OH9: Passenger had no standing to contest search of car

Trial court erred in finding a passenger could contest the search of the car as a “fruit” of an illegal stop when he didn’t show standing. State v. White, 2011 Ohio 6748, 2011 Ohio App. LEXIS 5575 (9th Dist. December 29, 2011)*:

[*P8] Therefore, here, White contested the search of the Ogbartam-Tetteh’s vehicle as the “fruit” of an illegal stop. See Carter, 69 Ohio St. 3d at 67 (“The exclusionary rule reaches not only primary evidence obtained as a direct result of an illegal search or seizure, but also evidence later discovered and found to be derivative of an illegality, or ‘fruit of the poisonous tree.’”), quoting Nardone v. United States (1939), 308 U.S. 338, 60 S. Ct. 266, 84 L. Ed. 307. However, in the context of a valid stop, White could contest the search only if he had a “legitimate expectation of privacy” in the area searched. See Rakas, 439 U.S. at paragraph four of the syllabus. The trial court determined that the initial stop and the arrest were proper. Therefore, White had the burden of proving that he had a legitimate expectation of privacy in order to contest the validity of the search of Ogbartam-Tetteh’s vehicle.

Officers arrested defendant for being unlawfully in the country, but delayed timely bringing him before a USMJ. His subsequent statement violated McNabb/Mallory and was suppressed. United States v. Valenzuela-Espinoza, 664 F.3d 1265 (9th Cir. 2011).*