State v. PalloState v. Pallo
The Farrish Law Firm, Kelly Farrish, 810 Sycamоre Street, Sixth Floor, Cincinnati, Ohio 45202, for appellee
O P I N I O N
M. POWELL, P.J.
{¶ 1} Appellant, the state of Ohio, appeals a decision of the Clermont County Municipal Court granting a motion to suppress in favor of appellee, Thomas M. Pallo, Jr.
{¶ 2} In the early morning hours of September 3, 2018, an Ohio State Highway Patrol trooper was on patrol when two vehicles passed his рosition on State Route 32. The
{¶ 3} The trooper asked Pallo to exit the vehicle. At this point, the trooper noticed an odor of an alcoholic beverage coming from Pallo‘s person. The trooper administered the horizontal gaze nystagmus (“HGN“) test, detecting four out of six possible clues, and had Pallo submit to а portable breath test. The trooper then administered the walk-and-turn test, identifying one clue, and the one-leg-stand test. Following these field sobriety tests, the trooper arrested Pallo for operating a vehicle under the influence (“OVI“).
{¶ 4} Pallo was charged in the municipal court with one count of OVI and one count of failure to use his turn signal. Pallo pled not guilty аnd filed a motion to suppress, specifically challenging (1) the lawfulness of the traffic stop and his subsequent detention, (2) whether the field sobriety tests were administered in compliancе with NHTSA standards, (3) the administration of non-standardized field sobriety tests, (4) whether the trooper had probable cause to arrest him for OVI, and (5) whether statements he made to the trooper were obtained in violation of the Fifth, Sixth, and Fourteenth Amendments.
{¶ 5} Following a suppression hearing, the municipal court issued a written decision granting Pallo‘s motion to suppress as follоws: “There was one issue that was addressed at the motion hearing. Whether [the trooper] had probable cause to arrest the defendant for OVI. Based upon the reasons sеt forth on the record, this Court finds [the trooper] did not have probable cause to arrest the defendant for OVI, and will grant the defendant‘s motion as to this respective issue.”
{¶ 7} Consequently, we remanded the matter to the municipal court with instruction that “the court shall articulate its reasoning so that this court may perform a review of the decision on appeal. The court shall identify the legal and factual issues being resolved and state specifically what evidence is being suppressed and why. This would include a discussion of the pertinent field sobriety tests, including the horizontal gaze nystagmus test.” Id. at ¶ 7.
{¶ 8} On remand, the municipal court issued a decision on December 17, 2019, identifying two legal issues: (1) whether the trooper had probable cause to arrest Pallo for OVI, and (2) whether a trooper can “use the results of a portable breath test in making a probable case determination regarding an arrest for OVI.” The municipal court found that the trooper stopped Pallo for a moving viоlation, found that the HGN, walk and turn, and one leg stand tests were administered in compliance with NHTSA standards, and declined to consider the portable breath test as such tests are no longer recognized by the Ohio Department of Health. See State v. Mason, 12th Dist. Clinton No. CA99-11-033, 2000 Ohio App. LEXIS 5472 (Nov. 27, 2000).
{¶ 10} Basеd upon the foregoing, the municipal court granted Pallo‘s motion to suppress.
{¶ 11} The state now appeals, raising the following two assignments of error.
{¶ 12} Assignment of Error No. 1:
{¶ 13} THE TRIAL COURT FAILED TO COMPLY WITH THIS COURT‘S ORDER ON REMAND.
{¶ 14} Assignment of Error No. 2:
{¶ 15} THE TRIAL COURT ERRED IN GRANTING APPELLEE‘S MOTION TO SUPPRESS BASED ON HIS CHALLENGE TO PROBABLE CAUSE TO ARREST FOR A VIOLATION OF
{¶ 16} Appellate review of a ruling on a motion to suppress presents a mixed question of law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. When considering a motion to suppress, the trial court, as the trier of fact, is in the best
{¶ 17} Absent extraordinary circumstances, such as an intervening decision by the Ohio Supreme Court, an inferior court has no discretion to disregard the mandate of a superior court in a prior appeal in the same case. State v. Carpenter, 12th Dist. Butler No. CA2008-05-122, 2009-Ohio-1165, ¶ 28. Moreover, a trial court lacks authority to extend or vary the mandate given. Id. Rather, upon remand from an appellate court, the lower court is required to prоceed from the point at which the error occurred. Id., citing State ex rel. Stevenson v. Murray, 69 Ohio St.2d 112 (1982).
{¶ 18} We find that the municipal court abused its discretion when it did not comply with our remand instructions. In Pallo, we explicitly instructed the municipаl court to “articulate its reasoning” for granting the motion to suppress “so that this court may perform a review of the decision on appeal,” “identify the legal * * * issues being resоlved,” and “state specifically what evidence is being suppressed and why.” Pallo, 2019-Ohio-4910 at ¶ 7. Although the issues were raised in Pallo‘s motion to suppress, the municipal court neither identified nor addressеd the lawfulness of the traffic stop, Pallo‘s detention, and whether his statements to the trooper were elicited in violation of the Fifth, Sixth, and Fourteenth Amendments. Furthermore, the municipal court ignored our clear remand instruction and once again did not identify what evidence was suppressed as a result of the motion being granted.
{¶ 20} We therefore reverse the municipal court‘s decision granting the motion to suppress and once again remand the matter to thе municipal court. On remand, the municipal court shall identify and address the legal and factual issues raised by Pallo‘s motion to suppress and articulate its analysis or reasoning in resоlving these issues. Furthermore, the court shall state specifically what evidence is being suppressed and why. The state‘s first assignment of error is accordingly sustained and its second assignment of error is moot.
{¶ 21} Judgment reversed and the matter is remanded for further proceedings.
S. POWELL and PIPER, JJ., concur.