State v. Finfrock , 2020 Ohio 1142 ( 2020 )

[Cite as State v. Finfrock, 2020-Ohio-1142.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 28406
:
v. : Trial Court Case No. 2018-CR-4783
:
CHRISTOPHER J. FINFROCK : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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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.
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{¶ 1} Defendant-appellant Christopher Finfrock appeals from the trial court's
judgment finding him guilty of three firearms offenses after overruling his motion to
suppress. For the reasons set forth below, we affirm.
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 R.C. 2923.13(A)(3), one count of carrying a
concealed weapon (loaded/ready at hand) in violation of R.C. 2923.12(A)(2) and one
count of improper handling of firearm in a motor vehicle (loaded/no license) in violation of
R.C. 2923.16(B). After pleading not guilty, Finfrock filed a motion to suppress all
evidence and statements related to the traffic stop and subsequent search.
{¶ 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
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make a right turn onto East Third Street without a turn signal. Overholtz followed the car
for one block and observed it make a right turn onto South Philadelphia Street. At that
point, Overholtz initiated a traffic stop.
{¶ 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.
1
The video from the cruiser’s dashboard camera was submitted into evidence as State’s
Exhibit 1. The video shows the shaking of the vehicle.
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{¶ 7} The State also presented the testimony of Dayton Detective Justin Ellis, who
met with Finfrock in an interview room at the Safety Building. 2 Ellis testified that he
explained the reason for the interview and immediately began to explain Finfrock’s rights
to him using a pre-interview form. Finfrock indicated he understood each right as
explained by Ellis, and he wrote his initials by each of the enumerated rights. Finfrock
then read aloud the waiver of rights, indicated he understood it, and proceeded to sign
the form. The only statement made by Finfrock, other than providing identifying
information, was a statement indicating that he did not wish to cause trouble for others.
Finfrock then invoked his right to an attorney, and Ellis ended the interview.
{¶ 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
2
An audio recording of the interview was admitted as State’s Exhibit 4.
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applicable legal standard.” (Citations omitted.) Id.
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,
3
The video from the cruiser camera does not start until the Impala had already come to
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Overholtz’s testimony, if believed by the trial court, established that he observed Finfrock
fail to use his turn signal. This testimony was sufficient to establish that a traffic violation
occurred. Thus, the stop was supported by probable cause.
{¶ 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
a stop.
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{¶ 18} The third assignment of error states:
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
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search exception to the warrant requirement. Inventory searches are a well-defined
exception to the Fourth Amendment warrant requirement. State v. Foster, 2017-Ohio-
2858, 91 N.E.3d 98, ¶ 12 (8th Dist.), citing South Dakota v. Opperman, 428 U.S. 364,
369, 96 S. Ct. 3092, 49 L. Ed. 2d 1000 (1976); State v. Mesa, 87 Ohio St. 3d 105, 108, 717
N.E.2d 329 (1999). “Under this exception, when a vehicle is impounded, police are
permitted to follow a routine practice of administrative procedures for securing and
inventorying the vehicle's contents.” Foster at ¶ 12, citing Opperman. “An inventory
search is reasonable when it is performed in good faith pursuant to standard police policy,
and ‘when the evidence does not demonstrate that the procedure involved is merely a
pretext for an evidentiary search of the impounded vehicle.’ ” Id., quoting State v.
Robinson, 58 Ohio St. 2d 478, 480, 391 N.E.2d 317 (1979).
{¶ 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
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in the record to indicate the owner wanted, or gave permission to, anyone else to drive
the car. Based upon this evidence, we agree with the trial court’s conclusion that the
officers properly complied with the Dayton Towing Policy and that the inventory search
was therefore valid.
{¶ 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
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interrogation must be suppressed at trial. Id.
{¶ 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.
4
The pre-interview form and a recording of the interview between Ellis and Finfrock are
part of the record before us and are labeled as State’s Exhibit 3 and 4, respectively.
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VII. Conclusion
{¶ 31} All of Finfrock’s assignments of error being overruled, the judgment of the
trial court is affirmed.
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DONOVAN, J. and WELBAUM, J., concur.
Copies sent to:
Mathias H. Heck, Jr.
Lisa M. Light
Mark A. Fisher
Hon. Richard Skelton