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State v. Wintermeyer

Supreme Court of Ohio

December 17, 2019

The State of Ohio, Appellant,
v.
Wintermeyer, Appellee.

          Submitted January 30, 2019

          Appeal from the Court of Appeals for Franklin County, No. 16AP-381, 2017-Ohio-5521.

          Ron O'Brien, Franklin County Prosecuting Attorney, and Seth L. Gilbert, Assistant Prosecuting Attorney, for appellant.

          Blake Law Firm Co., L.L.C., and Dustin M. Blake, for appellee.

          DEWINE, J.

         {¶ 1} It has long been settled that a defendant who argues that he has been subjected to an unlawful search or seizure in violation of the Fourth Amendment to the United States Constitution bears the burden of establishing that his own Fourth Amendment rights have been violated. (This concept is often referred to as Fourth Amendment standing.) It is also a familiar principle of law that a party who does not raise an issue in the trial court may not ordinarily raise that issue for the first time on appeal. The question before us involves the intersection of these two concepts.

         {¶ 2} In this case, the state defended a motion to suppress in the trial court without ever asserting that the defendant lacked Fourth Amendment standing. It lost the motion to suppress and then sought to raise the Fourth-Amendment-standing issue for the first time on appeal. The court of appeals said that it could not do this. We have to decide whether the court of appeals was correct.

         {¶ 3} We conclude that it was. When a defendant moves to suppress evidence on the grounds that a search or seizure violated his Fourth Amendment rights, the state may defend against that claim by challenging the defendant's standing to contest the admission of the evidence seized. Once the state raises the issue, the defendant must establish that he has a cognizable Fourth Amendment interest in the place searched or item seized. But when the state fails to dispute the defendant's standing in the trial court, it is foreclosed on appeal from attacking the trial court's judgment on those grounds. We therefore affirm the decision of the court of appeals.

         I. The motion to suppress drug evidence

         {¶ 4} On a March evening in 2014, a Columbus police officer was investigating a vacant building with an open window for a possible burglary. While waiting for someone to arrive with a key to the building, the officer noticed two men-later identified as Justin Wintermeyer and Korey Carlson-walking through an alley toward a nearby house. The officer watched Wintermeyer go inside and then come back out and hand a small object to Carlson. Suspicious that 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 from Carlson. Inside was a brown substance, which he thought to be heroin. After a drug test conducted at the scene confirmed the officer's suspicion, both Wintermeyer and Carlson were arrested for possession of drugs.

         {¶ 5} Wintermeyer filed a motion to suppress the drug evidence against him, asserting in part that the evidence should be excluded because 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. He did not advance any argument that Wintermeyer lacked a protected privacy interest in the place searched or item seized. The trial court granted the motion to suppress, determining that the officer lacked a reasonable, articulable suspicion of criminal activity at the time he detained Wintermeyer.

         {¶ 6} The state appealed and argued that Wintermeyer's detention did not provide a sufficient basis to allow Wintermeyer to challenge the admission of the evidence seized from Carlson. Noting that the state had not advanced that argument in the trial court and thus that the trial court had no opportunity to consider it, the Tenth District Court of Appeals concluded that the state was barred from raising the issue for the first time on appeal. 2017-Ohio-5521, 93 N.E.3d 397, ¶ 10. The Tenth District affirmed the trial court's judgment granting the motion to suppress. Id. at ¶ 47.

         {¶ 7} We accepted the state's appeal on the following proposition of law:

It is a 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.

See 152 Ohio St.3d 1405, 2018-Ohio-723, 92 N.E.3d 877.

         II. Fourth Amendment standing and the state's failure to contest it in the trial court

         {¶ 8} The Fourth Amendment to the United States 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. The claims in this appeal have been argued by the parties and examined by the lower courts solely under the federal Constitution. Because no one has advanced a claim under the Ohio Constitution, we must limit our analysis to the federal provision.

         {¶ 9} Before we get into our analysis, it is important to clarify what we mean when we talk about Fourth Amendment standing. The concept is distinct from jurisdictional standing, which may never be waived. See Byrd v. United States, __U.S.__, 138 S.Ct. 1518, 1530, 200 L.Ed.2d 805 (2018). Rather, the word "standing" in the Fourth Amendment context is merely "shorthand for capturing the idea that a person must have a cognizable Fourth Amendment interest in the place searched." Id; see also State v. Emerson,134 Ohio St.3d 191, 2012-Ohio-5047, 981 N.E.2d 787, ¶ 16. In other words, has the person claiming the constitutional violation" 'had his own Fourth Amendment rights infringed by the search and seizure which he seeks to challenge' "? Id. at 1526, quoting Rakas v. Illinois,439 U.S. 128, 133, 99 ...


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