 10 of them, not at each card. 

With regard to the backings of the cards, I only saw four in 

there, not dozens. I saw four backings. The testimony was that 

the officer, in looking inside the car, saw some of the cards 

strewn about. I am not sure what all of them were. I am not 

sure how many were seen in the car, but some were seen in 

the car. 

It wasn't totally clear whether some were at the feet of the 

defendant or in the passenger seat, but backings were at the 

feet and two phones, I believe, were at the feet of the 

defendant. But the phones had receipts, you know. However 

they were purchased, there were receipts there. I am to look 
No. 17AP-902 3 

at it as an objective person looking in. Those are my 

observations, at least, with regard to the exhibits. 

* * * 

The observations of the clerk in the Home Depot as it relates 

to Defendant Sow certainly gave rise to reasonable suspicion 

of criminal activity under Terry. There was suspicious 

behavior. The clerk is experienced in the utilization of these 

credit cards for fraud, the cloning of cards. Our society has 

changed. Technology has changed. 

So, no, it's not like finding drugs in a car where you know it’s 

immediate contraband, but, on the other hand, because of the 

prevalence in our society of these cards being cloned, certainly 

a trained officer could think if you find a number of these 

cards, that it would certainly lead you to believe that there was 

a reasonable suspicion of criminal activity. 

Again, given Mr. Sow's activities inside of Home Depot and 

the fact the officer was really credible because he could even 

read Mr. Rutan's cards, although I did see logos, but that's one 

of the cross-examination questions you wish you never asked. 

However, the officer then saw him come out, go to the car. He 

refused to show ID when it came up on the computer. So given 

all that and the denominations that he was trying to buy, 

which didn't work at first, he had to go back, get a lesser item, 

maybe the light bulbs that were found certainly gave rise to 

reasonable suspicion of criminal activity. 

So the officers had the right to retain that vehicle even without 

the license plate, although that added to it. They've got a 

license plate violation. The officers certainly have the right to 

pull the vehicle over. 

They can go up to the windows, talk to both the defendant, 

who was a passenger, and Mr. Sow, who was the driver. They 

could make observations in plain view. They're allowed to do 

that. And I believe they were allowed to detain both of them 

for a reasonable period of time to investigate. For sure, Mr. 

Sow. 

And I think there probably was reasonable suspicion to detain 

the defendant here, Oloye - - however you pronounced his 

name - - to investigate further. He was a passenger in a vehicle 
No. 17AP-902 4 

that looked like it had a number of cards strewn about. I don't 

know what all they were. Certainly, the low standard of 

reasonable suspicion of criminal activity was met. 

They had the right also, because of a traffic stop, to pull Mr. 

Oloye out of the car. Now, where I don't agree, I don't think 

they had enough to frisk him at that point. He hadn't made 

any furtive gestures. You can order a passenger out of a car on 

a traffic stop, but you can't just frisk them. There has to be a 

reason you’re frisking them, and there wasn't a reason. 

But I guess it's irrelevant. They didn't find anything. They 

didn't pull anything out of his pockets. But at 5 : 03, he's under 

arrest, in my opinion. He's put in the back of the cruiser, he's 

not free to go. I believe he's arrested at that time. Even if he's 

not, let's just say he's being detained for Terry purposes for a 

reasonable time. 

They call the canine, and you're allowed to call the canine as 

long it doesn't delay the stop, delay the amount of time that it 

ordinarily takes to do a traffic stop. They didn't find any drugs. 

At some point, they had a statement from Mr. Sow that he was 

involved in illegal credit-card fraud. However, he did not 

implicate Mr. Oloye. He didn't say anything about Mr. Oloye 

being involved. The officer at some point - - and, again, maybe 

it's important, maybe it's not that important. I guess it 

depends on whether the defendant was under arrest. 

And being under arrest is not when the officer says, "You're 

under arrest." It's when a reasonable objective person would 

believe they were under arrest. I think putting you into a 

cruiser you can't get out of puts you under arrest. There may 

be law that says you're allowed to put a passenger in a cruiser, 

I am not sure, but at any rate, I believe he was probably under 

arrest at 5 : 03. 

Even if he wasn't - - and that makes a difference because we're 

going to analyze what the evidence was up to that point. And 

then probable cause is a higher standard of a reasonable 

suspicion of criminal activity. So it's got to be certainly - - even 

for a Terry detention, it has to be more than some suspicion 

or hunch. 

Probable cause to make an arrest requires a probability of 

substantial chance of criminal activity, not an actual showing 
No. 17AP-902 5 

of such activity. It's also an objective standard, taking into 

account all the facts and circumstances. 

Again, the test is probable cause exists if the facts and 

circumstances known to the officer warrant a prudent or 

reasonable person in believing that the offense has been 

committed. So the only offense that the officer believed could 

have been committed by Mr. Oloye is engaging in credit-card 

fraud transactions. 

The officer admitted that Mr. Oloye was not in the store. Mr. 

Oloye denied being involved. He was not implicated by the codefendant. There was no suspicious activity of him acting as a 

lookout in the parking lot. He wasn't looking around. He 

wasn't nervous. No testimony like that. 

On the other hand, he's experienced in this area, which is a 

fairly new area of criminal activity. He indicates that he 

believes that they work in pairs or more than one person, 

because one person may act as a lookout. I'm a little skeptical 

of somebody staying in a car versus going inside the place. The 

risk of being caught is more inside the establishment than it is 

once you leave. 

But at any rate, Columbus versus Russell, which is a Tenth 

District Court of Appeals case, says that mere presence at the 

scene of the crime as an alleged accomplice or lookout is not 

enough to make an arrest on - - in the Russell case, 39 Ohio 

App. 2d 139, two men were walking together. As they walked 

together, one man stole a bicycle. 

The defendant who was also there - - the co-defendant refused 

to answer who it was that took the bike. The two individuals 

were together. They arrested both of them, and the Court said, 

"Hey, that's not enough." 

As much as we may feel that the defendant may have been 

aware of the fact that one of his friends was about to take a 

bicycle that did not belong to him and as much as we may 

deplore that fact, we have to adhere to the requirements of 

law. And in doing so, this defendant would have to be found 

not guilty. There's not a basis to arrest somebody unless 

they're doing something. 

So you have Mr. Oloye in the car with some credit cards, gift 

cards that do have logos, laying about the vehicle, and three 
No. 17AP-902 6 

or four backs of cards. You have two iPhones in the vehicle, 

and you have the activity of Mr. Sow inside the Home Depot. 

That's all there is as it relates to Mr. Oloye. 

There's no evidence about how long he had been in the car. 

The iPhones were purchased at about 4:00 o'clock. Maybe this 

all took place around 4:45, 4:50. I am not sure. He could have 

gotten in the car 24 minutes before or two hours before. He 

could have been with him all day long. I have a suspicion and 

a hunch, yeah, he's involved, based on that information. 

And in hindsight, he was involved because the credit cards 

that were found on him did not belong to him. The 

information that was obtained off the strip indicates that he 

lied to the officers. We have to look at the information the 

officer had at the time, not hindsight. 

As I did indicate, I did buy six gift cards today. They were on 

the floorboard of my car. One was out of the bag because I 

tossed the bag down there. What if my friend gets in the car, 

goes with me for lunch, we go into a Giant Eagle, we raise 

suspicion and we get pulled over? 

I mean, as the Court said in the Russell case, as much as I 

deplore this activity, which I do, this is one of my pet peeves, 

because when you steal information from somebody, it wrecks 

their lives, it ruins their credit and you get it on these strips. 

As deplorable as that is, I have to adhere to the law. 

Based on all the information, the credibility of the witnesses, 

reviewing the tape, I don't believe there was probable cause to 

arrest Mr. Oloye for the crime of credit-card fraud. I do believe 

there was a reasonable suspicion to detain him for a period of 

time. I believe he was under arrest no later than 5 : 03, 5 : 03 

. 40 [sic]. 

Even if he was arrested a few minutes later, when they got him 

out of the car to actually search him, I don't see much more 

information other than I think they did - - they told differing 

stories, but we don't know what the differing stories were. 

It could be that the driver said, "Hey, yeah, I drove around all 

day, and I used illegal credit cards." The co-defendant may 

have said, "I just got in the car 20 minutes ago." If the officer 

could have given me more facts about what the differences 
No. 17AP-902 7 

were, like, yeah, I was with him all day, and we went here and 

there, that would add in my book. 

And I'm not discrediting the officer's testimony that they 

might work in pairs. I don't see it here as enough. It’s a close 

call; it wasn’t a slam dunk. So I don't believe there was 

probable cause to arrest him. 

I would suppress the credit cards that were taken from Mr. 

Oloye, and whatever subsequently developed at the police 

station would be fruit of the poisonous tree. Again, maybe the 

case can be made that Mr. Sow is going to implicate Mr. Oloye. 

(Tr. 95-105.) 

{¶ 8} We believe the trial court judge acted properly in sustaining the motion to 

suppress. 

{¶ 9} The State of Ohio tries in its brief to reduce the probable cause standard. The 

State argues that the evidence established "a fair probability that [Oloye] was engaged in a 

common enterprise of credit-card fraud." (Appellant's brief at 15.) Probable cause requires 

more than a fair probability. Probable cause requires that the facts establish that it is more 

likely than not that a defendant is committing or has committed a crime. The standard is 

not mere possible cause, but probable cause. 

{¶ 10} Since the trial court judge's factual findings are fully supported by the 

evidence presented at the evidentiary hearing on the motion to suppress, and the trial court 

applied the correct guiding legal principles, the trial court was correct in sustaining the 

motion to suppress. 

{¶ 11} The sole assignment of error is overruled. The judgment of the Franklin 

County Court of Common Pleas is affirmed. 

Judgment affirmed. 

BRUNNER and HORTON, JJ., concur.