Opinion
No. 2D19-1184
03-25-2022
STATE of Florida, Appellant, v. Ricardo L. FERNANDEZ, Appellee.
Ashley Moody, Attorney General, Tallahassee, and Elba Caridad Martin, Assistant Attorney General, Tampa, for Appellant. Howard L. Dimmig, II, Public Defender, and Daniel Muller, Assistant Public Defender, Bartow, for Appellee.
Ashley Moody, Attorney General, Tallahassee, and Elba Caridad Martin, Assistant Attorney General, Tampa, for Appellant.
Howard L. Dimmig, II, Public Defender, and Daniel Muller, Assistant Public Defender, Bartow, for Appellee.
EN BANC
SMITH, Judge. Upon consideration of appellee's motion for rehearing en banc and motion for certification of a question of great public importance to the Florida Supreme Court,
IT IS ORDERED that the motion for rehearing en banc is granted pursuant to Florida Rule of Appellate Procedure 9.331(d)(3). The opinion dated January 6, 2021, is withdrawn, in part, and the attached opinion replaces that portion of the opinion reversing and remanding for a new suppression hearing and further certifies conflict with Taylor v. State , 326 So. 3d 115 (Fla. 1st DCA 2021) ; State v. Martin , 287 So. 3d 645 (Fla. 4th DCA 2019) ; State v. Abeles , 483 So. 2d 460 (Fla. 4th DCA 1986) ; Morales v. State , 407 So. 2d 321 (Fla. 3d DCA 1981) ; St. John v. State , 400 So. 2d 779 (Fla. 1st DCA 1981) ; and Coster v. State , 392 So. 2d 16 (Fla. 3d DCA 1981). We leave undisturbed the original panel's decision affirming without comment the trial court's granting of the motion to suppress. The motion for certification is denied. No further motions will be entertained.
The State appeals the trial court's nonfinal order granting Ricardo Fernandez's motion to suppress, which found that the affidavit used to obtain an anticipatory search warrant was deficient and the good faith exception to the warrant requirement did not apply. See Fla. R. App. P. 9.030(b)(1)(B) ; 9.140(c)(1)(B) ; see also §§ 924.07(1)(l ), .071(1), Fla. Stat. (2017). The original panel affirmed without comment the merits of the trial court's granting of the motion to suppress, which found the affidavit used to obtain the anticipatory search warrant was deficient and the good faith exception to the warrant requirement did not apply. That portion of the opinion is left undisturbed as it is not the subject of our en banc review. In addition to challenging the basis for the order granting the motion to suppress as found by the trial court, the State also argues for the first time on appeal that Mr. Fernandez lacked "standing" under the Fourth Amendment to complain about the invalid warrant. Because the State did not preserve the "standing" argument below, that argument does not alter the original panel's affirmance of the order on appeal. See § 924.051(3); State v. Jefferson , 758 So. 2d 661, 666 (Fla. 2000) (explaining that failure to properly preserve error is not a limitation on the appellate court's subject matter jurisdiction and should result in affirmance). We grant Mr. Fernandez's motion for rehearing en banc pursuant Florida Rule of Appellate Procedure 9.331(d)(3) to address solely the issue of the State's ability to challenge "standing" for the first time on appeal. I
Although the issue here is generally framed as one of "standing," the Supreme Court in Rakas v. Illinois , 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), refused to employ only the traditional concept of standing when analyzing Fourth Amendment rights; instead, it stated that "the definition of those rights is more properly placed within the purview of substantive Fourth Amendment law than within that of standing." Id. at 140, 99 S.Ct. 421.
State v. Washington , 884 So. 2d 97, 98 (Fla. 2d DCA 2004).
Only a brief recitation of the facts is required because the State concedes that its Fourth Amendment standing argument was first made in this appeal and not in the trial court proceedings below.
Mr. Fernandez was arrested and charged with trafficking in amphetamine, possession of drug paraphernalia, and resisting an officer without violence after law enforcement executed an anticipatory search warrant. Mr. Fernandez filed a motion to suppress all evidence, observations, and statements arising from the search, arguing the search warrant was insufficient on its face because there was no probable cause to support the issuance of the anticipatory search warrant. After a hearing, the trial court granted the motion to suppress finding that the affidavit used to obtain the anticipatory search warrant was deficient and the good faith exception to the warrant requirement did not apply. The State did not raise any arguments related to Mr. Fernandez's standing to challenge the warrant, and the trial court did not make any findings regarding the same. On appeal, the State has raised, for the first time at any level of this case, its argument that Mr. Fernandez lacks "standing" to contest the validity of the search warrant—in other words, the State has asked this court to reverse the order granting suppression because Mr. Fernandez did not have a reasonable expectation of privacy in the object of the challenged search and, therefore, he could not challenge the validity of the warrant.
II
"An appeal may not be taken from a judgment or order of a trial court unless a prejudicial error is alleged and is properly preserved or, if not properly preserved would constitute fundamental error." § 924.051(3); see also Tillman v. State , 471 So. 2d 32, 35 (Fla. 1985) ; Steinhorst v. State , 412 So. 2d 332, 338 (Fla. 1982) ; Black v. State , 367 So. 2d 656, 657 (Fla. 3d DCA 1979). To be
'[p]reserved' means that an issue, legal argument, or objection to evidence was timely raised before, and ruled on by, the trial court, and that the issue, legal argument, or objection to evidence was sufficiently precise that it fairly apprised the trial court of the relief sought and the grounds therefor.
§ 924.051(1)(b). Here, the State does not argue fundamental error and also concedes that the issue of Mr. Fernandez's lack of "standing" under the Fourth Amendment to challenge the search warrant is an unpreserved argument. But it insists that we should follow our longstanding case law supporting the State's right to raise Fourth Amendment "standing" for the first time on appeal. Mr. Fernandez, on the other hand, rightfully points out that our longstanding case law is flawed and that we should recede from those cases that allow the State to raise this "standing" for the first time on appeal and follow the opinion of this court in State v. Mae , 706 So. 2d 350 (Fla. 2d DCA 1998). Because the longstanding case law does not follow the statutory requirements related to preservation for appellate review, we agree with Mr. Fernandez.
We write to address the following issue: whether, in the absence of any fundamental error, the State may raise the issue of Fourth Amendment "standing" for the first time on appeal when the State concedes that it did not preserve the issue in the trial court. The clear answer here is no—based upon both the plain language of section 924.051 and the basic tenets of appellate preservation. We further write to therefore explain the conundrum of how this rule of law—allowing the State to raise Fourth Amendment "standing" for the first time on appeal—came to be; recede from our own case law following this body of law; approve our decision in Mae , 706 So. 2d 350, which applies section 924.051 to hold that the State waived its "standing" argument; and certify conflict with our sister courts.
Because we certify conflict with our sister courts, we decline to reach Mr. Fernandez's additional request on rehearing for certification of this issue based upon great public importance.
III
Deeply rooted in this court and our sister courts is a litany of cases that hold that the State may raise Fourth Amendment "standing"—i.e., that the defendant lacked any reasonable expectation of privacy in the area or items searched—for the first time on appeal.
Most of these cases merely acknowledge that the State is permitted to raise this issue for the first time on appeal and then either proceed to consider the merits of the case or otherwise send the case back for the lower court to hold a hearing on the "standing" issue. See, e.g. , Hendley v. State , 58 So. 3d 296, 299 (Fla. 2d DCA 2011) (acknowledging that "standing may be properly raised for the first time on appeal" but holding that remand to develop factual evidence related to the defendant's "standing" would be futile based upon the record evidence); Murphy v. State , 32 So. 3d 122, 125 (Fla. 2d DCA 2009) ("We note that the State raised its challenge to Murphy's standing for the first time on appeal. While the issue can be addressed by this court, Murphy was never given an opportunity to meet his burden of proof on this issue. Accordingly, Murphy is entitled to an evidentiary hearing on the matter." (citation omitted)); see also State v. Fernandez , 36 So. 3d 120, 123 (Fla. 2d DCA 2010) ("The State argues for the first time on appeal that ... Fernandez has no privacy right in the prescriptions. The State does not use the word standing.... This is a standing argument that may be raised for the first time on appeal."); McCauley v. State , 842 So. 2d 897, 900 (Fla. 2d DCA 2003) ("[T]he concept of standing has been subsumed into Fourth Amendment issues and can be raised for the first time on appeal." (first citing State v. Abeles , 483 So. 2d 460, 461 (Fla. 4th DCA 1986) ; and then citing St. John v. State , 400 So. 2d 779, 780 (Fla. 1st DCA 1981) )).
These cases uniformly remand for a hearing where the issue of Fourth Amendment "standing" was not developed by the record below, thereby granting the defendant, who bears the burden of proof on the issue of "standing" at the suppression hearing, the opportunity to meet this burden. See State v. Pettis , 266 So. 3d 238, 240 (Fla. 2d DCA 2019) (remanding for trial court to conduct suppression hearing addressing defendant's Fourth Amendment "standing," which was not raised below and was not developed by the trial court); State v. Johnson , 40 So. 3d 904, 905 (Fla. 2d DCA 2010) (remanding for the trial court to make express findings as to defendant's Fourth Amendment "standing" where the issue was not addressed below); Fernandez , 36 So. 3d at 123 ; Murphy , 32 So. 3d at 125 ; State v. Backner , 413 So. 2d 409, 410 (Fla. 2d DCA 1982) (permitting the State to challenge for the first time on appeal the defendants' "standing" to challenge the search based upon the Third District's decision in Morales v. State , 407 So. 2d 321 (Fla. 3d DCA 1981), and relinquishing jurisdiction to the trial court for a determination whether the defendants' constitutional rights were violated). For reasons not apparent from these opinions, the issue of the lack of appellate preservation by the State is never addressed.
Our examination of these cases traces this rule—allowing the State to raise "standing" for the first time on appeal—back four decades to the Third District's decision in Morales . Morales , 407 So. 2d 321. In Morales , the Third District affirmed a warrantless search and the resulting seizure of the marijuana found in the defendants' vessel. While the court in Morales ultimately held that the search was legal under the border-search exception to the warrant requirement, the court noted, in dicta:
[T]he person who asserts his rights were violated under the above constitutional provisions—the defendant in a criminal case—has the burden of alleging and, if challenged, of establishing that the first Fourth Amendment requirement has been met, to wit: that there has been a governmental search and seizure of that individual's person, house, papers or effects, or stated differently, that there has been an official invasion of that individual's reasonable expectation of privacy. ...
....
Ordinarily, we would have no problem in concluding on this record that the defendants failed to establish the first Fourth Amendment requirement in this case. Although clearly a governmental search and seizure took place in this case, there is no showing that the search and seizure in question was directed against the defendants' "person( ), house( ), papers" or "effects" as required by the Fourth Amendment and Article I, Section 12 of the Florida Constitution ; stated differently, there is no showing that the defendants' reasonable expectation of privacy was invaded by the governmental search and seizure in this case.
....
We cannot, however, dispose of the case on that ground. The [S]tate did not challenge in the trial court the defendants' standing to contest the subject search and seizure, and, accordingly, the defendants' burden of proof on this issue was not triggered below, [ Jones v. United States , 362 U.S. 257, 261, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960) ]; instead, the [S]tate challenges the defendants' standing herein for the first time on appeal. Although the challenge does not come too late,[n.6] we are precluded by law from deciding the issue in the [S]tate'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 [S]tate challenge, and that the defendants may have standing evidence which they were lulled into not presenting below and could present upon remand.
Morales , 407 So. 2d at 325-26 (emphasis added) (footnotes omitted). Footnote 6 of this portion of the opinion merely states, in relevant part: "We reject the defendants' contrary contention[, that the challenge to standing was raised too late,] as being unsupported by the existing case law." Id. at 326 n.6. No "existing case law" is otherwise cited. See id.
In Jones , cited by Morales, the United States Supreme Court, while recognizing that the exclusionary rule should only be available to protect defendants who have been victims of an illegal search or seizure, created an exception to this rule. Jones , 362 U.S. at 263-64, 80 S.Ct. 725. Specifically, the Supreme Court held that in cases where possession of the seized evidence was an essential element of the offense charged, the defendant was not obligated to establish that his own Fourth Amendment rights had been violated, only that the search and seizure of the evidence was unconstitutional. Id. This became known as the automatic standing rule. Eventually, the automatic standing rule became unworkable, and in 1980, the Supreme Court overruled the automatic standing rule of Jones for good and held "that defendants charged with crimes of possession may only claim the benefits of the exclusionary rule if their own Fourth Amendments rights have in fact been violated." United States v. Salvucci , 448 U.S. 83, 85, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980).
Importantly, Morales was decided in 1981 and expressly cites to Jones in noting that the defendants' burden to prove standing was never triggered below. Morales , 407 So. 2d at 326. Morales rationalizes that it was precluded from deciding the issue of standing without giving the defendants an opportunity to satisfy their burden below. Id . The defendants, having been charged in 1979, were likely proceeding under the automatic standing rule in Jones , even though it was subsequently overruled in June of 1980 before the Morales case was decided by the Third District. Because the parties were proceeding under the automatic standing rule of Jones at the time of the Morales suppression hearing, the State would not have needed to argue that the defendants lacked "standing" at that hearing and only faced having to do so before the appellate court once the automatic standing rule was overruled during the pendency of the appeal. Thus, the defendants likewise did not have an opportunity to present their "standing" case to the trial court prior to the appeal. Accordingly, the Third District justly recognized that the case could be remanded, under those unique circumstances, to allow both parties to develop the record in the trial court before the appellate court ruled on the issue.
However, no remand actually was necessary because the Third District independently reached a dispositive issue by finding that regardless of standing, the search was legal under the border search exception to the warrant requirement. Id. at 327. And so, in the end, the issue of the defendant's "standing" was never the underpinning for the affirmance in Morales .
Despite the underlying history and otherwise narrow justification for the Third District's discussion of Fourth Amendment "standing" in Morales , courts have cited Morales for the broad propositions that Fourth Amendment "standing" can be raised by the State for the first time on appeal and that directing remand is appropriate for the trial court to hold a further suppression hearing to determine "standing."
This "standing" issue was addressed by our court for the first time in 1982, in Backner , 413 So. 2d at 410. The analysis in Backner is uncomplicated—citing Morales with approval:
On this appeal, the [S]tate has chosen for the first time to challenge these appellees' standing to contest the search and seizure. The issue of standing was not litigated in the trial court. Because that is so, we do not, at this point, rule on the merits of the order as it relates to them. Rather, we relinquish our jurisdiction to the trial court for a determination whether the constitutional rights of appellees Backner, Burlingame, and Rinchack were violated. See Morales v. State , 407 So. 2d 321 (Fla. 3d DCA 1981).
Backner , 413 So. 2d at 410.
We then addressed this same "standing" issue twenty years later in 2003 in McCauley , 842 So. 2d 897. In McCauley , the defendant appealed the trial court's order denying his motion to suppress and his conviction for aggravated assault with a firearm. Id. at 898. Although our court recognized "the State's tacit concession of standing" at the suppression hearing below, id . at 900, we allowed the State to argue standing for the first time on appeal—specifically that McCauley had no reasonable expectation of privacy in the premises searched—and found merit in the State's argument. We reasoned, "[a]lthough 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." Id. at 900 (citing Abeles , 483 So. 2d at 461 (relying on Morales ); St. John , 400 So. 2d at 780 ).
In both Morales and McCauley , the State was the appellee, which may have played a role in the analysis of the "standing" issue because an appellee is allowed to raise arguments on appeal that were not raised in the trial court so long as the argument has a reasonable basis in the record. See State v. Hankerson , 65 So. 3d 502, 505 (Fla. 2011). While this theory is not expressly mentioned in Morales , the court did note that "[o]rdinarily, we would have no problem in concluding on this record that the defendants failed to establish the first Fourth Amendment requirement ["standing"] in this case." Morales , 407 So. 2d at 325 (emphasis added). This indicates that the court reviewed the facts contained in the record when considering the State's argument, raised for the first time on appeal, which is consistent with the rule that an appellee can raise an argument for the first time on appeal if the argument has a reasonable basis in the record. Although it is important to note this distinction as cases are individually analyzed, we need not further address these issues under the facts of this case.
In St. John , the First District concluded "the State has not waived its objection that St. John lacked standing to contest the illegal search of codefendant Stone's garbage which ... led to the seizure of cocaine." St. John , 400 So. 2d at 780 (citing Coster v. State , 392 So. 2d 16, 17 (Fla. 3d DCA 1981) ). Coster "conclude[d] that since the question of standing is no longer distinct from substantive Fourth Amendment issues, it was not waived by the [S]tate's failure to object on that ground." 392 So. 2d at 17 (relying on Norman v. State , 388 So. 2d 613 (Fla. 3d DCA 1980) ); see also Taylor v. State , 326 So. 3d 115, 119 n.2 (Fla. 1st DCA 2021) ("The issue of standing may be raised for the first time on appeal."); State v. Martin , 287 So. 3d 645, 647 (Fla. 4th DCA 2019) (same).
Yet Norman does not hold that the State may raise the issue for the first time on appeal; rather it holds that the defendant did not have standing to challenge the illegality of the search and recognizes the abolishment of the automatic standing rule. Norman , 388 So. 2d at 616.
IV
However, the rationale in St. John and Coster runs afoul of one of the sound legal tenets of appellate preservation—"[i]n order to be preserved for further review by a higher court, an issue must be presented to the lower court and the specific legal argument or ground to be argued on appeal or review must be part of that presentation if it is to be considered preserved." Tillman , 471 So. 2d at 35 ; see also Steinhorst, 412 So. 2d at 338 ; Black , 367 So. 2d at 657. This tenet has since been codified.
Following Tillman , the legislature enacted section 924.051, which in subsection (3) precludes an appeal that is not "properly preserved" and defines "preserved" in subsection (1)(b) to mean that a court cannot consider an issue not "timely raised before, and ruled on by, the trial court" and further requires "that the issue, legal argument, or objection ... was sufficiently precise that it fairly apprised the trial court of the relief sought and the grounds therefor." Florida courts have consistently applied section 924.051 in cases where the State appeals a suppression order and barred the State from presenting new issues, legal argument, or objections against suppression for the first time on appeal. See Mae , 706 So. 2d at 351–52 (affirming suppression order based in part on the court's conclusion that the State failed to preserve its objection below that the defendant lacked standing to seek suppression of codefendant statements pursuant to section 924.051(3)); State v. James , 180 So. 3d 183, 183 (Fla. 3d DCA 2015) (affirming suppression order and citing Tillman for the proposition that in order to be preserved for appellate review an argument against suppression must have been presented to the lower court and cannot be presented for the first time on appeal); State v. Taylor , 826 So. 2d 399, 405–06 (Fla. 3d DCA 2002) (affirming suppression order holding "[S]tate's eleventh-hour plain view doctrine argument" was not preserved for appellate review); State v. Cornuz , 816 So. 2d 827, 827 (Fla. 3d DCA 2002) (holding that under section 924.051(1)(b) and "longstanding case law" the State's argument against suppression that the trial court may consider "other information received but not personally observed by an officer" was waived); State v. Klein , 736 So. 2d 9, 10 (Fla. 4th DCA 1998) (declining to address State's argument that the search of the passenger part of the vehicle was lawful because it was within the scope of a search incident to arrest where it was not raised below, was not preserved, and did not constitute fundamental error).
As with most rules there are exceptions—if the issue was not properly preserved for appellate review because it was not raised below, this court may still consider the issue if the error would constitute fundamental error. See Mae , 706 So. 2d at 352. But in Mae , this court expressly held that the State's failure to raise the argument related to the defendant's lack of "standing" to seek suppression of statements made by a codefendant as the result of an illegal stop did not constitute a fundamental error that would allow the appellate court to consider the issue for the first time on appeal. Id. Therefore we have not been presented with an issue of fundamental error.
Despite Florida's longstanding case law regarding appellate preservation and the legislature's enactment of section 924.051, the majority of this body of case law, allowing the State to raise Fourth Amendment "standing" for the first time on appeal, comes after Tillman and after the enactment of section 924.051. Mae is, in fact, the only case that correctly recognizes the application of section 924.051 to this issue and holds that the State has waived its "standing" argument for the purposes of appeal when it fails to preserve it below. However, Mae appears to be an outlier, as no other court has cited to it for the proposition that the State waives the Fourth Amendment "standing" argument if not raised below. It should be noted that Mae does not address any of the cases that hold that the State can raise the issue of Fourth Amendment "standing" for the first time on appeal and couches its holding singularly on the Criminal Appeal Reform Act's preservation requirements.
We are not the only court that has failed to reconcile the applicability of section 924.051 to its prior body of cases related to this issue. Compare Morales , 407 So. 2d 321 (acknowledging that State failed to raise "standing" argument before the trial court but holding that it was precluded from deciding the issue in the State's favor without first remanding to the trial court for an evidentiary hearing allowing the defendant to present evidence of his "standing" without addressing the preservation requirement), with James , 180 So. 3d 183 (holding that in order to be preserved for appellate review the argument against suppression must have been presented to the lower court and cannot be presented for the first time on appeal); Taylor , 826 So. 2d at 406 (same); Cornuz , 816 So. 2d 827 (same).
Mae has been cited for the proposition that the State cannot raise an issue related to the merits of the Fourth Amendment claim for the first time on appeal. See Taylor , 826 So. 2d at 405–06. In Taylor , the Third District held that on appeal from a suppression order, the State could not present an alternative argument that the evidence seized fell within the plain view doctrine exception to the warrant requirement where that argument was not presented to the trial court. Id. The court addressed the State's argument that preservation should not be an issue on appeal because the testimony below demonstrated that the items were obviously in plain view noting that the record only demonstrated that the items were on the scene. Id. The court observed that nowhere did "the prosecutor mention, argue, or intimate to the trial court that the plain view doctrine might apply here, and the court was never given an opportunity to address the applicability of this argument." Id. at 406. The court expressly stated that "to adopt the [S]tate's posture would make a mockery of the Criminal Appeal Reform Act. This argument has been waived." Id. (emphasis added).
V
While Mr. Fernandez does not cite to any federal court cases in support of his argument, it is prudent to note that the Eleventh Circuit also has recently had a change of heart as it relates to whether Fourth Amendment "standing" may be raised for the first time on appeal. In United States v. Ross , 963 F.3d 1056 (11th Cir. 2020), the Eleventh Circuit court took great pains to explain that Fourth Amendment "standing" is not jurisdictional and cannot be raised and considered for the first time on appeal. The court stated:
Sometimes courts make simple mistakes. And simple mistakes call for simple fixes. Just so here. In United States v. Sparks , we held that a suspect who "abandons" his privacy or possessory interest in the object of a search or seizure suffers no "injury"—and thus has no standing—in the Article III sense, and, accordingly, that an argument asserting the suspect's abandonment is jurisdictional, nonwaivable, and subject to sua sponte consideration. 806 F.3d 1323, 1341 n.15 (11th Cir. 2015). Sitting en banc, we now overrule Sparks and hold, to the contrary, that a suspect's alleged abandonment implicates only the merits of his Fourth Amendment challenge—not his Article III standing—and, accordingly, that if the government fails to argue abandonment, it waives the issue.
When the case came back to the court after remand, the court again stated:
This issue—whether an individual has a reasonable expectation of privacy in the object of the challenged search—has come to be known as Fourth Amendment "standing." To be clear, though, as we took pains to emphasize in our recent en banc decision, Fourth Amendment "standing" and traditional Article III standing are not the same thing. Unlike Article III standing—which constrains the federal "judicial Power" and constitutes a nonwaivable jurisdictional limitation—Fourth Amendment "standing" is an ordinary, and waivable, aspect of the merits of a defendant's constitutional challenge.
United States v. Ross , 964 F.3d 1034, 1040 (11th Cir. 2020) (citing art. III, § 1, U.S. Const.). With the decision in Ross , the Eleventh Circuit now follows the majority rule among the federal circuit courts that Fourth Amendment "standing" arguments can be waived by the government if not brought at the suppression hearing in the trial court below.
Other state courts have acknowledged that Fourth Amendment standing can be waived and/or that appellate courts do not generally consider issues that were not raised in the trial court. See Terry v. State , 358 Ga.App. 195, 854 S.E.2d 366, 369–70 (Ga. 2021) ("The State also contends that, after his arrest, Terry no longer had "standing" to challenge any delay of the traffic stop leading to the search of Smith's car. But the State never raised this argument in the trial court, and the court did not rule on it. As a result, we will not address it." (footnote omitted)); see also Hutto v. State , 320 Ga.App. 235, 739 S.E.2d 722, 726 (Ga. 2013) ("It is well settled that 'this [C]ourt may not address issues on appeal which were not addressed by the trial court, because this [C]ourt is a court for the correction of errors and it does not consider matters which were not raised and ruled on by the trial court.' Without a ruling by the trial court on this particular issue, there is nothing for this Court to review on appeal." (footnote omitted) (alteration in original) (quoting Morman-Johnson v. Hathaway , 312 Ga.App. 300, 718 S.E.2d 132, 133 (Ga. 2011) )); Ward v. State , 299 Ga.App. 826, 683 S.E.2d 894, 896 (Ga. 2009) ("Inasmuch as we are a court for the correction of errors, we do not consider issues which were not raised below and ruled on by the trial court.").
The Third, Fifth, Sixth, Seventh, Ninth, and Tenth Circuits have held that the government's Fourth Amendment "standing" argument is waived if not raised before the lower court. See United States v. Golson , 743 F.3d 44, 55 n.9 (3d Cir. 2014) ; United States v. Noble , 762 F.3d 509, 527 (6th Cir. 2014) ; United States v. Gonzales , 79 F.3d 413, 419 (5th Cir. 1996) ; United States v. Price , 54 F.3d 342, 345-46 (7th Cir. 1995) ; see also United States v. Taketa , 923 F.2d 665, 670 (9th Cir. 1991) (explaining that where the government appeals an order granting a motion to suppress and the government did not raise the standing issue below, the government is precluded from raising the standing argument for the first time on appeal; however, if the defendant appeals from an order denying his motion to suppress, the government, as appellee, is free to raise the standing argument for the first time). Only the Eighth Circuit has held that, where Fourth Amendment "standing" has been raised for the first time on appeal, "[t]he government cannot waive [defendant's] lack of standing, and therefore any argument based on waiver must fail." United States v. Rodriguez-Arreola , 270 F.3d 611, 617 (8th Cir. 2001).
We asked the State to specifically address Ross , and the State argues that we should disregard Ross because it is not binding on this court, insisting that the better approach is that set out by our longstanding cases holding otherwise, as well as set out by the United States Supreme Court in Combs v. United States , 408 U.S. 224, 92 S.Ct. 2284, 33 L.Ed.2d 308 (1972). In Combs , officers searched Combs' father's property and seized stolen whiskey pursuant to a warrant. Id. at 226, 92 S.Ct. 2284. Combs was not living on his father's property, and he was not present when the search and seizure took place. Id . Combs moved to suppress the whiskey from evidence on the ground that there was no showing of probable cause to support the issuance of the warrant. Id . The trial court held an evidentiary hearing where no evidence of Combs' "standing" to contest the warrant was introduced. Id. at 226 n.3, 92 S.Ct. 2284. The trial court denied the motion to suppress on the merits. Id. at 226, 92 S.Ct. 2284. Combs appealed, raising the single issue of the validity of the warrant; the appellate court did not reach the merits of his claim respecting the warrant, instead holding only that Combs lacked standing to challenge the legality of the search and seizure. Id . The United States Supreme Court acknowledged that the appellate court rested its opinion on the fact that Combs "had 'asserted no possessory or proprietary claim to the searched premises' during the course of the trial." Id. at 226–27, 92 S.Ct. 2284 (quoting United States v. Combs , 446 F.2d 515, 516 (6th Cir. 1971). The Court stated:
While federal cases are not binding on this court, they are persuasive. Article I, section 12, of the Florida Constitution mandates that the right against unreasonable searches and seizures "shall be construed in conformity with the Fourth Amendment to the United States Constitution, as interpreted by the United States Supreme Court." See also State v. Hutchinson , 404 So. 2d 361, 363–64 (Fla. 2d DCA 1981) ("State courts are not affected when the Supreme Court narrows the ambit of protection guaranteed by the Federal Constitution if, as here, state law independently guarantees protection at least equal to that required by federal rule." (citing Zurcher v. Stanford Daily , 436 U.S. 547, 98 S.Ct. 1970, 56 L.Ed.2d 525 (1978) )); Bailey v. State , 311 So. 3d 303, 308 (Fla. 1st DCA 2020) ("Florida courts decide search and seizure issues in conformity with the Fourth Amendment decisions of the Supreme Court of the United States." (first citing art. I, § 12, Fla. Const.; and then citing Cox v. State , 975 So. 2d 1163, 1166 (Fla. 1st DCA 2008) )).
Clearly, however, petitioner's failure to make any such assertion, either at trial or at the pretrial suppression hearing, may well be explained by the related failure of the Government to make any challenge in the District Court to petitioner's standing to raise his Fourth Amendment claim. In any event, the record now before us is virtually barren of the facts necessary to determine whether petitioner had an interest in connection with the searched premises that gave rise to 'a reasonable expectation (on his part) of freedom from governmental intrusion' upon those premises. If petitioner can establish facts showing such an interest, he will have demonstrated a basis for standing to attack the search; re-examination of the validity of the warrant in light of the Government's present position on that issue would then be appropriate to resolve the question whether evidence of the seized whiskey was properly introduced at petitioner's trial.
Id. at 227–28, 92 S.Ct. 2284 (footnote omitted) (citation omitted). In the end, the Court vacated the judgment of the appellate court and remanded with directions that the case be sent back to the trial court for further proceedings. Id. at 228, 92 S.Ct. 2284.
But Combs is distinguishable from this case in one significant aspect. In Combs , like in Morales and McCauley , the State was the appellee, and an appellee is allowed to raise an argument on appeal that was not raised in the trial court so long as the argument has a reasonable basis in the record. See Hankerson , 65 So. 3d at 505. Moreover, it does not appear that Combs argued the State had waived its right to raise the "standing" argument, and the issue of waiver presented here was not addressed by the Court in Combs. Therefore, we do not find Combs controlling.
VI
We are certainly persuaded by the Eleventh Circuit's opinion in Ross. But we need not rest on this decision where we have a clear statutory mandate under section 924.051(1)(b), together with the well-established Florida case law holding that the State is barred from raising unpreserved errors below for the first time on appeal. We therefore hold that if the State does not raise the issue of Fourth Amendment "standing" below, the issue is waived for appellate purposes. In doing so, we approve of our decision in Mae , 706 So. 2d 350 ; we recede from our decisions in Pettis , 266 So. 3d 238 ; Hendley , 58 So. 3d 296 ; Fernandez , 36 So. 3d 120 ; Johnson , 40 So. 3d 904 ; Murphy , 32 So. 3d 122 ; McCauley , 842 So. 2d 897 ; and Backner , 413 So. 2d 409 ; and certify conflict with Taylor v. State , 326 So. 3d 115 (Fla. 1st DCA 2021) ; State v. Martin , 287 So. 3d 645 (Fla. 4th DCA 2019) ; State v. Abeles , 483 So. 2d 460 (Fla. 4th DCA 1986) ; Morales v. State , 407 So. 2d 321 (Fla. 3d DCA 1981) ; St. John v. State , 400 So. 2d 779 (Fla. 1st DCA 1981) ; and Coster v. State , 392 So. 2d 16 (Fla. 3d DCA 1981).
Affirmed; conflict certified.
MORRIS, C.J., and NORTHCUTT, CASANUEVA, SILBERMAN, KELLY, VILLANTI, LaROSE, KHOUZAM, BLACK, SLEET, LUCAS, ROTHSTEIN-YOUAKIM, ATKINSON, STARGEL, and LABRIT, JJ., Concur.