[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