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 were executed for a reasonable, protective purpose, the seizure and search were invalid.
State. v. Mallory
2020 – Ohio – 4848
Second District Appellate Court
Montgomery County, Ohio
October 9, 2020
On Thursday May 24, 2018 Miami Township Police Officer Ray Swallen was assigned to the Miami Valley Bulk Smuggling Task Force with the United States Department of Homeland Security. Officer Swallen testified that the task force focused on “outlets where people are bringing in drugs, humans, guns, ammunition or exporting the same from the Miami Valley region.” The ‘Detroit Bus’ arrived at the Greyhound Bus Station in Trotwood, Ohio. The bus was traveling from Detroit, Michigan to Nashville, Tennessee. He further testified that there was “a network of people going to Nashville and Lexington from Detroit.”
The Miami Valley Bulk Smuggling Task Force began an investigation here at the Greyhound Bus Station where Mr. Mallory could not explain where he was going and his bulk amount of pills were confiscated.
Officer Swallen, who was in plain clothes and displayed his task force badge, 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.
After speaking to a few other passengers, Officer Swallen encountered Mr. Kelsey Mallory and asked for his name. According to Officer Swallen, Mr. Mallory lied and 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.” Officer Swallen also noticed that Mr. Mallory’s ticket was from Detroit to Nashville, but when Officer Swallen asked Mr. Mallory about his destination, Mr. Mallory stated that he was going to Lexington, Kentucky to visit family. Officer Swallen testified that, when he asked Mr. Mallory where specifically in Lexington he was going, Mr. Mallory did not respond. Officer Swallen asked Mr. Mallory if he had any luggage, and Mr. Mallory indicated he had one bag. When Officer Swallen asked if he could “check” the bag, Mr. Mallory “grabbed it off the floor,” put it on the empty seat beside him, opened the bag, and started looking through it. The bag was opened in the trajectory of Mr. Mallory and away from Officer Swallen. Officer Swallen asked again if he could look through the bag; Mr. Mallory first showed him clothes and other items, then consented to Officer Swallen’s looking in the bag. The consent to search is at issue in this case. Officer Swallen searched and found a sock containing pills.
Officer Swallen testified that he did not direct Mr. 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.
- And did you convey that to him.
- – – about your concern?
- I did.
- * * * And did he hand you the bag, or did you take it from him?
- It was still there on the seat still.
- Okay. A. I took control of it, yes.
Officer Swallen testified that there were clothing and other effects in the bag, and he felt a pair of socks with pills in it. Officer 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.” Officer Swallen testified that Mr. Mallory’s sock contained a bag with multiple types of pills. Officer Swallen then secured Mr, Mallory and escorted him to a break room in the bus station; Mr. Mallory confirmed his actual identity at that time. It was as if the handcuffs were dipped in truth serum. Officer Swallen testified that he advised Mr. Mallory of his rights, and that Mr. Mallory stated that he did not want to talk with Officer Swallen anymore. At the hearing, Officer Swallen identified photographs of the pills Mr. Mallory had been carrying and of Mr. Mallory’s ticket bearing the name “Justin Williams.”
On cross-examination, Officer Swallen denied that Mr. Mallory was being sarcastic when he told him that he was going to Kentucky. The following exchange occurred with respect to Officer Swallen’s questioning of Mr. Mallory about his luggage:
- And did he tell you how many [bags he had]?
- He said just the one.
- And that bag was located down on the floor between his feet, correct?
- I don’t recall exactly where it was. It was on the floor.
- 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?
- 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?
When asked if Mr. Mallory consented to the search of the bag, Officer Swallen testified, “I asked him one time and he opened the bag and started showing me what was in it.” Officer Swallen also testified that, in the course of the encounter, he (Swallen) stood in a row of seats behind Mr. 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. Officer Swallen pointed out that he was “six foot nine” and could “lean over and look pretty well.”
Mr. Mallory testified at the hearing on his own behalf, stating that he lived in Warren, Michigan. He testified that on May 24, 2018, Officer Swallen “jumped on the bus” and spoke to one or two people before approaching Mr. Mallory. Mr. Mallory stated that there were about 20 people on the bus. Mr. Mallory stated that Officer Swallen stood between his seat and the bathroom. Mr. Mallory removed his ticket from his hoodie and gave it to Officer Swallen when asked for it. Mr. Mallory acknowledged he lied telling Officer Swallen that his name was “Williams” and his destination was Kentucky. Mr. Mallory stated he was being sarcastic when he said he was going to Kentucky, because his actual destination was on his ticket. Mr. Mallory testified that he told Officer Swallen he had one bag, which was between his legs on the floor; Mr. Mallory grabbed 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. Mr. Mallory stated that Officer Swallen asked him three times to search the bag. According to Mr. Mallory, in response to the first request, he said “huh-uh, meaning no.” Mr. Mallory testified that, in response to the second request, he gave Officer Swallen “a head gesture saying no.” According to Mr. Mallory, in response to the third request, Mr. Mallory said nothing, and that was when Officer Swallen grabbed the bag and found the sock. Mr. Mallory testified that Officer Swallen unzipped the pack when it was fully closed. On cross-examination, Mr. Mallory acknowledged that his ticket was not issued in his name.
Mr. Mallory filed a Motion to Suppress and the trial court denied the motion. He plead No Contest and was convicted 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. Subsequently he filed this appeal. On October 9, 2020 the Second District Appellate Court held “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 were executed for a reasonable, protective purpose, the seizure and search were invalid.”.
- This was a close call for the Second District Appellate Court, though the court determined that the encounter ripened to a Terry detention without Reasonable Suspicion. However, this was a three-judge panel and one judge dissented “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.” The dissenting Judge, Jeffrey Welbaum opined, “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 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 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. 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. 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) Most notably Judge Welbaum stated “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.”.
- To review, consent has three elements and when law enforcement requests consent, the person must waive all three elements. When a request to consent to search a person, car or home, the person will waive; knowingly, voluntarily and intelligently.
- In this case Officer Swallen had a lot of indicators that Mr. Mallory was a drug courier. However, two judges did not view the indicators through the lens of the totality of the circumstances but rather as Judge Welbaum noted that the facts should have been viewed in context not parsed out layer by layer. This is a prime example that law enforcement is THE hardest job in America.
- For more information on the Consent Doctrine see One Headlight Two Joes and Three Stolen Checks totaling $202.20 Lead to THE Most Important Consent Case.
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