[Cite as State v. Griffith, 2011-Ohio-4476.]




           IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO

STATE OF OHIO                                        :

        Plaintiff-Appellee                           :   C.A. CASE NO. 24275

vs.                                                 :    T.C. CASE NO. 09CR3834

GERRY E. GRIFFITH, JR.                               :   (Criminal Appeal from
                                                                              Common
                                                         Pleas Court)
        Defendant-Appellant                          :

                                        . . . . . . . . .

                                               O P I N I O N

                  Rendered on the 2nd day of September, 2011.

                                        . . . . . . . . .

Mathias H. Heck, Jr., Pros. Attorney; Laura M. Woodruff, Asst.
Pros. Attorney, Atty. Reg. No. 0084161, P.O. Box 972, Dayton, OH
45422
     Attorney for Plaintiff-Appellee

Lawrence J. Greger, Atty. Reg. No. 0002592, Suite 1100 Liberty
Tower, 120 W. Second Street, Dayton, OH 45402
     Attorney for Defendant-Appellant

                                        . . . . . . . . .

GRADY, P.J.:

        {¶ 1} Defendant, Gerry Griffith, appeals from his conviction

for possession of crack cocaine between one and five grams.                       R.C.

2925.11(A).            The conviction, which includes a sentence of five

years of community control sanctions, was ordered on a plea of no
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contest Defendant entered after the court denied his Crim.R.

12(C)(3) motion to suppress evidence of crack cocaine.           Defendant

appeals.

                            ASSIGNMENT OF ERROR

      {¶ 2} “THE TRIAL COURT ERRED IN OVERRULING THE APPELLANT’S

MOTION TO SUPPRESS THE CRACK COCAINE SEIZED AS A RESULT OF THE

SEARCH OF THE APPELLANT’S TRUNK.”

      {¶ 3} When considering a motion to suppress, the trial court

assumes the role of the trier of facts and is therefore in the best

position to resolve factual questions and evaluate the credibility

of   the   witnesses.       State   v.   Roberts,   110   Ohio   St.3d   71,

2006-Ohio-3665.      Consequently, an appellate court must accept the

trial court’s findings of fact if they are supported by competent,

credible evidence.       Id.    Accepting those facts as true, the

appellate    court   must    then   independently     determine,   without

deference to the trial court’s conclusion, whether those facts

satisfy the applicable legal standard.          Id.

      {¶ 4} The trial court denied Defendant’s motion to suppress

evidence in a written decision (Dkt. 21), in which the court made

findings of fact consistent with the testimony of Dayton Police

Officer Jeff C. Heiber at the hearing on Defendant’s motion.

      {¶ 5} Officer Heiber testified that he had nine years experience

as an officer of the Dayton Police Department.            While he was on
                                                                     3

patrol in his cruiser on November 11, 2009, at about 11:54 p.m.,

Officer Heiber saw a tan vehicle parked in the lot of a BP gas

station at the corner of Salem and Grand Avenues.    The vehicle was

“parked to the right in the parking lot, not by the pumps but just

parked off to the side, off to the right.”    (T. 9).   The building

serving the station was closed, the gates to its entrance having

been pulled down.    Officer Hieber explained:

     {¶ 6} “I then pulled into the gas station just to drive through.

I had made it a routine to [when I] end my shift I customarily drive

through that parking lot just on the way back to the District to

patrol it because we’ve had an increase of drug activity in that

gas station parking lot.”     (T. 9).

     {¶ 7} As he drove into the lot Officer Hieber saw that the driver

and sole occupant of the vehicle, Defendant Gerry Griffith, “had

his head down as if he was doing something or manipulating something

in his lap.”   Id.   When he looked up and made eye contact with the

officer, Defendant “immediately went into gear and started to pull

out of the parking lot.”    Id.

     {¶ 8} Officer Hieber testified that Defendant drove to an exit

for Salem Avenue, where he engaged his signal to turn right.

Defendant “actually started going right, and then turned left in

the middle of the road to go in the opposite direction . . .       It

was almost like a u-turn.”     (T. 11).
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     {¶ 9} Officer Hieber decided to follow Defendant’s vehicle for

a short distance to determine whether he was “drunk or been

drinking.”        Id.   Defendant turned from Salem Avenue onto a side

street without first signaling his turn.          Officer Hieber believed

this was a turn signal violation.           As Officer Hieber’s cruiser

approached Defendant’s vehicle, Defendant “abruptly just pulled

over to the right real quick and parked along side of the road.”

(T. 12).        Officer Hieber said: “I had to stop and put on my brakes

quickly to keep from running right past him.”              (T. 13).

     {¶ 10} Officer      Hieber   exited   his   vehicle    and   approached

Defendant’s vehicle on foot, intending to issue a citation for the

turn signal violation he witnessed.        While speaking with Defendant

through the opened driver’s window, and using a flashlight to

better see Defendant, Officer Hieber saw a bag of marijuana, in

plain view, on the console between the driver’s and passenger

seats, near the vehicle’s shift lever.           Officer Hieber testified

that, based on his nine years experience as a police officer, the

amount of marijuana he saw presented probable cause of a minor

misdemeanor offense, being less than 100 grams by weight.               (T.

34-35). 1       Absent circumstances which are not portrayed by this

record, minor misdemeanors are subject to citation instead of


            1
         Possession of marijuana weighing less than 100 grams is
   a minor misdemeanor. R.C. 2925.11(C)(3)(a), (b).
                                                                      5

arrest.     R.C. 2935.26(A).

     {¶ 11} Officer Hieber removed Defendant from his vehicle and

placed him in the officer’s cruiser.       Even though Defendant was

not subject to arrest, Officer Hieber returned to Defendant’s

vehicle to search the vehicle, including its trunk, for drugs.

Officer Hieber explained that he performed the search because

Defendant “had drugs in plain view in the vehicle.”    (T. 38).    When

he searched the trunk, Officer Hieber seized digital scales and

a bag that was later determined to contain crack cocaine.          The

cocaine was the basis of the violation of R.C. 2925.11(A) with which

Defendant was charged.

     {¶ 12} Defendant did not contest the traffic stop in the motion

to   suppress   he   filed.    Defendant   instead    challenged    the

warrantless search of the trunk of his vehicle that yielded the

crack cocaine the officer seized.      The trial court overruled

Defendant’s motion to suppress.     The trial court concluded that

“once probable cause to search a vehicle has been established by

discovering contraband in open view in the passenger compartment,

an officer may search the entire vehicle, including the trunk and

all containers therein that might contain contraband.”      (Decision

at p. 6.)

     {¶ 13} Defendant argues that the search of his vehicle was not

justified because he was not under arrest when the search was
                                                                         6

performed.      Defendant points out that his alleged traffic code

offenses permitted his citation, not an arrest.          Defendant also

points to Officer Hieber’s testimony that, from his experience,

the officer knew that the amount of marijuana he saw presented

probable cause of a minor misdemeanor offense, for which a citation

instead of arrest is likewise required.

     {¶ 14} The United States Constitution requires the exclusion of

evidence only when a particular arrest, search, or seizure violates

the Fourth Amendment.      Michigan v. Long (1983), 463 U.S. 1032, 103

S.Ct.   3469,    77   L.Ed.2d   1201.   The   Ohio   Supreme   Court   has

consistently held that the exclusionary rule will not be applied

to evidence secured in violation of state law, but not in violation

of constitutional rights.       See State v. Thompson (1987), 33 Ohio

St.3d 1. To justify application of the exclusionary rule, the

effect of the violation of state law must create a collateral

violation of the defendant’s federal or state constitutional

rights.    State v. Brown, 99 Ohio St.3d 323, 2002-Ohio-3931.

Therefore, the fact that Officer Hieber may have been barred by

R.C. 2935.26(A) from placing Defendant under arrest because of the

marijuana the officer saw in the passenger compartment of his

vehicle does not, in and of itself, present basis for the

suppression of the evidence the officer seized in the search of

the vehicle’s trunk.        That search must itself have been an
                                                                              7

unconstitutional search or seizure for the lack of a necessary

warrant.

     {¶ 15} The State does not rely on the search incident to arrest

exception to the Fourth Amendment’s warrant requirement to justify

the warrantless search of the trunk of Defendant’s vehicle.

Instead,   the     State    argues   that   the    warrantless    search   was

reasonable because the officer had probable cause to perform the

search.    The existence of probable cause satisfies the purposes

of the warrant requirement, and relieves an officer of the need

to obtain a prior warrant when that is not practicable.                Probable

cause exists when a reasonably prudent person would believe that

a place to be searched contains evidence of a crime.             Beck v. Ohio

(1964), 37 9 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142.

     {¶ 16} Under the well recognized automobile exception to the

Fourth Amendment’s warrant requirement, police may conduct a

warrantless search of a vehicle if there is probable cause to

believe    that    the     vehicle   contains     contraband,    and   exigent

circumstances necessitate a search or seizure.                 State v. Mills

(1992), 62 Ohio St.3d 357; Chambers v. Maroney (1970), 399 U.S.

42, 90 S.Ct. 1975, 26 L.Ed.2d 419.           A vehicle’s mobility is the

traditional       exigency     for   this   exception     to     the   warrant

requirement.      Mills; California v. Carney (1985), 471 U.S. 386,

105 S.Ct. 2066, 85 L.Ed.2d 406.
                                                                         8

       {¶ 17} Defendant relies upon State v. Farris, 109 Ohio St.3d

519, 2006-Ohio-3255, wherein the Ohio Supreme Court wrote that a

trunk and a passenger compartment of an automobile are subject to

different standards of probable cause to conduct searches, to argue

that the search of his trunk was unlawful.         Defendant’s    reliance

upon    Farris   is   misplaced   because   that    case   is    factually

distinguishable.

       {¶ 18} In Farris, following a traffic stop, an officer detected

a “light odor” of burnt marijuana coming from the vehicle’s

passenger compartment.      He subsequently searched the vehicle’s

trunk where drugs were discovered and seized.          The Supreme Court

held:

       {¶ 19} “{¶ 51} A trunk and a passenger compartment of an

automobile are subject to different standards of probable cause

to conduct searches. In State v. Murrell (2002), 94 Ohio St.3d 489,

764 N.E.2d 986, syllabus, this court held that ‘[w]hen a police

officer has made a lawful custodial arrest of the occupant of an

automobile, the officer may, as a contemporaneous incident of that

arrest, search the passenger compartment of that automobile.’

(Emphasis added.) The court was conspicuous in limiting the search

to the passenger compartment.

       {¶ 20} “{¶ 52} The odor of burnt marijuana in the passenger

compartment of a vehicle does not, standing alone, establish
                                                                    9

probable cause for a warrantless search of the trunk of the vehicle.

United States v. Nielsen (C.A.10, 1993), 9 F.3d 1487. No other

factors justifying a search beyond the passenger compartment were

present in this case. The officer detected only a light odor of

marijuana, and the troopers found no other contraband within the

passenger compartment. The troopers thus lacked probable cause to

search the trunk of Farris's vehicle. Therefore, the automobile

exception does not apply in this case.”

     {¶ 21} The Fourth Amendment limits searches to places where

evidence of criminal activity is likely to be found.   Farris stands

for the proposition that the odor of burnt marijuana in a vehicle’s

passenger   compartment,   standing   alone,    doesn’t   present   a

likelihood that the vehicle’s trunk contains marijuana.    The point

of distinction is whether the character or nature of drugs found

“in plain view” (or smell) in the passenger compartment     presents

a likelihood that the vehicle’s trunk contains drugs or other

contraband, such that a search of the trunk is justified by the

automobile exception to the warrant requirement.

     {¶ 22} In Farris, “[n]o other factors justifying a search beyond

the passenger compartment were present.”       Farris identified one

of those other potential factors to include “contraband within the

passenger compartment.”    That precise factor was present here.

In addition, the officer first saw Defendant in a parking lot which,
                                                                   10

in the officer’s experience, has seen “an increase in drug

activity.”   (T. 9).    Coupled with that, Defendant’s pattern of

driving after he saw the officer was evasive, possibly suggesting

that he had reason to avoid contact with the officer.    California

v. Hodari D. (1991), 499 U.S. 621, 113 L.Ed.2d 690, 111 S.Ct. 1547,

n. 1.

     {¶ 23} The trial court did not err in denying Defendant’s motion

to suppress evidence.   The assignment of error is overruled.    The

judgment from which the appeal is taken will be affirmed.



FAIN, J., and HALL, J., concur.



Copies mailed to:

Laura M. Woodruff, Esq.
Lawrence J. Greger, Esq.
Hon. Mary Katherine Huffman
