State v. Little

Grady, Judge,

dissenting.

{¶ 74} I respectfully dissent from the majority’s decision sustaining the first assignment of error.

{¶ 75} The written motion to suppress evidence that defendants filed alleged that observations officers made while “flying in a helicopter above the [defendants’] property at an altitude of about 50 feet * * * constitute a warrantless search in this instance,” citing Florida v. Riley (1989), 488 U.S. 445, 109 S.Ct. 693, 102 L.Ed.2d 835. The state disputed the foundational claim that the defendants had a reasonable expectation of privacy that could be violated, and the trial court agreed. On appeal, defendants argue that the trial court erred because the record demonstrates that the state’s agents were subject to an FAA regulation governing flights within a prescribed distance of a commercial airport that created a reasonable expectation of privacy, which the court should have found was violated absent evidence showing compliance with the regulation.

{¶ 76} The motion to suppress evidence that defendants filed is wholly devoid of any reference to the FAA regulation or failure to comply with it. Neither did defendants move to amend their written motion prior to the hearing on it to give the prosecutor and the court notice of defendants’ claim regarding the regulation. No mention of the regulation was made at all prior to or during the evidentiary hearing. The evidence the majority finds insufficient to demonstrate compliance with the regulation was brought out not by the prosecutor, but by counsel for defendants in his cross-examination of the state’s witness and direct examination of his own.

{¶ 77} The first reference of any kind to the FAA regulation was by counsel for defendants when, after the close of evidence at the hearing on the motion to suppress, he orally requested the court to take judicial notice of the FAA regulation, arguing that because the evidence he had offered suggested a failure to comply with the regulation, and absent any showing of compliance by the state, the record could not support a finding by the court that officers were legally in a position to observe marijuana growing on defendants’ property from the helicopter.

{¶ 78} The prosecutor twice objected to the defendants’ request to take judicial notice of the FAA regulation. The court allowed the parties seven days in which to file memoranda of their arguments on the matter. The transcript was filed six days after the hearing, and on that same date both parties moved for extensions of time within which to file their memoranda. The court didn’t address those requests, and on the following day, it filed its written decision that rejected defendants’ argument, stating that “[wjhether or not the helicopter pilot was in proper contact with the airport has no bearing on Defendants’ reasonable expectation of privacy. Even if it did, the evidence shows that the helicopter pilot was in radio contact with the airport.”

{¶ 79} Defendants argue on appeal that because the record fails to contain evidence demonstrating compliance with the FAA regulation, the trial court erred in the finding it made. The majority agrees and reverses defendants’ convictions on a finding that their motion to suppress should therefore have been granted.

{¶ 80} Motions to suppress evidence “must be raised before trial,” Crim.R. 12(C)(3), and unless the court permits the motion to be made orally, the motion “shall be in writing [and] state with particularity the grounds on which it is made.” Crim.R. 47; State v. Shindler (1994), 70 Ohio St.3d 54, 636 N.E.2d 319. When that burden is satisfied in a case involving a warrantless search, an evidentiary burden is then imposed on the prosecutor to offer evidence rebutting the grounds for relief alleged. To trigger the prosecutor’s burden, the motion must raise the specific legal and factual grounds for challenging the legality of the warrantless search, because “the prosecutor must know the grounds of the challenge in order to prepare his case, and the court must know of the grounds of the challenge in order to rule on the evidentiary issues at the hearing and properly dispose of the merits.” Xenia v. Wallace (1988), 37 Ohio St.3d 216, 218, 524 N.E.2d 889. “Failure on the part of the defendant to adequately raise the basis of his challenge constitutes a waiver of that issue on appeal.” Id.

{¶ 81} Defendants’ failure to raise the issue of the FAA regulation and compliance with it in any way in the Crim.R. 12(C)(3) motion to suppress they filed waives their right to argue on appeal that the trial court erred when it found compliance with the regulation. The majority ignores defendants’ waiver and finds that suppression was warranted because the state failed to meet its burden to offer evidence demonstrating compliance with the FAA regulation. However, as Xenia v. Wallace noted, when there is a failure of notice on the part of the defendant “the prosecutor cannot be expected to anticipate the specific legal and factual grounds upon which the defendant challenges the legality of a warrantless search.” Id. at 218, 524 N.E.2d 889.

{¶ 82} Defendants’ argument relying on Florida v. Riley, which is quoted above, cannot reasonably be read to have put the prosecutor on notice of the specific legal and factual grounds that the FAA regulation and the need to comply with it would involve. As a result, defendants’ right to assign error on appeal with respect to that issue is waived, absolutely and as a matter of law. Xenia v. Wallace. To suggest that defendants are relieved of their waiver by the prosecutor’s failure to make a specific Xenia v. Wallace objection turns the Supreme Court’s holding in that case on its head. That outcome isn’t avoided by speculating about what might have happened had the prosecutor objected.

{¶ 83} The requirements imposed on defendants by Crim.R. 12(C)(3) and 47, and the holding in Xenia v. Wallace, 37 Ohio St.3d 216, 524 N.E.2d 889, are intended to avoid the kind of sandbagging that occurred in the present case. Defendants obviously intended to rely on the FAA regulation when they came to the hearing, but they failed to give the court and the prosecutor prior notice of their intention. Indeed, defendants purposely waited until the evidentiary portion of the hearing was closed to ask the court to find that the evidence was insufficient to show compliance with the regulation. The prosecutor, being surprised, didn’t specifically object to a failure of notice, arguing instead that judicial notice of the FAA regulation wasn’t warranted.

{¶ 84} Rather than rejecting defendants’ argument concerning the FAA regulation for lack of notice, as it should have, the trial court instead considered the FAA regulation and found that evidence of compliance with it was sufficient, though it wasn’t. Now, seizing on the court’s mistaken interpretation of the evidence, the majority ignores the defendants’ waiver of their right to argue any error on appeal with respect to the regulation and finds that the state’s failure to meet its burden required suppression. That is the kind of tunnel vision that the holding in Xenia v. Wallace was intended to avoid.

{¶ 85} Though it can’t claim surprise at this stage of the proceedings, the state also fails to argue on appeal that defendants waived their right to rely on the FAA regulation. However, the fact that the state has been consistently asleep at the switch can’t relieve defendants of the absolute waiver as a matter of law regarding the FAA regulation to which defendants are subject per Xenia v. Wallace due to their failure to provide notice. An appellee who defends a judgment doesn’t forfeit a basis to affirm it merely because he fails to point it out.

{¶ 86} Appellate courts may decide an issue on grounds different from those determined by the trial court when the evidentiary basis on which the court of appeals decides a legal issue was adduced before the trial court and made a part of its record. State v. Peagler (1996), 76 Ohio St.3d 496, 668 N.E.2d 489. Defendants’ failure to give notice of the grounds for suppression on which they would ask the court to rely is glaringly evident from the record. Our rejection of the trial court’s finding that the FAA regulation was satisfied does not, and should not, relieve defendants of their waiver of that issue for their failure to comply with Crim.R. 12(B)(3) and 47, pursuant to the holding in Xenia v. Wallace.

{¶ 87} I would overrule the first assignment of error for waiver and proceed to decide the other errors assigned.