OH9: State has burden to argue the warrant exception it relies upon or lose

Defendant was observed drinking a beer in a park. He was seen putting something in his hoodie pocket which was on his truck. A search of the hoodie was suppressed, and, on appeal, the state didn’t argue what exception to the warrant requirement applies. It’s not the court’s province to make its argument for it. State v. Wallace, 2014-Ohio-375; 2014 Ohio App. LEXIS 366 (9th Dist. February 5, 2014):

[*P9] On appeal, the State argues that the trial court erred in granting Wallace’s motion to suppress. However, the State has not argued, let alone demonstrated, why the warrantless search in this case was justified. More specifically, the State has not explained how the warrantless search in this case falls under one of the well-delineated exceptions to the warrant requirement. Bustamonte, supra. As this Court has repeatedly held, “[i]f an argument exists that can support [an] assignment of error, it is not this [C]ourt’s duty to root it out.” Cardone v. Cardone, 9th Dist. Summit No. 18349, 1998 Ohio App. LEXIS 2028, 1998 WL 224934, *8 (May 6, 1998). Absent a legal justification for the warrantless search, we have no choice but to overrule the State’s assignment of error.