STATE OF OHIO v. CHRISTOPHER J. FINFROCK
Appellate Case No. 28406
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
March 27, 2020
2020-Ohio-1142
Trial Court Case No. 2018-CR-4783
OPINION
Rendered on the 27th day of March, 2020.
MATHIAS H. HECK, JR., by LISA M. LIGHT, Atty. Reg. No. 0097348, 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
MARK A. FISHER, Atty. Reg. No. 0066939, 5613 Brandt Pike, Huber Heights, Ohio 45424 Attorney for Defendant-Appellant
TUCKER, P.J.
I. Facts and Procedural History
{¶ 2} This case arises from a traffic stop that occurred on February 18, 2018. As a result of that stop, Finfrock was indicted on one count of having weapons under disability (prior drug conviction) in violation of
{¶ 3} The trial court conducted a hearing on the motion on March 20, 2019. The State presented the testimony of Dayton Police Officer William Overholtz, who was on routine patrol with his partner on December 18, 2018. Overholtz testified he was driving east on East Third Street when, at the intersection of East Third Street and South Findlay Street, he observed a black Chevrolet Impala stopped at a red light on South Findlay Street. Overholtz noted that the window tint on the vehicle appeared to be illegal. He also noted the vehicle did not have a front license plate. As he drove through the intersection in front of the Impala, Overholtz noticed a man in the driver‘s seat. Overholtz decided to turn around at a local business just past the intersection in order to get behind, and follow, the vehicle. After the turn, Overholtz‘s cruiser was directly behind the Impala. Overholtz noted the car had a Kentucky license plate. Overholtz observed the Impala
{¶ 4} Overholtz exited his vehicle and noted that the Impala was shaking from side to side.1 When he approached the driver‘s window, he noted that a woman, later identified as Jessie Davis, was in the driver‘s seat. Overholtz also observed a man, later identified as Finfrock, in the front passenger seat. Overholtz testified that Finfrock was “slumped over in the seat facing forward.” Tr. p. 13. He also testified that he could not see Finfrock‘s hands. There was a female passenger in the backseat of the vehicle. Overholtz testified he smelled the odor of burnt marijuana emanating from the vehicle.
{¶ 5} Overholtz directed his partner to remove Finfrock from the car. Finfrock was placed in the back of the cruiser while Overholtz talked to Davis. Overholtz discovered that Davis was the registered owner of the Impala. Davis informed Overholtz she was not driving the car because she did not have her glasses and could not see without them. She stated that Finfrock had been driving. After Finfrock was identified, it was determined that his license was suspended.
{¶ 6} Overholtz decided to have the vehicle towed. After making the decision to tow the vehicle, Overholtz and his partner conducted a search of the vehicle. A box of ammunition for a .380 caliber handgun was located in the center console and a firearm was located underneath the front passenger seat. Thereafter, Finfrock was arrested and conveyed to the Dayton Police Department Safety Building.
{¶ 8} In April 2019, Finfrock entered a plea of no contest to all three charges. He was sentenced to community control sanctions for a period not to exceed five years. Finfrock appeals.
II. Standard of Review
{¶ 9} “Appellate review of a motion to suppress presents a mixed question of law and fact. When considering a motion to suppress, the trial court assumes the role of the trier of fact and is therefore in the best position to resolve factual questions and evaluate the credibility of witnesses.” (Citation omitted.) State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. “Consequently, an appellate court must accept the trial court‘s findings of fact if they are supported by competent, credible evidence. * * * Accepting these facts as true, the appellate court must then independently determine, without deference to the conclusion of the trial court, whether the facts satisfy the
III. Legality of the Stop
{¶ 10} Finfrock‘s first assignment of error is as follows:
THE TRIAL COURT DID ERROR IN DENYING DEFENDANT/APPELLANT‘S MOTION TO SUPPRESS EVIDENCE AS THERE WAS NOT A REASONABLE AND ARTICULABLE SUSPICION THAT DEFENDANT/APPELLANT COMMITTED A VIOLATION OF [THE] OHIO REVISED CODE.
{¶ 11} Finfrock argues the stop of the vehicle was illegal. In support, he claims the lack of a front license plate was not a valid reason for initiating the stop because the car was registered in Kentucky, which does not require a front plate. Finfrock also claims the alleged window tint violation was not a sufficient reason to stop the car because the tint was not measured and he was not charged with a window tint violation. Finally, Finfrock appears to claim that, since the failure to signal was not recorded on the cruiser camera, the violation was not established, and thus did not provide a valid basis for stopping the vehicle.
{¶ 12} A traffic stop is valid under the Fourth Amendment if the stop is based on an observed traffic or equipment violation or if the police officer has a reasonable, articulable suspicion that a traffic or equipment violation has occurred or is occurring. Dayton v. Erickson, 76 Ohio St.3d 3, 11, 665 N.E.2d 1091 (1996). It is not disputed that the dashboard camera videotape did not depict the turn signal violation.3 However,
{¶ 13} The first assignment of error is overruled.
IV. Finfrock‘s Detention
{¶ 14} The second assignment of error asserted by Finfrock is as follows:
DETAINING THE APPELLANT WAS ILLEGAL.
{¶ 15} In this assignment of error, Finfrock appears to take issue with the fact that he was removed from the Impala and detained in the back seat of the cruiser while Overholtz investigated the matter. He argues he was detained merely because Overholtz believed he had moved from the driver‘s side to the passenger‘s seat. He states that the situation, at most, merited further questioning while being issued a traffic citation. We disagree.
{¶ 16} As discussed, the vehicle was lawfully stopped. Thus, Finfrock, whether considered to be the driver or a passenger, could be detained for the duration of the stop. State v. Haynes, 2018-Ohio-607, 106 N.E.3d 342, ¶ 12 (2d Dist.). The stop included an investigation of the odor of burnt marijuana and of the reason why Finfrock and Davis switched seats.
{¶ 17} The second assignment of error is overruled.
V. Search of the Vehicle
THE WARRANTLESS SEARCH OF THE VEHICLE WAS ILLEGAL.
{¶ 19} Finfrock argues Overholtz lacked probable cause to search the Impala. In support, he claims the record demonstrates Overholtz searched the vehicle based upon his “feeling” that there were weapons in the vehicle. Finfrock also claims that no other reasons were given to create a legal justification for the search.
{¶ 20} When a law enforcement officer has probable cause to believe a vehicle contains contraband, he or she may search a validly stopped motor vehicle based on the automobile exception to the warrant requirement. Maryland v. Dyson, 527 U.S. 465, 466, 119 S.Ct. 2013, 144 L.Ed.2d 442 (1999). The Ohio Supreme Court has held “the smell of marijuana, alone, by a person qualified to recognize the odor, is sufficient to establish probable cause to search a motor vehicle, pursuant to the automobile exception to the warrant requirement. There need be no other tangible evidence to justify a warrantless search of a vehicle.” State v. Moore, 90 Ohio St.3d 47, 48, 734 N.E.2d 804 (2000). Thus, the odor of burnt marijuana provided probable cause to search the vehicle.
{¶ 21} After the suppression hearing witnesses had been excused, Finfrock argued that the State had failed to demonstrate that Overholtz was qualified to recognize the odor of marijuana. The trial court rejected the argument in part upon a finding that Overholtz‘s testimony was credible. Specifically, Overholtz‘s cross-examination includes testimony that his recognition of the odor of burnt marijuana was based upon “objective facts” within his knowledge. Tr. p. 38. Thus, there was evidence in the record to support a finding that Overholtz was qualified to recognize the smell of marijuana.
{¶ 22} The officers were also justified in conducting the search under the inventory
{¶ 23} During the suppression hearing, Finfrock argued that Overholtz “really wasn‘t familiar with” the Dayton Police Department Towing Policy. Tr. p. 60. He further argued there were “probably some gaps with respect to the extent that that [sic] it was followed.” Id. However, Finfrock did not specify any deficiencies related thereto. The trial court found this argument to lack merit.
{¶ 24} The tow policy, which was introduced into the record, demonstrates a preference for towing vehicles under circumstances where the vehicle was operated by a driver with a suspended license. The tow policy does permit the officer to release the vehicle if the registered owner is on the scene or gives another properly licensed driver permission to drive the vehicle. In this case, the record demonstrates Finfrock was driving the vehicle with a suspended license. Further, the owner of the vehicle indicated she was unable to drive the car because she did not have her glasses. There is nothing
{¶ 25} Because we conclude the record supports the legality of the vehicle‘s search, we overrule the third assignment of error.
VI. Miranda Violation
{¶ 26} Finfrock‘s fourth assignment of error provides:
APPELLANT‘S STATEMENTS WERE OBTAINED IN VIOLATION OF MIRANDA.
{¶ 27} Finfrock argues the trial court erred by failing to suppress statements made to the police because “no waiver of Miranda rights has been provided much less established.”
{¶ 28} In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the Supreme Court of the United States held that the state may not use incriminating statements made during a custodial interrogation unless it proves that procedural safeguards resulted in the defendant‘s voluntary waiver of his constitutional privilege against self-incrimination. These procedural safeguards include informing the defendant, before interrogation, of his right to remain silent, his right to speak with an attorney, and his right to have an attorney present during questioning. Id. When a defendant is entitled to these procedural safeguards, and the state has failed to inform the defendant of his rights, any incriminating statements made during a custodial
{¶ 29} The record demonstrates Overholtz arrested Finfrock at the scene of the traffic stop. Overholtz testified that Finfrock was not questioned at any time between his arrest and the time he was transported to the Safety Building for an interview. Upon arriving at the Safety Building, Finfrock was placed in an interview room where he met with Detective Ellis. The record demonstrates that, immediately upon entering the interview room, Ellis used a pre-interview form to administer Miranda warnings to Finfrock. Finfrock acknowledged his understanding of each right and placed his initials next to each of the individually numbered rights.4 He also read aloud the waiver of rights located at the bottom of the form and signed the form. After reviewing and executing the form, Ellis began to question Finfrock. Other than providing identifying information while executing the pre-interview form and stating that he did not “want to get anybody in trouble,” Finfrock did not respond to Ellis‘s questioning. Indeed, he almost immediately invoked his right to consult with an attorney, at which point Ellis terminated the interview.
{¶ 30} Other than the comment cited above, we cannot find any statements made by Finfrock during the time he was at the scene of the stop or during the transport to the Safety Building. As noted, the only statement he gave was made after he was advised of his rights. Thus, we conclude the trial court did not err in denying the motion to suppress as to any statements made by Finfrock. Therefore, the fourth assignment of error is overruled.
{¶ 31} All of Finfrock‘s assignments of error being overruled, the judgment of the trial court is affirmed.
DONOVAN, J. and WELBAUM, J., concur.
Copies sent to:
Mathias H. Heck, Jr.
Lisa M. Light
Mark A. Fisher
Hon. Richard Skelton