[Cite as State v. Pallo, 2020-Ohio-4182.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
CLERMONT COUNTY
STATE OF OHIO, : CASE NO. CA2019-12-105
Appellant, : OPINION 8/24/2020 : - vs - :
THOMAS M. PALLO, JR., :
Appellee. :
CRIMINAL APPEAL FROM CLERMONT COUNTY MUNICIPAL COURT Case No. 2018 TRC 13021
D. Vincent Faris, Clermont County Prosecuting Attorney, Nick Horton, 76 South Riverside Drive, 2nd Floor, Batavia, Ohio 45103, for appellant
The Farrish Law Firm, Kelly Farrish, 810 Sycamore Street, Sixth Floor, Cincinnati, Ohio 45202, for appellee
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 position on State Route 32. The Clermont CA2019-12-105
trooper observed one of the vehicles move into the left lane without signaling and then pass
the other vehicle at a higher rate of speed. Believing the cars were racing, the trooper
initiated a traffic stop of the passing car. The trooper then made contact with the driver,
identified as Pallo. The trooper noticed a strong odor of an alcoholic beverage emanating
from the vehicle. Furthermore, Pallo had bloodshot, watery eyes. When asked how much
alcohol he had consumed, Pallo replied, "not much," "nothing," and "I'm good."
{¶ 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 a 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 and 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 compliance 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 follows: "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 set 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."
-2- Clermont CA2019-12-105
{¶ 6} The state appealed the municipal court's decision granting the motion to
suppress. This court reversed the municipal court's decision, finding it was "unable to
perform a meaningful review of the questions raised on appeal given the municipal court's
lack of specificity when issuing its decision granting Pallo's motion to suppress." State v.
Pallo, 12th Dist. Clermont No. CA2019-02-013, 2019-Ohio-4910, ¶ 4. We specifically noted
the municipal court's overall failure to articulate its analysis or reasons for granting the
motion to suppress, its failure to address the validity, or lack thereof, of the field sobriety
tests, its failure to identify what evidence was suppressed as part of its judgment, and its
failure to specify what factual analysis and legal conclusions the court relied upon in
determining that the trooper did not have probable cause to arrest Pallo for OVI. Id. at ¶ 6.
{¶ 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 violation, 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).
-3- Clermont CA2019-12-105
{¶ 9} The municipal court construed a statement the trooper made to Pallo following
the completion of the HGN test, "If everything checks out alright, I will get you out of here
with a warning," as an indication the trooper did not believe there was probable cause to
arrest Pallo for OVI at that time. The municipal court found that following the trooper's
statement above, the only new information gathered during the OVI investigation "were the
results of the portable breath test and the results of the last two field sobriety tests, which
yielded one additional clue [on the walk-and-turn test] that is not recognized as a
standardized clue pursuant to NHTSA." Noting that the trooper did not testify as to what
facts he relied upon in determining he had probable cause to arrest Pallo for OVI after he
made the statement above, the municipal court determined that the trooper necessarily and
improperly "relied upon the results of the portable breath test in making his probable cause
determination[.]"
{¶ 10} Based 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 SECTION 4511.19(A)(1)(a).
{¶ 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
-4- Clermont CA2019-12-105
position to weigh the evidence in order to resolve factual questions and evaluate witness
credibility. State v. Vaughn, 12th Dist. Fayette No. CA2014-05-012, 2015-Ohio-828, ¶ 8.
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[Cite as State v. Pallo, 2020-Ohio-4182.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
CLERMONT COUNTY
STATE OF OHIO, : CASE NO. CA2019-12-105
Appellant, : OPINION 8/24/2020 : - vs - :
THOMAS M. PALLO, JR., :
Appellee. :
CRIMINAL APPEAL FROM CLERMONT COUNTY MUNICIPAL COURT Case No. 2018 TRC 13021
D. Vincent Faris, Clermont County Prosecuting Attorney, Nick Horton, 76 South Riverside Drive, 2nd Floor, Batavia, Ohio 45103, for appellant
The Farrish Law Firm, Kelly Farrish, 810 Sycamore Street, Sixth Floor, Cincinnati, Ohio 45202, for appellee
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 position on State Route 32. The Clermont CA2019-12-105
trooper observed one of the vehicles move into the left lane without signaling and then pass
the other vehicle at a higher rate of speed. Believing the cars were racing, the trooper
initiated a traffic stop of the passing car. The trooper then made contact with the driver,
identified as Pallo. The trooper noticed a strong odor of an alcoholic beverage emanating
from the vehicle. Furthermore, Pallo had bloodshot, watery eyes. When asked how much
alcohol he had consumed, Pallo replied, "not much," "nothing," and "I'm good."
{¶ 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 a 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 and 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 compliance 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 follows: "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 set 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."
-2- Clermont CA2019-12-105
{¶ 6} The state appealed the municipal court's decision granting the motion to
suppress. This court reversed the municipal court's decision, finding it was "unable to
perform a meaningful review of the questions raised on appeal given the municipal court's
lack of specificity when issuing its decision granting Pallo's motion to suppress." State v.
Pallo, 12th Dist. Clermont No. CA2019-02-013, 2019-Ohio-4910, ¶ 4. We specifically noted
the municipal court's overall failure to articulate its analysis or reasons for granting the
motion to suppress, its failure to address the validity, or lack thereof, of the field sobriety
tests, its failure to identify what evidence was suppressed as part of its judgment, and its
failure to specify what factual analysis and legal conclusions the court relied upon in
determining that the trooper did not have probable cause to arrest Pallo for OVI. Id. at ¶ 6.
{¶ 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 violation, 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).
-3- Clermont CA2019-12-105
{¶ 9} The municipal court construed a statement the trooper made to Pallo following
the completion of the HGN test, "If everything checks out alright, I will get you out of here
with a warning," as an indication the trooper did not believe there was probable cause to
arrest Pallo for OVI at that time. The municipal court found that following the trooper's
statement above, the only new information gathered during the OVI investigation "were the
results of the portable breath test and the results of the last two field sobriety tests, which
yielded one additional clue [on the walk-and-turn test] that is not recognized as a
standardized clue pursuant to NHTSA." Noting that the trooper did not testify as to what
facts he relied upon in determining he had probable cause to arrest Pallo for OVI after he
made the statement above, the municipal court determined that the trooper necessarily and
improperly "relied upon the results of the portable breath test in making his probable cause
determination[.]"
{¶ 10} Based 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 SECTION 4511.19(A)(1)(a).
{¶ 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
-4- Clermont CA2019-12-105
position to weigh the evidence in order to resolve factual questions and evaluate witness
credibility. State v. Vaughn, 12th Dist. Fayette No. CA2014-05-012, 2015-Ohio-828, ¶ 8.
In turn, this court is bound to accept the trial court's findings of fact if they are supported by
competent, credible evidence. Id. "An appellate court, however, independently reviews the
trial court's legal conclusions based on those facts and determines, without deference to
the trial court's decision, whether as a matter of law, the facts satisfy the appropriate legal
standard." State v. Cochran, 12th Dist. Preble No. CA2006-10-023, 2007-Ohio-3353, ¶ 12.
{¶ 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 proceed 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 municipal 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 resolved," 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 addressed the lawfulness of the traffic stop, Pallo's detention, and
whether his statements to the trooper were elicited in 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.
-5- Clermont CA2019-12-105
{¶ 19} Pallo's motion to suppress challenged all aspects of his encounter with the
trooper, including the initial traffic stop, Pallo's subsequent investigatory detention, his
arrest, and subsequent events. Pallo's traffic stop, investigatory detention, and arrest are
each subject to different factual analyses and legal standards. Consequently, some of the
evidence may be subject to suppression while other evidence may be admissible.
{¶ 20} We therefore reverse the municipal court's decision granting the motion to
suppress and once again remand the matter to the 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 resolving 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.
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