OPINIONS OF THE SUPREME COURT OF OHIO
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The State of Ohio, Appellant, v. Shindler, Appellee.
[Cite as State v. Shindler (1994), Ohio St.3d .]
Criminal law -- Motion to suppress -- Accused must state the
motion's legal and factual basis with sufficient
particularity to place prosecutor and court on notice of
issues to be decided.
In 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. (Crim.R.
47 and Xenia v. Wallace [1988], 37 Ohio St.3d 216,
524
N.E.2d 889, construed and followed.)
(No. 93-1546 -- Submitted April 6, 1994 -- Decided August
10, 1994.)
Appeal from the Court of Appeals for Wood County, No.
92WD075.
On May 17, 1992, defendant-appellee, Jeanne Shindler, was
arrested and charged with operating a vehicle while under the
influence of alcohol in violation of R.C. 4511.19(A)(1),
operating a vehicle with a prohibited alcohol concentration in
violation of R.C. 4511.19(A)(3) and speeding in violation of R.C.
4511.21. Appellee timely filed a motion to suppress evidence
obtained from a warrantless seizure, including test results of
appellee's coordination, sobriety and alcohol or drug level,
observations and opinions of the police officer who stopped and
arrested appellee regarding her sobriety and alcohol or drug
level, and any statements made by the appellee.
Appellee's motion to suppress evidence was brought on the
following grounds:
"1. There was no lawful cause to stop the defendant, detain
the defendant, and/or probable cause to arrest the defendant
without a warrant.
"2. The test or tests to determine the defendant's alcohol
or drug level were not taken voluntarily and were
unconstitutionally coerced when obtained due to the threat of
loss of license not sanction [sic] by the requirements of R.C.
4511.191.
"3. The individual administering the defendant's test of
alcohol did not conduct the test in accordance with the
regulations of the Ohio Department of Health governing such
testing and/or analysis as set forth in Chapter 3701-53-02 of the
Ohio Administrative [C]ode, including the operator's checklist
instructions issued by the Ohio Department of Health included in
the Appendices to O.A.C. 3701-53-02.
"4. The breath testing instrument was not properly surveyed
to determine radio frequency interference by two qualified police
officers utilizing two radios and surveying from all positions
the hand held, mobile, and base radios required by O.A.C.
3701-53-02(C) and Appendix G.
"5. The operator of the breath testing instrument did no
[sic] insure the defendant's test was conducted free of any radio
transmissions from within the affected RFI zone and determined by
a properly performed RFI survey as required by O.A.C.
3701-53-02(C) and Appendix G.
"6. The machine or instrument analyzing defendant's alcohol
level was not in proper working order and not calibrated in
accordance within the time and manner required by O.A.C.
3701-53-04.
"7. The solution used to calibrate the testing instrument
was invalid and not properly maintained in accordance with O.A.C.
3701-53-04.
"8. The operator was not licensed to operate the instrument
analyzing the Defendant's alcohol level nor was he supervised by
a senior operator in accordance with O.A.C. 3701-53-07. The
person or persons calibrating the instrument analyzing the
defendant's alcohol level were not currently licensed to
calibrate the instrument in accordance with O.A.C. 3701-53-07.
"9. Statements from the defendant were obtained in
violation of the Fifth Amendment right against self-incrimination
and both his Fifth and Sixth Amendment right to counsel as
applicable under the Fourteenth Amendment."
In a memorandum in support of her motion, appellee further
alleged that "[d]efendant was stopped initially because of a
speed violation, (Ohio Revised Code Section 4511.21), a minor
misdemeanor. This is an insufficient legal basis for a Driving
Under the Influence stop."
On June 11, 1992, the trial court overruled appellee's
motion to suppress without a hearing, concluding that appellee's
"shotgun," "boilerplate" motion failed to set forth a factual
basis to justify an evidentiary hearing. Subsequently, appellee
filed a motion to reconsider on June 17, 1992, which the trial
court denied on June 18, 1992 on the same grounds.
On July 30, 1992, a trial was conducted,during which the
results of appellee's Breathalyzer test were admitted into
evidence. Appellee was found guilty of driving while under the
influence in violation of R.C. 4511.19(A)(1), driving with a
prohibited alcohol concentration in violation of R.C.
4511.19(A)(3), and speeding in violation of R.C. 4511.21.
From those convictions, appellee timely appealed to the
Court of Appeals for Wood County. The court of appeals reversed
appellee's convictions, holding that appellee was entitled to a
hearing on her motion to suppress evidence. The court reasoned
that appellee's motion gave the prosecutor and the court
sufficient notice of the basis of her challenge because
appellee's motion to suppress specifically cited the statutes,
regulations and constitutional rights she alleged were violated.
Finding its judgment to be in conflict with the decision of
the Third District Court of Appeals in State v. Hensley (1992),
75 Ohio App.3d 822,
600 N.E. 2d 849, the court of appeals
certified the record of the case to the court for review and
final determination.
Mark D. Tolles, for appellant.
William V. Stephenson, Wood County Public Defender, for
appellee.
Rittgers & Mengle, Charles H. Rittgers and W. Andrew
Hasselbach, urging affirmance on behalf of amicus curiae, Ohio
Association of Public Defenders.
Nugent, J. The issue presented for our review is to what
extent a motion to suppress evidence must set forth its legal and
factual bases in order to require a hearing.
Crim.R. 47 provides:
"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.
"To expedite its business, the court may make provision by
rule or order for the submission and determination of motions
without oral hearing upon brief written statements of reasons in
support and opposition."
In Xenia v. Wallace (1988), 37 Ohio St. 3d 216,
524 N.E.2d
889, this court held, at paragraphs one and two of the syllabus:
"1. To suppress evidence obtained pursuant to a warrantless
search or seizure, the defendant must (1) demonstrate the lack of
a warrant, and (2) raise the grounds upon which the validity of
the search or seizure is challenged in such a manner as to give
the prosecutor notice of the basis for the challenge.
"2. Once a defendant has demonstrated a warrantless search
or seizure and adequately clarified that the ground upon which he
challenges its legality is lack of probable cause, the prosecutor
bears the burden of proof, including the burden of going forward
with the evidence, on the issue of whether probable cause existed
for the search or seizure."
We further noted that Crim.R. 47 "requires that the
prosecution be given notice of the specific legal and factual
grounds upon which the validity of the search and seizure is
challenged." Id. at 219,
524 N.E.2d at 892.
Appellee's first claim for suppressing the evidence was that
the arresting state trooper had no cause for an investigative
stop and/or no probable cause to arrest. In her memorandum in
support, appellee cited legal authority and set forth a factual
basis for challenging the investigative stop and the arrest.
Specifically, appellee claimed that the trooper based his arrest
on Shindler's minor speeding violation and her moderate odor of
alcohol. Appellee claims that these factors, standing alone, do
not amount to probable cause to arrest for driving under the
influence of alcohol. Thus, appellee's memorandum sufficiently
puts the prosecution on notice of the basis of the challenge to
the stop and arrest. We conclude that as to the issue of the
grounds for the investigative stop and subsequent arrest,
appellee's motion to suppress complied with Crim.R. 47 and
entitled her to a pretrial hearing.
The next seven grounds listed in appellee's motion to
suppress challenge the admission of Shindler's breathalyzer test
results into evidence. We recognize that appellee's motion to
suppress is a virtual copy of the sample motion to suppress that
appears in Ohio Driving Under the Influence Law (1990) 136-137,
Section 11.16, a legal handbook authored by the Honorable Mark P.
Painter of the Hamilton County Municipal Court and James M.
Looker,a criminal defense attorney. The authors note that in
State v. Morehead (Aug. 8, 1990), Hamilton App. No. C-890534,
unreported, the motion was found to be sufficient to raise issues
regarding compliance with alcohol testing regulations to warrant
a hearing. The Fourth District Court of Appeals has also found a
virtually identical motion to be "fully sufficient in setting
forth facts respecting suppression of any alcohol tests." State
v. Gullett (1992), 78 Ohio App. 3d 138, 143,
604 N.E.2d 176, 179.
We agree with the Morehead and Gullett courts' analyses and
find that Shindler's motion to suppress sufficiently set forth
facts in support of suppression of the alcohol test. Appellee
not only claimed that she was unduly threatened with the loss of
her license in violation of R.C. 4511.191, but she also
challenged the admission of her breathalyzer test results on the
basis of specific regulations and constitutional amendments she
believed were violated.
Appellee fully complied with Crim.R. 47 and did, in fact,
set forth some underlying facts in the memorandum in support of
the motion. The court of appeals below, at page 5 of its
opinion, reasoned that "[b]ecause appell[ee]'s motion
specifically cites to the statute, regulations and
[constitutional] amendments she alleges were violated, we find
that her motion gave the prosecutor and the court sufficient
notice of the basis of her challenge."
We conclude, based on Crim.R. 47 and Xenia v. Wallace,
supra, that the court appeals correctly determined that
appellee's motion set forth a sufficient factual and legal basis
for her challenge of evidence obtained as a result of her
warrantless seizure. Appellee's motion and memorandum stated
with particularity the statues, regulations and constitutional
amendments she alleged were violated, set forth some underlying
factual basis to warrant a hearing, and gave the prosecutor and
court sufficient notice of the basis of her challenge.
Our decision today is in conformity with decisions from the
federal courts, e.g. United States v. Sneed (C.A.11, 1984), 732
F.2d 886, 888 ("[W]here a defendant in a motion to suppress
fails to allege facts that if proved would require the grant of
relief, the law does not require that the district court hold a
hearing independent of the trial to receive evidence on any issue
necessary to the determination of the motion."); Cohen v. United
States (C.A.9, 1967), 378 F.2d 751, 760; and those of our sister
states, e.g., State v. Desjardinis (Me. 1979),
401 A.2d 165,
169 ("[T]he suppression movant must articulate in his motion with
sufficient particularity the specific reason on which he bases
his claim that the seizure without warrant was illegal, so that
the court will recognize the issues to be decided."); State v.
Miller (1974), 17 Ore. App. 352, 355,
521 P.2d 1330, 1332
(requiring "specificity in the statement of defendant's legal
theory"); State v. Johnson (1974),
16 Ore. App. 560, 562,
519
P.2d 1053, 1054 ("[A] a written motion to suppress evidence must
specify with particularity the grounds upon which the motion is
based."); Commonwealth v. Metzer (Pa. Super. 1993), 430
Pa.Super.217, , 634 A.2d 228, 233; cf. People v. Mendoza
(1993),
82 N.Y.2d 415,
624 N.E.2d 1017.
Our decision today is also in harmony with Crim.R. 12(B)(3),
(C) and (G), which generally require that a motion to suppress
evidence be filed within thirty-five days after arraignment or
seven days before trial, whichever is earlier, and that if the
motion is not so filed the issue of the constitutionality of a
search and seizure is waived. Defiance v. Kretz (1991), 60 Ohio
St.3d 1,
573 N.E.2d 32; State v. F.O.E. Aerie 2295 (1988),
38
Ohio St.3d 53,
526 N.E.2d 66; and State v. Moody (1978),
55 Ohio
St.2d 64, 9 O.O. 3d 71,
377 N.E.2d 1008. By requiring the
defendant to state with particularity the legal and factual
issues to be resolved, the prosecutor and court are placed on
notice of those issues to be heard and decided by the court and,
by omission, those issues which are otherwise being waived.
We therefore hold that in order to require a hearing on a
motion to suppress evidence, the defendant must state the
motion's legal and factual bases with sufficient particularity to
place the prosecutor and court on notice of the issues to be
decided.
The judgment of the court of appeals is affirmed, and this
cause is remanded for further proceedings consistent with this
opinion.
Judgment affirmed
and cause remanded.
Moyer, C.J., A.W. Sweeney, Douglas, Wright, F.E. Sweeney and
Pfeifer, JJ., concur.
Donald C. Nugent, J., of the Eighth Appellate District,
sitting for Resnick, J.
