STATE OF FLORIDA, APPELLANT,
v.
SCOTT ABELES, APPELLEE
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The Florida Supreme Court reversed the trial court's suppression order and remanded for further proceedings, holding that while the State waived standing by failing to raise it at trial, the appellate court cannot decide the standing issue in the State's favor without remanding to develop a complete record on whether the defendant had standing to challenge the search.
The trial court's order granting the suppression motion must be reversed and remanded because, although the State waived its standing argument by failing to raise it at trial, the appellate court cannot decide the standing issue in the State's favor without first remanding to allow the trial court to develop a complete record on the standing question, as the defendants may have standing evidence they were not prompted to present.
[1] A state may challenge a defendant's standing to contest a search and seizure for the first time on appeal.
[2] A defendant must establish standing to challenge the search and seizure of contraband.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the state challenges the defendants' standing herein for the first time on appeal. Although the challenge does not come too late, we are precluded by law from deciding the issue in the state's favor without first remanding the cause to the trial court for the purpose of developing a complete record on the standing issue”
Establishes the core holding that while the State may raise standing on appeal, the court cannot rule in its favor without remanding for full development of the record
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Join FLexlaw to unlock all legal intelligenceBased on a confidential informant's tip, law enforcement placed an apartment building under surveillance. A deputy observed a suspect named Smith carr…
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[*461] DELL, Judge.
The State of Florida appeals from an order granting appellee’s motion to suppress evidence.
Based on information furnished by a confidential informant, the State placed an apartment building under surveillance. A deputy saw a suspect named Smith, carrying what appeared to be a briefcase, get into appellee’s car. Deputies later stopped the automobile and after obtaining appel-lee’s consent, searched it. Inside the automobile they found a backgammon set which contained a vial of cocaine and drug paraphernalia. At that time appellee denied ownership of the backgammon set and its contents. He later moved to suppress the evidence based on the alleged illegality of the search and seizure. The trial court granted appellee’s motion to suppress notwithstanding appellee’s failure to plead and establish standing to challenge the search and seizure of the backgammon set.
The State contends that appellee had no standing to challenge the search and seizure, but concedes that it failed to raise this matter in the trial court. However, the State argues that it may challenge appellee’s standing for the first time on appeal upon the authority of Morales v. State, 407 So. 2d 321 (Fla. 3d DCA 1981). We agree.
In Morales, the court stated:
[T]he state challenges the defendants’ standing herein for the first time on appeal. Although the challenge does not come too late, we are precluded by law from deciding the issue in the state’s favor without first remanding the cause to the trial court for the purpose of developing a complete record on the standing issue — the theory being that the issue was not fully litigated below, absent a proper state challenge, and that the defendants may have standing evidence which they were lulled into not presenting below and could present upon remand. Combs v. United States, 408 U.S. 224, 92 S.Ct. 2284, 33 L.Ed.2d 308 (1972); State v. Hutchinson, 404 So. 2d 361 (Fla. 2d DCA 1981); St. John v. State, 400 So. 2d 779 (Fla. 1st DCA 1981); Coster v. State, 392 So. 2d 16 (Fla. 3d DCA 1981).
Id. at 326 (footnote omitted).
The record before us fails to establish that appellee had an expectation of privacy in the backgammon set, and therefore fails to establish his standing to challenge the search and seizure of the contraband. However, since the State failed to raise the standing argument below we do not know whether the facts established at the suppression hearing are complete with respect to this issue.
Therefore we reverse the order granting appellee’s motion to suppress and remand this case to the trial court for the purpose of developing a complete record on the standing issue and for further proceedings not inconsistent herewith.
REVERSED and REMANDED.
WALDEN, J., concurs.
ANSTEAD, J., dissents with opinion.
ANSTEAD, Judge,
dissenting.
This case was thoroughly argued by both parties before the trial court. That being the case, I do not believe there is any justification for permitting the state to argue a position on appeal that it failed to assert at either of the two hearings conducted by the trial court on this issue.
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McCAULEY v. State, 842 So. 2d 897 (Fla. 2d DCA 2003)…use he had a permanent residence). Although this point was not argued by the State at the hearing on the motion, the concept of standing has been subsumed into Fourth Amendment issues and can be raised for the first time on appeal. State v. Abeles, 483 So. 2d 460, 461 (Fla. 4th DCA 1986); St. John v. State, 400 So. 2d 779, 780 (Fla. 1st DCA 1981). Because McCauley was not given an opportunity to prove his interest in the premises below due to the State’s tacit concession of standing, we conclude that he is e…
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Jefferson Scott Zimmerman v. State, 505 So. 2d 517 (Fla. 4th DCA 1987)…85). . Section 327.56, Florida Statutes (1985). .Having acknowledged the correctness of the order denying the motion to suppress, the issue of standing, raised by the state for the first time on appeal, has been rendered moot. See State v. Abetes, 483 So. 2d 460 (Fla. 4th DCA 1986).…
Authorities Cited
- Combs v. United States, 408 U.S. 224 (U.S. 1972)
- Zeinida Morales v. State, 407 So. 2d 321 (Fla. 3d DCA 1981)
- State v. Hutchinson, 404 So. 2d 361 (Fla. 2d DCA 1981)
- Coster v. State, 392 So. 2d 16 (Fla. 3d DCA 1980)
- ST. John v. State, 400 So. 2d 779 (Fla. 1st DCA 1981)