State v. Flack

[Cite as State v. Flack, 

.]




                       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, 

, 

,


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¶ 8, citing State v. Mills, 

 (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. 

 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. 

 citing State v.

Fanning, 

 (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. 

 citing State v. McNamara, 

 (4th Dist.1997), superseded by state regulation on other grounds,

State v. Schmehl, 3d Dist. Auglaize No. 2-05-33, 

.

                                        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, 

, quoting Columbus v. Cort, 10th Dist. Franklin No. 19AP-425, 

, 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. 

 citing id. at ¶ 12-13, State v. Porter, 2d

Dist. Montgomery No. 28288, 

, and Marion v. Brewer, 3d

Dist. Marion No. 9-08-12, 

. The burden to demonstrate plain

error falls upon the party seeking to assert it. State v. Quarterman, 

, 

; 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, 

.

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, 

 (1996), citing United States v. Ferguson, 

 (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, 

, quoting State v.

Gaylord, 9th Dist. Summit No. 22406, 

, citing State v. Bobo,

, 178-179 and State v. Davison, 9th Dist. Summit No. 21825,

.

         {¶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, 

, *3 (Jan. 31, 2012); United States v. Street, 

,

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Case No. 14-22-24


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, 

, 

 (1996). See also
State v. Beleford, 3d Dist. Seneca No. 13-06-32, 

.

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Case No. 14-22-24


the vehicle was initially stopped.’” State v. Troutman, 3d Dist. Marion No. 9-11-

17, 

, quoting State v. Smith, 

 (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, 

, 

 (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, 

, 2007-Ohio-

2204, ¶ 15; State v. Waldroup, 

 (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, 

, quoting State v. Elliott, 7th Dist. Mahoning

No. 11 MA 182, 

, citing State v. Winger, 2d Dist. Darke No.

1688, 

.

       {¶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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Case No. 14-22-24


        {¶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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Case No. 14-22-24


       {¶26} As this Court has noted in State v. Ball, 3d Dist. Allen No. 1-21-16,

, 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.” 

 citing e.g., State v. Crawford, 3d Dist. Henry

No. 7-20-05, 

; State v. Hacker, 3d Dist. Logan No. 8-20-01,

; State v. Wolfe, 3d Dist. Union No. 14-21-16, 

,

¶ 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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