[Cite as State v. Codeluppi, 139 Ohio St.3d 165, 2014-Ohio-1574.]




           THE STATE OF OHIO, APPELLEE, v. CODELUPPI, APPELLANT.
       [Cite as State v. Codeluppi, 139 Ohio St.3d 165, 2014-Ohio-1574.]
Criminal procedure—Motion to suppress—Particularity of grounds for
        suppression of field sobriety tests—Crim.R. 47.
   (No. 2013-0186—Submitted November 20, 2013—Decided April 17, 2014.)
     APPEAL from the Court of Appeals for Lorain County, No. 11CA010133,
                                     2012-Ohio-5812.
                                ____________________
                               SYLLABUS OF THE COURT
A highly detailed pleading of the facts and law is not required to satisfy the notice
        requirements of State v. Shindler, 70 Ohio St.3d 54, 636 N.E.2d 319
        (1994), and to trigger the right to a hearing on a motion to suppress.
                                ____________________
        LANZINGER, J.
        {¶ 1} In this case, we apply the holding of State v. Shindler, 70 Ohio
St.3d 54, 636 N.E.2d 319 (1994), and reverse the judgment of the court of appeals
and remand this case.
                                  I. Case Background
        {¶ 2} On August 3, 2011, Corrine Codeluppi was charged by citation
with speeding, a minor misdemeanor in violation of R.C. 4511.21, and with
operating a vehicle while intoxicated (“OVI”), a first-degree misdemeanor in
violation of R.C. 4511.19(A). There was no video recording of the traffic stop
and the field sobriety tests conducted. The only discovery evidence provided to
Codeluppi was the police report of the arrest. The report indicated that the law-
enforcement officer administered the three field sobriety tests that are
standardized by the National Highway Traffic Safety Administration (“NHTSA”)
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guidelines: (1) horizontal-gaze nystagmus, (2) walk and turn, and (3) one-leg
stand.    The report described Codeluppi’s actions and the law-enforcement
officer’s findings, but did not describe the instructions and demonstrations given
by the officer prior to each test.
         {¶ 3} Codeluppi filed a motion to suppress the evidence obtained during
the traffic stop, for which the court set a hearing and pretrial conference. The day
before the hearing, the state filed its response to the motion, requesting that the
motion be denied pursuant to Crim.R. 47 as lacking sufficient particularity on the
issue of alleged improper administration of field sobriety tests. The trial court
denied the suppression motion that same day, stating that the motion lacked
sufficient particularity to place the prosecutor and the court on notice of the issues
to be decided. The court ordered the pretrial conference to proceed as scheduled.
         {¶ 4} The next day, Codeluppi filed a motion for leave to file a
supplemental brief in support of her motion to suppress and a motion for
reconsideration. But at the pretrial, she pled no contest. The trial court found her
guilty of OVI, dismissed the speeding charge, and sentenced her to 30 days in jail
and a $1,000 fine. Twenty-seven days of the sentence and $400 of the fine were
suspended, and she was placed on probation for one year with a 180-day license
suspension allowing occupational driving privileges.
         {¶ 5} Codeluppi appealed the denial of her motion to suppress to the
Ninth District Court of Appeals. In a two-to-one decision, the court of appeals
affirmed. The lead opinion agreed that the motion to suppress had “generally set
forth numerous legal issues regarding probable cause, substantial compliance with
NHTSA guidelines in field sobriety testing, and possible constitutional
violations.” (Emphasis sic.) 2012-Ohio-5812 at ¶ 24. Nevertheless, it found the
motion deficient in that it failed




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       to state with particularity any factual allegations as to (1) how
       Officer Young allegedly lacked probable cause to further detain
       Ms. Codeluppi after initiating the traffic stop, and (2) the respects
       in which Officer Young allegedly violated provisions of the
       NHTSA guidelines in administering the Field Sobriety Tests.


(Emphasis sic.) Id. The dissenting judge did not agree that more factual detail
was needed, because Codeluppi had specifically identified the code section and
NHTSA standards that had not been met as well as the specific tests being
challenged. The dissent concluded, “The State could have had no doubt what the
basis for Ms. Codeluppi’s motion to suppress was.” Id. at ¶ 44 (Belfance, J.,
dissenting).
       {¶ 6} Codeluppi appealed to this court, and we accepted jurisdiction on
the first proposition of law: “When a defendant files a Motion to Suppress, a
highly detailed pleading of facts and law is not required to satisfy the Shindler
notice requirements and to trigger the right to a hearing[;] thus the trial court errs
in dismissing the Motion without a hearing.” 135 Ohio St.3d 1431, 2013-Ohio-
1857, 986 N.E.2d 1021.
                                II. Legal Analysis
Standard of Review
       {¶ 7} The lead opinion of the court of appeals was mistaken in
employing the abuse-of-discretion standard of review in this matter. Normally,
appellate review of a motion to suppress presents a mixed question of law and
fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8.


       When considering a motion to suppress, the trial court assumes the
       role of trier of fact and is therefore in the best position to resolve
       factual questions and evaluate the credibility of witnesses. State v.



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       Mills (1992), 62 Ohio St.3d 357, 366, 582 N.E.2d 972.
       Consequently, an appellate court must accept the trial court’s
       findings of fact if they are supported by competent, credible
       evidence. State v. Fanning (1982), 1 Ohio St.3d 19, 1 OBR 57,
       437 N.E.2d 583. Accepting these facts as true, the appellate court
       must then independently determine, without deference to the
       conclusion of the trial court, whether the facts satisfy the
       applicable legal standard. State v. McNamara (1997), 124 Ohio
       App.3d 706, 707 N.E.2d 539.


Id.
       {¶ 8} Here, the trial court never acted as the trier of fact, because the
motion to suppress was denied without a hearing. Whether the motion to suppress
satisfied Crim.R. 47’s minimum standards is a legal question. Crim.R. 47 states:


              An application to the court for an order shall be by motion.
       A motion, other than one made during trial or hearing, shall be in
       writing unless the court permits it to be made orally. It shall state
       with particularity the grounds upon which it is made and shall set
       forth the relief or order sought. It shall be supported by a
       memorandum containing citations of authority, and may also be
       supported by an affidavit.


(Emphasis added.)
       {¶ 9} A trial court must hold a suppression hearing if the motion meets
Crim.R. 47’s minimum standards. Shindler, 70 Ohio St.3d 54, 636 N.E.2d 319, at
syllabus. The lead opinion of the court of appeals reasoned that Traf.R. 11(E),
like Crim.R. 12(F), does not mandate a hearing on every suppression motion. It




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determined that the trial court’s decision not to hold an evidentiary hearing would
not be reversed absent an abuse of discretion.        2012-Ohio-5812, ¶ 23.      But
questions of law are to be reviewed de novo. State v. Consilio, 114 Ohio St.3d
295, 2007-Ohio-4163, 871 N.E.2d 1167, ¶ 8.
Particularity in a Motion to Suppress
       {¶ 10} We have held that “[i]n order to require a hearing on a motion to
suppress evidence, the accused must state the motion’s legal and factual bases
with sufficient particularity to place the prosecutor and the court on notice of the
issues to be decided.” Shindler, syllabus. Failure to include or particularly state
the factual and legal basis for a motion to suppress waives that issue.          See
Defiance v. Kretz, 60 Ohio St.3d 1, 573 N.E.2d 32 (1991).
       {¶ 11} Codeluppi challenged the traffic stop, the officer’s probable cause
to arrest, his failure to conduct field sobriety tests in substantial compliance with
NHTSA guidelines, and statements obtained in violation of her Fifth and Sixth
Amendment rights. The state’s response complained only about the specificity of
the motion regarding the alleged improper administration of the field sobriety
tests. The admissibility of results of field sobriety tests is governed by R.C.
4511.19(D)(4)(b). That subdivision provides:


               In any criminal prosecution * * * for a violation of division
       (A) or (B) of this section, * * * if a law enforcement officer has
       administered a field sobriety test to the operator of the vehicle
       involved in the violation and if it is shown by clear and convincing
       evidence that the officer administered the test in substantial
       compliance with the testing standards for any reliable, credible,
       and generally accepted field sobriety tests that were in effect at the
       time the tests were administered, including, but not limited to, any




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       testing standards then in effect that were set by the national
       highway traffic safety administration, all of the following apply:
               (i) The officer may testify concerning the results of the
       field sobriety test so administered.
               (ii) The prosecution may introduce the results of the field
       sobriety test so administered as evidence in any proceedings in the
       criminal prosecution * * *.
               (iii) * * * [I]f the testimony or evidence is admissible under
       the Rules of Evidence, the court shall admit the testimony or
       evidence and the trier of fact shall give it whatever weight the trier
       of fact considers to be appropriate.


In other words, the results of the field sobriety tests are not admissible at trial
unless the state shows by clear and convincing evidence that the officer
administered the test in substantial compliance with NHTSA guidelines.           A
motion to suppress is an appropriate pretrial proceeding designed to determine the
admissibility of this evidence.
       {¶ 12} Codeluppi’s motion to suppress requested the exclusion of


               1. Any and all evidence obtained by the State of Ohio
       subsequent to the unlawful and unconstitutional traffic stop and
       seizure of the Defendant herein;
               2. Any and all evidence obtained by the State of Ohio as
       the fruit of the unconstitutional arrest of the Defendant;
               3. Any and all standardized field sobriety test observations
       and/or results as said field tests were not performed in substantial
       compliance with NHTSA guidelines; and/or




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               4. Any and all oral or written custodial statements obtained
       from or made by the Defendant.


The memorandum in support also asked the court to consider the following
specific claims in determining whether there was probable cause to arrest:


               1) The tests were administered under duress resulting in
       the Defendant’s emotional and/or physical condition (independent
       of alcohol) affecting the Defendant’s ability to perform the field
       sobriety tests;
               2)        The   tests   were       administered   under   difficult
       environmental conditions;
               3) The officer’s analysis of the Defendant’s performance
       on these tests was biased resulting in inaccurate recording at the
       police station.


The memorandum continued: “It is the Defendant’s contention, and the State is
hereby put on notice, that the testing law enforcement officer failed to instruct,
conduct, evaluate, administer, and/or record the standardized field sobriety tests
used in the within matter in substantial compliance with [NHTSA] Guidelines.”
       {¶ 13} Shindler does not require that a defendant set forth the basis for
suppression in excruciating detail. Instead, the question is whether the language
used provides sufficient notice to the state. After all, “[t]he motion to suppress is
merely a procedural vehicle to ‘put the ball into play’ and serve notice that the
defendant intends to have the state meet its legislatively mandated burden of
demonstrating compliance with any and all challenged regulations and
requirements.” Weiler & Weiler, Baldwin’s Ohio Driving Under the Influence
Law, 2012-2013, Section 9:13, at 265 (2012). Codeluppi’s motion meets this



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standard. She alleged that the officer had not conducted the field sobriety tests in
substantial compliance with NHTSA guidelines as required by R.C.
4511.19(D)(4)(b). This statement was sufficient to identify the issues Codeluppi
was raising. We agree with the dissenting judge below that the state could have no
doubt about the basis for the motion to suppress.
          {¶ 14} The primary source of evidence normally available to an OVI
defendant—a video recording of the field sobriety tests—was not available in this
case. Defense counsel had no readily available reliable evidence from which
counsel could formulate more particularized grounds regarding the police
officer’s failure to substantially comply with NHTSA guidelines.            Codeluppi
therefore provided notice of legally significant facts to the extent that the facts
were available, rendering her motion more than a mere fishing expedition.
                                   III. Conclusion
          {¶ 15} We hold that a highly detailed pleading of the facts and law is not
required to satisfy the notice requirements of Shindler and to trigger the right to a
hearing on a motion to suppress. We therefore reverse the judgment of the court
of appeals and remand this cause to the trial court for a hearing on the motion to
suppress.
                                                                 Judgment reversed
                                                               and cause remanded.
          O’CONNOR, C.J., and O’DONNELL, KENNEDY, FRENCH, and O’NEILL, JJ.,
concur.
          PFEIFER, J., dissents and would affirm the judgment of the court of
appeals.
                              ____________________
          Toni L. Morgan, North Ridgeville City Prosecutor, for appellee.
          Polito, Paulozzi, Rodstrom & Burke, L.L.P., and Joseph T. Burke, for
appellant.




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       Gregg Marx, Fairfield County Prosecuting Attorney, and Jocelyn S. Kelly,
Assistant Prosecuting Attorney, urging affirmance for amicus curiae Ohio
Prosecuting Attorneys Association.
       John T. Forristal, urging reversal for amicus curiae Cuyahoga Criminal
Defense Lawyers Association.
       Paul A. Griffin Co., L.P.A., and Paul A. Griffin, urging reversal for
amicus curiae Ohio Association of Criminal Defense Lawyers.
                        _________________________




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