Ohio Supreme Court Announces State Cannot Raise Fourth Amendment Standing Issue for First Time on Appeal
by Douglas Ankney
The Supreme Court of Ohio held that the State must raise in the trial court a claim that a defendant lacks standing to contest the admission of seized evidence. If the State fails to raise the claim in the trial court, the State is foreclosed on appeal from attacking the trial court’s judgment on those grounds.
In March 2014, a Columbus police officer observed two men — later identified as Justin Wintermeyer and Korey Carlson — walking in an alley. Wintermeyer went inside a house, came back outside, and handed a small object to Carlson. Believing he had just witnessed a drug transaction, the officer approached the men and shined a flashlight on them, illuminating a small plastic bag in Carlson’s hand.
The officer took the bag and field-tested the contents, which tested positive for heroin. He arrested both men for possession of drugs. Wintermeyer filed a motion to suppress the heroin, arguing that the officer had lacked a reasonable, articulable suspicion to detain him. During the hearing on the motion, the prosecutor confined his arguments to the reasonable suspicion issue and did not raise any argument that Wintermeyer lacked a protected privacy interest in the place searched or in the item seized.
The trial court granted the motion to suppress. The State appealed, arguing that Wintermeyer’s detention did not give him standing to challenge the admission of the evidence seized from Carlson. The Court of Appeals held that the State was barred from raising the issue for the first time on appeal and affirmed the trial court’s judgment. The Ohio Supreme Court granted the State further review on the following proposition of law: “It is the defendant’s burden to establish his or her standing to invoke the Fourth Amendment exclusionary rule. The State may therefore argue on appeal a defendant’s failure to establish standing, even if it did not specifically raise the issue in the trial court.”
The Court observed “[t]he Fourth Amendment to the U.S. Constitution protects the people’s right to privacy in their person, places, and things against government intrusion in the form of unreasonable searches and seizures.” A defendant, however, does not have “standing” to argue that a search or seizure was unreasonable (“Fourth Amendment standing”) unless he or she “‘had his [or her] own Fourth Amendment rights infringed by the search and seizure which he [or she] seeks to challenge.’” Byrd v. United States, 138 S. Ct. 1518 (2018) (quoting Rakas v. Illinois, 439 U.S. 128 (1978). The person must have a privacy interest in the place searched or in the thing seized. Id. But Fourth Amendment standing is distinct from jurisdictional standing, which may never be waived. Id. A challenge to jurisdictional standing must be resolved by a court before it may decide any other issues in a case, but this is not true of Fourth Amendment standing. Id.
The Court observed that the State’s proposition that it may raise a Fourth Amendment-standing challenge for the first time on appeal goes against the well-established “first principle of appellate jurisdiction ... that a party ordinarily may not present an argument on appeal that it failed to raise below.” Goldfuss v. Davidson, 679 N.E.2d 1099 (Ohio 1997). Counsel must bring an error to the trial court’s attention when the error occurs to give the court an opportunity to correct it. State v. Glaros, 166 N.E.2d 379 (Ohio 1960). Without this requirement, counsel could remain silent and hope to obtain a favorable verdict — but if the verdict were unfavorable, counsel could then obtain a new trial on appeal. Id.
Furthermore, the State’s argument that “a defendant has an obligation to present evidence on Fourth Amendment standing in the trial court regardless of whether the state contests the defendant’s standing in those proceedings” is not supported by precedent, the Court explained. The U.S. Supreme Court has consistently ruled that, while the burden is on the defendant to establish his or her own Fourth Amendment rights were violated by the search or seizure, the defendant is required to make such a showing only after the government argues the defendant lacks Fourth Amendment standing. Jones v. United States, 362 U.S. 257 (1960).
The Ohio Supreme Court explained, “When a defendant files a motion to suppress on Fourth Amendment grounds, he is necessarily asserting that the government has violated his Fourth Amendment rights. When the government wishes to challenge that generalized assertion by arguing that the defendant lacks a possessory interest in the property searched or the item seized, we think it incumbent on the government to do so in the trial court so that the defendant has an opportunity to demonstrate the requisite Fourth Amendment standing.” And “[t]here is no need to turn suppression issues into a gotcha game, where the state may sit on its hands in the trial court and then pull out a surprise, standing card on appeal.... Thus, when the state does not assert in the trial court that a defendant lacks Fourth Amendment standing to challenge a contested search or seizure, the state may not assert that argument” on appeal, the Court held.
Accordingly, the Court affirmed the judgment of the Court of Appeals. See: State v. Wintermeyer, 2019-Ohio-5156 (2019).
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State v. Wintermeyer
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