The opinion
Fain, Judge,
concurring.
{¶ 69} I write separately merely to explain why I have not found the Littles’ failure to have complied with the requirements of Xenia v. Wallace (1988), 37 Ohio St.3d 216 , 524 N.E.2d 889 , to be fatal to their position on appeal.
{¶ 70} The Littles did raise the issue of the unlawfulness of the police officers in the helicopter having been in the position where they could observe the marijuana during the hearing. The state could have objected to the raising of that issue, upon the grounds of lack of notice under Xenia v. Wallace, but did not do so. Had the state objected, the trial court’s discretion would not have been limited, in my view, to a refusal to consider that argument. In my view, the trial court would have had discretion to permit the Littles, in the interest of justice, to amend their motion to include their objection to the evidence upon the ground that it was not observed in plain view, due to the failure of the police officers having observed it to have been lawfully in a position to observe it. If the state could then have established that the state’s lack of notice that this issue was *693 going to be raised at the hearing had prejudiced the state, the trial court would have had the further discretion to permit a continuance of the hearing to a later day, when the state could have presented additional evidence, and legal authorities, on this issue.
{¶ 71} The failure of the state to have raised the issue of a waiver under Xenia v. Wallace, either in the trial court or in this court, has effectively sandbagged the Littles by having made it impossible for them to invoke the discretion of the trial court to fashion a remedy that would have protected the rights of both parties.
{¶ 72} Had the Littles failed to raise, at the hearing in the trial court, the issue of the unlawfulness of the police officers’ observation of the marijuana growing on their property, I would reach a different conclusion. But they did raise that issue, albeit near the end of the hearing, and the state had an opportunity to object to the trial court’s considering it, but did not do so. In fact, the trial court did consider that issue, without objection by the state. In my view, the trial court reached an incorrect result on that point, which was tried by the trial court without objection by the state.
{¶ 73} In my view, it is too late now to affirm the judgment of the trial court upon the basis that if the state had objected to consideration of the issue, then the trial court could have, in its discretion, declined to consider it. In my view, the propriety of a judgment of a trial court must be based upon what actually happened in the trial court, not what might have happened.