State v. Flack , 2023 Ohio 1705 ( 2023 )

[Cite as State v. Flack, 2023-Ohio-1705.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
UNION COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 14-22-24
v.
JONATHAN ROBERT FLACK, OPINION
DEFENDANT-APPELLANT.
Appeal from Union County Common Pleas Court
Trial Court No. 2021 CR 0232
Judgment Affirmed
Date of Decision: May 22, 2023
APPEARANCES:
Alison Boggs for Appellant
David W. Phillips for Appellee
Case No. 14-22-24
ZIMMERMAN, J.
{¶1} Defendant-appellant, Jonathan Robert Flack (“Flack”), appeals the
April 26, 2022 judgment entry of the Union County Court of Common Pleas
denying his motion to suppress evidence and the October 27, 2022 judgment entry
of sentencing. For the reasons that follow, we affirm.
{¶2} This case stems from a traffic stop of the vehicle operated by Flack on
October 6, 2021 by Trooper Osama Hamed (“Tpr. Hamed”) of the Ohio State
Highway Patrol. Tpr. Hamed observed Flack’s vehicle traveling westbound along
U.S. Highway 33 in Marysville, Union County, Ohio, driving below the posted
speed limit and with an improperly displayed license plate. After initiating a traffic
stop, Tpr. Hamed observed indicators of impairment supporting that Flack may be
operating the vehicle under the influence of alcohol or drugs. Tpr. Hamed requested
Flack to exit his vehicle in order to further investigate whether or not he was
impaired.
{¶3} While Tpr. Hamed was administering the field sobriety tests (“FST”) to
Flack, another law enforcement officer arrived on the scene with a drug-detecting
dog leading to a search of Flack’s vehicle wherein a large amount of drugs and other
contraband were discovered.
{¶4} On November 12, 2021, Flack was indicted by the Union County Grand
Jury on the following criminal charges: Count One for aggravated possession of
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drugs in violation of R.C. 2925.11(A), (C)(1)(e), a first-degree felony, along with
major drug offender (“MDO”), firearm, notice of prior conviction, and forfeiture
specifications; Count Two for aggravated trafficking in drugs in violation of R.C.
2925.03(A)(2), (C)(1)(f), a first-degree felony, with MDO, firearm, notice of prior
conviction, and forfeiture specifications; Count Three for having weapons while
under disability in violation of R.C. 2923.13(A)(3), (B), a third-degree felony, with
a forfeiture specification; and Count Four for possession of criminal tools in
violation of R.C. 2923.24(A), (C), a fifth-degree felony. On November 16, 2021,
Flack appeared for arraignment and entered pleas of not guilty.
{¶5} On February 3, 2022, Flack filed a motion to suppress evidence arguing
that Tpr. Hamed did not have probable cause to stop Flack based on his
observations. The State filed a memorandum in response arguing that the traffic
stop was supported by reasonable and articulable suspicion, and the warrantless
search was supported by probable cause. Following the suppression hearing, the
trial court denied Flack’s motion to suppress evidence.
{¶6} A superseding indictment was filed on February 11, 2022, which
indicted Flack on the following criminal counts: Count One for aggravated
possession of drugs in violation of R.C. 2925.11(A), (C)(1)(e), a first-degree felony,
with MDO, firearm, notice of prior conviction, and forfeiture specifications; Count
Two for aggravated trafficking in drugs in violation of R.C. 2925.03(A)(2),
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(C)(1)(f), a first-degree felony, with MDO, firearm, notice of prior conviction, and
forfeiture specifications; Count Three for having weapons while under disability in
violation of R.C. 2923.13(A)(3), (B), a third-degree felony, with a forfeiture
specification; Count Four for possession of criminal tools in violation of R.C.
2923.24(A), (C), a fifth-degree felony; Count Five for aggravated possession of
drugs in violation of R.C. 2925.11(A), (C)(1)(a), a fifth-degree felony; and Count
Six for possession of drugs in violation of R.C. 2925.11(A), (C)(2)(a), a fifth-degree
felony. Flack appeared for arraignment on March 10, 2022 and entered not guilty
pleas to the criminal counts in the superseding indictment.
{¶7} On August 22, 2022, Flack withdrew his pleas of not guilty and entered
no-contest pleas, under a negotiated-plea agreement, to all counts in the superseding
indictment along with all specifications. In exchange for his no-contest pleas, the
State stipulated that Counts One and Two merged for the purposes of sentencing.
Then, Flack stipulated to the facts detailed in the negotiated-plea agreement as if
they were read into the record. Thereafter, the trial court accepted Flack’s no-
contest pleas and found him guilty of the charges.
{¶8} On October 27, 2022, the trial court held a sentencing hearing. The trial
court merged Counts One and Two for the purpose of sentencing with the State
electing to proceed to sentencing on Count Two. Flack was then sentenced to a
mandatory prison term of one year for the firearm specification under Count Two
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to be served consecutively to a minimum mandatory prison term of 11 years with a
maximum of 16.5 years under Count Two. Further, Flack was sentenced to a 24-
month prison term under Count Three, a six-month prison term under Count Four,
and 12-month prison terms under Counts Five and Six. Counts Three, Four, Five,
and Six were all run consecutively to Count Two for an aggregate term of 16.5 years
to 22 years in prison.
{¶9} Flack filed a timely notice of appeal on November 23, 2022, and raises
two assignments of error for our review, which we will address in the order
presented.
First Assignment of Error
The Trial Court Erred When It Denied Appellant’s Suppression
Motion As The Stop Violated His Fourth Amendment Right
Against Unreasonable Searches And Seizures.
{¶10} In his first assignment of error, Flack argues that the trial court erred
by denying his motion to suppress evidence. In particular, Flack asserts that the
initiation and the duration of his traffic stop were unreasonable under the
circumstances. Flack further argues that the canine could not distinguish smells
between medical marijuana and illegal marijuana.
Standard of Review
{¶11} A review of the denial of a motion to suppress involves mixed
questions of law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372,
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¶ 8, citing State v. Mills, 62 Ohio St.3d 357, 366 (1992). At a suppression hearing,
the trial court assumes the role of trier of fact and, as such, is in the best position to
evaluate the evidence and the credibility of witnesses. Id. When reviewing a ruling
on a motion to suppress, deference is given to the trial court’s findings of fact so
long as they are supported by competent, credible evidence. Id., citing State v.
Fanning, 1 Ohio St.3d 19 (1982). With respect to the trial court’s conclusions of
law, however, our standard of review is de novo, and we must decide whether the
facts satisfy the applicable legal standard. Id., citing State v. McNamara, 124 Ohio
App.3d 706, 710 (4th Dist.1997), superseded by state regulation on other grounds,
State v. Schmehl, 3d Dist. Auglaize No. 2-05-33, 2006-Ohio-1143, ¶ 22.
Analysis
{¶12} Notably, Flack did not challenge the duration of the traffic stop or the
probable cause to search his vehicle in his motion to suppress or during his
suppression hearing. Rule 12(C) of the Rules of Criminal Procedure requires Flack
to do so and his failure “‘constitute[s a] waiver of the defenses or objections’ for
purposes of trial.” State v. Hahn, 3d Dist. Henry No. 7-21-02, 2021-Ohio-3789, ¶
10, quoting Columbus v. Cort, 10th Dist. Franklin No. 19AP-425, 2020-Ohio-1467,
¶ 12, quoting Crim.R. 12(H). However, notwithstanding the foregoing, the State
addressed the duration of the stop (in its response to Flack’s motion), and the trial
court (in its entry) ultimately acknowledged that even though Flack had not
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challenged the duration of the stop, the continued detention was justified. Hence,
we conclude the issue regarding the duration of the traffic stop has not been waived
and has been preserved for our review.
{¶13} Conversely, whether the canine is credible or has the ability to
distinguish smells between medical marijuana and illegal marijuana was never
raised in the trial court. Thus, the trial court did not have the opportunity to consider
the canine’s ability to distinguish between medical marijuana and the presence of
illegal marijuana. Consequently, Flack has waived his challenge related to the
canine sniff, other than, plain error. Id., citing id. at ¶ 12-13, State v. Porter, 2d
Dist. Montgomery No. 28288, 2019-Ohio-4482, ¶ 22-23, and Marion v. Brewer, 3d
Dist. Marion No. 9-08-12, 2008-Ohio-5401, ¶ 10. The burden to demonstrate plain
error falls upon the party seeking to assert it. State v. Quarterman, 140 Ohio St.3d
464, 2014-Ohio-4034, ¶ 16; Hahn at ¶ 10. On appeal, Flack has failed to develop
any plain-error argument, and thus, we will not fashion one for him. See Hahn at ¶
10, citing State v. Rottman, 6th Dist. Lucas No. L-20-1061, 2021-Ohio-1618, ¶ 7.
Consequently, we will not address Flack’s arguments related to the canine’s
credibility or ability to distinguish between medical marijuana and illegal marijuana.
{¶14} The question of whether a traffic stop violates the Fourth Amendment
involves an objective assessment of an officer’s actions in light of the facts and
circumstances known to the officer at the time he or she initiates the traffic stop.
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Dayton v. Erickson, 76 Ohio St.3d 3, 6 (1996), citing United States v. Ferguson, 8
F.3d 385, 388 (6th Cir.1993). The officer must be able to point to “‘[s]pecific and
articulable facts’ that will justify an investigatory stop by way of reasonable
suspicion include: (1) location; (2) the officer’s experience, training or knowledge;
(3) the suspect’s conduct or appearance; and (4) the surrounding circumstances.”
State v. Purtee, 3d Dist. Logan No. 8-04-10, 2006-Ohio-6337, ¶ 9, quoting State v.
Gaylord, 9th Dist. Summit No. 22406, 2005-Ohio-2138, ¶ 9, citing State v. Bobo,
37 Ohio St.3d 177, 178-179 and State v. Davison, 9th Dist. Summit No. 21825,
2004-Ohio-3251, ¶ 6.
{¶15} The record reveals that Tpr. Hamed first observed Flack while he (Tpr.
Hamed) was in the passing lane driving beside Flack who was in the driving lane
traveling westbound on U.S. 33. Flack was driving slower than the posted speed
limit and had an improperly displayed license plate. Tpr. Hamed testified that after
he made his observations, he moved into the cross median on U.S. 33 so he could
continue to observe Flack’s driving behavior. Tpr. Hamed testified that he
continued to observe Flack (from the cross median), then he pulled out and followed
Flack.1 According to Tpr. Hamed, once he caught up to Flack’s Ford Ranger, he
1
Interestingly, Flack asserts that since Tpr. Hamed pulled off the highway (sitting in the cross median) to
further observe his driving behavior and because Tpr. Hamed did not initiate the traffic stop when he first
observed the traffic violation, that the information was stale, thus necessitating further facts to justify a traffic
stop. Flack is, in essence, arguing a “use-it-or-lose-it” proposition. At all times relevant herein Flack was
engaged in an ongoing traffic violation, and consequently such an assertion lacks merit. See United States v.
Anderson, 6th Cir. No. 10-2638, 2012 WL 283708, *3 (Jan. 31, 2012); United States v. Street, 614 F.3d 228,
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initiated a traffic stop for a violation of R.C. 4503.21. R.C. 4503.21 provides in its
pertinent part:
(A)(1) No person who is the owner or operator of a motor vehicle shall
fail to display in plain view on the rear of the motor vehicle a license
plate that displays the distinctive number and registration mark
assigned to the motor vehicle by the director of public safety,
including any county identification sticker and any validation sticker
when required by and issued under sections 4503.19 and 4503.191 of
the Revised Code. * * *.
(Emphasis added.)
{¶16} In our review of the record, Flack’s license plate was not displayed “in
plain view” within the meaning of R.C. 4503.21, and thus Flack was not in
compliance with R.C. 4503.21 when Tpr. Hamed initiated his traffic stop. Hence,
Tpr. Hamed had a reasonable suspicion to initiate the traffic stop of Flack.
{¶17} Next, Flack contends that the duration of his traffic stop was
unreasonable in light of the delay of Tpr. Hamed’s investigation. Put more plainly–
Flack asserts that Tpr. Hamed’s subjective motivation for the traffic stop was
pretextual (i.e. to uncover evidence of drug trafficking), which he argues is
supported by Tpr. Hamed’s call for a canine sniff moments into the traffic stop and
Tpr. Hamed’s slow administration of the field sobriety tests.
{¶18} When conducting a traffic stop, an officer “‘may detain an automobile
for a time sufficient to investigate the reasonable, articulable suspicion for which
232 (6th Cir.2010), citing Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 1772 (1996). See also
State v. Beleford, 3d Dist. Seneca No. 13-06-32, 2007-Ohio-1912, ¶ 5.
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the vehicle was initially stopped.’” State v. Troutman, 3d Dist. Marion No. 9-11-
17, 2012-Ohio-407, ¶ 22, quoting State v. Smith, 117 Ohio App.3d 278, 285 (1st
Dist.1996). The stop “must be temporary and last no longer than is necessary to
effectuate the purpose of the stop.” Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct.
1319, 1326 (1983). Nevertheless, if, during the course of the traffic stop, the officer
develops a reasonable suspicion that the occupants of the vehicle are engaged in
criminal activity unrelated to the officer’s original justification for the stop, the
officer may expand the scope and duration of the stop as reasonably necessary to
investigate his new suspicion. State v. Batchili, 113 Ohio St.3d 403, 2007-Ohio-
2204, ¶ 15; State v. Waldroup, 100 Ohio App.3d 508, 513 (12th Dist.1995).
{¶19} Further, because this case involved a canine sniff of a vehicle, we note
that law enforcement officer may cause a canine sniff of a vehicle to be conducted
without reasonable suspicion of additional illegal activity, provided that “‘the
officer conducts [the] canine sniff of the vehicle before the reasonable completion
of the traffic stop procedures * * *.’” State v. Casey, 12th Dist. Warren No.
CA2013-10-090, 2014-Ohio-2586, ¶ 22, quoting State v. Elliott, 7th Dist. Mahoning
No. 11 MA 182, 2012-Ohio-3350, ¶ 23, citing State v. Winger, 2d Dist. Darke No.
1688, 2007-Ohio-2605, ¶ 17.
{¶20} The facts reveal that, while speaking with Flack regarding his
improperly displayed license plate, Tpr. Hamed observed indicators that Flack was
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impaired.2 Tpr. Hamed then removed Flack from the vehicle and placed him in his
cruiser and returned to the vehicle to speak to Flack’s passenger. When Tpr. Hamed
returned to his vehicle, Flack admitted to using methamphetamines a few days
earlier. Tpr. Hamed then elected to perform the standardized FST on Flack, and
called for a canine handler.3 See State v. Sidey, 3d Dist. Allen No. 1-19-32, 2019-
Ohio-5169, ¶ 12, fn. 2.
{¶21} In the midst of Tpr. Hamed’s investigation, a Marysville police officer
arrived on scene. Tpr. Hamed stepped to the side to bring the officer up to speed on
his unfolding investigation of Flack. Then, Tpr. Hamed began administering the
FST on Flack while the other officer monitored traffic and Flack’s passenger. While
Tpr. Hamed was administering the field tests, a third officer, Ofcr. Hirtzinger (the
canine handler) arrived on scene. Ofcr. Hirtzinger requested the Marysville police
officer to remove the passenger from Flack’s vehicle so he could start the canine-
sniff process.
{¶22} Thereafter, the canine sniff resulted in a positive alert and potential for
the presence of drugs in Flack’s vehicle. Ultimately, a search of vehicle resulted in
the discovery of drugs.
2
Flack was mumbling and slow to answer Tpr. Hamed’s questions, and he had glassy eyes, facial tremors,
and his face was flushed.
3
Plain City Police Officer, Josh Hirtzinger (“Ofc. Hirtzinger”), and his canine partner, Andor, were
dispatched immediately and en route. Ofc. Hirtzinger testified at the suppression hearing.
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{¶23} Under the totality of the circumstances, we conclude that Tpr. Hamed
possessed a “reasonable, articulable suspicion”, which was supported by “specific
and articulable facts” that justified his stop of Flack for a display of license plates,
registrations, marks, placards, and stickers violation. Further, Tpr. Hamed
possessed a “reasonable, articulable suspicion”, which was supported by “specific
and articulable facts” that his observations of indicators of impairment on Flack
justified the duration of the traffic stop, and Flack’s continued detention during
which a canine sniff was performed that developed into probable cause to search
Flack’s vehicle. Consequently, the trial court’s findings are supported by
competent, credible evidence. Thus, the trial court did not err by overruling Flack’s
motion to suppress evidence.
{¶24} Accordingly, Flack’s first assignment of error is overruled.
Second Assignment of Error
The Trial Court’s Imposition Of An Indefinite Sentence
Pursuant To The Statutory Scheme Knowns As “The Reagon
[sic] Tokes Law” Is Unconstitutional And Must Be Reversed.
{¶25} In his second assignment of error, Flack argues that the indefinite
sentence of incarceration imposed on Count Two pursuant to the Reagan Tokes Law
is unconstitutional. Specifically, Flack asserts that these provisions violate the
separation-of-powers doctrine, infringe on his right to due process, and violate his
right to a jury trial.
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{¶26} As this Court has noted in State v. Ball, 3d Dist. Allen No. 1-21-16,
2022-Ohio-1549, challenges to the Reagan Tokes Law do not present a matter of
first impression to this Court. Ball at ¶ 59. “Since the indefinite sentencing
provisions of the Reagan Tokes Law went into effect in March 2019, we have
repeatedly been asked to address the constitutionality of these provisions. We have
invariably concluded that the indefinite sentencing provisions of the Reagan Tokes
Law do not facially violate the separation-of-powers doctrine or infringe on
defendants’ due process rights.” Id., citing e.g., State v. Crawford, 3d Dist. Henry
No. 7-20-05, 2021-Ohio-547, ¶ 10-11; State v. Hacker, 3d Dist. Logan No. 8-20-01,
2020-Ohio-5048, ¶ 22; State v. Wolfe, 3d Dist. Union No. 14-21-16, 2022-Ohio-96,
¶ 21. Further, for the reasons stated in Ball, the remaining constitutional issue under
Reagan Tokes related to a jury trial is also unavailing. Id. at ¶ 61-63. Thus, on the
basis of Ball and our prior precedent, we find no merit to Flack’s arguments.
{¶27} Accordingly, Flack’s second assignment of error is overruled.
{¶28} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
MILLER, P.J. and WALDICK, J., concur.
/jlr
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