FL2: State raises standing for first time on appeal; remanded so issue can be developed

The trial court suppressed on a violation of the curtilage, and the state raises standing for the first time on appeal. The court lets it do so, but remands for another suppression hearing to develop the facts. State v. Pettis, 2019 Fla. App. LEXIS 3455 (Fla. 2d DCA Mar. 6, 2019). [Note: I was the victim of this in my own state* even though Steagald doesn’t allow it in federal cases where the government acquiesced in standing (calling it defendant’s property).** Thus, in some states, the state gets to sandbag the defense, hide behind the log on standing, and then raise it on appeal without there being a record developed on standing, and then lack of record is used against the defense. This is a manifest due process issue. While Florida recognizes the ability of the state to raise standing for the first time on appeal, it sends the case back for another suppression hearing. That at least is due process.]
* Regular readers have heard that complaint before. And I practice in a state where procedural default in criminal cases only seems to be applied to defendants. If it were a civil case, they would hold the state defaulted the issue by not getting a ruling below.
** Steagald v. United States, 451 U.S. 204, 211 (1981) (“We conclude, however, that the Government, through its assertions, concessions, and acquiescence, has lost its right to challenge petitioner’s assertion that he possessed a legitimate expectation of privacy in the searched home. We therefore turn to the merits of petitioner’s claim.”).

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