“There 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.”

Justice DeWine, Majority Opinion

On December 17, 2019, the Supreme Court of Ohio handed down a merit decision in State v. Wintermeyer, 2019-Ohio-5156. In an opinion written by Justice DeWine, the court held that when the state fails to challenge a defendant’s standing in a suppression hearing in the trial court, the state is foreclosed from raising the issue on appeal. Chief Justice O’Connor and Justice Kennedy joined the majority opinion in full. Justice Donnelly agreed with the reasoning of the majority and the disposition of the case but wrote separately because he did not think the court should have taken up the proposition of law it accepted. (He wasn’t on the court when the case was accepted). Justice Stewart concurred in judgment only.  Justice Fischer dissented, joined by Justice French.  This case has been pending a long time.  It was argued January 30, 2019.

Case Background

One evening in March of 2014, a Columbus police officer was investigating a possible burglary in a vacant building with an open window.  The officer saw two men later identified as Justin Wintermeyer and Corey Carlson walking through an alley to a house nearby. The officer saw Wintermeyer go into the house, and also saw Wintermeyer hand a small object to Carlson when Wintermeyer came back out. Suspecting a drug transaction, the officer shined a flashlight on the two men as he approached them, and saw a small plastic bag in Carlson’s hand.  The officer took the bag from Carlson. The bag contained a brown substance the officer suspected was heroin, which was confirmed by testing at the scene. Both Carlson and Wintermeyer were arrested and charged with drug possession.

Wintermeyer filed a motion to suppress the drug evidence, arguing that the officer lacked reasonable, articulable suspicion to detain him. At the suppression hearing, the only argument made by the state was that the officer had reasonable suspicion to detain Wintermeyer. The trial court granted the motion to suppress on the ground that the officer lacked a reasonable, articulable suspicion of criminal activity when he detained Wintermeyer. At no time did the state argue Wintermeyer lacked standing to challenge the admission of the evidence.

The state appealed. The Tenth District Court of Appeals affirmed the judgment 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.

Read the oral argument preview here and an analysis of the argument here.

Key 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.)

Jones v. United States, 362 U.S. 257 (1960) (Requiring “one who seeks to challenge the legality of a search as the basis for suppressing relevant evidence . . .  [to] allege, and if the allegation be disputed, [ ] establish that he himself was the victim of an invasion of privacy.”)(emphasis added)

State v. Glaros, 170 Ohio St. 471 (1960) (“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.”)(syllabus).

Combs v. United States, 408 U.S. 224 (1972) (rejecting the notion that the defendant has the obligation to put on evidence of standing even if the government does not raise the issue.)

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.”)

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’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.

Does the Court Adopt the State’s Proposition of Law?

No

Merit Decision

Executive Summary

If disputed, the state can challenge a defendant’s standing in a suppression hearing to contest the admission of evidence that is seized.  But if the state fails to do so at the trial court level, it can’t do so on appeal.

Analysis

Fourth Amendment Standing, Burden of Proof, Failure to Raise Argument in Trial Court

Fourth Amendment standing is different from jurisdictional standing, which can never be waived.  A defendant who claims a Fourth Amendment violation must show his own Fourth Amendment rights were infringed, not someone else’s.

A defendant who claims to be subject to an unlawful search and seizure in violation of the Fourth Amendment has the burden of proving that his own Fourth Amendment rights were violated. In this case, the state defended against Wintermeyer’s motion to suppress without arguing that Wintermeyer lacked Fourth Amendment standing. When the state lost the suppression motion, the state tried to raise this issue for the first time on appeal.  The appeals court held the state couldn’t do that, and the high court agrees. It is a “first principle” of appellate jurisdiction that an argument not raised below can’t be raised for the first time on appeal.

State’s Position

The state argues that the court should create an exception to the rule against raising new arguments on appeal for two reasons. First, the defendant has the burden of presenting evidence on Fourth Amendment standing in the trial court whether or not the state contests that standing, and as a result, the state can argue lack of Fourth Amendment standing for the first time on appeal. The majority cites Steagald, Jones, Combs, and Rakas (see precedent section) to show that U.S. Supreme Court precedent clearly establishes that Fourth Amendment standing is an issue that must be established by the defendant if it is disputed by the state. And, this is consistent with the way the Supreme Court of Ohio has dealt with the issue:

“Thus, even with respect to issues for which the state has the burden of proof, we do not require the state to satisfy its burden on those issues unless they are challenged by the defendant. It follows, then, that the defendant need not be put to his burden of proof on issues that are not similarly disputed by the state. Noting that suppression arguments not made by defendants are waived, we have previously indicated that when the state likewise fails to contest the defendant’s standing in the trial court, it may not thereafter assert that challenge on appeal,” wrote DeWine, citing State v. Morris.

The Waiver/Forfeiture Footnote

Finally, in a footnote, the majority refutes the dissent’s assertion that the state partially raised the standing issue with a parenthetical reference to standing in response to Wintermeyer’s motion to suppress, noting that the state made no such argument to the high court.  The majority also wades into the waiver/forfeiture distinction the dissent fancies, noting that the result would be the same either way.

Raise it or Lose it

The court sees no reason to carve out a “Fourth Amendment-standing exception” to its long-standing prohibition against raising new arguments for the first time on appeal. The judgment of the court of appeals is affirmed.

Justice Donnelly’s Separate Concurrence

In addition to the standing issue, the appeals court found that the 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. Justice Donnelly would find this analysis was incorrect. To Donnelly, the police officer reasonably suspected  a drug transaction between Wintermeyer and Carlson that took place in plain view. This justified an investigatory stop to verify the contents of the small bag.  Since the investigative stop was supported by reasonable suspicion, Donnelly would find that the suppression motion should have been denied, which would have mooted the Fourth-Amendment standing issue. But, Donnelly notes, since the court did not accept the case on that error-correction issue, he agrees with the majority’s reasoning on the proposition of law it did accept and agrees with the case disposition.

Justice Stewart concurred in judgment only in the case.

Justice Fischer’s Dissent: Waiver Versus Forfeiture

Justice Fischer insists there is a strong distinction between waiver and forfeiture.  Waiver is “an intentional relinquishment or abandonment of a known right,” while forfeiture is “the failure to timely assert a right or object to an error.” He sees no way the state waived the standing challenge.  He also thinks the state did raise standing in its opposition to the suppression motion. So, while admittedly not “vociferously,” he thinks the state did argue Wintermeyer’s lack of standing at the suppression hearing. He would reverse the judgment of the 10^th district, which found the state had waived the argument (the appeals court did find waiver, not forfeiture)  and remand the case to determine if the standing argument was forfeited, and if so, the effect that had on the state’s ability to argue this on appeal.

Justice French joined this dissent.

Concluding Observations

Both student contributor Ivy Charneski and I called this for Wintermeyer. Here’s what I wrote after argument:

“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.”

Justice DeWine’s majority opinion really mirrored his questions at oral argument, during which he really pounded on the prosecutor.   He asked whether the U.S. Supreme Court wasn’t completely clear in Steagald that if the state didn’t raise the issue, they could forfeit it, and when the prosecutor disagreed, he quoted from the decision. He asked what the court should do about the decision in Rakas, where the U.S. Supreme Court said the defense has a burden once the state puts standing at issue. He asked if the state was asking the Ohio high court to say that in every case the state doesn’t have to raise standing and the defense has to prove it anyway, or to say in this case it is so clear there was no standing that there should be a special rule. He asked the prosecutor, “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?” That line made it into the majority opinion. And as for the waiver/forfeiture distinction, the majority finessed the issue by using “failed to raise.”

On the other hand, at oral argument, both Justices French and Fischer seemed to feel that the state had raised the standing issue in its memo opposing the suppression motion, and that was good enough.

One last point. In the Fourth Amendment analysis, Justice DeWine again wrote that no one had advanced a claim under the Ohio Constitution, so the analysis in the decision is limited to the federal constitution.  He keeps inviting state constitutional challenges. He did the same thing in a footnote about the double jeopardy clauses in the majority opinion in State v. Soto, Slip Opinion No. 2019-Ohio-4430. I hope there are lawyers out there who are listening.