[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
v. Wintermeyer, Slip Opinion No. 2019-Ohio-5156.]




                                           NOTICE
      This slip opinion is subject to formal revision before it is published in an
      advance sheet of the Ohio Official Reports. Readers are requested to
      promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
      South Front Street, Columbus, Ohio 43215, of any typographical or other
      formal errors in the opinion, in order that corrections may be made before
      the opinion is published.



                          SLIP OPINION NO. 2019-OHIO-5156
         THE STATE OF OHIO, APPELLANT, v. WINTERMEYER, APPELLEE.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
   may be cited as State v. Wintermeyer, Slip Opinion No. 2019-Ohio-5156.]
Criminal law—Fourth Amendment—When the state does not assert in the trial
        court that a defendant lacks Fourth Amendment standing to challenge a
        contested search or seizure, the state may not assert that argument in its
        own appeal from a judgment granting a motion to suppress—Court of
        appeals’ judgment affirmed.
 (No. 2017-1135—Submitted January 30, 2019—Decided December 17, 2019.)
      APPEAL from the Court of Appeals for Franklin County, No. 16AP-381,
                                      2017-Ohio-5521.
                                    _________________
        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
                             SUPREME COURT OF OHIO




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.
                    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




                                          2
                                  January Term, 2019




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.




                                            3
                              SUPREME COURT OF OHIO




     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’ ”? Id. 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




                                           4
                                January Term, 2019




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, 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.
       {¶ 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




                                         5
                             SUPREME COURT OF OHIO




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
himself was the victim of an invasion of privacy.” (Emphasis added.) Id.
       {¶ 14} The United States Supreme Court reiterated that point in Combs v.
United States, 408 U.S. 224, 226-228, 92 S.Ct. 2284, 33 L.Ed.2d 308 (1972). In
that case, no evidence was presented during the suppression hearing regarding
Fourth Amendment standing, nor was any argument made by the government
contesting the defendant’s standing. Id. at 226, fn. 3. The Sixth Circuit affirmed
the denial of the defendant’s motion to suppress on the basis that the defendant had
not presented evidence that he had any interest in the premises searched. Id. at 226-
227. The United States Supreme Court reversed and remanded for fact-finding on
the standing issue, explaining that the defendant’s failure to establish his Fourth
Amendment standing was attributable to “the related failure of the Government to
make any challenge in the District Court to petitioner’s standing to raise his Fourth




                                         6
                                  January Term, 2019




Amendment claim.” Id. at 227. Thus, in reversing the judgment of the Sixth
Circuit, the Supreme Court necessarily rejected the notion that the defendant has an
obligation to put on evidence of standing even when the government does not raise
the issue.
        {¶ 15} In Rakas, 439 U.S. at 130, 99 S.Ct. 421, 58 L.Ed.2d 387, fn. 1, the
court referenced its decisions in Jones and Combs. The court cited Jones for the
proposition that it is the proponent of the motion to suppress who has the burden of
establishing that his own privacy rights had been infringed upon. Rakas at 130, fn.
1. But even so, the court adhered to the principle that the state must contest the
defendant’s standing in the trial court. In Rakas, the prosecutor had argued in the
trial court that the defendants lacked standing to challenge the search. Id. The court
explained that unlike in Combs—where the government had not challenged the
defendant’s standing—the fact that the prosecutor had raised the argument that the
defendants lacked standing gave the defendants notice that they were to be “put to
their proof” on that issue. Id.
        {¶ 16} Finally, in Steagald v. United States, 451 U.S. 204, 101 S.Ct. 1642,
68 L.Ed.2d 38, the court was presented with a belated standing argument made by
the government in response to a defendant’s appeal of a suppression ruling. The
court reiterated that the onus is on the government to assert that a defendant lacked
a Fourth-Amendment-standing interest:


        [T]he government was initially entitled to defend against
        petitioner’s charge of an unlawful search by asserting that petitioner
        lacked a reasonable expectation of privacy in the searched home, or
        that he consented to the search, or that exigent circumstances
        justified the entry.




                                          7
                                   SUPREME COURT OF OHIO




Id. at 209. And even though the suppression ruling was being challenged by the
defendant and not the state on appeal, the court nevertheless determined that the
government had lost the ability to argue lack of standing as a defense. Id. It
explained that the government could “lose its right to raise factual issues of this sort
when it has made contrary assertions in the courts below, when it has acquiesced in
contrary findings by those courts, or when it has failed to raise such questions in a
timely fashion during the litigation.” Id.
         {¶ 17} As these cases demonstrate, the United States Supreme Court has
consistently treated Fourth Amendment standing as an issue that must be
established by the defendant if it is disputed by the state.1
C. Requiring Fourth-Amendment-standing issues to be raised in the trial court is
                   consistent with our treatment of motions to suppress
         {¶ 18} The approach taken by the United States Supreme Court is entirely
consistent with the manner in which we have instructed trial courts to handle
motions to suppress.            A search conducted without a warrant is “ ‘per se
unreasonable under the Fourth Amendment,’ ” and the state bears the ultimate
burden of establishing that such a search falls into an exception to the warrant
requirement. State v. Kessler, 53 Ohio St.2d 204, 207, 373 N.E.2d 1252 (1978),



1. The dissent asserts that the state at least partially raised the standing issue in the trial court by
including a parenthetical reference to standing in its written response to Wintermeyer’s motion to
suppress. Thus, it would remand for the court of appeals to decide whether the state’s failure to
raise the standing issue at the suppression hearing amounted to a forfeiture of the issue and “if so,
the impact, if any, the state’s failure might have had on its ability argue this issue on appeal.”
(Emphasis omitted.) Dissenting opinion at ¶ 33. But this is not an issue that is properly before us.
The state has not raised any such argument on appeal to this court. To the contrary, the proposition
of law it advances is that it may argue a defendant’s failure to establish standing on appeal “even if
it did not specifically raise the issue in the trial court.” Moreover, whether one characterizes what
happened as waiver or forfeiture, the result is the same. The United States Supreme Court has never
made a distinction between whether the government waived or forfeited a Fourth-Amendment-
standing argument. Rather, it has simply said that the government could “lose its right” to raise
issues of a defendant’s Fourth Amendment standing when it has failed to raise them in a timely
fashion. Steagald, 451 U.S. at 209, 101 S.Ct. 1642, 68 L.Ed.2d 38. Nor has this court ever applied
that distinction to arguments raised by the prosecution on appeal.




                                                   8
                                 January Term, 2019




quoting Coolidge v. New Hampshire, 403 U.S. 443, 454-455, 91 S.Ct. 2022, 29
L.Ed.2d 564 (1971). Nonetheless, we have held that before the state is put to this
burden, the defendant must assert the grounds upon which he intends to challenge
the validity of the search. Xenia v. Wallace, 37 Ohio St.3d 216, 524 N.E.2d 889
(1988); State v. Codeluppi, 139 Ohio St.3d 165, 2014-Ohio-1574, 10 N.E.3d 691,
¶ 10. “By requiring the defendant to state with particularity the legal and factual
issues to be resolved, the prosecutor and court are placed on notice of those issues
to be heard and decided by the court and, by omission, those issues which are
otherwise being waived.” State v. Shindler, 70 Ohio St.3d 54, 58, 636 N.E.2d 319
(1994).
          {¶ 19} Similarly, when a defendant makes stipulations or narrows the issues
to be decided at a suppression hearing, the prosecution need not “prove the validity
of every aspect of the search.” State v. Peagler, 76 Ohio St.3d 496, 500, 668 N.E.2d
489 (1996). Arguments not made by the defendant at the suppression hearing are,
therefore, deemed to have been waived. See Wallace at 218.
          {¶ 20} 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. State
v. Morris, 42 Ohio St.2d 307, 311, 329 N.E.2d 85 (1975).
          {¶ 21} When a defendant files a motion to suppress on Fourth Amendment
grounds, he is necessarily asserting that the government has violated his Fourth
Amendment rights. When the government wishes to challenge that generalized
assertion by arguing that the defendant lacks a possessory interest in the property
searched or item seized, we think it incumbent on the government to do so in the




                                           9
                              SUPREME COURT OF OHIO




trial court so that the defendant has an opportunity to demonstrate the requisite
Fourth Amendment standing.
       {¶ 22} This rule makes sense from a substantive standpoint.              Fourth
Amendment standing is not jurisdictional in nature. Byrd, __ U.S. __, 138 S.Ct. at
1530, 200 L.Ed.2d 805. Consequently, it need not be decided at the outset of a
hearing; rather, the trial court is free to consider substantive matters in any order it
chooses—for example, the court may elect to decide the issue of probable cause or
the applicability of an exception to a warrant requirement before reaching the
question of standing (or without reaching the standing question at all). Id. at __,
1530-1531.
       {¶ 23} Limiting suppression hearings to issues that are actually contested
promotes judicial economy by ensuring that parties do not put on unnecessary
evidence and that trial courts do not consider extraneous issues. Consider a
defendant who has pled not guilty to a drug charge and filed a motion challenging
the legality of the government’s search or seizure. It would be a strange rule that
would require such a defendant to begin the suppression hearing by putting on
evidence that he did, in fact, possess the drugs, when no one is arguing to the
contrary.
       {¶ 24} And we see little sense in carving out a Fourth-Amendment-standing
exception to our long-standing prohibition on raising new arguments on appeal. If
there truly is a Fourth-Amendment-standing concern, it is far better for the issue to
be developed in the trial court, where each side has the opportunity to put on
evidence, than for a court of appeals to decide the matter in the first instance after
the opportunity to develop evidence has passed.           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.




                                          10
                                January Term, 2019




                                  III. Conclusion
       {¶ 25} The proper balance is preserved by the rule that claims must be
raised in the trial court in order to preserve them for review. Thus, when the state
does not assert in the trial court that a defendant lacks Fourth Amendment standing
to challenge a contested search or seizure, the state may not assert that argument in
its own appeal from a judgment granting a motion to suppress. We therefore affirm
the judgment of the court of appeals.
                                                                  Judgment affirmed.
       O’CONNOR, C.J., and KENNEDY, J., concur.
       DONNELLY, J., concurs, with an opinion.
       STEWART, J., concurs in judgment only.
       FISCHER, J., dissents, with an opinion joined by FRENCH, J.
                                _________________
       DONNELLY, J., concurring.
       {¶ 26} I agree with the majority’s reasoning and its disposition of the case,
considering the sole proposition of law before this court. I write separately to stress
that there is no good reason for that proposition of law to be before this court, given
the clear errors in the reasonable-suspicion analyses employed by the courts below.
       {¶ 27} In plain view, appellee, Justin Wintermeyer, went with Korey
Carlson into an alley behind a residence. Wintermeyer briefly left Carlson, entered
the residence, and then reemerged and handed something in a very small plastic
bag to Carlson. It is conceivable that Wintermeyer handed Carlson a bag of cilantro
seeds in the dark alleyway that night; nevertheless, it was profoundly reasonable
for Officer Ryan Wise to have suspected that the small plastic bag contained
narcotics.
       {¶ 28} If there exist specific, articulable facts indicating that a person is
involved in criminal activity, then a police officer may approach that person for
purposes of investigating the possible criminal behavior. Terry v. Ohio, 392 U.S.




                                          11
                             SUPREME COURT OF OHIO




1, 21-22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Officer Wise personally observed
Wintermeyer’s and Carlson’s behavior and plainly viewed Wintermeyer hand
Carlson a small plastic bag. Taken together, these circumstances justified an
investigatory stop in order to verify the contents of the small plastic bag.
       {¶ 29} Because the investigatory stop of Wintermeyer and Carlson was
supported by reasonable suspicion, Wintermeyer’s suppression motion should have
been denied and the Fourth-Amendment-standing issue should have been moot. I
recognize, though, that the reasonable-suspicion issue is not before us in this appeal.
I further recognize that this court would rightfully decline to review such an issue
given that it would involve error correction. In light of the limited scope of our
review in this appeal, I concur.
                                _________________
       FISCHER, J., dissenting.
       {¶ 30} Waiver is the “ ‘ “ ‘intentional relinquishment or abandonment of a
known right.’ ” ’ ” State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38
N.E.3d 860, ¶ 20, quoting State v. Quarterman, 140 Ohio St.3d 464, 2014-Ohio-
4034, 19 N.E.3d 900, ¶ 15, quoting United States v. Olano, 507 U.S. 725, 733, 113
S.Ct. 1770, 123 L.Ed.2d 508 (1993), quoting Johnson v. Zerbst, 304 U.S. 458, 464,
58 S.Ct. 1019, 82 L.Ed. 1461 (1938).
       {¶ 31} In this case, considering the record, I find it difficult and illogical to
say that the state intentionally relinquished the right to argue that appellee, Justin
Wintermeyer, lacked Fourth Amendment standing. Appellant, the state of Ohio,
suggested that Wintermeyer lacked standing at the trial-court level via a citation to
Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1987), followed by
a parenthetical that read, “(Standing)” in its motion in opposition to Wintermeyer’s
motion to suppress. The state then renewed that very same argument on direct
appeal. When an argument is raised, it logically cannot be waived.




                                          12
                                 January Term, 2019




        {¶ 32} Thus, while the state may not have vociferously argued
Wintermeyer’s lack of standing at the suppression hearing, the state’s failure, in my
opinion, might more accurately be classified as a mere forfeiture rather than a
waiver. See Rogers at ¶ 21 (“forfeiture is the failure to timely assert a right or object
to an error”).
        {¶ 33} Accordingly, with waiver and forfeiture being substantially different
under Ohio law, I would reverse the judgment of the Tenth District Court of
Appeals, which is based on the conclusion that the state waived—that is,
intentionally relinquished—its Fourth-Amendment-standing argument, and I
would remand the cause for further proceedings on the issue of whether the
argument was forfeited and if so, the impact, if any, the state’s failure might have
had on its ability argue this issue on appeal.
        {¶ 34} I therefore must respectfully dissent.
        FRENCH, J., concurs in the foregoing opinion.
                                 _________________
        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, for appellee.
                                 _________________




                                           13
