Ohio held three weeks ago, in a case received today, that standing may be raised by the appeals court where the state failed to argue it. Here, she was “merely a guest,” but the result would be the same and she would lose on the merits. State v. Bugaj, 2007 Ohio 967, 2007 Ohio App. LEXIS 903 (7th Dist. February 14, 2007). Texas just did the same thing, again, yesterday in Velez v. State, 240 S.W.3d 261 (Tex. App. \u2014 Houston (1st Dist.) 2007):<\/p>\n
The State may challenge a defendant’s standing to contest a search for the first time on appeal. Kothe v. State<\/em>, 152 S.W.3d 54, 60 (Tex. Crim. App. 2004). Here, the State did not challenge standing before the trial court, but instead stipulated that appellant had standing. Although the State did not challenge standing at the trial court, we address the State’s appellate challenge to standing. See id<\/em>.<\/p><\/blockquote>\n
Comment:<\/em> The Arkansas Court of Appeals did a version of this to me in a case where the state never argued standing in the trial court, but it did on appeal, and I argued, to no avail, that the state cannot sandbag the defense and not contest standing and then argue lack of standing on appeal. See Steagald v. United States,<\/em> 454 U.S. 204, 208-09 (1981), which prohibits the state from not challenging standing below then raising it on appeal:<\/p>\n
The Government initially seeks to avert our consideration of the Fifth Circuit’s decision by suggesting that petitioner may, regardless of the merits of that decision, lack an expectation of privacy in the house sufficient to prevail on his Fourth Amendment claim. This argument was never raised by the Government in the courts below. Moreover, in its brief in opposition to certiorari the Government represented to this Court that the house in question was “petitioner’s residence” and was “occupied by petitioner, Gaultney, and Gaultney’s wife.” Brief in Opposition 1, 3. However, the Government now contends that the record does not clearly show that petitioner had a reasonable expectation of privacy in the house, and hence urges us to remand the case to the District Court for re-examination of this factual question.<\/p>\n
We decline to follow the suggested disposition. Aside from arguing that a search warrant was not constitutionally required, the Government was initially entitled to defend against petitioner’s charge of an unlawful search by asserting that petitioner lacked a reasonable expectation of privacy in the searched home, or that he consented to the search, or that exigent circumstances justified the entry. The Government, however, may lose its right to raise factual issues of this sort before this Court when it has made contrary assertions in the courts below, when it has acquiesced in contrary findings by those courts, or when it has failed to raise such questions in a timely fashion during the litigation.<\/p><\/blockquote>\n
In my case, the Arkansas Court of Appeals was perfectly content to let the state do this and reverse for lack of standing because it had not been shown below, despite the fact that the state did not put us on notice to defend against it. This is judicial dishonesty.<\/p>\n
State failed in its burden to show that a protective sweep of the defendant’s house was necessary after an arrest outside. Suppression order affirmed. State v. Pando, 284 Ga. App. 70, 643 S.E.2d 342 (2007):<\/p>\n
Although Agent Massey testified that they entered the home and did the protective sweep because he believed “where there’s drugs there’s usually other people, and there’s weapon[s] involved,” there was simply no evidence of other people or weapons in this case. Agent Massey’s generic concern, while not per se unreasonable, falls short of establishing specific, articulable facts that indicated someone else was inside Pando’s house and posed a threat to the officers as they stood outside the house. See State v. Charles<\/em>, 264 Ga. App. at 875-876 (1) (protective sweep of motel room was unjustified when there was no evidence that there was anyone inside the room). Moreover, the State has offered no explanation to show why, if the officers believed that they had enough evidence to secure a search warrant before entering the house and that there may have been other people waiting inside with weapons, they did not keep the defendants outside and secure the house from the outside while they obtained the search warrant, instead of choosing to enter the home and risk encountering a volatile and dangerous situation. See Illinois v. McArthur,<\/em> 531 U. S. 326, 331-332 (II) (A) (121 S. Ct. 846, 148 LE2d 838) (2001) (given that officers had probable cause to believe that the defendant had drugs in his home, it was reasonable to detain the defendant outside his home for two hours while the officers secured a search warrant); see generally King v. State,<\/em> 217 Ga. App. at 891 (an unnecessary, warrantless entry is not just illegal, but also unwise).<\/p>\n
Accordingly, the evidence presented supports the trial court’s finding that the warrantless entry into and protective sweep of Pando’s home was not authorized under the circumstances and, therefore, violated the defendants’ constitutional rights. The court’s grant of the defendants’ motion to suppress on that basis was not error. State v. Charles,<\/em> 264 Ga. App. at 875-876 (1).<\/p><\/blockquote>\n
Arrested co-conspirator named the defendant as the person he was meeting for a drug deal. While the co-conspirator was not a “reliable, confidential informant,” he was motivated to give accurate information because of his own predicament. The search warrant was based on probable cause. Massey v. State, 173 Md. App. 94, 917 A.2d 1175 (2007).<\/p>\n
Missouri chooses to explain the difference between a motion to suppress and a motion in limine since one of them is interlocutorily appealable. State v. Whitwell, 215 S.W.3d 760 (Mo. App. S.D. 2007):<\/p>\n
“The ‘suppression’ of evidence is not the same thing as the exclusion of evidence on the basis of some rule of evidence. Suppression is a term used for evidence which is not objectionable as violating any rule of evidence, but which has been illegally obtained.” Id.<\/em> “The in limine order which is sought to be appealed here is not an order ‘suppressing’ evidence or having that substantive effect.” State v. Dwyer,<\/em> 847 S.W.2d 102, 103 (Mo.App. 1992) (emphasis added). As an in limine order, the trial court’s ruling had the substantive effect of excluding evidence, not suppressing evidence. “Section 547.200.1 was not intended to allow the appeal of this order in limine.” Id.<\/em> (emphasis added); see also State v. Holzschuh,<\/em> 670 S.W.2d 184, 185 (Mo.App. 1984).<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"
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