We conclude the search of Ms. Malcolm’s bags was a permissible search incident to a lawful arrest.
State v. Malcolm
2022 – Ohio – 2785
Fifth District Appellate Court
Licking County, Ohio
August 10, 2022
On Wednesday October 7, 2020, plainclothes Heath Police Department Detective Bradley Fisher noticed a vehicle parked at a Super 8 Motel located at 1177 Hebron Road, Hebron, Ohio. He believed the vehicle had been involved in a high-speed chase the day before. Det. Fisher took steps to confirm the car was in fact involved in the chase, after which he observed a female later identified as Ms. Caetlynde Malcolm and another woman open the trunk of the vehicle and walk away with bookbags and tote bags in their hands.
The Super 8 Hotel at 1177 Hebron Road in Hebron, Ohio was the location of an encounter between Ms. Caetlynde Malcolm and her drug filled backpack and Hebron Police Detective Bradley Fisher. What occurred in the next few minutes would lead to an arrest, conviction and appeal.
Det. 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 Det. Fisher with their names and dates of birth. Upon checking Ms. Malcolm’s information, Det. Fisher discovered she had an active warrant for her arrest from the Newark Police Department. Ms. Malcolm 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.
Det. Fisher contacted adult court services and confirmed that Ms. Malcolm had a pending warrant for pre-trial supervision violations. Licking County Adult Probation Officers Wes Luce and Brandy Nelson arrived within ten minutes to take custody of Ms. Malcolm. Officer Luce noticed two bags on the ground near Ms. Malcolm. He asked if the bags belonged to her and Ms. Malcolm stated they did. Ms. Malcolm had not been provided with Miranda warnings. This case will center on this question … did Ms. Malcolm require a Miranda warning prior to being asked if the bag belonged to her.
Before transporting Ms. Malcolm to the Licking County Jail, Officer Luce searched the bags and discovered syringes and substances he suspected were illegal drugs. The probation officers then drove Ms. Malcolm to the Licking County Jail, but due to COVID 19 protocols, the jail staff refused to book Ms. Malcolm. Ms. Malcolm was therefore transported to Licking County Adult Court Services.
Once at Licking County Adult Court Services, Officer Luce performed a more thorough search of Ms. Malcolm’s bags and discovered additional contraband. Per Licking County Adult Court Services policy, Officer Luce contacted the Central Ohio Drug Enforcement Task Force (CODE) to handle the suspected drugs. CODE Detective Greg Collins arrived at Licking County Adult Court Services, observed the suspected drugs and provided Ms. Malcolm with Miranda warnings. Ms. Malcolm agreed to speak with Det. Collins and made inculpatory statements regarding her possession of the bags and the contents.
Ms. Malcolm was subsequently charged with one count of possession of fentanyl and one count of possession of methamphetamine. On June 11, 2021, Ms. Malcolm filed a motion to suppress which argued:
1) The initial encounter between Ms. Malcolm and Detective Det. Fisher as a seizure;
2) Any statements Ms. Malcolm 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.
A Motion to Suppress the contraband was filed and the trial court denied the motion.
On November 9, 2021, Ms. Malcolm entered pleas of no contest to both counts of the indictment. The trial court accepted Ms. Malcolm’s no contest pleas, found her guilty, convicted her, and placed her on a three- year term of community control.
Ms. Malcolm field an appeal with the Fifth District Appellate Court.
Analysis
Custodial Interrogation
Ms. Malcolm 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 Officer Luce had not provided her with Miranda warnings.
Here, Ms. Malcolm had been stopped by Det. Fisher and found to have an active warrant for her arrest. Officer Luce arrived on the scene not to investigate an on-going crime, but rather with purpose to transport Ms. Malcolm to the Licking County Jail based on her outstanding warrant. Based on this purpose, Luce wanted to ensure Ms. Malcolm’s belongings went with her to the jail and asked if the bags near her feet belonged to her. His question was focused on what items should travel to the jail with Ms. Malcolm, not what was in the bags. We find Luce’s question was not an interrogation and therefore Miranda warnings were not required.
Search incident to arrest
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, (1969). The Supreme Court of Ohio has stated that as long as the arrest is lawful “[T]he right to search incident to arrest exists even if the item is 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).
Holding
We conclude the search of Ms. Malcolm’s bags was a permissible search incident to a lawful arrest.
Information for this article was obtained from State v. Malcolm, 2022 – Ohio – 2785.
This case was issued by the Fifth District Appellate Court which is only binding in the following Ohio Counties: Ashland, Coshocton, Delaware, Fairfield, Guernsey, Holmes, Knox, Licking, Morgan, Morrow, Muskingum, Perry, Richland, Stark and Tuscarawas.
Lessons Learned:
- When Det. Fisher initially encountered the women in the parking lot of the Super 8 Hotel, this was a consensual encounter. At no time did the detective give commands, had aggressive demeanor, or attempted to physically restrain the women. The analysis by the detective, the trial court, and the Fifth District Appellate Court begins with this initial consensual encounter. Thereafter the women were surprisingly honest about their identity even though neither physically possessed an identification card. Because this encounter began as consensual, at no point during the initial interaction would a Miranda warning be required. For more on Miranda see Miranda – Both a Noun and a Verb, Was Mike Unlawfully Detained at Chewy?, and most recently the Sixth Circuit Appellate Court issued United States v. Zabel, on May 23, 2022. Read more about this case: Can a Suspect be Interviewed Without Miranda in a Mammoth Cave?.
- Once Det. Fisher determined Ms. Malcolm had an active and verified warrant she was placed under arrest. When responding back-up Officer Wes Luce arrived he asked Ms. Malcolm if the backpack belonged to her. When Ms. Malcolm said it did, he retrieved it so it can be taken to jail with her. Keep in mind if the officer did not ask and left the backpack on the ground, he and the Hebron Police could be liable for not securing her personal property. Law enforcement has a duty to inventory property prior to taking a person to jail and that is when it was discovered that Ms. Malcolm’s backpack full of felonies. This legal doctrine was established in Illinois v. Lafayette, 462 U.S. 640 (1983). Therein, the U.S. Supreme Court in a unanimous (!) decision held “[I]t is not unreasonable for police, as part of the routine procedure incident to incarcerating an arrested person, to search any container or article in his possession, in accordance with established inventory procedures.”. The decision in this case, Malcolm, and in the 1983 Lafayette case underscores why it is important for officers to know, understand and reasonably apply their own agency policies. For more on package searches see The Deputy Searched Jenny’s Purse Incident to Arrest, but was the Search Lawful?. The facts in Jenny’s case are analogous to Ms. Malcolm’s case. Jenny’s search occurred in Fulton County Ohio on October 17, 2019.
- Detective Bradley Fisher should be highly commended for recognizing the car that was involved in a high-speed pursuit the day before and knowing the difference between a consensual encounter and investigative detention! Well done Det. Fisher!
Does your agency train on Consensual Encounters?
Don’t fail your training.
Don’t let your training fail you!
Be safe, smart and Objectively Reasonable!