State v. Bradley , 2019 Ohio 4698 ( 2019 )

[Cite as State v. Bradley, 2019-Ohio-4698.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 28320
:
v. : Trial Court Case No. 2018-CR-3762
:
WATSON F. BRADLEY, III : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 15th day of November, 2019.
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MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
SEAN BRINKMAN, Atty. Reg. No. 0088253, 10 West Monument Avenue, Dayton, Ohio
45402
Attorney for Defendant-Appellant
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WELBAUM, P.J.
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{¶ 1} Defendant-appellant, Watson F. Bradley, III, appeals from his conviction in
the Montgomery County Court of Common Pleas after he pled no contest to trafficking in
cocaine, aggravated trafficking in fentanyl, and having weapons while under disability.
In support of his appeal, Bradley challenges the trial court’s decision denying his motion
to suppress evidence and statements obtained following the execution of a search
warrant at his residence. For the reasons outlined below, the judgment of the trial court
will be affirmed.
Facts and Course of Proceedings
{¶ 2} On November 7, 2018, the Montgomery County Grand Jury returned a six-
count indictment charging Bradley with trafficking in cocaine, possession of cocaine,
aggravated trafficking in fentanyl, aggravated possession of fentanyl, aggravated
possession of oxycodone, and having weapons while under disability. The charges
arose after Detective Mistan Bailey of the Dayton Police Department obtained and
executed a search warrant at Bradley’s residence. While executing the search warrant,
Det. Bailey and her fellow officers discovered various items of contraband, including
several types of illegal drugs, drug paraphernalia, and a firearm. The officers also
discovered some U.S. currency and four cell phones.
{¶ 3} Following his indictment, Bradley entered a not guilty plea to all the charges
levied against him. Shortly thereafter, Bradley filed a motion to suppress. In his motion
to suppress, Bradley argued that all of the evidence discovered inside his residence, as
well as all of the statements he made to law enforcement following the search, should be
suppressed because he was subjected to an unlawful search and seizure. On January
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15, 2019, the trial court held a hearing on Bradley’s motion. At the beginning of this
hearing, the trial court noted that Bradley had since clarified that his motion to suppress
challenged only: (1) the adequacy of the search warrant issued for his residence and the
subsequent search warrant issued for his four cell phones; and (2) the knowing,
intelligent, and voluntary nature of his Miranda waiver.
{¶ 4} Following this clarification, the State called Det. Bailey to testify. Det. Bailey
testified that on March 22, 2018, she and ten other officers executed a search warrant at
2718 Wentworth Avenue in Dayton, Ohio. Det. Bailey testified that Bradley was the only
occupant inside the residence at the time of the search. Det. Bailey testified that, after
executing the search warrant, Bradley was placed under arrest for the items that were
discovered in the residence. During her testimony, Det. Bailey did not specifically
identify what items she and the other officers discovered in the residence when they
executed the search warrant. Det. Bailey instead identified a certified copy of the search
warrant, which included an inventory of the items that were seized from the residence
following the search. The search warrant and accompanying inventory were both
admitted into evidence as State’s Exhibit I. The inventory lists items such as oxycodone
pills, “meth”, “crack”, heroin, unidentified “pills” and “drugs,” a P40 Kahr handgun, an
empty magazine, an empty holster, plastic baggies with residue, a blender with residue,
a digital scale, a grinder, $405 in cash recovered from the kitchen counter, $389 in cash
recovered from Bradley’s wallet located in a black bag, and a total of four cell phones.
See State’s Exhibit I.
{¶ 5} Following Bradley’s arrest, Det. Bailey interrogated Bradley outside his
residence. Det. Bailey testified that during the interrogation, she read Bradley his
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Miranda rights from a “Miranda card” that was given to her by the prosecutor’s office.
The Miranda card was admitted into evidence as State’s Exhibit II. Det. Bailey testified
that after reading Bradley his Miranda rights, Bradley indicated that he understood each
of his rights and agreed to speak to her without having an attorney present. Det. Bailey
also testified that after interrogating Bradley, she obtained a search warrant for the four
cell phones that were discovered at Bradley’s residence. Det. Bailey identified a certified
copy of the search warrant for the four cell phones, which was admitted as State’s Exhibit
III. No other evidence or witnesses were presented at the suppression hearing.
{¶ 6} Following the suppression hearing, Bradley submitted a post-hearing
memorandum in support of his motion to suppress. Bradley’s post-hearing
memorandum specifically provided that “[h]is Motion to Suppress narrowly focuses on
two search warrants. One of these pertained to his residence * * *, and the other one to
his cell phone[s].” In the memorandum, Bradley argued that the affidavits submitted in
support of the search warrants did not contain sufficient, particular facts justifying a finding
of probable cause to authorize the searches in question. Bradley did not raise any
further argument in support of the memorandum.
{¶ 7} On February 1, 2019, the trial court issued a written decision denying
Bradley’s motion to suppress. In denying the motion, the trial court carefully reviewed
the supporting affidavits and held that the search warrants were made with sufficient
particularity and were predicated on adequate probable cause. The trial court also held
that, based on Det. Bailey’s testimony, Bradley knowingly, intelligently, and voluntarily
waived his Miranda rights during the custodial interrogation conducted outside of his
residence. Therefore, based on these findings, the trial court overruled Bradley’s motion
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to suppress the evidence and statements that were obtained as a result of the search and
seizure at issue.
{¶ 8} Shortly after the trial court issued its decision on Bradley’s motion to
suppress, Bradley entered into a negotiated plea agreement with the State. As part of
this negotiated plea agreement, Bradley agreed to plead no contest to trafficking in
cocaine, aggravated trafficking in fentanyl, and having weapons while under disability.
In exchange for his no-contest plea, the State agreed to dismiss the remaining three
charges against him and to jointly recommend an aggregate three-year prison sentence
with 98 days of jail-time credit.
{¶ 9} Following a Crim.R. 11 plea colloquy, the trial court accepted Bradley’s no-
contest plea and found Bradley guilty of trafficking cocaine, aggravated trafficking in
fentanyl, and having weapons while under disability. The trial court then immediately
sentenced Bradley to the agreed upon three-year prison term with 98 days of jail-time
credit. Bradley now appeals from his conviction, raising a single assignment of error for
review.
Assignment of Error
{¶ 10} Under his sole assignment of error, Bradley contends that the trial court
erred in denying his motion to suppress. We disagree.
{¶ 11} “In ruling on a motion to suppress, the trial court ‘assumes the role of the
trier of fact, and, as such, is in the best position to resolve questions of fact and evaluate
the credibility of the witnesses.’ ” State v. Prater, 2012-Ohio-5105, 984 N.E.2d 36, ¶ 7
(2d Dist.), quoting State v. Retherford, 93 Ohio App. 3d 586, 592, 639 N.E.2d 498 (2d
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Dist.1994). “As a result, when we review suppression decisions, ‘we are bound to accept
the trial court’s findings of fact if they are supported by competent, credible evidence.
Accepting those facts as true, we must independently determine as a matter of law,
without deference to the trial court’s conclusion, whether they meet the applicable legal
standard.’ ” Id., quoting Retherford at 592.
{¶ 12} In his single assignment of error, Bradley does not challenge the trial court’s
finding that the search warrants for his residence and cell phones were supported by
probable cause and properly issued. Nor does Bradley challenge the trial court’s finding
that he knowingly, intelligently, and voluntarily waived his Miranda rights. Instead,
Bradley claims that his motion to suppress should have been granted because there was
no evidence presented at the suppression hearing to establish that Det. Bailey and the
other officers had probable cause to effectuate his arrest. Specifically, Bradley claims
that there was no testimony identifying the items of contraband that led to his arrest.
Therefore, according to Bradley, his arrest constituted an illegal seizure in violation of the
Fourth Amendment that warranted suppression of any evidence seized as a result of the
arrest. Bradley’s argument fails for multiple reasons.
{¶ 13} First, the issue of whether the officers had probable cause to effectuate
Bradley’s arrest has been waived for appeal since that issue was not raised before the
trial court. See State v. McKee, 2d Dist. Montgomery No. 22565, 2008-Ohio-5464, ¶ 19
and State v. Carter, 2d Dist. Montgomery No. 21999, 2008-Ohio-2588, ¶ 20 (holding that
a defendant’s failure to argue certain suppression issues in the court below forfeits a
defendant’s ability to raise those issues later in an appeal); State v. Linehan, 2d Dist.
Montgomery No. 16841, 1998 WL 905347, *4 (Sept. 4, 1998), citing State v. Williams, 51
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Ohio St.2d 112, 364 N.E.2d 1364 (1977), paragraph one of the syllabus (“It is axiomatic
that a litigant’s failure to raise an issue in the trial court waives his right to raise that issue
on appeal.”). As previously noted, the record indicates that Bradley raised two discreet
issues concerning his motion to suppress: (1) the adequacy of the search warrants issued
for his residence and cell phones; and (2) the knowing, intelligent, and voluntary nature
of his Miranda waiver. The trial court ruled on these issues and Bradley has not
challenged either of those rulings in this appeal. Instead, Bradley only challenges the
constitutionality of his arrest by arguing that there was no evidence establishing that the
officers had probable cause to arrest him following the search of his residence.
Therefore, because Bradley never raised this argument in the court below, he has
forfeited his ability to raise it on appeal.
{¶ 14} Regardless, even if Bradley’s argument had not been waived for appeal,
there is sufficient evidence in the record indicating that the officers had probable cause
to arrest Bradley based on the items of contraband discovered in his residence.
Although Det. Bailey did not identify the items of contraband when she testified at the
suppression hearing, Det. Bailey did testify that the items discovered in the residence
were the basis for Bradley’s arrest. Det. Bailey also identified a copy of the certified
search warrant that she authored for Bradley’s residence (State’s Exhibit I), which
included an inventory of all the items that she and her fellow officers seized following the
search. This inventory lists various items of contraband, including several types of illegal
drugs, drug paraphernalia, and a firearm.
{¶ 15} Det. Bailey also identified a certified copy of the search warrant that she
authored for Bradley’s four cell phones (State’s Exhibit III), which included a supporting
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affidavit that stated “during the search of [Bradley’s] residence, methamphetamine,
heroin, cocaine, U.S. currency, a digital scale, a Kahr 40 caliber handgun, and four cellular
phones were recovered.” Therefore, because the record indicates that the
aforementioned contraband was found in Bradley’s residence and that Bradley was the
only occupant inside the residence at the time of the search, Bradley’s contention that
there was no evidence establishing that his arrest was supported by probable cause is
belied by the record.
{¶ 16} Although not specifically raised by Bradley, we further note that Bradley’s
seizure during the execution of the search warrant was also constitutionally permissible.
The United States Supreme Court has explained that “[f]or Fourth Amendment purposes,
a warrant to search for contraband founded on probable cause implicitly carries with it the
limited authority to detain the occupants of the premises while a proper search is
conducted.” Michigan v. Summers, 452 U.S. 692, 705, 101 S. Ct. 2587, 69 L. Ed. 2d 340
(1981), syllabus. Therefore, Det. Bailey and her fellow officers were authorized to detain
Bradley during the lawful search of his residence without running afoul of Bradley’s Fourth
Amendment rights. See id.; State v. Taylor, 82 Ohio App. 3d 434, 444, 612 N.E.2d 728
(2d Dist.1992).
{¶ 17} For the foregoing reasons, Bradley’s assignment of error is overruled.
Conclusion
{¶ 18} Having overruled Bradley’s sole assignment of error, the judgment of the
trial court is affirmed.
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FROELICH, J. and TUCKER, J., concur.
Copies sent to:
Mathias H. Heck, Jr.
Andrew T. French
Sean Brinkman
Hon. Mary Lynn Wiseman