State v. Wintermeyer

158 Ohio St.3d 513

145 N.E.3d 278

2019 Ohio 5156

The STATE of Ohio, Appellant,

v.WINTERMEYER, Appellee.

No. 2017-1135

Supreme Court of Ohio.

Submitted January 30, 2019

Decided December 17, 2019

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, Columbus, 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 the state 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 judgment 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’ "? Byrd at 1526, quoting Rakas v. Illinois , 439 U.S. 128, 133, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). Because Fourth Amendment standing is not a jurisdictional question, it need not be addressed before other aspects of a Fourth Amendment claim. Id. at 1530.

A. The general rule is that new arguments may not be raised for the first time on appeal

{¶ 10} In arguing that it may raise a Fourth-Amendment-standing challenge for the first time on appeal, the state faces a significant hurdle. A first principle of appellate jurisdiction is that a party ordinarily may not present an argument on appeal that it failed to raise below. Goldfuss v. Davidson , 79 Ohio St.3d 116, 121, 679 N.E.2d 1099 (1997) ; see also State v. Glaros , 170 Ohio St. 471, 166 N.E.2d 379 (1960), paragraph one of the syllabus ("It is a general rule that an appellate court will not consider any error which counsel * * * could have called but did not call to the trial court's attention at a time when such error could have been avoided or corrected by the trial court"). This contemporaneous-objection requirement imposes a duty on trial counsel " ‘to exercise diligence and to aid the court rather than by silence mislead the court into commission of error.’ " State v. Williams , 51 Ohio St.2d 112, 117, 364 N.E.2d 1364 (1977), vacated in part on other grounds , 438 U.S. 911, 98 S.Ct. 3137, 57 L.Ed.2d 1156 (1978), quoting State v. Driscoll , 106 Ohio St. 33, 39, 138 N.E. 376 (1922). Without such a requirement, counsel would be able "to place his client in a position where he could take advantage of a favorable verdict and, at the same time, avoid an unfavorable verdict merely because of an error of the trial judge that counsel made no effort to prevent * * * when such error could have been avoided." Glaros at 475, 166 N.E.2d 379.

{¶ 11} The state maintains that we should create an exception to this rule against raising new arguments on appeal. The state's argument is twofold. First, it advances the proposition 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. As a result, the state's argument continues, it may argue a lack of Fourth Amendment standing for the first time on appeal. This view finds little support in precedent.

B. SCOTUS and Fourth Amendment standing

{¶ 12} The Supreme Court of the United States has explained that once a defendant has alleged that his rights were violated by the challenged search or seizure, the state is entitled to defend against that claim by asserting that the defendant lacked a protected Fourth Amendment interest in the place searched or item seized. Steagald v. United States , 451 U.S. 204, 209, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981). In this situation, "[t]he proponent of [the] motion to suppress has the burden of establishing that his own Fourth Amendment rights were violated by the challenged search or seizure." Rakas , 439 U.S. at 130, 99 S.Ct. 421, 58 L.Ed.2d 387, fn. 1 ; see also State v. Dennis , 79 Ohio St.3d 421, 426, 683 N.E.2d 1096 (1997).

{¶ 13} The court has also consistently indicated that this burden on the defendant to demonstrate Fourth Amendment standing is triggered only when the government argues that the defendant lacks a protected privacy interest affected by the search or seizure. To challenge a search or seizure under the Fourth Amendment, the defendant "must have been a victim of a search or seizure, one against whom the search was directed, as distinguished from one who claims prejudice only through the use of evidence gathered as a consequence of a search or seizure directed at someone else." Jones v. United States , 362 U.S. 257, 261, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), overruled on other grounds , United States v. Salvucci , 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980). Thus, the United States Supreme Court explained in Jones that "it is entirely proper to require of one who seeks to challenge the legality of a search as the basis for suppressing relevant evidence that he allege, and if the allegation be disputed that he establish , that he...