State v. Malcolm

[Cite as State v. Malcolm, 2022-Ohio-2785.]

COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES:
: Hon. Earle E. Wise, Jr., P.J.
Plaintiff-Appellee : Hon. W. Scott Gwin, J.
: Hon. Patricia A. Delaney, J.
-vs- :
:
CAETLYNDE MALCOLM : Case No. 2021 CA 101
:
Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. 21 CR 00098

JUDGMENT: Affirmed

DATE OF JUDGMENT: August 10, 2022

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

CLIFFORD J. MURPHY MICHAEL R. DALSANTO
20 North Second Street P.O. Box 98
4th Floor Newark, OH 43058
Newark, OH 43055
Licking County, Case No. 2021 CA 101 2

Wise, Earle, P.J.

{¶ 1} Defendant-Appellant Caetlynde Malcolm appeals the November 9, 2021

convictions in the Court of Common Pleas Licking County, Ohio. Plaintiff-Appellee is the

state of Ohio.

FACTS AND PROCEDURAL HISTORY

{¶ 2} On October 7, 2020, plain-clothed Heath Police Department Detective

Bradley Fisher noticed a vehicle parked at a Super 8 Motel which he believed had been

involved in a high-speed chase the day before. Fisher took steps to confirm the car was

in fact involved in the chase, after which he observed appellant and another woman open

the trunk of the vehicle and walk away with bookbags and tote bags in their hands.

{¶ 3} Fisher approached the women on foot with his badge hanging around his

neck. He identified himself and asked the women if they would be willing to speak with

him. They agreed to do so. Neither woman had identification with them, but provided

Fisher with their names and dates of birth. Upon checking appellant's information, Fisher

discovered she had an active warrant for her arrest from the Newark Police Department.

Appellant additionally volunteered that she was on pretrial supervision through Licking

County Adult Court Services (ACS) and believed she had a warrant from that agency as

well.

{¶ 4} Fisher contacted adult court services and confirmed that appellant had a

pending warrant for pre-trial supervision violations. Licking County Adult Probation

Officers Wes Luce and Brandy Nelson arrived within 10 minutes to take custody of

appellant. Luce noticed two bags on the ground near appellant. He asked if the bags
Licking County, Case No. 2021 CA 101 3

belonged to her and appellant stated they did. Appellant had not been provided with

Miranda warnings.

{¶ 5} Before transporting appellant to the Licking County Jail, Luce searched the

bags and discovered syringes and substances he suspected were illegal drugs. The

probation officers then drove appellant to the Licking County Jail, but due to COVID 19

protocols, the jail staff refused to book appellant. Appellant was therefore transported to

ACS.

{¶ 6} Once at ACS, Luce performed a more thorough search of appellant's bags

and discovered additional contraband. Per ACS policy, Luce contacted the Central Ohio

Drug Enforcement Task Force (CODE) to handle the suspected drugs.

{¶ 7} CODE Detective Greg Collins arrived at ACS, observed the suspected

drugs and provided appellant with Miranda warnings. Appellant agreed to speak with

Collins and made inculpatory statements regarding her possession of the bags and the

contents.

{¶ 8} Appellant was subsequently charged with one count of possession of

fentanyl and one count of possession of methamphetamine. On June 11, 2021, appellant

filed a motion to suppress which argued: 1.) the initial encounter between appellant and

Detective Fisher as a seizure; 2.) any statements appellant made to Luce or Collins were

part of a custodial interrogation without benefit of Miranda warnings; and 3.) her bag was

searched without reasonable suspicion or probable cause and not properly searched

incident to arrest.

{¶ 9} A hearing was held on the matter on July 13, 2021 wherein the state elicited

the above outlined testimony. On October 4, 2021, the trial court issued its decision
Licking County, Case No. 2021 CA 101 4

denying appellant's motion to suppress in its entirety. On November 9, 2021, appellant

entered pleas of no contest to both counts of the indictment. The trial court accepted

appellant's no contest pleas, found her guilty, convicted her, and placed her on a three-

year term of community control.

{¶ 10} Appellant filed an appeal and the matter is now before this court for

consideration. She raises two assignments of error as follow:

I

{¶ 11} "THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT

WHEN IT DECLINED TO EXCLUDE INCULPATORY STATEMENTS MADE BY

APPELLANT. OFFICER LUCE'S QUESTIONING CONSTITUTED A CUSTODIAL

INTERROGATION PRIOR TO ISSUING MIRANDA WARNINGS AND DETECTIVE

COLLINS' INTERROGATION CONSTITUTED A 'DELAYED MIRANDA' VIOLATION

UNDER MISSOURI V SEIBERT. AS A RESULT, THE STATEMENTS SHOULD HAVE

BEEN SUPPRESSED."

II

{¶ 12} "THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT

WHEN IT DECLINED TO EXCLUDE THE EVIDENCE FOUND IN APPELLANT'S

BACKPACK BECAUSE OFFICER LUCE'S SEARCH CANNOT BE JUSTIFIED EITHER

AS AN INVENTORY SEARCH OR AS A SEARCH INCIDENT TO ARREST."

I, II

{¶ 13} We address appellant's assignments of error together. In her first

assignment of error, appellant argues the conversation between her and Officer Luce in

the parking lot of the Super 8 Motel regarding ownership of the bags was a custodial
Licking County, Case No. 2021 CA 101 5

interrogation conducted without first providing her with Miranda warnings. In her second

assignment of error, appellant argues the trial court erred in declining to suppress the

drugs discovered in her bag because Officer Luce's search cannot be justified as a search

incident to arrest or an inventory search. We disagree.

Standard of Review

{¶ 14} As stated by the Supreme Court of Ohio in State v. Leak, 145 Ohio St.3d

165, 2016-Ohio-154, 47 N.E.3d 821, ¶ 12:

"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. In ruling on a motion to suppress, "the trial

court assumes the role of trier of fact and is therefore in the best

position to resolve factual questions and evaluate the credibility of

witnesses." Id., citing State v. Mills, 62 Ohio St.3d 357, 366, 582

N.E.2d 972 (1992). On appeal, we "must accept the trial court's

findings of fact if they are supported by competent, credible

evidence." Id., citing State v. Fanning, 1 Ohio St.3d 19, 20, 437

N.E.2d 583 (1982). Accepting those facts as true, we must then

"independently determine as a matter of law, without deference to

the conclusion of the trial court, whether the facts satisfy the

applicable legal standard." Id.
Licking County, Case No. 2021 CA 101 6

{¶ 15} As the United States Supreme Court held in Ornelas v. U.S., 517 U.S. 690,

116 S.Ct. 1657, 1663, 134 L.Ed.2d 94 (1996), "…as a general matter determinations of

reasonable suspicion and probable cause should be reviewed de novo on appeal."

Custodial Interrogation

{¶ 16} Appellant first challenges the trial court's decision denying her motion to

suppress her statement to Officer Luce indicating the bags near her feet while in the

parking lot of the Super 8 belonged to her when Luce had not provided her with Miranda

warnings. She further challenges the trial court's ruling as to her subsequent statements

to CODE Detective Collins after Collins provided appellant with Miranda warnings.

Miranda

{¶ 17} In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602 (1966), the United

States Supreme Court held a suspect must be notified of his/her constitutional rights to

remain silent and to have counsel present during a custodial interrogation by the police.

Before the interrogation can begin, the suspect must make a knowing, intelligent, and

voluntary waiver of those rights. If these procedural safeguards are not complied with, the

confession may not be admitted at trial as evidence against the accused.

Statements to Officer Luce and Detective Collins

{¶ 18} Recently, in State v. Verdell, 2d Dist. Montgomery No. 27786, 2018-Ohio-

4766 at ¶ 25, the Second District Court of Appeals recognized:

" 'Interrogation' must reflect 'a measure of compulsion above and

beyond that inherent in custody itself.' " State v. Haynes, 2018-Ohio-
Licking County, Case No. 2021 CA 101 7

607, 106 N.E.3d 342, ¶ 16 (2d Dist.), quoting Innis at 300 [Rhode

Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 64 L.Ed.2d 297

(1980)]. "[S]ince the police surely cannot be held accountable for the

unforeseeable results of their words or actions, the definition of

interrogation can extend only to words or actions on the part of police

officers that they should have known were reasonably likely to elicit

an incriminating response." (Emphasis sic.) Innis at 301-302.

Therefore, "[p]olice officers are not responsible for unforeseeable

incriminating responses." (Citation omitted.) State v. Waggoner, 2d

Dist. Montgomery No. 21245, 2006-Ohio-844, ¶ 14.

{¶ 19} Here, appellant had been stopped by Detective Fisher and found to have

an active warrant for her arrest. Luce arrived on the scene not to investigate an on-going

crime, but rather with purpose to transport appellant to the Licking County Jail based on

her outstanding warrant. Transcript of suppression hearing (T.), July 13, 2021, 60-61.

Based on this purpose, Luce wanted to ensure appellant's belongings went with her to

the jail and asked if the bags near her feet belonged to her. T. 73-74, 84-85. His question

was focused on what items should travel to the jail with appellant, not what was in the

bags. We find Luce's question was not an interrogation and therefore Miranda warnings

were not required.

{¶ 20} Detective Collins met with appellant after Luce had discovered suspected

drugs and drug paraphernalia in appellant's bags, and after the jail staff refused to book
Licking County, Case No. 2021 CA 101 8

her and she was transported to ACS. Collins advised appellant of her Miranda rights and

appellant agreed to speak with Collins. T. 123-125.

{¶ 21} Appellant argues the Miranda warnings issued to her by Collins were

delayed and ineffective because appellant had already given a "confession" to Luce

without benefit of Miranda warnings. However, because we have found Luce's pre-

transport question regarding ownership of the bags was not an interrogation requiring

Miranda warnings, we also find the warnings given to appellant by Collins were neither

delayed nor ineffective.

Search Incident to Arrest

{¶ 22} We next address the search of appellant's bags by Luce. Searches and

seizures conducted without a warrant, without probable cause, and not incident to lawful

arrest, violate the Fourth Amendment to the United States Constitution, and all fruits

thereof are subject to suppression. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d

1081 (1961); Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441

(1963). "The exclusionary rule has traditionally barred from trial physical, tangible

materials obtained either during or as a direct result of an unlawful invasion." Wong Sun

at 485.

{¶ 23} A search incident to arrest, however, is an exception to the general rule that

warrantless searches are per se unreasonable. State v. Mims, 6th Dist. No. OT-05-030,

2006-Ohio-862, ¶ 23. In order for a search to be conducted pursuant to the search

incident to arrest exception, the underlying arrest must be lawful. Chimel v. California,

395 U.S. 752, 753, 89 S.Ct. 2034 (1969). The Supreme Court of Ohio has stated that as

long as the arrest is lawful "the right to search incident to arrest exists even if the item is
Licking County, Case No. 2021 CA 101 9

no longer accessible to the arrestee at the time of the search. * * * As long as the arrestee

has the item within his immediate control near the time of the arrest, the item can be

searched." State v. Adams, 144 Ohio St.3d 429. 2015-Ohio-3954, 45 N.E.3d 127, ¶ 183,

citing United States v. Romero, 452 F.3d 610, 619 (6th Cir.2006) and Northrop v. Trippett,

265 F.3d 372, 379 (6th Cir.2001).

Appellant's Arguments

{¶ 24} Appellant argues the search of her bags cannot be justified as an inventory

search because the probation officers could not pinpoint a written department policy

regarding inventory searches, and produced no inventory of appellant's bags. But ACS

did not retain appellant's bags. Rather, CODE Detective Collins took possession of the

bags and contents after it was discovered the bags contained drugs. T. 86-87, 152. There

was therefore no reason for the probation officers to create an inventory of appellant's

bags, even if the search began as an inventory search. We therefore reject appellant's

argument in that vein.

{¶ 25} Appellant further argues the search cannot be justified as a search incident

to arrest because when the probation officers arrived, her bags were outside her reach

and under Detective Fisher's control. Appellant's brief at 17. We first note appellant

provides no transcript reference to support her claim that her bags were in Detective

Fisher's possession. Second, we have examined Fisher's testimony and the only

reference he made to the location of appellant's bags consisted of Fisher not being able

to recall if appellant was still wearing the backpack while he was talking to her or if she

had set it down on the ground while they spoke. T. 49-52. He never testified that
Licking County, Case No. 2021 CA 101 10

appellant's bags were in his possession or control, nor did he testify as appellant alleges

in her statement of facts, that he had appellant set her bags on the ground. Appellant's

brief at 7. Per our review of the transcript, Luce was the first person to address appellant's

possessions, and we find the search was incident to arrest.

{¶ 26} There is no question that appellant's arrest was lawful. She was arrested on

an active warrant and does not dispute that fact. When the probation officers arrived,

appellant was standing in the Super 8 parking lot where Officer Fisher had stopped her.

T. 50. Probation officer Nelson patted appellant down and placed her in handcuffs. The

officers testified appellant's bags were situated near her feet, "within feet if that" and "right

there" within her immediate control at the time of her arrest. T. 73, 101. The officers

testified that when arresting an individual, the reasons to search the person and their

belongings include officer safety or to inventory that property. T. 61-62, 88, 90. In this

instance, at the scene, the officers searched appellant's belongings for officer safety as

they were unaware of any crime being committed. Rather, they were to transport

appellant and her belongings to jail based on the warrant. Officer Luce's initial cursory

inspection of appellant's bags, however, revealed suspected contraband. T. 61-62.

{¶ 27} Based on these facts, we conclude the search of appellant's bags was a

permissible search incident to a lawful arrest.

{¶ 28} The first and second assignments of error are overruled.
Licking County, Case No. 2021 CA 101 11

{¶ 29} The judgment of the Licking County Court of Common Pleas is affirmed.

By Wise, Earle, P.J.

Gwin, J. and

Delaney, J. concur.

EEW/rw