Court of Appeals of Ohio, Second District, Montgomery
Criminal Appeal from Common Pleas Court Trial Court Case No.
MATHIAS H. HECK, JR., by MICHAEL P. ALLEN, Atty. Reg. No.
0095826, Montgomery County Prosecutor's Office, Appellate
Division, Montgomery County Courts Building, Attorney for
A. MUENCHENBACH, Atty. Reg. No. 0088722, Attorney for
1} Michael A. Starks appeals from his conviction and
sentence following a no-contest plea to charges of improper
handling of a firearm in a motor vehicle (F4), aggravated
drug possession (F1), and possession of drug paraphernalia
2} Starks advances four assignments of error. First,
he challenges the trial court's denial of his motion to
suppress evidence seized during a traffic stop. He argues
that the stop for a single marked-lane violation was unlawful
and, therefore, that evidence discovered after an officer
approached the car and smelled marijuana was subject to
suppression. Second, he contends the trial court erred in
denying his motion for a hearing under Franks v.
Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667
(1978), to challenge a search-warrant affidavit for a motel
room he was renting. He also contends the trial court erred
in denying his motion to suppress evidence found in the motel
room. Third, he claims the trial court erred in denying his
motion for a continuance after he retained new counsel.
Fourth, he alleges ineffective assistance of counsel based on
counsel's handling of the motion to suppress related to
the traffic stop and the motion for a Franks hearing
regarding the affidavit for a warrant to search his motel
3} The charges against Starks stemmed from a traffic
stop of a car he was driving around 1:00 a.m. on October 19,
2017. Suppression-hearing testimony from Miamisburg police
officer Nicholas Bell reflects that Bell and his partner saw
Starks cross the line dividing two southbound lanes of Byers
Road in Miamisburg. Starks crossed the dividing line while
going around a curve and stayed in that position through the
curve before going back in the right-hand lane. The officers
followed Starks into the parking lot of a Knights Inn motel.
They initiated a traffic stop based on a marked-lane
violation of R.C. 4511.33. As the cruiser came to a stop with
its overhead lights activated, Starks' front-seat
passenger, Cheree Alexander, exited Starks' car. Bell got
out of the cruiser and ordered her back into Starks' car.
Bell then approached the stopped vehicle and detected an odor
of raw marijuana. As he got closer, he determined that the
odor was coming from inside Starks' car. Bell asked for
the passenger's identification, and she retrieved her
purse from behind the driver's seat. She then placed the
purse on her lap and opened it, exposing the contents to
Bell, who saw a baggie of suspected marijuana. Bell seized
the purse, and Starks' car was searched. A loaded handgun
was found under the driver's seat. Police also found
jewelry and collectible coins in the vehicle. A detective
subsequently submitted a search-warrant affidavit and
obtained a warrant to search a Knights Inn motel room that
Starks had rented. After obtaining the warrant, police
searched the room and found a large quantity of
4} Following his indictment, Starks moved to
suppress evidence obtained as a result of the traffic stop.
He argued that police had no basis for the stop. (Doc. #12.)
He also separately moved to suppress evidence found inside
the motel room on the grounds that the search warrant was
issued without probable cause. (Doc. # 26.) Additionally,
Starks moved for a Franks hearing. He argued that
the search warrant affidavit omitted Cheree Alexander's
statement to officers that the she was in the process of
moving and that the jewelry and collectible coins in
Starks' car, as well as other items, belonged to her.
(Doc. # 39.) The trial court denied both suppression motions
after a hearing and declined to hold a Franks
hearing. (Doc. # 29, 42.)
5} Just days before Starks' scheduled August 20,
2018 trial date, newly retained counsel filed a "Limited
Notice of Substitution of Counsel and Motion to Continue
Trial." (Doc. # 57.) Prior to this filing, Starks had
been represented solely by appointed counsel. In the filing,
retained counsel entered an appearance as Starks'
attorney of record "contingent upon the granting of a
continuance." (Doc. # 57.) Retained counsel explained
that he had just been retained and that he needed more time
to prepare. (Id.) The following day, Starks'
appointed counsel moved to withdraw, citing "a breakdown
in attorney client communication[.]" (Doc. # 58.) That
same day, retained counsel filed a notice of "appearance
as co-counsel for Defendant[.]" (Doc. # 59.) On August
23, 2018, the trial court filed an order formally continuing
the trial date until August 27, 2018. It also overruled
appointed counsel's motion to withdraw. (Doc. #65.) Less
than an hour after this ruling, retained counsel moved to
continue the scheduled August 27, 2018 trial date. (Doc.
#66.) The parties then discussed the issue with the trial
court on the record on August 24, 2018. At that time, the
trial court noted the existence of retained counsel's
renewed motion to continue filed the prior day. (August 24,
2018 Hearing Tr. at 54.) The trial court noted that it
already had granted a one-week continuance for retained
counsel to explore whether "there may be issues that
would ultimately lead to a resolution of the case."
(Id. at 55-56.) Retained counsel responded:
"That's correct, Your Honor. And it's my
understanding at this time we are prepared to withdraw our
prior plea of not guilty and enter a plea today."
(Id. at 56.)
6} Starks then entered a negotiated no-contest plea
to the charges against him in exchange for an agreed
four-year mandatory sentence. The trial court accepted the
plea and made findings of guilt. (Id. at 71.) At the
conclusion of the plea hearing, appointed counsel sought to
withdraw from further representation, and the trial court
granted the request. (Id. at 72.) Starks
subsequently appeared for sentencing with retained counsel,
and the trial court imposed the agreed aggregate four-year
prison sentence. (Id. at 75.) On October 1, 2018,
the trial court filed an amended termination entry
journalizing Starks' conviction and sentence. (Doc. #
82.) This appeal followed.
7} In his first assignment of error, Starks
challenges the trial court's denial of his motion to
suppress evidence found during the traffic stop in the
Knights Inn parking lot. He argues that a single "lane
departure" did not justify a traffic stop, as a matter
of law. Therefore, he claims that the stop was illegal and
that officer Bell would not have smelled marijuana or seen it
in Alexander's purse but for the unlawful stop. Because
the marijuana provided the basis to search Starks'
vehicle, he reasons that the search itself was illegal and
all evidence obtained as a result of the stop should have
8} Upon review, we find Starks' argument to be
without merit. The Ohio Supreme Court has held that "a
traffic stop is constitutionally valid when a law-enforcement
officer witnesses a motorist drift over the lane markings in
violation of R.C. 4511.33, even without further evidence of
erratic or unsafe driving." State v. Mays, 119
Ohio St.3d 406, 2008-Ohio-4539, 894 N.E.2d 1204, ¶ 25.
Here Bell presented uncontroverted testimony that Starks
crossed over the dividing line between two lanes while going
around a curve and stayed in that position through the curve
before going back in the right-hand lane. (January 19, 2018
Tr. at 11-12.) Bell made a traffic stop because he believed
Starks' act of failing to maintain a single lane of
travel constituted a marked-lane violation under R.C.
4511.33. (Id. at 14-15.) Bell was correct. Under
R.C. 4511.33(A)(1), a vehicle "shall be driven, as
nearly as is practicable, entirely within a single
lane[.]" At a minimum, Bell's observation of Starks
crossing over the dividing line between two lanes while going
around a curve provided reasonable, articulable suspicion
justifying a stop for a marked-lane violation. Compare
State v. Andrews, 2017-Ohio-1383, 89 N.E.3d 157, ¶
53 (2d Dist.) (holding that even a de minimis violation of
the marked-lane statute by driving into an adjacent lane by
half a tire width provided reasonable, articulable suspicion
for a traffic stop).
9} In opposition to our conclusion, Starks cites
State v. Grenoble, 12th Dist. Preble No.
CA2010-09-011, 2011-Ohio-2343. But his reliance on
Grenoble is misplaced. In that case, the Twelfth
District rejected the defendant's assertion "that
one marked lane violation is an insufficient basis for an
officer to stop a motorist." Id. at ¶ 16.
The Twelfth District characterized this argument as
"misguided" in light of the Ohio Supreme
Court's holding in Mays. Id. The fact that the
defendant in Grenoble drove outside of his marked
lane multiple times while also driving too slowly does not
mean that a defendant cannot be stopped for a single
marked-lane violation. Mays makes clear that the
traffic stop in Starks' case was lawful.
10} Because the traffic stop was proper, Bell
lawfully approached Starks' vehicle and detected the
smell of raw marijuana. According to Bell, he had smelled
marijuana in its raw and burnt forms approximately 1, 000
times over his nearly 15-year career. (January 19, 2018 Tr.
at 16-17.) Bell determined the smell was emanating from
Starks' vehicle. (Id. at 17.) When he asked for
passenger Alexander's identification, she opened her
purse and he saw a suspected baggie of marijuana on top.
(Id. at 18.) Bell's detection of the odor of
marijuana and his observation of marijuana in Alexander's
possession gave him probable cause to search the vehicle.
State v. Moore,90 Ohio St.3d 47, 48, 734 N.E.2d 804
(2000) (holding that "the smell ...