OH9: Granting motion to suppress on a ground not litigated is error

Trial court erred in granting motion to suppress on an issue not even raised by defendant that the state did not get to address. State v. Duke, 2013 Ohio 743, 2013 Ohio App. LEXIS 655 (9th Dist. March 4, 2013):

[*P11] The Supreme Court has held, however, that, “the prosecutor cannot be expected to anticipate the specific legal and factual grounds upon which the defendant challenges the legality of a warrantless search. The prosecutor must know the grounds of the challenge in order to prepare his case, and the court must know the grounds of the challenge in order to rule on evidentiary issues at the hearing and properly dispose of the merits.” Xenia, 37 Ohio St.3d at 218. Thus, “the defendant must make clear the grounds upon which he challenges the submission of evidence pursuant to a warrantless search and seizure.” Id. The defendant “must state the motion’s legal and factual bases with sufficient particularity to place the prosecutor and the court on notice of issues to be decided.” State v. Shindler, 70 Ohio St.3d 54 (1994), syllabus.

[*P12] In this case, the trial court granted Duke’s motion to suppress based on an issue that fell outside the scope of the motion. The focus of Duke’s motion, and thus the scope of the hearing, was limited to whether the traffic stop lasted for an unreasonable amount of time. The State was given notice that Duke was challenging the admission of the evidence on those particular grounds. As the Supreme Court held in Xenia, the prosecutor cannot be expected to anticipate the specific legal and factual grounds that form the basis by which the evidence might be excluded. Xenia, 37 Ohio St.3d at 218. Because the trial court raised the K-9 reliability issue sua sponte, and that issue was not raised in Duke’s motion to suppress, the State was not provided with an opportunity to adequately prepare arguments and present evidence on that issue. Thus, the trial court erred in granting the motion to suppress on that basis.