[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

v. WATSON F. BRADLEY, III Defendant-Appellant : : : : : : : : : : Appellate Case No. 28320

Trial Court Case No. 2018-CR-3762 (Criminal Appeal from Common Pleas Court)

. . . . . . . . . . . O P I N I O N Rendered on the 15th day of November, 2019.

. . . . . . . . . . . MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 00693 84, Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Ap pellate Division, Montgomery County Courts Building, 301 West Third Street, Dayto n, Ohio 45422 Attorney for Plaintiff-Appellee SEAN BRINKMAN, Atty. Reg. No. 0088253, 10 West Monument Avenue, Dayton, Ohio 45402 Attorney for Defendant-Appellant

. . . . . . . . . . . . .

WELBAUM, P.J.-2- {¶ 1} Defendant-appellant, Watson F. Bradley, III, appeals from his c onviction in the Montgomery County Court of Common Pleas after he pled no co ntest 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 exec ution 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 sixcount indictment charging Bradley with trafficking in cocaine, possession of cocaine, aggravated trafficking in fentanyl, aggravated possession of fe ntanyl, aggravated possession of oxycodone, and having weapons while under disabil ity. The charges arose after Detective Mistan Bailey of the Dayton Police Depart ment obtained and executed a search warrant at Bradley’s residence. While execut ing the search warrant, Det. Bailey and her fellow officers discovered various items of contraband, including several types of illegal drugs, drug paraphernalia, and a firea rm. 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 follow ing the search, should be suppressed because he was subjected to an unlawful search and s eizure. On January-3- 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 t estify. Det. Bailey testified that on March 22, 2018, she and ten other officers ex ecuted a search warrant at 2718 Wentworth Avenue in Dayton, Ohio. Det. Bailey testified t hat 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 f or 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 th e 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 sei zed from the residence following the search. The search warrant and accompanying inve ntory were both admitted into evidence as State’s Exhibit I. The inventory lis ts 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 kit chen counter, $389 in cash recovered from Bradley’s wallet located in a black bag, and a t otal of four cell phones.

See State’s Exhibit I. {¶ 5} Following Bradley’s arrest, Det. Bailey interrogated Bradley ou tside his residence. Det. Bailey testified that during the interrogation , she read Bradley his-4- 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. B ailey 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 atto rney 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 supp ression hearing. {¶ 6} Following the suppression hearing, Bradley submitted a post-hea ring memorandum in support of his motion to suppress. Bradley’s pos t-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, part icular facts justifying a finding of probable cause to authorize the searches in question. Bradl ey 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 wer e 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, inte lligently, 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-5- 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 cont est 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 dismis s 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 nocontest plea and found Bradley guilty of trafficking cocaine, a ggravated trafficking in fentanyl, and having weapons while under disability. The trial court then immediately sentenced Bradley to the agreed upon three-year prison term wit h 98 days of jail-time credit. Bradley now appeals from his conviction, raising a sin gle assignment of error for

review.

Assignment of Error {¶ 10} Under his sole assignment of error, Bradley contends that the t rial court erred in denying his motion to suppress. We disagree. {¶ 11} “In ruling on a motion to suppress, the trial court ‘assumes th e 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-6- 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 com petent, 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 t he trial court’s finding that the search warrants for his residence and cell pho nes 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 gra nted because there was no evidence presented at the suppression hearing to establish t hat Det. Bailey and the other officers had probable cause to effectuate his arrest. Sp ecifically, 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 ille gal seizure in violation of the Fourth Amendment that warranted suppression of any evidence sei zed 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 wa s 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 th e 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), citin g State v. Williams , 51-7- Ohio St.2d 112, 364 N.E.2d 1364 (1977), paragraph one of the sy llabus (“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 B radley raised two discreet issues concerning his motion to suppress: (1) the adequacy of t he search warrants issued for his residence and cell phones; and (2) the knowing, intelli gent, 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, Br adley only challenges the constitutionality of his arrest by arguing that there was no ev idence 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 co urt 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 i n his residence. Although Det. Bailey did not identify the items of contraband w hen she testified at the suppression hearing, Det. Bailey did testify that the items dis covered in the residence were the basis for Bradley’s arrest. Det. Bailey also identifi ed 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, incl uding several types of illegal drugs, drug paraphernalia, and a firearm. {¶ 15} Det. Bailey also identified a certified copy of the search warr ant that she authored for Bradley’s four cell phones (State’s Exhibit III), which included a supporting-8- affidavit that stated “during the search of [Bradley’s] residen ce, methamphetamine, heroin, cocaine, U.S. currency, a digital scale, a Kahr 40 cali ber handgun, and four cellular phones were recovered.” Therefore, because the record indicate s 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, B radley’s contention that there was no evidence establishing that his arrest was supporte d by probable cause is belied by the record. {¶ 16} Although not specifically raised by Bradley, we further note th at Bradley’s seizure during the execution of the search warrant was also con stitutionally permissible. The United States Supreme Court has explained that “[f]or Fourt h Amendment purposes, a warrant to search for contraband founded on probable cause im plicitly 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 office rs were authorized to detain Bradley during the lawful search of his residence without runni ng 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 ove rruled.

Conclusion {¶ 18} Having overruled Bradley’s sole assignment of error, the judgme nt of the

trial court is affirmed.

. . . . . . . . . . . . .-9-

FROELICH, J. and TUCKER, J., concur.

Copies sent to: Mathias H. Heck, Jr. Andrew T. French Sean Brinkman Hon. Mary Lynn Wiseman