Update: On December 17, 2019, the Supreme Court of Ohio handed down a merit decision in this case. Read the analysis here.
“So we are going to throw out our ordinary rules of procedure and allow the state to play ‘gotcha’ in standing cases, but no other cases?”
Justice DeWine, to the Prosecutor
“Procedurally, when would you have the state raise it (standing) and how?”
Justice Fischer, to Defense Counsel
On January 30, 2019, the Supreme Court of Ohio heard oral argument in State of Ohio v. Justin Wintermeyer, 2017-1135. At issue in the case is whether the State may argue for the first time on appeal that a defendant lacks standing to invoke the Fourth Amendment exclusionary rule.
Case Background
Columbus Police Officer Ryan Wise responded to a report of a possible burglary at a vacant house. While investigating the scene, Officer Wise went to the backyard of the house and noticed two men walking in an abutting alleyway. Officer Wise saw one of the men, later identified as Wintermeyer, enter a house on the opposite side of the alleyway while the other man, later identified as Carlson, waited outside. Minutes later, Officer Wise saw Wintermeyer leave the house and hand something to Carlson. Officer Wise then approached the two men and shined his flashlight on them. At that point Officer Wise saw a small plastic bag in Carlson’s hand. Officer Wise then grabbed the bag from Carlson and detained the two men in the alley.
The bag later tested positive as heroin, and Wintermeyer was charged with possession. Wintermeyer filed a motion to suppress, seeking to invoke the exclusionary rule and exclude evidence of the drugs because it was obtained in violation of his Fourth Amendment rights. The trial court granted the motion. The State appealed the order, claiming that Wintermeyer lacked standing.
In a split decision authored by Judge Julia Dorrian in which Judge Timothy Horton concurred, the Tenth District Court of Appeals affirmed the order granting the motion to suppress. The Tenth District held that in failing to argue the issue of standing in the trial court, the State waived the issue. The Tenth District found that seizure of the bag violated Wintermeyer’s Fourth Amendment rights because he was the subject of an investigative detention that was not supported by reasonable suspicion, and did not fall under the plain view exception. Finally, the Tenth District found that the exclusionary rule barred admission of the evidence obtained unlawfully.
Judge Lisa Sadler dissented on the grounds that the warrantless seizure of the drugs was justified under the plain view exception to the warrant requirement.
Read the oral argument preview here.
Key Statutes and Precedent
Fourth Amendment to the United States Constitution (The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.)
Weeks v. U.S., 232 U.S.383 (1914) (The exclusionary rule bars the use of evidence secured by an unconstitutional search and seizure.)
Terry v. Ohio, 392 U.S. 1, 19 (1968) (Investigative detention may be conducted without violating the Fourth Amendment if the investigating officer reasonably suspects that the person apprehended is committing or has committed a criminal offense.)
State v. Morris, 42 Ohio St.2d 307 (1975) (The state waives its right to challenge Fourth Amendment standing on appeal when it “fails to challenge appellant’s standing to object…and instead elects to defend the reasonableness of the search.”)
Rakas v. Illinois, 439 U.S. 128 (1978) (“The proponent of a motion to suppress has the burden of establishing that his own Fourth Amendment rights were violated by the challenged search or seizure.”)
Rawlings v. Kentucky, 448 U.S. 98 (1980) (A defendant, who placed drugs in someone else’s purse, lacked standing to challenge the search of that purse.)
Steagald v. United States, 451 U.S. 204 (1981) (The government cannot challenge a defendant’s lack of standing on appeal when it has “made contrary assertions in the courts below, … acquiesced in contrary findings by those courts, or … failed to raise such questions in a timely fashion during the litigation.”)
State v. Klima, 934 S.W.2d 109 (Tex.Cr.App.1996) (When the state raises standing for the first time on appeal, it is not “rais[ing] a new issue. Rather it challenged the trial court’s holding that [defendant] met her burden of establishing that the government violated her reasonable expectation of privacy.”)
Herring v. United States, 555 U.S. 155 (2009) (To trigger the exclusionary rule, police conduct must be sufficiently deliberate so that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system.)
State v. Boyd, 2013-Ohio-1067 (2nd Dist.)(The defendant has the initial burden to establish that a warrantless search occurred. The burden then shifts to the prosecution to prove the search was legal.)
United States v. Noble, 762 F.3d 509 (6th Cir.2014) (Fourth Amendment standing is a non-jurisdictional issue that can be waived or forfeited; however, the government can raise an objection to a defendant’s Fourth Amendment standing for the first time on appeal, if it can show that the defendant plainly lacked standing and that failure to recognize it would seriously affect the fairness, integrity or public reputation of judicial proceedings.)
State’s Proposition of Law Accepted for Review
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.
At Oral Argument
Arguing Counsel
Seth L. Gilbert, Assistant Prosecuting Attorney, Franklin County, for Appellant State of Ohio
Dustin M. Blake, Blake Law Firm Co. LLC, Columbus, for Appellee Justin Wintermeyer
State’s Argument
It is always the defendant’s burden to prove standing as part of the merits of a suppression hearing. Rakas makes that clear. When the record unequivocally shows that a defendant failed to meet his burden of proving Fourth Amendment standing, the state does not need to object in the trial court in order to argue this failure of proof on appeal. A failure of proof is not an error that requires an objection below, by either party. There was no forfeiture here. The way the state raises this error in this case is by appealing the trial court’s decision.
In order to meet his burden of proof on standing, Wintermeyer would have to show that the challenged search or seizure violated his own rights, not someone else’s rights, and led to the discovery of evidence. But in this case, if there was any violation of Fourth Amendment rights they were Carlson’s rights, not Wintermeyer’s, even if Wintermeyer was detained simultaneously. It was grabbing the drugs from Carlson, not the detention of Wintermeyer, that led to the discovery of the drugs. Simply put, Wintermeyer simply failed to prove standing, and the evidence does not support the trial court’s decision.
Additionally, the state did raise the standing issue in its memorandum opposing the suppression motion. That certainly should have put the defendant on notice, although the defendant already knew full well he had an obligation to prove standing. If the Court does not think the state raised the objection in its memo contra, the state would welcome plain error review in this case.
Mr. Gilbert also urged the Court to read and carefully follow the decision by the Texas Court of Criminal Appeals in Klima.
Wintermeyer’s Argument
While the state may have referenced standing in its memo contra to the suppression motion, they totally abandoned that argument, and never once referenced or argued it during the entire proceeding. And Mr. Wintermeyer definitely did have standing in this case, which was a simultaneous transaction where both individuals were detained.
The Court of Appeals did the proper analysis here. A defense lawyer serving as appellate counsel who was not trial counsel often sees issues on appeal the trial lawyer may not have seen, but if those issues weren’t raised below they are deemed waived because they weren’t previously brought up. The same should be true for the state. And even plain error review would not change the result here. The appeals court decision should be affirmed.
What Was On Their Minds
Facts
Mr. Wintermeyer and his co-defendant were both arrested for the transfer of drugs, which by its very nature needs two people, noted Chief Justice O’Connor. Just because the transaction was completed, what was Mr. Wintermeyer doing there? How much time elapsed between leaving the house he ran into, to get these drugs, and meeting up with his co-defendant and handing him the drugs? And the officer had his eyes on him the whole time? Carlson is charged because he has the drugs in his possession. But the man who just handed him the drugs to facilitate a transfer of drugs cannot raise standing? It is one act. Here, we have two people engaged in illegal activity simultaneously.
Didn’t the facts in this particular case amount more to a plain view type of analysis than a standing issue, asked Justice Donnelly?
Isn’t the only thing in the record Carlson being searched, asked Justice Fischer?
Do we even get to the facts, asked Justice Stewart?
Waiver/Forfeiture of Standing Issue
So the state has no obligation to even raise the issue below, asked Justice Fischer? They can just hide in the weeds until later and raise it then? The earliest it has to be raised is at the court of appeals? Can the state waive or forfeit this issue?
Wasn’t the U.S. Supreme Court very clear in Steagald that if the state didn’t raise the issue, they could forfeit it, asked Justice DeWine? (When the prosecutor disagreed, DeWine quoted from the decision). Isn’t that what happened here? The state failed to raise the questions in a timely fashion?
Is it waiver or forfeiture, asked Justice Stewart, explaining that waiver is a known right that a party decides not to assert and forfeiture is a party didn’t bring it up at a particular time. But no court has the right to make an error of law, does it? So if the trial court made an error of law, such as the defendant failing to show standing, does that ruling have a right to stand and be shielded from a plain error analysis by a reviewing court?
Burden of Proof
What would a defendant’s proof of standing look like, asked Chief Justice O’Connor? How would he prove it? Would the state argue that wherever it is the defendant’s burden to establish a right or a defense, the state is under no obligation to raise its objection in the trial court at the suppression hearing?
If it’s always the defendant’s burden to prove standing, why is it that the state can raise the issue whenever, asked Justice Stewart? Assuming the trial court made an erroneous decision, to the detriment of the state, and in favor of the defendant, why is it that the state gets to sit on its hands and then raise it at any time? That’s not judicial economy is it? If the court rules the defendant’s favor, isn’t there a presumption of standing?
So is the state asking the Court to say that in every case the state doesn’t have to raise standing and the defense has to prove it anyway, asked Justice DeWine? Or to say in this case it is so clear there was no standing we should have a special rule? What do we do with U.S. Supreme Court cases like Rakas, where the Court said the defense has a burden once the state puts standing at issue? He then asked the state about a hypothetical suppression hearing in which drugs are seized from someone’s house. The state never argues in the trial court that it wasn’t the defendant’s house and he had no rights to live there. In the court of appeals the state finds in the record somewhere a lease to the apartment and says the defense failed to prove standing. Is that ok? (yes, said the prosecutor). Isn’t the state asking for a special rule for standing because in most cases, a party has to raise the issue before there’s a burden to have to put on evidence?
Notice
Didn’t the state raise the standing issue in its memo contra, asked Justice Donnelly? Wasn’t that enough to put the defense on notice that if there is a standing concern the defense should address it?
Was the reference to standing in the state’s memo contra not sufficient to raise the issue of standing, asked Justice French?
Why wasn’t the state’s line or two in the memo contra legally sufficient, asked Justice Fischer? It’s just pablum?
Plain Error Review
If we agree that the state forfeited the right to raise standing, should the appeals court at least have conducted a plain error analysis, asked Justice Stewart? Even if it did, is it the defense position that it could not unequivocally find lack of standing?
If this Court finds forfeiture and not waiver, don’t Justice Stewart’s questions about plain error apply, asked Justice Fischer?
Has there ever been a case where plain error has been recognized in a criminal case for the benefit of the state, asked Justice DeWine? In Ohio?
How It Looks From The Bleachers
To Professor Emerita Bettman
Like a win for Wintermeyer, although Mr. Gilbert certainly passionately stood by his position for the state. While several justices may have been persuaded that the state at least referenced a standing challenge in its memorandum opposing the motion to suppress, it sounds like the state abandoned the argument because it never pursued it in the trial court. So a finding of forfeiture is likely (the appeals court uses the language of waiver rather than forfeiture, and I confess that I haven’t been as precise about the two terms as I should be, but the point here is the state didn’t raise the issue at the appropriate time). Justice DeWine seemed the most adamant about this and got into a couple of heated disagreements with Mr. Gilbert about U.S. Supreme Court holdings on the subject. And when I consult with lawyers about appellate briefs and arguments, I advise being careful about which out-of-state precedent to rely on—I’d never recommend the Texas Court of Criminal Appeals, as Mr. Gilbert passionately chose.
Perhaps sensing the Court was leaning his way, Mr. Blake was much quieter and vaguer than Mr. Gilbert.
Finally, Justice Stewart raised the issue of plain error review. It’s possible the state may get that, but that is always a hard sell.
Interestingly, when all is said and done over raising the issue, I think on the merits Mr. Wintermeyer did have standing here, as the Chief seemed to think as well, repeatedly emphasizing the simultaneous nature of this drug transaction and seizure, distinguishing some of the related U.S. Supreme Court cases. What was actually in the record on this point was unclear.
To Student Contributor Ivy Charneski
The Court seemed very hesitant to accept the State’s argument that standing can be raised for the first time on appeal. I thought the Court’s reluctance was especially shown when Justice Fischer asked, “So the State can just hide in the weeds and bring it up at any time?” and later with Justice Stewart’s voicing judicial economy concerns. In fact, Justice DeWine seemed to completely disagree with the State all together. I thought there were even some tense moments with Justice DeWine and the State’s attorney going back and forth in disagreement as to the holdings of many of the key precedent cases. Ultimately, it seemed like the State’s attorney just couldn’t get on the same page as any of the Justices. He kept trying to point out to them how straightforward this case is because standing is part of the merits in a suppression hearing, and therefore it does not need an objection. However, the Justices seemed to refuse to accept the case as clear cut like the State’s attorney insisted. I think this was mainly shown in Justice DeWine’s disagreement on interpretation of a lot of the key precedent and by Chief Justice O’Connor’s insistence on distinguishing the facts to emphasize that this was a consensual transaction between both Carlson and Wintermeyer. This idea of the consensual transaction involving two people is something that Wintermeyer’s counsel, Mr. Blake, echoed nicely in his argument.
I predict this case to go in Wintermeyer’s favor because of the reluctance the Court expressed at the idea that standing can be raised at any time. However, it did give me pause when some of the Justices brought up the fact that the State did mention standing in its memorandum contra to the suppression motion. This made me wonder, whether they even agree that the State waived its argument.