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Use it or Lose it: Fourth Amendment Arguments not Raised before Trial Court are Waived

By: Megan Patituce

The Ohio Supreme Court reinforced the general rule of “use it or lose it” in the Wintermeyer decision.  State v. Wintermeyer, Slip Op. No. 2019-Ohio-5156 (Dec. 17, 2019).  In Wintermeyer, the defendant moved to suppress drugs found in the possession his companion.  The trial court granted the motion, finding that the officer lacked reasonable, articulable suspicion.

For the first time on appeal, the state argued that the defendant lacked standing to seek the suppression of the drugs.  The Tenth District was not swayed and affirmed the trial court’s decision.  In the Supreme Court, the state argued that defendants had an obligation to present evidence as to Fourth Amendment standing at suppressions hearing and, if they fail to do so, the state may challenge standing on appeal for the first time.

The Court unequivocally declined to carve out a special exception for the state in Fourth Amendment cases, noting that long-held precedent demanded issues be raised at the trial level before proceeding to appeal.  Further, the Court stressed the strangeness of a rule that would require a defendant to, at a suppression hearing, prove that he had been in possession of drugs.

The decision highlights standing precedent but relies on the notion that the trial court is best suited to develop facts within a record to decide such issues, rather than relying upon an appellate court after the opportunity to present evidence has passed.  Justice Dewine put it succinctly: “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.” Wintermeyer, ¶ 24.

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