State v. Fowler

Arguments made on appeal that were not made before the trial court cannot be the basis for the Court’s opinion unless the Court finds that the record would have developed materially the same under the new argument as under the actual argument made to the trial court.

The Supreme Court remanded this case to reconsider the ruling under recent case law. In Fowler I, the Court reversed Defendant’s conviction for possession of methamphetamine because the trial court erred in denying Defendant’s motion to suppress evidence derived from an unlawfully extended traffic stop. At the trial, the state argued that the traffic stop was not unlawfully extended and Defendant voluntarily consent to the search of her vehicle. On appeal, the state concedes that the extension was unlawful, but argues that Defendant’s consent was not the product of the unlawful extension, an argument based on recent case law. Because this argument is different than that presented to the trial court, the Court can only use it as a basis for its decision if the trial record would have developed in materially the same way under either of the state’s arguments. Defendant argues, and the Court agrees, that had the state’s later argument been made before the trial court, Defendant would have pursued a different record. As such, the state’s argument cannot be the basis for affirming the conviction. Reversed and remanded.