State v. Dibble

[Cite as State v. Dibble, 2014-Ohio-5754.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
No. 13AP-798
v. : (C.P.C. No. 10CR-03-1958)
Lawrence A. Dibble, : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on December 30, 2014
Ron O'Brien, Prosecuting Attorney, and Steven L. Taylor, for
appellee.
Meeks and Thomas Co., LPA, and David H. Thomas, for
appellant.
APPEAL from the Franklin County Court of Common Pleas.
BROWN, J.
{¶ 1} Defendant-appellant, Lawrence A. Dibble, appeals from a judgment of the
Franklin County Court of Common Pleas convicting him of multiple counts of voyeurism
and one count of sexual imposition and denying his motion to suppress.
{¶ 2} On February 2, 2010, two young women, E.K. and E.S., a minor, informed
Upper Arlington Police Detective Andrew Wuertz that a teacher at The Wellington School
had sexually assaulted E.S. on school grounds. On February 3, 2010, Detective Wuertz
appeared before a judge and requested a warrant to search appellant's residence. The
search warrant affidavit states:
No. 13AP-798 2
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, Lawrence A. Dibble
touched her inappropriately. Victim # 1 stated that she was
rehearsing line 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 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, 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."
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.
(Sic passim.)
{¶ 3} On February 3, 2010, the judge issued a warrant authorizing the seizure of
computers, cameras, and data storage media. That same day, several police officers,
including Detective Wuertz, executed the warrant at 6595 Brock Street, Dublin, Ohio. The
search resulted in the seizure of several items, including a laptop computer, a camera, and
several videotapes and DVDs. On March 29, 2010, a Franklin County Grand Jury indicted
appellant on 21 counts of voyeurism, in violation of R.C. 2907.08, and one count of sexual
imposition, in violation of R.C. 2907.06. None of the charges related to E.K.
{¶ 4} On May 12, 2010, appellant filed a motion to suppress evidence obtained
pursuant to a search warrant. On June 29, 2010, the trial court conducted an evidentiary
No. 13AP-798 3
hearing on the motion to suppress. As a result of the hearing, the trial court granted
appellant's motion to suppress upon finding that Detective Wuertz deliberately included
false and misleading information in his search warrant affidavit. Specifically, the trial
court found that Detective Wuertz falsely represented E.K. as a "victim" inasmuch as he
knew that E.K. was an adult when appellant committed the sexual acts described in the
affidavit and that she had given consent.
{¶ 5} The state appealed the trial court's judgment to this court in State v. Dibble,
195 Ohio App. 3d 189, 2011-Ohio-3817 (10th Dist.) We overruled the state's assignments
of error and affirmed the judgment of the trial court. Id. The state appealed our decision
to the Supreme Court of Ohio. In State v. Dibble, 133 Ohio St. 3d 451, 2012-Ohio-4630,
the Supreme Court reversed the judgment of this court and remanded the case to the trial
court for another hearing on the motion to suppress. The opinion of the Supreme Court
provides, in relevant part, as follows:
[Appellant's] 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.
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.
Id. at ¶ 25-26.
{¶ 6} On remand, the trial court conducted a new suppression hearing. In a
decision dated April 30, 2014, the trial court denied appellant's motion to suppress the
evidence uncovered in the search of his home. The trial court concluded that, even though
No. 13AP-798 4
Detective Wuertz's affidavit did not provide a substantial basis for concluding that
probable cause existed, the officers obtained the evidence from appellant's home while
acting in objectively reasonable reliance on a search warrant issued by a detached and
neutral judge. In reaching its conclusion, the trial court relied on the "good faith"
exception to the exclusionary rule first articulated by the United States Supreme Court in
United States v. Leon, 468 U.S. 897 (1984), and later adopted by the Supreme Court of
Ohio in State v. George, 45 Ohio St. 3d 325 (1989).
{¶ 7} As a result of the trial court's decision, appellant entered a plea of no contest
to each of the counts in the indictment. On August 15, 2013, the trial court convicted
appellant of all charges and sentenced him to a prison term of four years, followed by five
years of mandatory post-release control. In addition, the trial court classified appellant as
a Tier I sexual offender with a 15-year registration requirement.
{¶ 8} Appellant timely appealed to this court from his conviction and sentence
and assigns the following as error:
The trial court erred in overruling Appellant's motion to
suppress evidence and finding that police acted in good faith
reliance on a search warrant that was not supported by
probable cause, where the officers' reliance on the warrant
was not objectively reasonable. This error by the trial court
deprived Appellant of his right to be free from unreasonable
search and seizure as guaranteed by the Fourth Amendment
to the United States Constitution and comparable provisions
of the Ohio Constitution.
{¶ 9} Appellate review of a trial court's decision regarding a motion to suppress
evidence involves mixed questions of law and fact. State v. Helmbright, 10th Dist. No.
11AP-1080, 2013-Ohio-1143. Accordingly, an appellate court's standard of review of a
motion to suppress is two-fold. State v. Holland, 10th Dist. No. 13AP-790, 2014-Ohio-
1964, ¶ 8, citing State v. Reedy, 10th Dist. No. 05AP-501, 2006-Ohio-1212, ¶ 5. First, we
must determine whether competent, credible evidence supports the trial court's findings.
State v. Burnside, 100 Ohio St. 3d 152, 2003-Ohio-5372, ¶ 8. Second, we must
independently determine whether the facts satisfy the applicable legal standard, without
giving any deference to the conclusion of the trial court. Id. We also note that federal
appellate court's apply the same standard of review to the district court's determination of
probable cause and the application of the good-faith exception. United States v. Buffer,
No. 13AP-798 5
6th Cir. No. 12-5052 (June 24, 2013), citing States v. Leake, 998 F.2d 1359, 1362, 1366
(6th Cir.1993).
{¶ 10} However, "[i]n reviewing the sufficiency of probable cause in an affidavit
submitted in support of a search warrant issued by a magistrate, neither a trial court nor
an appellate court should substitute its judgment for that of the magistrate by conducting
a de novo determination as to whether the affidavit contains sufficient probable cause
upon which that court would issue the search warrant. Rather, the duty of a reviewing
court is simply to ensure that the magistrate had a substantial basis for concluding that
probable cause existed. In conducting any after-the-fact scrutiny of an affidavit submitted
in support of a search warrant, trial and appellate courts should accord great deference to
the magistrate's determination of probable cause, and doubtful or marginal cases in this
area should be resolved in favor of upholding the warrant." George at paragraph two of
the syllabus, citing Illinois v. Gates, 462 U.S. 213 (1983).
{¶ 11} We must first address the state's right to challenge the trial court's initial
determination that the search warrant was not issued upon probable cause. For the
following reasons, we find that the state may not challenge the trial court's probable cause
determination in this appeal.
{¶ 12} R.C. 2945.67(A) provides that "[a] prosecuting attorney * * * may appeal as
a matter of right any decision of a trial court in a criminal case * * * which * * * grants a
motion * * * to suppress evidence." (Emphasis added.) This statute grants the state a
substantive, but limited, right of appeal. In re T.A., 10th Dist. No. 07AP-327, 2007-Ohio-
4417, ¶ 6, citing State v. Thompson, 10th Dist. No. 03AP-841, 2004-Ohio-3229, ¶ 12.
Because the trial court denied appellant's motion to suppress the evidence obtained in the
search of his home, the statute does not permit an appeal by the state.
{¶ 13} " '[W]hen the prosecution wishes to appeal a judgment of the trial court not
expressly provided for in R.C. 2945.67(A), it must ask for leave to appeal under App.R.
5(C).' " In re A.E., 10th Dist. No. 08AP-59, 2008-Ohio-4552, ¶ 10, quoting State v.
Mitchell, 6th Dist. No. L-03-1270, 2004-Ohio-2460, ¶ 9. Under App.R. 5(C), "[w]hen
leave is sought by the prosecution from the court of appeals to appeal a judgment or order
of the trial court, a motion for leave to appeal shall be filed with the court of appeals
within thirty days from the entry of the judgment and order sought to be appealed and
No. 13AP-798 6
shall set forth the errors that the movant claims occurred in the proceedings of the trial
court." (Emphasis added.)
{¶ 14} The state has not sought leave from this court to appeal the trial court
judgment. Consequently, this court is without jurisdiction to consider the state's challenge
to the trial court's probable cause ruling in this appeal. Thompson at ¶ 21.
{¶ 15} The Fourth Amendment provides that "no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and particularly describing the place to
be searched, and the persons or things to be seized." (Emphasis added.) However, in
Leon, the United States Supreme Court recognized that "the Fourth Amendment
exclusionary rule should not be applied so as to bar the use in the prosecution's case-in-
chief of evidence obtained by officers acting in objectively reasonable reliance on a search
warrant issued by a detached and neutral magistrate but ultimately found to be
unsupported by probable cause." George at paragraph three of the syllabus. In other
words, if an affidavit lacks probable cause, an exception to the exclusionary rule exists
where " 'the officer conducting the search acted in objectively reasonable reliance on a
warrant issued by a detached and neutral magistrate.' " United States v. Watson, 498 F.3d
429, 431 (6th Cir.2007), quoting Massachusetts v. Sheppard, 468 U.S. 981, 987-88
(1984). "This is known as the good-faith exception." United States v. Rose, 714 F.3d 362,
367 (6th Cir.2013).
{¶ 16} The good-faith exception to the exclusionary rule is limited in its
application. George at 331; Leon at 923. The Leon court cautioned that "[s]uppression
remains an appropriate remedy" when the court finds that any one of the following four
circumstances exist:
(1) " * * * the magistrate or judge * * * was misled by
information in an affidavit that the affiant knew was false or
would have known was false except for his reckless disregard
of the truth * * * "; (2) " * * * the issuing magistrate wholly
abandoned his judicial role * * * "; (3) an officer purports to
rely upon " * * * a warrant based on an affidavit 'so lacking
in indicia of probable cause as to render official belief in its
existence entirely unreasonable' "; or (4) " * * * depending on
the circumstances of the particular case, a warrant may be so
facially deficient—i.e., in failing to particularize the place to be
searched or the things to be seized—that the executing officers
cannot reasonably presume it to be valid. * * * "
No. 13AP-798 7
(Emphasis added.) George at 331; Leon at 923.
{¶ 17} An affidavit lacks the requisite indicia of probable cause if it is a "bare
bones" affidavit. United States v. Laughton, 409 F.3d 744, 748 (6th Cir.2005), citing Leon
at 914-23. The inquiry into whether an affidavit is so bare bones as to preclude
application of the good-faith exception is a less demanding inquiry than that involved in
determining whether an affidavit provides a substantial basis for the magistrate's
conclusion of probable cause. Id. at 748, citing Leon at 914-23. The Sixth Circuit has
defined a "bare bones" affidavit as one that states "suspicions, beliefs, or conclusions,
without providing some underlying factual circumstances regarding veracity, reliability,
and basis of knowledge." Id. at 748-49, citing United States v. Weaver, 99 F.3d 1372, 1378
(6th Cir.1996).
{¶ 18} Appellant argues that in conducting the "good faith" analysis, the trial court
failed to consider whether Detective Wuertz's affidavit is so lacking in indicia of probable
cause as to render official belief in its existence entirely unreasonable. We agree.
{¶ 19} In making its "good faith" determination, the trial court engaged in the
following analysis:
[T]his Court cannot conclude that the statements made by
Detective Wuertz within the affidavit qualify as statements
that the "affiant knew was false or would have known was
false except for his reckless disregard of the truth" as required
under the first category listed above. State v. George, supra.
In addition, there is no argument, nor does this Court suggest,
that the issuing Judge wholly abandoned her role. And, this is
not an extraordinary circumstance where the warrant or
affidavit were so inadequate in terms of its particularity of
place to be searche[d] or items to be seized as to qualify
under the other remaining Leon categories.
As such, this Court finds that Detective Wuertz acted in
objectively reasonable reliance on a search warrant issued by
a detached and neutral judge under the good faith exception
to the exclusionary rule.
(Emphasis added.) (Decision, 9.)
{¶ 20} Similarly, the Sixth Circuit Court of Appeals has applied the good-faith
exception where the affidavit "contained a minimally sufficient nexus between the illegal
No. 13AP-798 8
activity and the place to be searched" but did not contain sufficient information to
establish probable cause. United States v. Carpenter, 360 F.3d 591, 596 (6th Cir.2004).
See also United States v. Van Shutters, 163 F.3d 331, 336 (6th Cir.1998) (good-faith
exception applied where the affidavit described the residence to be searched and the items
sought, but connected the residence to defendant's counterfeiting scheme only by stating
that the residence "was available" to the defendant); United States v. Schultz, 14 F.3d
1093, 1098 (6th Cir.1994) (good-faith exception applied where officer averred that, based
on his training and experience, he believed that evidence of defendant's illegal drug
trafficking could be found in certain safe deposit boxes). But see Laughton (suggesting
that court erred in considering the officer's expertise inasmuch as the good-faith standard
is an objective one); United States v. Hove, 848 F.2d 137 (9th Cir.1988) (No reasonable
officer could have believed that the warrant to search the home of defendant's father was
valid given the failure of the affidavit to articulate any nexus between the home and
defendant's menacing conduct toward her ex-husband.).
{¶ 21} Although the trial court concluded that the good-faith exception applied in
this case, the trial court's decision contains no meaningful consideration of whether
Detective Wuertz's affidavit is so lacking in indicia of probable cause as to render official
belief in its existence entirely unreasonable. We cannot infer any such consideration from
the trial court's statement that "this is not an extraordinary circumstance where the
warrant or affidavit were so inadequate in terms of its particularity of place to be
searche[d] or items to be seized as to qualify under the other remaining Leon categories."
(Emphasis added.) (Decision, 9.) In our opinion, this statement may only be interpreted
as a determination of the facial validity of the warrant itself. It is not a proper
determination whether Detective Wuertz's affidavit is so bare bones as to preclude
application of the good-faith exception.
{¶ 22} As noted above, the trial court found that the affidavit did not provide a
substantial basis to conclude that probable cause existed. Indeed, the trial court expressly
stated that "[t]he affidavit does not contain any information that establishes there is a
substantial basis to conclude that evidence of gross sexual imposition or evidence of
correspondence or photographs that substantiate E.S.'s claims would be found in
Defendant's home." (Emphasis sic.) (Decision, 5.) The trial court also noted that "[t]he
No. 13AP-798 9
information contained in the affidavit is insufficient to create a nexus between
Defendant's home * * * and illegal conduct that took place at the school." (Decision, 7.)
{¶ 23} Having determined that the information in the affidavit fails to supply
probable cause to search appellant's home for evidence of gross sexual imposition, the
trial court was obligated to conduct further examination of the affidavit to determine
whether it is "so lacking in indicia of probable cause as to render official belief in its
existence entirely unreasonable." However, the trial court's decision contains no
discussion or analysis whether the information in the affidavit satisfies the less
demanding standard set forth in Leon and George. Such an examination is critical to a
proper determination whether to apply the good-faith exception to the exclusionary rule.
{¶ 24} In short, we find that the trial court erred when it failed to fully consider
whether the circumstances of this case precluded the application of the good-faith
exception. Accordingly, we sustain appellant's sole assignment of error. Consistent with
the reasoning of the Supreme Court in Dibble, we shall remand the case for the trial court
to re-examine Detective Wuertz's affidavit and to consider whether it is so lacking in
indicia of probable cause as to render official belief in its existence entirely unreasonable.
We will not make that determination in the first instance in this appeal. Dibble at ¶ 26.
{¶ 25} Appellant also contends that the deficiencies in the warrant foreclose
application of the good-faith exception. We disagree. The warrant issued by the judge
provides that Upper Arlington police may enter appellant's residence to diligently search
for the following:
Evidence of the crime of Gross Sexual Imposition, to include
Computers, printers, scanners, photographs, cameras, video
cameras, videotapes including memory devices and storage
media, associated peripheral equipment and any and all types
of related computer equipment and electronic storage media
(See Attachment A) as well as fruits and instrumentalities of
other crimes as yet unknown.1
{¶ 26} As a general rule, when determining whether a search warrant satisfies the
Fourth Amendment's particularity requirement, reviewing courts employ a standard of
practical accuracy rather than technical precision. United States v. Otero, 563 F.3d 1127
1 "Attachment A" describes, in more detail, the types of devices in which electronic information may be
stored; it lists associated computer documentation subject to seizure, and it identifies documents that may
provide "indicia of occupancy."
No. 13AP-798 10
(10th Cir.2009). The good-faith exception under Leon and George requires that the
deficiencies in the warrant as to particularity must not be so egregious that the executing
officers cannot reasonably presume it to be valid.
{¶ 27} The warrant in this case is not so deficient in particularizing the place to be
searched or the things to be seized that the executing officers cannot reasonably presume
it to be valid. First, the place to be searched is clearly identified as appellant's home
address, which was known to the officers. Second, though the warrant contemplates the
seizure of virtually all electronic and photographic evidence relevant to the crime of gross
sexual imposition, given the nature of the factual allegations in Detective Wuertz's
affidavit, a more specific description of the items to be seized would prove difficult to
fashion.
{¶ 28} Moreover, in our opinion, the applicability of the good-faith exception in
this case depends much more on the trial court's examination of Detective Wuertz's
affidavit for the requisite indicia of reliability than its examination of the warrant for the
lack of particularity. As this case is currently postured, we cannot say that there are
defects on the face of the warrant that would preclude the application of the good-faith
exception to the exclusionary rule.
{¶ 29} For the foregoing reason, we hold that the trial court erred by denying
appellant's motion to suppress without first determining whether Detective Wuertz's
affidavit was so lacking in indicia of probable cause as to render official belief in its
existence entirely unreasonable. Leon; George. Accordingly, we reverse the judgment of
the Franklin County Court of Common Pleas and remand the case to that court for further
proceedings in accordance with law, consistent with this decision.
Judgment reversed and cause remanded.
SADLER, P.J., and CONNOR J., concur.
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