The state did not raise standing in the trial court, so it cannot raise it for the first time on appeal. Nevertheless, defendant has a \u201cparticipatory interest\u201d in the area where the drugs were found in the car, so he can challenge the search, which is found illegal, and they both win. State v. Minitee, 2010 N.J. Super. LEXIS 200 (August 16, 2010):<\/p>\n
In short, from this record, we discern no reason that justifies the State’s failure to raise this threshold question in a timely fashion before the trial court. We will nevertheless address it because we are satisfied that Bland has the requisite “participatory” interest in the motor vehicle and the property seized to confer him with the standing necessary to challenge the State’s warrantless search.<\/p>\n
Under our state constitution, “a criminal defendant has standing to move to suppress evidence from a claimed unreasonable search or seizure ‘if he has a proprietary, possessory or participatory interest in either the place searched or the property seized.'” State v. Johnson<\/a>, 193 N.J. 528, 541 (2008) (quoting Alston, supra, 88 N.J. at 288). In State v. Mollica<\/a>, 114 N.J. 329, 339-40 (1989), the Court recognized the defendant’s \u201cparticipatory interest\u201d in property that was not owned by the defendant. Armed with a search warrant, the police searched the defendant’s hotel room. Id. at 334. The search warrant was based on information obtained from a codefendant’s telephone records documenting illegal gambling activities. Ibid. Because these records were generated by the defendant’s criminal gambling activities, the Court held that the defendant had standing to challenge how they were seized. Id. at 335.<\/p>\n
Here, Bland’s participatory interest in the red SUV registered to Minitee stems from his occupancy of the vehicle at the time Officer Lorenzo first stopped it. His occupancy gave him dominion and use of the area in and around the vehicle where the police subsequently found the incriminatory evidence. This participatory interest continued, unabated, to that point in time when the police seized the vehicle and arrested Minitee and her codefendant.<\/p><\/blockquote>\n
In my state, the appellate courts apply procedural default in extremis against the defendant, but seldom, if ever, against the state. I had a case 12 years ago where the state never raised standing in the trial court, but the state raised it in its appellee\u2019s brief, and I argued waiver from Steagald v. United States<\/a>, which is the first issue in that famous case extending Payton<\/a> to third party premises. The Arkansas Court of Appeals, however, as it is wont to do, just ignored me because that would mean that a defendant might win a search and seizure case, and they just couldn’t have such a state of affairs. Richard v. State<\/a>, 64 Ark. App. 177, 983 S.W.2d 438 (1998) (it was his aunt\u2019s house, and he could come and go as he pleased like he lived there). When they seem to delight in defaulting defense counsel, how come they seem to have so much trouble doing it to the state? Double standard?<\/p>\n","protected":false},"excerpt":{"rendered":"
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