[Cite as State v. Dibble, 133 Ohio St.3d 451, 2012-Ohio-4630.]
THE STATE OF OHIO, APPELLANT, v. DIBBLE, APPELLEE.
[Cite as State v. Dibble, 133 Ohio St.3d 451, 2012-Ohio-4630.]
A determination whether information in a search-warrant affidavit is false must
take into account the nontechnical language used by nonlawyers.
(No. 2011-1569—Submitted June 20, 2012—Decided October 10, 2012.)
APPEAL from the Court of Appeals for Franklin County,
No. 10AP-648, 195 Ohio App.3d 189, 2011-Ohio-3817.
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SYLLABUS OF THE COURT
A determination whether information in a search-warrant affidavit is false must
take into account the nontechnical language used by nonlawyers.
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LUNDBERG STRATTON, J.
{¶ 1} This is an appeal from a judgment of the court of appeals affirming
a trial court’s judgment granting a motion to suppress. Today we must decide
whether the trial court abused its discretion in granting the motion to suppress
after it determined that an officer knowingly and intentionally made false
statements in his search-warrant affidavit. Because we determine that the trial
court did abuse its discretion, we reverse the judgment of the court of appeals,
which upheld the trial court’s ruling, and remand the cause to the trial court to
conduct a new suppression hearing consistent with our holding.
Facts and Procedural History
{¶ 2} On February 3, 2010, Upper Arlington Police Detective Andrew
Wuertz asked a Franklin County municipal court judge to issue a warrant to
search defendant-appellee Lawrence A. Dibble’s home. Detective Wuertz sought
the warrant after speaking with two young women, E.S. and E.K., who reported
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their experiences with Dibble, who was then a theater instructor at a private
school for kindergarten through 12th grade.
{¶ 3} The search-warrant affidavit states:
On February 2, 2010 Victim #1 [E.S.] reported to the
Upper Arlington Police Department that while a student at The
Wellington School, one of her teacher’s [sic], Lawrence A.
Dibble[,] touched her inappropriately. Victim #1 stated that she
was rehearsing line[s] for a play with Dibble in the school when he
asked for a reward for getting his lines correct. He asked to touch
Victim #1’s stocking on her leg. Upon touching the stocking
Dibble then proceeded to run his hand up under Victim #1’s skirt
brushing his fingers across her vaginal area. Victim #1 stated she
was shocked and froze as Dibble then ran his hands over her
buttocks, and lower abdomen area. Victim #2 [E.K.] was with
Victim #1 while she made the report. Victim #2 stated she also
had inappropriate contact with Dibble. Victim #2 stated it was
after she had graduated high school where Dibble had also been
her teacher. Victim #2 stated that Dibble had taken photo’s [sic] of
her nude vaginal area during one of their meetings where
inappropriate touching was involved. Victim #2 told investigators
that Dibble used a digital camera to take the photo’s [sic], and
made her wear a pillow case over her head while he took them.
On February 2, 2010 Victim #1 went to The Wellington
School at the direction of the Upper Arlington Police wearing a
recording device. She had a conversation with Dibble about the
inappropriate touching where he stated “I just wasn’t thinking.”
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Investigators from Upper Arlington believe Dibble’s
computers, cameras, media storage devices, etc. may contain
correspondence, and photos to substantiate Victim #1 and Victim
#2’s claims.
{¶ 4} The warrant was issued on February 3, 2010, and it authorized the
seizure of computers, cameras, and data-storage media. The warrant was
executed the same day, and the search resulted in the seizure of several items,
including a laptop computer, a camera, and several videotapes and DVDs.
{¶ 5} Based in part on the evidence seized, Dibble was arrested and
charged with 17 felony counts of voyeurism, four misdemeanor counts of
voyeurism, and one misdemeanor count of sexual imposition. None of the
charges related to E.K.
{¶ 6} Dibble filed a motion to suppress the evidence obtained from the
search of his home, arguing that Detective Wuertz had deliberately included false
and misleading information in his search-warrant affidavit in that his references to
E.K. as a “victim” were false because, as Wuertz knew, E.K. was an adult when
the sexual acts described in the affidavit occurred and the acts had been
consensual. The trial court held a hearing on the motion on June 29, 2010.
{¶ 7} Detective Wuertz testified that E.S. came to the police station with
her mother and E.K. on February 2 to report what had happened to E.S. E.S. told
Wuertz that during her senior year, she was Dibble’s aide, which she described as
a person who would do whatever Dibble needed done. Wuertz testified that E.S.
had told him that she had known Dibble since she was in the seventh grade.
Through the years, she had become close to Dibble, and she looked at him as a
father figure.
{¶ 8} Detective Wuertz testified that E.S. had relayed to him that one of
her duties in being an aide to Dibble was giving him back massages. They would
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go into his office, he would close the door and remove his shirt, and she would
rub his back. In addition, E.S. reported that Dibble had taken pictures of her in
see-through or nearly see-through unitards and that Dibble had told her to wear
nothing underneath.
{¶ 9} Detective Wuertz testified that the groping incident described in
the search-warrant affidavit had taken place nearly a year before E.S. reported it,
but he added that in talking to E.S., he felt that Dibble had manipulated her so that
he could “get her to do whatever he asked her to do,” and he had asked her not to
tell anyone. E.S. told Wuertz that after the groping incident, she went to her next
class but was upset, so she left that class and wrote Dibble a letter about the
incident and took it to him. Before he finished reading it, he tore it up and threw
it away and told E.S. that she could not tell anyone about the incident or it would
ruin his life. Wuertz reported that E.S. had felt conflicted but had not told
anyone. The incident continued to weigh on her to the point that she had trouble
sleeping and she knew she had to report it.
{¶ 10} Detective Wuertz also testified that E.K., too, had been Dibble’s
theater aide when she was a senior and that Dibble had taken pictures of her in a
unitard. She had taught E.S. how to give Dibble massages. E.K. also had looked
at Dibble as a father figure, and in fact, Dibble had referred to himself as her
stepdad.
{¶ 11} Detective Wuertz conceded that the information in the affidavit
regarding E.S. would not have led him to believe that there was any evidence of
the alleged inappropriate relationship in Dibble’s home. He thus acknowledged
that the information in the affidavit related to E.S. did not provide probable cause
to search Dibble’s home. When pressed about his using the term “victim” with
regard to E.K., who was 18 years of age and no longer a student of Dibble’s when
the sexual contact described in the affidavit began, Wuertz refused to agree that
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she was not a victim. Wuertz acknowledged that he had never filed a report,
beyond the search-warrant affidavit, indicating that she was a victim.
{¶ 12} Detective Wuertz testified that when he appeared before the judge
and presented her with the application for the search warrant and the supporting
affidavit, she asked him some questions and he gave her some additional
information verbally, under oath, that was not contained in the affidavit or
application. Wuertz stated that he gave her more background information about
Dibble’s relationships with the young women, explaining that they had known
him as a teacher since they were in seventh grade and that they had been
manipulated over time by Dibble. In addition, Wuertz told the judge about the
photographs in the unitards that Dibble had taken of E.S. and E.K. when they
were students and that he was concerned about where those photographs were and
how they were being used.
{¶ 13} Detective Wuertz again explained that he had referred to E.K. as a
victim even though she was an adult when the incident described in the affidavit
occurred because he believed that she had been manipulated by Dibble. To
demonstrate how easily Dibble manipulated E.K., Wuertz relayed E.K.’s
explanation for allowing Dibble to take naked pictures of her. Dibble had told
E.K. that he wanted to teach her about internal power and that the only way to see
the ultimate energy was to look at her vaginal area. But he said that because the
power was so strong, he could not look at it directly for very long and that he
needed photos so he could look at the photos longer and study them to see her
internal energy. Wuertz explained that E.K. had trusted Dibble and did not
believe that he would do anything to hurt her and that she did not think the photos
were sexual in nature.
{¶ 14} Detective Wuertz testified that he had not intended to mislead the
judge who issued the search warrant. He explained that at the time he typed the
search-warrant affidavit, he thought there was a chance that he could charge
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Dibble with something related to his conduct with E.K., and he said that he still
considers E.K. to be a victim.
{¶ 15} The trial court granted Dibble’s motion to suppress evidence,
finding that Wuertz had “knowingly and intentionally made false statements in his
affidavit” and that without those statements, the affidavit did not support a finding
of probable cause to search Dibble’s home. The trial court declined to consider
sworn oral statements made by Wuertz to the judge issuing the warrant when he
submitted his search-warrant affidavit, since no record of any such statements had
been made. The trial court then held that evidence outside the “false” affidavit
standing alone was insufficient to support probable cause. The state appealed,
and the Franklin County Court of Appeals affirmed the judgment of the trial
court. The case is now before this court upon our acceptance of the state’s
discretionary appeal. State v. Dibble, 130 Ohio St.3d 1493, 2011-Ohio-6556, 958
N.E.2d 956.
Law and Analysis
{¶ 16} As a preliminary matter, both courts below concluded that the
search-warrant affidavit in question failed to meet Crim.R. 41(C), which excludes
consideration of unrecorded sworn oral information. The state contends that this
finding compels us to hold that Crim.R. 41(C) is unconstitutional because the
Fourth Amendment requires only that the information be given under oath or
affirmation. However, we find that we need not reach the issue whether Crim.R.
41(C) is unconstitutional, because we find that the statements made by the
detective were not false statements made intentionally or with reckless disregard
for the truth. We are remanding this matter for a new hearing, which will now
require the trial court to consider the affidavit on its face.
{¶ 17} Turning now to the issue of falsity in a search-warrant affidavit, in
1978, the United States Supreme Court held that
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where the defendant makes a substantial preliminary showing that
a false statement knowingly and intentionally, or with reckless
disregard for the truth, was included by the affiant in the warrant
affidavit, and if the allegedly false statement is necessary to the
finding of probable cause, the Fourth Amendment requires that a
hearing be held at the defendant's request. In the event that at that
hearing the allegation of perjury or reckless disregard is
established by the defendant by a preponderance of the evidence,
and, with the affidavit's false material set to one side, the affidavit's
remaining content is insufficient to establish probable cause, the
search warrant must be voided and the fruits of the search excluded
to the same extent as if probable cause was lacking on the face of
the affidavit.
Franks v. Delaware, 438 U.S. 154, 155-156, 98 S.Ct. 2674, 57 L.Ed.2d 667
(1978).
{¶ 18} This court set forth the analysis for determining whether a law-
enforcement affiant intentionally or with a reckless disregard for the truth made a
false statement in a search-warrant affidavit in State v. Waddy, 63 Ohio St.3d 424,
588 N.E.2d 819 (1992), where we noted that
“[r]eckless disregard” means that the affiant had serious doubts of
an allegation’s truth. United States v. Williams (C.A.7, 1984), 737
F.2d 594, 602. Omissions count as false statements if “designed to
mislead, or * * * made in reckless disregard of whether they would
mislead, the magistrate.” United States v. Colkley (C.A.4, 1990),
899 F.2d 297, 301.
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Id. at 441.
{¶ 19} The focus of the trial and appellate courts in this case was on the
detective’s use of the word “victim” to describe E.K., the woman who was over
18 at the time of the sexual conduct alleged in the affidavit. According to
Wuertz’s testimony, however, he considered her to be a victim because Dibble’s
relationship with E.K. involved a pattern of grooming and manipulation that
began when E.K. was a minor and a student of Dibble’s. Although the affidavit
indicated that the “inappropriate” touching of E.K. occurred after she graduated
from high school, Wuertz testified that he had told the judge about the teacher-
student relationship. It is therefore difficult to understand how the courts could
have deemed the affidavit misleading, since it stated clearly that Victim #2 (E.K.)
had graduated before the “inappropriate” touching began.
{¶ 20} However, the trial court found that the detective’s use of the term
“victim” to refer to E.K. amounted to knowingly and intentionally including false
information in his search-warrant affidavit in order to establish probable cause to
search Dibble’s house. The court of appeals held that competent and credible
evidence supported that finding. We disagree and conclude that the trial court
used too narrow a definition of “victim” by viewing the term to encompass only
victims of crime. We find this hypertechnical analysis inappropriate.
{¶ 21} The United States Supreme Court has explained that search-
warrant affidavits are usually drafted by nonlawyers and should be reviewed with
that in mind. United States v. Ventresca, 380 U.S. 102, 108-109, 85 S.Ct. 741, 13
L.Ed.2d 684 (1965). Citing Ventresca, the dissenting judge in this case reasoned
as follows:
Here, the trial court interpreted the term “victim” to mean,
and only to mean, “a person who is the object of a crime.” I
conclude, however, that it was improper for the trial court to apply
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such a limited definition. Specifically, it is improper for a court to
invalidate warrants by interpreting the accompanying affidavits in
a “hypertechnical” manner because the affidavits are drafted by
nonlawyers in the midst and haste of a criminal investigation.
United States v. Ventresca (1965), 380 U.S. 102, 108-109, 85 S.Ct.
741, 13 L.Ed.2d 684.
Used more broadly, “victim” can mean (1) “a person who
suffers from a destructive or injurious action,” or (2) “a person
who is deceived or cheated, as by his own emotions or ignorance,
by the dishonesty of others, or by some impersonal agency.”
Webster’s Encyclopedic Unabridged Dictionary (Random House
1997).
The trial court noted that few people “would argue with the
notion that even minimal levels of manipulation and control
exerted over young adult women by older men violate grounds of
immorality and may create some measure of victimization.” I
agree. And, applying this characterization to what may have
occurred between E.K. and appellee, an affiant could have
reasonably concluded that E.K. was a “victim” under a definition
broader than the one the court imposed. Therefore, the
characterization of E.K. as a victim was not false, and the trial
court erred by suppressing the evidence on that basis.
State v. Dibble, 195 Ohio App.3d 189, 2011-Ohio-3817, 959 N.E.2d 540, ¶ 57-59
(French, J., dissenting).
{¶ 22} We agree with the reasoning in Judge French’s dissent. The
validity of a search-warrant affidavit should not turn on the identifier that an
officer selects when trying to protect a person’s identity. The detective selected
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“victim” as a generic term to describe the two women in the affidavit so as to not
identify them by name. The trial court conceded that Dibble had created “some
measure of victimization” with regard to E.K., but then went on to find that
Wuertz had used the term “victim” in reference to E.K. to intentionally mislead
the trial judge who reviewed the search-warrant affidavit.
{¶ 23} A court abuses its discretion when its ruling lacks a sound
reasoning process. State v. Morris, 132 Ohio St.3d 337, 2012-Ohio-2407, 972
N.E.2d 528, ¶ 14, citing AAAA Ents., Inc. v. River Place Community Urban
Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990).
Conclusion
{¶ 24} A determination whether information in a search-warrant affidavit
is false must take into account the nontechnical language used by nonlawyers. As
noted by the United States Supreme Court in Ventresca, 380 U.S. at 108, 85 S.Ct.
741, 13 L.Ed.2d 684:
If the teachings of the [United States Supreme] Court’s cases are to
be followed and the constitutional policy served, affidavits for
search warrants, such as the one involved here, must be tested and
interpreted by magistrates and courts in a commonsense and
realistic fashion. They are normally drafted by nonlawyers in the
midst and haste of a criminal investigation. Technical
requirements of elaborate specificity once exacted under common
law pleadings have no proper place in this area. A grudging or
negative attitude by reviewing courts toward warrants will tend to
discourage police officers from submitting their evidence to a
judicial officer before acting.
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{¶ 25} In this case, Dibble allegedly sexually exploited two young women
while employed as a teacher at their school. His alleged behavior with each,
including back rubs behind closed doors, other inappropriate touching, and
photographing both women in see-through unitards without any undergarments, if
true, clearly made victims of these young women. Therefore, the detective’s use
of the term “victim” to refer to E.K., even though the sexual activity regarding
E.K. that was described in the search-warrant affidavit occurred after she was 18
and had graduated, did not amount to his knowingly and intentionally including
false information in his search-warrant affidavit.
{¶ 26} Since the trial judge’s analysis of whether to suppress the evidence
began with his conclusion that the detective’s testimony was false and we have
called into question his basis for that conclusion, we find that consideration of the
other assignments of error, which relate to later determinations in the judge’s
analysis, would be premature. Consequently, we reverse the judgment of the
court of appeals and remand this cause to the trial court to hold a new suppression
hearing consistent with this opinion.
Judgment reversed
and cause remanded.
O’CONNOR, C.J., and O’DONNELL, LANZINGER, CUPP, and MCGEE
BROWN, JJ., concur.
PFEIFER, J., dissents.
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PFEIFER, J., dissenting.
{¶ 27} I would affirm the judgment of the court of appeals but would not
adopt its reasoning.
{¶ 28} Whether Detective Wuertz knowingly made false statements in his
affidavit is ultimately irrelevant. That is because any information about Dibble’s
relationship with E.K., a consenting adult, describes no crime, and thus provides
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no basis for a search. There is no allegation in the affidavit that any illegal
activity regarding Victim #1, E.S., took place in defendant’s home. Detective
Wuertz was asked at the suppression hearing about the importance of information
about E.K. to the probable-cause determination:
{¶ 29} “Q. * * * And only the information from [E.K.] would be the
probable cause basis to be able to search the home of Mr. Dibble, correct? At that
point in time, detective, that’s correct, is it not?
{¶ 30} “A. At that point in time.”
{¶ 31} The detective, the trial court, and the court of appeals agreed that
without the information regarding E.K., there was no probable cause to search
Dibble’s residence. Since there was no basis for including information about E.K.
in the supporting affidavit, we need not expend further judicial resources to
determine that there was no basis for the search in this case.
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Ron O’Brien, Franklin County Prosecuting Attorney, and Steven L.
Taylor, Assistant Prosecuting Attorney, for appellant.
R. William Meeks Co., L.P.A., and David H. Thomas, for appellee.
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M.
Heenan, Assistant Prosecuting Attorney, urging reversal on behalf of amicus
curiae Ohio Prosecuting Attorneys Association.
Hunter, Carnahan, Shoub, Byard & Harshman, Russell E. Carnahan, and
Robert M. Cody, urging reversal on behalf of amicus curiae Fraternal Order of
Police, Capital City Lodge No. 9.
Jeanine Hummer, Upper Arlington City Attorney, and Tom Lindsey,
Assistant City Attorney, urging reversal on behalf of amicus curiae city of Upper
Arlington.
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Timothy Young, Ohio Public Defender, and Stephen Goldmeier and Sarah
G. LoPresti, Assistant Public Defenders, urging affirmance on behalf of amicus
curiae Ohio Public Defender.
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