On January 30, 2019, the Supreme Court of Ohio will hear 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.
On March 8, 2014, 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. Franklin County Court of Common Pleas Judge William Woods 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.
Votes to Accept the Case
Yes: Justices O’Donnell, Kennedy, French, Fischer
No: Chief Justice O’Connor and Justices DeWine and DeGenaro
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.)
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.”)
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.)
A person cannot assert someone else’s Fourth Amendment rights. Wintermeyer’s own Fourth Amendment rights have not been violated; thus he lacks standing to invoke the exclusionary rule which would bar any evidence of the heroin discovered by Officer Wise. Officer Wise did not violate Wintermeyer’s rights because the drugs were seized from Carlson, not Wintermeyer. Even assuming any rights were violated, they would have been Carlson’s, not Wintermeyer’s.
Furthermore, the State’s failure to raise the issue of standing in the trial court does not constitute a waiver. To succeed on a motion to suppress, thus invoking the exclusionary rule, the defense must prove that the police obtained evidence as a result of violating the defendant’s own Fourth Amendment rights. In other words, standing is part of the merits of the case and one of the elements that the defense bears the burden of proving. Therefore, because the defense must prove standing to win its motion to suppress, the State does not have to raise the issue at trial in order to argue it on appeal.
Finally, the exclusionary rule only applies where the deterrence benefits outweigh the costs of suppression of evidence. Here, affirming a clearly erroneous suppression order based on waiver does not have any deterrence benefits which outweigh the costs of suppression.
In order to invoke the exclusionary rule, the defendant bears the initial burden of proving that his or her Fourth Amendment rights were violated. The defendant meets this initial burden by filing a motion to suppress which sets out the particular factual and legal grounds on which his Fourth Amendment rights have been violated. Once this is done, the burden then shifts to the prosecution to prove that the search was legal. One way the prosecution can meet its burden is to prove that the defendant lacks standing.
Here Wintermeyer met his initial burden by filing a motion to suppress which set out the particular factual and legal basis for his claim. Thus, the burden was then shifted to the State to prove the search was legal. In attempting to meet its burden, the State argued that the search was legal because Officer Wise had reasonable suspicion. The State did not raise the standing issue at the evidentiary hearing and the only mention of standing in the trial court was in a string citation in its opposing memorandum. It is well settled precedent that issues not raised in the lower court cannot be argued on appeal. The State waived the standing issue and is now barred from raising it on appeal.
Even if the State did not waive the standing issue, Wintermeyer has established that the evidence was obtained as a result of an unlawful search and seizure in violation of his own Fourth Amendment rights. Wintermeyer has established his expected privacy right in the bag because he did not try to flee and he possessed the bag immediately before handing it to Carlson.
Lastly, the exclusionary rule is the appropriate remedy in this case because Wintermeyer’s constitutional rights were violated; therefore the evidence obtained as a result of this violation should be barred from use at trial.
State’s Proposed 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.
Wintermeyer’s Proposed Counter Proposition of Law
Where the State fails to challenge a defendant’s reasonable expectation of privacy, labeled by the State as standing, at an evidentiary hearing on a motion to suppress after the defendant has filed a legally sufficient motion to suppress for warrantless search and seizure, and instead elects to defend the reasonableness of the search and seizure, the State waives further challenge on the issue.
Student Contributor: Ivy Charneski