State waives standing by arguing only consent in trial court

While standing may be asserted on appeal by the state for the first time, it must not be inconsistent with the position taken in the trial court. Thus, where the state argued only consent in the trial court, it could not argue lack of standing on appeal. “When the deputy told Cardenas ‘he needed to come speak to [the deputy],’ under the circumstances, Cardenas was seized. As in Zubizareta and McAfee, the officer’s language was inherently coercive such that reasonable people would not believe they were free to go about their business.” This was not consent. State v. Cardenas, 143 Idaho 903, 155 P.3d 704 (2006).

Police responding to a domestic disturbance call were told by defendant’s girlfriend that he pointed a gun at her when he came to the house. He came to the door and they handcuffed him and emptied his pockets. No gun was found on him, and she directed the police to the back yard, but no gun was found there. He consented to a search of his car, but he denied knowing where the keys were. The officer got his keys and looked in the car, and two handguns were found in a briefcase, and he was a convicted felon. He voluntarily consented to the search although he was handcuffed. United States v. Flowers, 203 Fed. Appx. 221 (10th Cir. November 2, 2006)* (unpublished).

Co-defendant who tried to hide from police in motel parking lot professed to be staying in room 32. Officers approached the door, and they could smell marijuana, so they asked her for consent. Based on the totality, she had sufficient apparent authority to consent to an entry into the room. State v. Wallace, 2006 Tenn. Crim. App. LEXIS 858 (November 1, 2006):

Applying these principles to the facts of this case, we conclude that the officers had valid consent to enter and search the motel room. The facts show that Ms. Arnold was standing in the parking lot of the Savannah Motel and attempted to hide from Officer Rich when he drove by the motel on patrol. Officer Rich found her behavior suspicious and approached her to ascertain her identity and her reason for being at the motel. She gave her name and told Officer Rich that she was staying in room thirty-two at the motel. When Officer White arrived as back-up, Ms. Arnold agreed to accompany the officers to room thirty-two so that they could verify her identity and whether she was staying at the motel. As the officers approached the motel room, the door to the room opened and the officers immediately smelled marijuana. The occupants in the room verified Ms. Arnold’s identity and the fact that she was staying in the room. The officers then asked Ms. Arnold, “Do you care if we search the apartment? Because we do smell marijuana coming [from the room].” Ms. Arnold subsequently consented to a search of the room. Under the circumstances, it was reasonable for the officers to believe that Ms. Arnold had the authority to consent to a search of the motel room. Consequently, the search was a valid, legal search and was not in violation of Defendant’s Fourth Amendment rights. Defendant is not entitled to relief on this issue.