KS: Standing is subject matter jurisdiction and can be raised by the state for the first time on appeal

“Standing is a component of subject matter jurisdiction, which may be raised for the first time on appeal. … Whether standing exists is a question of law subject to unlimited review. …” Brendlin is limited to standing to challenge a stop, not the search of the car, and the court of appeals erred in so holding. Rakas is still good law. State v. Gilbert, 292 Kan. 428, 254 P.3d 1271 (2011).* [Note: Standing cannot be raised for the first time on appeal if the prosecution acquiesced in findings that support standing. Steagald v. United States, 451 U.S. 204, 209-10 (1981). The way Gilbert is written, the Steagald bar is avoided, but it raises another question: If the prosecution fails to argue standing, they sandbag the defendant into not putting on proof that might show standing. Therefore, at best, the case should be reversed and remanded for a hearing on standing, not just declaring defendant loses from his failure to show standing when the state did not put the defense on notice that standing was an issue so the defense could put it on if it had any proof of standing.]

Defendant was an occasional overnight guest at the place searched, but there was no evidence that he was there on the day of the search enough to give him standing in the place to be searched. Nevertheless, there was third party consent to a search. State v. Corbin, 2011 Ohio 3491, 194 Ohio App. 3d 720, 957 N.E.2d 849 (6th Dist. 2011).*

“[*P22] Based upon the totality of these facts and circumstances, including that police were investigating possible drug trafficking activities, the recognized nexus between guns and drug trafficking, and Defendant’s failure to keep his hands in plain sight and his reluctance to move away from the driver’s area of his vehicle, police had a reasonable suspicion that Defendant might be armed and dangerous and might gain immediate control of a weapon inside his vehicle upon returning to it. Accordingly, the limited protective search of the driver’s area of Defendant’s vehicle for weapons was reasonable and did not violate Defendant’s Fourth Amendment rights. Terry v. Ohio, supra; Michigan v. Long, supra; Wilcox, supra.” State v. Pattson, 2011 Ohio 3507, 957 N.E.2d 849 (Ohio App. 2d Dist. July 15, 2011).*