Mr. 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. Mr. Flack is, in essence, arguing a “use-it-or-lose-it” proposition. At all times relevant herein Mr. Flack was engaged in an ongoing traffic violation, and consequently such an assertion lacks merit.
State v. Flack
2023 – Ohio – 1705
Third District Appellate Court
Union County, Ohio
May 22, 2023
This case stems from a traffic stop of the vehicle operated by Mr. Jonathan Flack on Wednesday October 6, 2021 by Trooper Osama Hamed of the Ohio State Highway Patrol. Tpr. Hamed observed Mr. 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 Mr. Flack may be operating the vehicle under the influence of alcohol or drugs. Tpr. Hamed requested Mr. Flack to exit his vehicle in order to further investigate whether or not he was impaired.
While Tpr. Hamed was administering the field sobriety tests (“FST”) to Mr. Flack, a Plain City Police Officer arrived on the scene with a drug-detecting dog leading to a search of Mr. Flack’s vehicle wherein a large amount of drugs and other contraband were discovered.
Grand Jury Indictment Including Two Counts of Major Drug Offender
On November 12, 2021, Mr. Flack was indicted by the Union County Grand Jury on the following criminal charges:
Count One for aggravated possession of drugs in violation of O.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 O.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 O.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 O.R.C. §2923.24(A), (C), a fifth-degree felony.
*The specific type of narcotic is not identified in the case.
On November 16, 2021, Mr. Flack appeared for arraignment and entered pleas of not guilty.
Motion to Suppress is Denied
On February 3, 2022, Mr. Flack filed a motion to suppress evidence arguing that Tpr. Hamed did not have probable cause to stop Mr. 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 Mr. Flack’s motion to suppress evidence.
Plea Bargain Must Have Been a Better Option than Going to Trial
On August 22, 2022, Mr. 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, Mr. Flack stipulated to the facts detailed in the negotiated-plea agreement as if they were read into the record. Thereafter, the trial court accepted Mr. Flack’s no- contest pleas and found him guilty of the charges.
Sentenced to Sixteen and a Half Years to Twenty-Two Years
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. Mr. Flack was then sentenced to a mandatory prison term of one year for the firearm specification under Count Two to be served consecutively to a minimum mandatory prison term of 11 years with a maximum of 16.5 years under Count Two. Further, Mr. 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.
Was the Delayed Traffic Stop Violative of the Stale Probable Cause Doctrine?
Mr. 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.
Appeal
The record reveals that Tpr. Hamed first observed Mr. Flack while he (Tpr. Hamed) was in the passing lane driving beside Mr. Flack who was in the driving lane traveling westbound on U.S. 33. Mr. 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 Mr. Flack’s driving behavior. Tpr. Hamed testified that he continued to observe Mr. Flack (from the cross median), then he pulled out and followed Mr. Flack.
Stale Probable Cause Doctrine Lacks Merit
Footnote #1: Interestingly, Mr. 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. Mr. Flack is, in essence, arguing a “use-it-or-lose-it” proposition. At all times relevant herein Mr. 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,
According to Tpr. Hamed, once he caught up to Mr. Flack’s Ford Ranger, he initiated a traffic stop for a violation of O.R.C. §4503.21.
O.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.
Reasonable Suspicion to Stop Mr. Flack
In our review of the record, Mr. Flack’s license plate was not displayed “in plain view” within the meaning of O.R.C. §4503.21, and thus Mr. Flack was not in compliance with O.R.C. §4503.21 when Tpr. Hamed initiated his traffic stop. Hence, Tpr. Hamed had a reasonable suspicion to initiate the traffic stop of Mr. Flack.
Did the Canine Request Unreasonably Extend the Traffic Stop?
Next, Mr. Flack contends that the duration of his traffic stop was unreasonable in light of the delay of Tpr. Hamed’s investigation. Put more plainly– Mr. 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.
Casey, Elliot and Winger Provide Tpr. Hamed a Solid Legal Foundation
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, 2014-Ohio-2586, quoting State v. Elliott, 2012-Ohio-3350, citing State v. Winger, 2007-Ohio-2605.
Jonathan Admitted to Ingesting Meth a Few Days Earlier
The facts reveal that, while speaking with Mr. Flack regarding his improperly displayed license plate, Tpr. Hamed observed indicators that Mr. Flack was impaired. Tpr. Hamed then removed Mr. Flack from the vehicle and placed him in his cruiser and returned to the vehicle to speak to Mr. Flack’s passenger. When Tpr. Hamed returned to his vehicle, Mr. Flack admitted to using methamphetamines a few days earlier. Tpr. Hamed then elected to perform the standardized FST on Mr. Flack, and called for a canine handler.
Canine Alert
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 Mr. Flack. Then, Tpr. Hamed began administering the FST on Mr. Flack while the other officer monitored traffic and Mr. Flack’s passenger. While Tpr. Hamed was administering the field tests, a third officer, Ofcr. Hirtzinger (the canine handler) arrived on scene. Officer Hirtzinger requested the Marysville police officer to remove the passenger from Mr. Flack’s vehicle so he could start the canine- sniff process.
Thereafter, the canine sniff resulted in a positive alert and potential for the presence of drugs in Mr. Flack’s vehicle. Ultimately, a search of vehicle resulted in the discovery of drugs.
Third District Determines Mr. Flack Vehicle was Rolling Reasonable Suspicion
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 Mr. 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 Mr. Flack justified the duration of the traffic stop, and Mr. Flack’s continued detention during which a canine sniff was performed that developed into probable cause to search Mr. Flack’s vehicle. Consequently, the trial court’s findings are supported by competent, credible evidence. Thus, the trial court did not err by overruling Mr. Flack’s motion to suppress evidence.
Holding
Accordingly, Mr. Flack’s first assignment of error is overruled.
Mr. Flack’s first parole hearing is scheduled for Sunday May 2, 2038 according to the Ohio Department of Rehabilitation and Corrections website. No time for the hearing is listed.
https://appgateway.drc.ohio.gov/OffenderSearch/Search/Details/A807483
*It is unclear why Mr. Flack’s parole hearing is schedule for a Sunday.
Information for this article was obtained from State v. Flack, 2023 – Ohio – 1705.
State v. Flack, 2023 – Ohio – 1705, was issued by the Third District Appellate Court and is binding in the following Ohio Counties: Allen, Auglaize, Crawford, Defiance, Hancock, Hardin, Henry, Logan, Marion, Mercer, Paulding, Putnam, Seneca, Shelby, Union, Van Wert and Wyandot.
Lessons Learned:
- Stale Probable Cause – Flack focused part of his appeal on the Stale Probable Cause Doctrine. This doctrine applies when law enforcement obtains intervening information from the time Probable Cause is established to the time it is acted upon by officers that renders the initial Probable Cause stale. The staleness is often information that due to time the evidence could have been moved, destroyed, consumed or in some way removed. Staleness could also occur if law enforcement receives exculpatory information that the initial suspect is no longer the suspect and therefore the original Probable Cause is unreliable. In this case, Mr. Flack and his legal team make the feeble argument that once Tr. Hamed did not observe his license plate, he delayed the traffic stop to observe more driving by Mr. Flack and that delay rendered the Probable Cause to stop Mr. Flack stale. In evaluating this unique legal argument the court quickly dismissed by stating in pertinent part “Mr. Flack is, in essence, arguing a “use-it-or-lose-it” proposition. At all times relevant herein Mr. Flack was engaged in an ongoing traffic violation, and consequently such an assertion lacks merit.”. Consequently, there is no use-it-or-lose-it legal doctrine.
- Did Tr. Hamed Unreasonably Extend the Traffic Stop? Flack and his legal team make another feeble argument that calling for the canine in and of itself unreasonably delayed the traffic stop. Though not mentioned in the case, the inference is that this canine request is violative of extending the traffic stop beyond the original purpose. The fundamental Fourth Amendment premise for canine stop detention was established by the U.S. Supreme Court in United States v. Rodriguez, 575 U.S. 348 (2015) when it held “Because addressing the infraction is the purpose of the stop, it may last no longer than is necessary to effectuate that purpose. Authority for the seizure ends when tasks tied to the traffic infraction are – or reasonably should have been completed … An officer, in other words, may conduct certain unrelated checks during an otherwise lawful traffic stop. But … he may not do so in a way that prolongs the stop, absent the reasonable suspicion ordinarily demanded to justify detaining an individual.”. Hence the “Rodriguez Moment” is the moment at which the purpose of the stop has been completed.
- Pre-Sent Arms! Ohio State Highway Patrol Tr. Hamed, Plain City Police Officer Hirtzinger and the unnamed Marysville Police Officer should all be highly commended for working in concert in this Fourth Amendment Symphony to remove a Major Drug Offender from the streets of Ohio for the next sixteen and a half years.
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