State v. Mallory
| Decision Date | 09 October 2020 |
| Docket Number | No. 28685,28685 |
| Citation | 160 N.E.3d 399,2020 Ohio 4848 |
| Parties | STATE of Ohio, Plaintiff-Appellee v. Kelsey Devon MALLORY, Defendant-Appellant |
| Court | Ohio Court of Appeals |
{¶ 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, 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:
{¶ 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:
{¶ 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 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:
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