OH: State has burden to plead lack of standing in response to a motion to suppress and can’t remain silent without waiving

When defendant files a motion to suppress and the state questions standing, it has the burden of going forward to at least raise the issue so defendant can meet it. Without doing so in the trial court, the state waives standing on appeal. State v. Wintermeyer, 2019-Ohio-5156, 2019 Ohio LEXIS 2545 (Dec. 17, 2019):

[*P1] 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 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.

[*P2] 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.

[*P3] 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.