Submitted January 30, 2019
from the Court of Appeals for Franklin County, No. 16AP-381,
O'Brien, Franklin County Prosecuting Attorney, and Seth
L. Gilbert, Assistant Prosecuting Attorney, for appellant.
Law Firm Co., L.L.C., and Dustin M. Blake, for appellee.
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.
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
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
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,