[Cite as State v. Mallory,
2020-Ohio-4848.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 28685
:
v. : Trial Court Case No. 2018-CR-3323
:
KELSEY DEVON MALLORY : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
...........
OPINION
Rendered on the 9th day of October, 2020.
...........
MATHIAS H. HECK, JR., by JAMIE J. RIZZO, Atty. Reg. No. 0099218, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio
45422
Attorney for Plaintiff-Appellee
JEFFREY R. MCQUISTON, Atty. Reg. No. 0027605, 130 West Second Street, Suite
1818, Dayton, Ohio 45402
Attorney for Defendant-Appellant
.............
DONOVAN, J.
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{¶ 1} Kelsey Devon Mallory appeals from the trial court’s December 23, 2019
judgment convicting him, following his no contest pleas, of one count of aggravated
possession of drugs (5 times bulk but less than 50 times bulk), in violation of R.C.
2925.11(A), a felony of the second degree (Count 1), and two counts of aggravated
possession of drugs (bulk but less than five times bulk), felonies of the third degree
(Counts 2 and 3). Mallory was sentenced to a mandatory term of two years on Count 1
and to nine months each on Counts 2 and 3, all to be served concurrently. For the
reasons outlined below, we reverse Mallory’s conviction and remand the matter to the
trial court for further proceedings.
{¶ 2} Mallory was indicted on November 6, 2018. He filed a motion to suppress
on April 30, 2019, and the trial court held a suppression hearing on May 13, 2019. At
the hearing, Ray Swallen testified that he was a detective with the Miami Township Police
Department and also a task force officer with the Miami Valley Bulk Smuggling Task Force
with the United States Department of Homeland Security. He testified about the task
force’s goals of finding “outlets where people are bringing in drugs, humans, guns,
ammunition or exporting the same from the Miami Valley region.”
{¶ 3} Swallen further testified that, on May 24, 2018, he boarded “the Detroit bus”
at the Greyhound bus station in Trotwood upon its arrival, after gaining permission from
the driver of the bus. Swallen testified that, in general, task force officers “were boarding
most of the buses,” but in particular they had found large amounts of drugs coming south
from Detroit and a lot of currency and guns going northbound back to Detroit. Task force
officers had been told there was “a network of people going to Nashville and Lexington
from Detroit.” Swallen, who was in plain clothes and displayed his task force badge,
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testified that he “walked immediately to the rear of the bus” that had arrived from Detroit
and began to speak to each passenger. He testified that he advised the passengers that
he was with Homeland Security and asked for their names, their tickets, and whether they
had luggage.
{¶ 4} After speaking to a few other passengers, Swallen encountered Mallory and
asked for his name. According to Swallen, Mallory said his name was Williams, but
“wasn’t able to give [Swallen] his first name” despite multiple requests; “[h]e just kind of
made a noise.” Swallen also noticed that Mallory’s ticket was from Detroit to Nashville,
but when Swallen asked Mallory about his destination, Mallory stated that he was going
to Lexington to visit family. Swallen testified that, when he asked Mallory where
specifically in Lexington he was going, Mallory did not respond. Swallen asked Mallory
if he had any luggage, and Mallory indicated he had one bag. When Swallen asked if he
could “check” the bag, Mallory “grabbed it off the floor,” put it on the seat beside him,
opened the bag, and started looking through it. Swallen asked again if he could look
through the bag; Mallory first showed him clothes and other items, then consented to
Swallen’s looking in the bag. Swallen found a sock containing pills.
{¶ 5} Swallen testified that he did not direct Mallory to open the bag. He further
testified:
Q [PROSECUTOR]. And why did you ask him to hand it over to you
versus letting him do it himself?
A [SWALLEN]. I don’t know if there’s guns. I don’t know what’s in
the bag.
Q. And did you convey that to him - -
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A. Yes.
Q. - - about your concern?
A. I did.
Q. … And did he hand you the bag, or did you take it from him?
A. It was still there on the seat still.
Q. Okay.
A. I took control of it, yes.
{¶ 6} Swallen testified that there were clothing and other effects in the bag, and he
felt a pair of socks with pills in it. Swallen testified that the contents of the sock were
obvious to him when he touched it, having made “hundreds of pill arrests” in his career,
including large quantities, “numerous vacuum sealed packs of it,” and pills hidden in jeans
pockets and “hidden all over.” Swallen testified that Mallory’s sock contained a bag with
multiple types of pills. Swallen then secured Mallory and escorted him to a break room
in the bus station; Mallory confirmed his actual identity at that time. Swallen testified that
he advised Mallory of his rights, and that Mallory stated that he did not want to talk with
Swallen anymore. At the hearing, Swallen identified photographs of the pills Mallory had
been carrying and of Mallory’s ticket bearing the name “Justin Williams.”
{¶ 7} On cross-examination, Swallen denied that Mallory was being sarcastic
when he told him that he was going to Kentucky. The following exchange occurred with
respect to Swallen’s questioning of Mallory about his luggage:
Q [DEFENSE COUNSEL]. … And did he tell you how many [bags he had]?
A. He said just the one.
Q. … And that bag was located down on the floor between his feet, correct?
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A. I don’t recall exactly where it was. It was on the floor.
Q. … And when you asked if he had any bags he tells you that he has the one
bag. Did you order him to bring it up?
A. No, I asked if I could look at it.
Q. … So it’s still on the ground, and you ask can you look at it, and that’s when
he brings it up?
A. Yes.
{¶ 8} When asked if Mallory consented to the search of the bag, Swallen testified,
“I asked him one time and he opened the bag and started showing me what was in it.”
Swallen also testified that, in the course of the encounter, he (Swallen) stood in a row of
seats behind Mallory’s seat, for two reasons: he could lean over and see what’s going on;
and if something happened, he could back up and there would be “something between”
the two men. Swallen pointed out that he was “six foot nine” and could “lean over and
look pretty well.”
{¶ 9} Mallory testified at the hearing on his own behalf, stating that he lived in
Warren, Michigan. He testified that on May 24, 2018, Swallen “jumped on the bus” and
spoke to one or two people before approaching Mallory. Mallory stated that there were
about 20 people on the bus. Mallory stated that Swallen stood between his seat and the
bathroom. Mallory removed his ticket from his hoodie and gave it to Swallen when asked
for it. Mallory acknowledged telling Swallen that his name was “Williams” and his
destination was Kentucky. Mallory stated he was being sarcastic when he said he was
going to Kentucky, because his actual destination was on his ticket. Mallory testified that
he told Swallen he had one bag, which was between his legs on the floor; Mallory grabbed
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it from the floor, put it on the seat beside him, retrieved a bottle of Mountain Dew from the
backpack, and then that zipped the pack closed. Mallory stated that Swallen asked him
three times to search the bag. According to Mallory, in response to the first request, he
said “huh-uh, meaning no.” Mallory testified that, in response to the second request, he
gave Swallen “a head gesture saying no.” According to Mallory, in response to the third
request, Mallory said nothing, and that was when Swallen grabbed the bag and found the
sock. Mallory testified that Swallen unzipped the pack when it was fully closed. On
cross-examination, Mallory acknowledged that his ticket was not issued in his name.
{¶ 10} On September 18, 2019, the trial court denied Mallory’s motion to suppress,
indicating that it found the testimony of Swallen “credible in every material respect” and
did not find Mallory’s testimony credible. Regarding any inconsistencies between the
witness’s testimonies, the court credited Swallen’s version of the events. The court
concluded that Swallen’s search of Mallory’s backpack “comport[ed] with the
constitutional dictates set forth in Terry v. Ohio,” 392 U.S. 1, 26,
88 S.Ct. 1868,
20 L.Ed.2d
889 (1968)
{¶ 11} In its factual findings, the court noted that Swallen did not perceive Mallory’s
statement that he was going to Kentucky to be sarcastic, and the court also did not believe
it to have been such. The court also found that Swallen’s “immediate identification of the
pills in the sock [was] consistent with his considerable experience.” With respect to
Mallory’s arguments that his stop was unconstitutional, the trial court concluded:
b. Unlawful Stop
…
… The bus driver stopped the bus at the Trotwood station in the
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ordinary course of the bus’ scheduled journey. Ofc. Swallen1 did not stop
the bus and [State v.] Cavanaugh[, 2d Dist. Montgomery No. 16622, 1998
WL 127075 (Mar. 20, 1998)] makes it quite clear Ofc. Swallen’s actions
upon entering the bus and encountering passengers including Mr. Mallory
were entirely constitutional. And a reasonable passenger, given [the] facts
and circumstances of the encounter here, would feel free to refuse any
interaction with Ofc. Swallen.
c. Consent
The Court finds, as a matter of fact, that Mr. Mallory did not consent
to the search of his backpack by Ofc. Swallen. But as noted above, his
consent was unnecessary given the time-honored dictates of Terry.
Ofc. Swallen was working the Detroit to Nashville “pipeline” in which
drugs, weapons, money and humans are transported and trafficked. This
Court takes judicial notice of the nexus between activity of this nature and
the presence of weapons that place law enforcement personnel at
considerable personal risk in the discharge of their duties. As the result of
his brief encounter with Mr. Mallory, Ofc. Swallen had learned Mr. Mallory
was unable to give his complete name and was traveling on a Nashville
ticket and yet told Ofc. Swallen he was traveling to Kentucky. Taking into
account the totality of these circumstances including Mr. Mallory’s
suspicious behavior, Ofc. Swallen was righteous in continuing his
1
The trial court’s decision sometimes refers to the detective as Officer “Swollen” rather
than Swallen; we have corrected this misspelling in our quotation of the decision.
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investigation and pursuant to Terry he had every right to ensure the
absence of any weapons in Mr. Mallory’s backpack. Upon conducting his
limited Terry search of the backpack, Ofc. Swallen immediately discovered
the concealed contraband which he immediately recognized as pills based
upon his considerable experience at interdicting drug traffickers.
d. Miranda
…
Mr. Mallory was not detained by Ofc. Swallen until the contraband
was detected as the result of a perfectly constitutional Terry search of the
backpack. At that point, Mr. Mallory was properly Mirandized and invoked
his right to silence.
Any earlier questioning by Ofc. Swallen was in the context of a
consensual encounter during which Mr. Mallory was not in custody and
under circumstances where he could have simply declined to engage with
Ofc. Swallen. In short, before the Terry search of the backpack, Mr.
Mallory’s encounter with Ofc. Swallen was voluntary and consensual and it
was not necessary he be Mirandized.
(Footnotes omitted.)
{¶ 12} After Mallory’s motion to suppress was denied, he entered no contest pleas
on November 15, 2019. He was sentenced as described above on December 19, 2019.
{¶ 13} Mallory asserts a single assignment of error as follows:
THE TRIAL COURT ERRED IN DENYING DEFENDANT’S MOTION
TO SUPPRESS THE ILLEGALLY OBTAINED EVIDENCE IN THAT
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THERE WAS NO EVIDENCE TO SUPPORT A REASONABLE AND
ARTICULABLE SUSPICION OF CRIMINAL ACTIVITY NOR WAS THERE
EVIDENCE TO SUPPORT A REASONABLE SUSPICION THAT THE
DEFENDANT WAS ARMED AND DANGEROUS.
{¶ 14} Mallory asserts that the State’s justification for the search of Mallory’s
backpack was that he had consented to the search. But the trial court rejected that
argument. As such, the question became whether some alternate justification applied.
According to Mallory, the circumstances in this case did not support a finding that the
encounter was consensual or that he was under arrest; consequently, the police-citizen
interaction in this case involved a brief investigatory stop or detention pursuant to Terry.
Mallory argues that his giving the officer a wrong name in response to the officer’s
question could have “properly be characterized as unusual,” but it did not “rise to the level
of articulable suspicion that criminal activity ha[d] occurred or [was] about to occur within
the meaning of Terry.” Mallory argues that “the giving of an unsworn false statement is
not, in itself, a crime.”
{¶ 15} Mallory further argues that the “only other fact that was unusual in this case”
was that he indicated that he was going to Kentucky when his ticket “clearly showed that
he was traveling from Detroit to Nashville.” Mallory argues that “[i]t cannot be said that
[he] was intending to deceive the officer in stating that he was going to Kentucky inasmuch
as the officer was holding the ticket in his hand at the time the statement was made” which
showed his true destination, and his statement about his destination could not have
reasonably supported a determination that criminal activity had occurred or was about to
occur. Mallory also argues that Terry requires a reasonable suspicion that a suspect
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may be armed and dangerous, not merely that criminal activity is afoot, and that there
was no evidence in his case to support a reasonable suspicion that he might have been
armed and dangerous. He argues that Swallen’s search of the backpack for weapons
was not justified, and because the search for weapons was not justified, all subsequent
discovery of contraband was subject to suppression.
{¶ 16} The State responds that Detective Swallen had a reasonable, articulable
suspicion that Mallory was trafficking in drugs, and “because of the nexus between drug
trafficking and guns,” he therefore had reasonable suspicion that Mallory had a gun. The
State further asserts that Swallen’s seizure of the pills was also lawful, because the
“criminality of the pills was immediately apparent to Det. Swallen” pursuant to the plain
feel doctrine.
{¶ 17} In reply, Mallory asserts that, even recognizing that the Detroit to Nashville
route was a known drug trafficking route and considering Mallory’s “misstatement” of his
destination, these facts still did not support a finding of reasonable articulable suspicion
of criminal activity. Mallory argues that the recognized nexus between drug trafficking
and guns “has no applicability in the absence of the predicate, namely that Swallen had
specific reasonable and articulable suspicion that [Mallory] was engaged in drug
trafficking.” Finally, Mallory asserts that there was no evidence in the record that Det.
Swallen had reason to believe that he was armed and dangerous, “which would have
permitted a weapon search limited in scope to that protective purpose.”
{¶ 18} This Court has previously noted:
Appellate review of a trial court's decision regarding a motion to
suppress evidence involves mixed questions of law and fact. State v.
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Long, 127 Ohio App.3d 328, 332,
713 N.E.2d 1 (4th. Dist. 1998). When
ruling on a motion to suppress evidence, a trial court assumes the role of
trier of fact and is in the best position to resolve questions of fact and to
evaluate the credibility of witnesses. State v. Treesh, 90 Ohio St.3d 460,
472,
739 N.E.2d 749 (2001). Accordingly, reviewing courts must defer to
the trial court's findings of fact if competent, credible evidence exists to
support the findings. State v. Dunlap, 73 Ohio St.3d 308, 314,
652 N.E.2d
988 (1995). A reviewing court then must independently determine, without
deference to the trial court, whether the trial court properly applied the
substantive law to the facts of the case. Long, at 332, 713 N.E.2d 1.
The credibility of the witnesses and the weight to be given to their
testimony are matters for the trier of facts to resolve. State v. DeHass, 10
Ohio St.2d 230,
227 N.E.2d 212 (1967). In State v. Lawson, 2d Dist.
Montgomery No. 16288, 1997 WL 476684 (Aug. 22, 1997), we observed:
“Because the factfinder … has the opportunity to see and hear the
witnesses, the cautious exercise of the discretionary power of a court of
appeals … requires that substantial deference be extended to the
factfinder's determinations of credibility. The decision whether, and to
what extent, to credit the testimony of particular witnesses is within the
peculiar competence of the factfinder, who has seen and heard the
witness.”
State v. Reed, 2016-Ohio-7416,
72 N.E.3d 1196, ¶ 21-22 (2d Dist.).
{¶ 19} This Court has further noted:
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The Fourth Amendment to the United States Constitution and Article
I, Section 14 of the Ohio Constitution guarantee the right to be free from
unreasonable searches and seizures. Terry v. Ohio, 392 U.S. 1,
88 S.Ct.
1868,
20 L.Ed.2d 889 (1968); State v. Orr,
91 Ohio St.3d 389, 391,
745
N.E.2d 1036 (2001). The law recognizes three types of police-citizen
interactions: 1) a consensual encounter, 2) a brief investigatory stop or
detention, and 3) an arrest. State v. Millerton,
2015-Ohio-34,
26 N.E.3d
317, ¶ 20 (2d Dist.).
Consensual encounters occur when the police merely approach a
person in a public place and engage the person in conversation, and the
person remains free not to answer and to walk away. State v. Lewis, 2d
Dist. Montgomery No. 22726, 2009-Ohio-158, ¶ 21, citing United States v.
Mendenhall,
446 U.S. 544, 553,
100 S.Ct. 1870,
64 L.Ed.2d 497 (1980).
Consensual encounters are not seizures, and the Fourth Amendment
guarantees are not implicated in such an encounter. State v. Taylor,
106
Ohio App.3d 741, 747-749,
667 N.E.2d 60 (2d Dist.1995), citing
Mendenhall
at 554, 100 S.Ct. 1870.
Under Terry, police officers may briefly stop and/or temporarily detain
individuals in order to investigate possible criminal activity if the officers
have a reasonable, articulable suspicion that criminal activity may be afoot.
State v. Swift, 2d Dist. Montgomery No. 27036, 2016-Ohio-8191, ¶ 10. “An
individual is subject to an investigatory detention when, in view of all the
circumstances surrounding the incident, by means of physical force or show
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of authority, a reasonable person would have believed that he was not free
to leave or [was] compelled to respond to questions.” Lewis at ¶ 22, citing
Mendenhall at 553, 100 S.Ct. 1870, and
Terry at 19, 88 S.Ct. 1868. Fourth
Amendment protections are implicated in an investigatory detention, i.e., a
Terry stop.
In determining whether an individual engaged in a consensual
encounter or was subject to an investigatory detention, the focus is on the
police officer's conduct, not the subjective state of mind of the person
stopped. State v. Ramey, 2d Dist. Montgomery No. 26705, 2016-Ohio-
607, 2016 WL 685357, ¶ 25. As we stated in State v. Ward, 2017-Ohio-
1391,
89 N.E.3d 124, ¶ 26 (2d Dist.):
“A consensual encounter remains consensual even if
police officers ask questions, ask to see the person's
identification, or ask to search the person's belongings, provided
‘the police do not convey a message that compliance with their
requests is required.’ ” [State v.] Westover, 2014-Ohio-1959,
10
N.E.3d 211, at ¶ 15 [(10th Dist.)], quoting [Florida v.] Bostick, [
501
U.S. 429, 435,
111 S.Ct. 2382,
115 L.Ed.2d 389 (1991)]. In this
regard, “the crucial test is whether, taking into account all of the
circumstances surrounding the encounter, the police conduct
would ‘have communicated to a reasonable person that he was
not at liberty to ignore the police presence and go about his
business.’ ” Bostick at 437, 111 S.Ct. 2382, quoting Michigan v.
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Chesternut, 486 U.S. 567, 569,
108 S.Ct. 1975,
100 L.Ed.2d 565
(1988).
Whether a particular police encounter with a citizen is an
investigative stop, as opposed to a consensual encounter, is fact-sensitive.
Id. at ¶ 26; State v. Satterwhite, 2d Dist. Montgomery No. 15357, 1996 WL
156881, *3 (Apr. 5, 1996). “Factors that might indicate a seizure include
the threatening presence of several police officers, the display of a weapon,
some physical touching of the person, the use of language or tone of voice
indicating that compliance with the officer's request might be required,
approaching the person in a nonpublic place, and blocking the citizen's
path.” State v. Cosby, 177 Ohio App.3d 670,
2008-Ohio-3862,
895 N.E.2d
868, ¶ 13 (2d Dist.), citing Mendenhall.
State v. Weisgarber, 2d Dist. Montgomery No. 27525,
2017-Ohio-8764, ¶15-19.
{¶ 20} As this Court has further noted:
Also, during a Terry stop, it is sometimes considered reasonable for
the investigating officer to conduct a “protective search” by patting down the
suspect to discover and remove weapons. State v. Robinette, 80 Ohio
St.3d 234,
685 N.E.2d 762 (1997); State v. Andrews,
57 Ohio St.3d 86, 89,
565 N.E.2d 1271, 1274 (1991). The primary purpose of a protective search
and seizure is to assure public and officer safety.
“Pursuant to Terry, police officers are allowed to perform limited
protective searches for concealed weapons when the surrounding
circumstances create a suspicion that an individual may be armed and
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dangerous.” State v. Harding, 180 Ohio App.3d 497,
2009-Ohio-59,
905
N.E.2d 1289 (2d Dist.), overruled on other grounds, State v. Gardner, 2d
Dist. Montgomery No. 24308,
2011-Ohio-5692.
“The authority to stop an individual does not necessarily equate to
authority to search the individual.” (Citations omitted.) State v. Lovins, 2d
Dist. Montgomery No. 23530, 2010-Ohio-3916, ¶ 12. See also, State v.
Stewart, 2d Dist. Montgomery No. 19961,
2004-Ohio-1319, ¶ 16; State v.
Byrd, 2d Dist. Montgomery No. 24583,
2012-Ohio-2659. Once a lawful
stop has been made, the police may conduct a limited protective search for
concealed weapons if the officer reasonably believes that the suspect may
be armed or a danger to the officer or to others. State v. Evans,
67 Ohio
St.3d 405,
618 N.E.2d 162 (1993); State v. Molette, 2d Dist. Montgomery
No. 19694,
2003-Ohio-5965, ¶ 13.
“The purpose of this limited search is not to discover evidence of
crime, but to allow the officer to pursue his investigation without fear of
violence ….” Evans, 67 Ohio St.3d at 408,
618 N.E.2d 162, quoting
Adams v. Williams,
407 U.S. 143, 146,
92 S.Ct. 1921,
32 L.Ed.2d 612
(1972); see also, State v. Olden, 2d Dist. Montgomery No. 23137, 2010-
Ohio-215, ¶ 25. In other words, “the protective pat down under [Terry] is
limited in scope to its protective purpose and cannot be employed by the
searching officer to search for evidence of crime.” State v. Holley, 2d Dist.
Montgomery No. 20371,
2004-Ohio-4264, ¶ 10.
“The frisk, or protective search, approved in Terry is limited in scope
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to a pat-down search for concealed weapons when the officer has a
reasonable suspicion that the individual whose behavior he is investigating
at close range may be armed and dangerous. While probable cause is not
required, the standard to perform a protective search, like the standard for
an investigatory stop, is an objective one based on the totality of the
circumstances. The rationale behind the protective search is to allow the
officer to take reasonable precautions for his own safety in order to pursue
his investigation without fear of violence.” State v. Andrews, 57 Ohio St.3d
86, 89,
565 N.E.2d 1271, 1274 (1991).
State v. Millerton, 2d Dist. Montgomery No. 26209,
2015-Ohio-34, ¶ 24-27.
{¶ 21} The “scope of a Terry-type search extends to the area within the immediate
control of the detainee. … [S]uspects may injure police officers and others by virtue of
their access to weapons, even though they may not themselves be armed.” Id. at 1048,
103 S.Ct. at 3480.” State v. Williams, 51 Ohio St.3d 58, 63,
554 N.E.2d 108 (1990),
citing Michigan v. Long,
463 U.S. 1032, 1048-1050,
103 S.Ct. 3469,
77 L.Ed.2d 1201, fn.
14 (1983). “The search must be limited to those areas in which a weapon may be placed
or hidden.” State v. Pattson, 2d Dist. Montgomery No. 24224,
2011-Ohio-3507, ¶16.
{¶ 22} As this Court noted in Pattson, the “well recognized nexus between guns
and drug activity, particularly where … the suspected drug activity involves drug
trafficking and not merely use or possession of drugs, and an [officers'] fear of violence
when investigating that type of activity, will justify a pat down search for weapons.”
(Citations omitted.) Pattson at ¶ 20. While an “officer need not testify he was actually
in fear of a suspect, … he must articulate a set of particular facts which would lead a
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reasonable person to conclude a suspect may be armed and dangerous.” State v.
Holmes, 5th Dist. Stark No. 2011CA00101, ¶ 30, citing State v. Evans, 67 Ohio St.3d 405,
413,
681 N.E.2d 162 (1993). “ ‘Nothing in Terry can be understood to allow a generalized
cursory search for weapons, or, indeed, any search whatever for anything but weapons.’
” State v. Calhoun, 2d Dist. Montgomery No. 13309,
1992 WL 164008 (July 16, 1992)
(Grady, J., concurring separately), quoting Ybarra v. Illinois
444 U.S. 85, 93-94,
100 S.Ct.
338,
62 L.Ed.2d 238 (1979); see also United States v. Ali,
437 Fed.Appx. 439, 444 (6th
Cir. 2011) (“ ‘… *Terry requires reasonable, individualized suspicion before a frisk for
weapons can be conducted.’ ” quoting Maryland v. Buie,
494 U.S. 325, 334,.
110 S.Ct.
1093,
108 L.Ed.2d 276, fn. 2 (1990).). “If the protective search goes beyond what is
necessary to determine if the suspect is armed, it is no longer valid under Terry and its
fruits will be suppressed.” State v. Crusoe,
150 Ohio App.3d 208,
2002-Ohio-6389,
779
N.E.2d 1095, ¶ 78 (2d Dist.), citing Sibron v. New York,
392 U.S. 40, 65-66,
88 S.Ct.
1889, 1904,
20 L.Ed.2d 917 (1968).
{¶ 23} Swallen testified that while the task force members board most buses, he
was specifically aware of “a large amount of drugs coming south from Detroit.” Swallen
did not testify that he initially had a reasonable, articulable suspicion that criminal activity
was afoot when he approached Mallory specifically, and we conclude, as did the trial
court, that Swallen initiated a consensual encounter with him, as he had with the other
passengers with whom he spoke. Swallen testified that he stood behind Mallory’s seat,
and any restriction of Mallory’s movement at this point was due to “a factor independent
of police conduct—i.e., by his being a passenger on a bus. … In such a situation, the
appropriate inquiry is whether a reasonable person would feel free to decline the officer[’s]
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requests or otherwise terminate the encounter.” Florida v. Bostick, 501 U.S. 429, 436,
111 S.Ct. 2382,
115 L.Ed.2d 389 (1991). The evidence in this case did not establish the
threatening presence of several officers, the display of a weapon, any physical touching
of Mallory’s person, or a suggestion that Swallen conveyed by language or tone of voice
that Mallory could not terminate the encounter at the outset.
{¶ 24} The name “Williams” provided by Mallory was consistent with the name on
the ticket he handed Swallen. The bus, travelling from Detroit to Nashville, would
naturally pass through Kentucky, and we find Mallory’s comment that he was going to
Lexington to have been insufficient to create a reasonable suspicion of criminal activity.2
Although Swallen testified that Mallory “made a noise” when asked about his name, that
was of no significance as Mallory was not required to respond to Swallen at all. See Lewis,
2d Dist. Montgomery No. 22726, 2009-Ohio-158, at ¶ 21. In other words, we conclude
that “no substantial evidence was presented by the State from which the trial court could
conclude that as a result of [the officer’s] training or experience the particular conduct
which he observed was reasonably identifiable to him as being indicative of illegal drug
activity.” State v. Brown, 2d Dist. Montgomery No. 13958,
1993 WL 491341, *5 (Nov.
24, 1993).
{¶ 25} We further conclude, however, that as the consensual encounter
progressed, it morphed into a Terry stop. While the trial court correctly noted that drug
activity and weapons go hand-in-hand, Swallen merely testified that he was generally
aware that passengers on that bus route had been known to traffic drugs. After obtaining
2
There was no testimony adduced as to whether the bus route included a scheduled
stop in Kentucky.
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and retaining Mallory’s ticket, Swallen, an imposing figure at six feet nine inches,
repeatedly pushed Mallory to allow him to “check” the backpack and eventually “took
control” of it. “Clearly, a bus passenger's decision to cooperate with law enforcement
officers authorizes the police to conduct a search without first obtaining a warrant only if
the cooperation is voluntary.” Bostick at 438. The trial court determined that Mallory
did not consent to the search of the backpack, and we conclude that competent credible
evidence supported that finding. Swallen testified on direct examination that he asked
Mallory three times to search the backpack, and Mallory testified consistently that Swallen
asked three times to perform the search, and that he declined permission twice before
Swallen seized it.
{¶ 26} Most significantly, it was the State’s burden to establish that Swallen had
reasonably feared Mallory might be armed and dangerous, and there was no evidence
from which to conclude that Swallen feared violence or was concerned for his own safety
or the safety of the other passengers in the course of his encounter with Mallory. Swallen
did not articulate a particular set of facts, individualized to Mallory, which would have lead
a reasonable person to conclude that Mallory may have been armed and dangerous.
Swallen merely stated that he did not know if the backpack contained a gun, which would
be true of any luggage on the bus, unless it was searched. Accordingly, we conclude
that, although Swallen was interacting with Mallory at close range, the seizure of the back
pack was not a reasonable precautionary measure under Terry. Mallory, merely by
virtue of being a passenger on a bus where trafficking crimes had previously occurred,
did nothing to forfeit his constitutional right to be free from unreasonable searches and
seizures. Because we cannot conclude that the seizure and search of the backpack
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were executed for a reasonable, protective purpose, the seizure and search were invalid.
{¶ 27} In the absence of evidence to support a reasonable suspicion that Mallory
was armed and dangerous, justifying a search and seizure of his backpack, his
assignment of error is sustained.
{¶ 28} The judgment of the trial court is reversed, and the matter is remanded to
the trial court for further proceedings.
FROELICH, J., concurs.
WELBAUM, J., dissents:
{¶ 29} I very respectfully dissent.
{¶ 30} I believe the trial court’s judgment should be affirmed for the reasons it
stated in its order finding that a Terry search was valid under the totality of the
circumstances in this case.
{¶ 31} In its introductory paragraph, the trial court expressed its credibility findings
in two footnotes:
FN 1: (Officer Swallen) Whose testimony the Court finds credible in every
material respect.
FN 2: The Court does not find Mr. Mallory credible in every material respect.
On the contrary, insofar as Mr. Mallory’s testimony is at odds with Ofc. Swallen’s
testimony, the Court finds credible Ofc. Swallen’s testimony to be the accurate
recitation of the facts herein.
Order Denying Motion to Suppress, p. 1, fn.1 and 2.
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{¶ 32} Because the trial court specifically found that Officer Swallen was “credible
in every material respect” and did not find Mallory’s version of the events credible, no
conflict of evidence existed concerning what happened. As indicated by the majority
opinion, we defer to the trial court’s factual findings, but independently determine whether
the court properly applied the substantive law to the facts of the case. All facts
determined by the trial court supported a valid Terry search.
{¶ 33} Specifically, the trial court found that when Officer Swallen entered the bus,
he was investigating a known pipeline between Detroit and Nashville involving illegal
transportation of drugs, weapons, money, and humans. Notably, Swallen was an
experienced detective who had conducted hundreds of prior pill arrests.
{¶ 34} The trial court further found that:
… As the result of this brief encounter with Mr. Mallory, Ofc. Swallen had
learned that Mr. Mallory was unable to give his complete name and was traveling
on a Nashville ticket yet told Ofc. Swallen he was traveling to Kentucky. Taking
into account the totality of the circumstances including Mr. Mallory’s suspicious
behavior, Ofc. Swallen was righteous in continuing his investigation and pursuant
to Terry he had every right to ensure the absence of any weapons in Mr. Mallory’s
backpack. …
Order Denying Motion to Suppress at p. 4.
{¶ 35} After reviewing the testimony, I find that it supports the trial court findings.
When Swallen approached Mallory, he asked for Mallory’s name and his ticket. Mallory
gave his name as “Williams,” and also gave Swallen a ticket bearing the name “Justin
Williams” for the trip from Detroit to the destination of Nashville, Tennessee. When
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Swallen asked Mallory his first name again, Mallory “wasn’t able to give it to me. He just
kind of made a noise.” Suppression Tr. p. 10-11. Furthermore, when Swallen asked
Mallory his first name again, Mallory “just kind of stared” at Swallen. Id. at p. 21.
{¶ 36} In addition, Swallen testified that:
I asked him where he was heading. He told me he was going down
to Lexington to see his family. I asked him, where about in Lexington? He
didn’t give me [an answer]. I pointed out that his ticket said Nashville.
At that point, I asked him if he had any bags. He told me he had
one bag. I asked if we could check it. It was at the seat. He grabbed it off
the floor and put it up. He opened the bag, started looking through it. I
again asked if I could look through it, and he was just kind of just showing
me clothes and stuff. I asked again and he said yes, and that is when I
found a sock containing the pills.
Suppression Tr. at p. 11.
{¶ 37} Swallen’s testimony then continued in more detail, as follows:
Q [PROSECUTOR]: And he picked it [the bag] up and set it on his lap?
A: Set in on, I believe the seat next to him.
Q: Okay. So it was an empty seat next to him?
A: Yeah.
Q: And is this like a duffel bag, zipper, do you recall?
A: A backpack.
Q: Backpack. Okay. Do you then – he opens it himself?
A: Yes.
-23-
Q: It was not at your direction?
A: No.
Q: Okay. And at what point do – or does he hand the bag over to you?
A: After I asked him a couple of times if I could look through [it], because he
was like showing me what was in it.
Q: And why did you ask him to hand it over to you versus letting him do it
himself?
A: I don’t know if there’s guns. I don’t know what’s in the bag.
Q: And did you convey that to him –
A: Yes.
Q: About your concern?
A: I did.
Q: And did he hand you the bag, or did you take it from him?
A: It was there on the seat still.
Q: Okay.
A: I took control of it, yes.
Suppression Tr. at p. 12-13.
{¶ 38} Accordingly, as determined by the trial court, Swallen’s testimony indicated
that he was concerned about a gun in the backpack and communicated that to Mallory.
{¶ 39} I further disagree with the importance the majority places on the lack of
testimony about whether the bus route included a scheduled stop in Kentucky. Even in
the absence of such testimony, suspicion was warranted here under the totality of the
circumstances. Specifically, why would a person who apparently did not know his first
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name purchase a bus ticket to go all the way to Nashville, Tennessee, if his intent were
to visit family in Lexington, Kentucky? Adding to the weight of the suspicion was
Mallory’s failure to respond to Swallen’s question about where Mallory’s family lived in
Lexington.
{¶ 40} I also disagree with the majority’s conclusion that a Terry analysis may not
consider a defendant’s nonresponsiveness to inquiries about his first name. In contrast
to the majority’s position, I believe four nonresponses were at issue. First, when Swallen
asked Mallory his name, Mallory gave only a fake last name. Second, after being asked
specifically what his first name was, Mallory answered only by making a “noise.”
Suppression Tr. at p. 10-11. Third, Swallen then asked Mallory his first name again, but
he “just kind of stared” at Swallen. Id. at p. 21. And finally, Mallory also failed to
respond when asked about the part of Lexington in which his family lived. Id. at p. 11.
These four nonresponses may be considered in combination with the other facts under
the authority of both the United States Supreme Court and the Supreme Court of Ohio.
{¶ 41} The police can initiate contact with a person without having an objective
level of suspicion, during which time the police may ask questions of the person, ask for
identification, and request permission to search baggage that the individual may have in
his or her possession. That individual, however, has a right to ignore the police and “go
on his way.” Florida v. Royer, 460 U.S. 491, 498,
103 S.Ct. 1319,
75 L.Ed.2d 229 (1983).
Moreover, pertinent to the issue presented here, an individual's “refusal to cooperate,
without more, does not furnish the minimal level of objective justification needed for
detention and seizure.” (Emphasis added.) Bostick,
501 U.S. 429, 437,
111 S.Ct. 2382,
115 L.Ed.2d 389. See also State v. Robinette, 80 Ohio St.3d. 234, 240,
685 N.E.2d 762
-25-
(1997), citing Royer at 497-498 (A person “may not be detained even momentarily without
reasonable, objective grounds for doing so; and his refusal to listen or answer does not,
without more, furnish those grounds.” (Emphasis added.)) In the case before us,
however, there was “more.”
{¶ 42} The majority opinion notes that Mallory testified consistently that Swallen
asked three times to perform the search, and that he declined permission twice before
Swallen seized the bag. However, as explained earlier, the trial court found that
Mallory’s testimony was not credible. We therefore are not free to consider this
testimony.
{¶ 43} Although the majority suggests a plausible explanation for the inconsistency
between the ticket destination and Mallory’s representations, this explanation must be
viewed in context. Parsed out layer by layer, a plausible, innocent explanation was
conceivable for each inconsistency, omission, and action of Mallory. However, in totality,
under the unique circumstances of this case, there was sufficient evidence to justify a
Terry search.
{¶ 44} In U.S. v. Black, 675 F.2d 129 (7th Cir.1982), the court commented that:
We are unmoved by the defendant's assertion that all of his actions
and responses were consistent with wholly innocent behavior, and could
not therefore give rise to reasonable suspicion without subjecting every
airport passenger to potential police seizure. As other courts confronted
with similar situations have noted, “[i]t must be rare indeed that an officer
observes behavior consistent only with guilt and incapable of innocent
interpretation.” United States v. Price, 599 F.2d 494, 502 (2nd Cir.1979)
-26-
… It is for that reason that the applicable standard in determining the
propriety of a Terry stop is not whether the defendant's acts can be
construed as innocent through the exercise of exegetical speculation, but
rather whether they give rise to an articulable, reasonable suspicion of
criminal activity.
(Citation omitted.) Id. at 137.
{¶ 45} Finally, I find it noteworthy that Mallory’s actions increased the potential
danger to Swallen and other passengers. When Mallory decided to open the backpack
and began taking out items in the close confines of the bus, it created an exigency that
increased the justification for the Terry search. Notably, Swallen expressed his concern
to Mallory that he needed to take control of the bag at that point because he “did not know
if there were guns or what is in the bag.” Suppression Tr. at p. 13
{¶ 46} In view of the preceding discussion, I believe the unique facts of this case
supported the conclusion that Detective Swallen was justified in conducting a Terry
search of Mallory’s backpack. Therefore, I would affirm the decision of the trial court.
Copies sent to:
Mathias H. Heck, Jr.
Jamie J. Rizzo
Jeffrey R. McQuiston
Hon. Steven K. Dankof
