March 20, 2013
Searches and Seizures

by Justice Paul E. Pfeifer

On February 3, 2010, a police detective in Upper Arlington – a Columbus suburb – asked a Franklin County municipal judge to issue a warrant to search Lawrence A. Dibble’s home. The detective – Andrew Wuertz – sought the warrant after speaking with two young women (we’ll refer to them as E.S. and E.K.), who reported their experience with Dibble, a theater instructor at a private K-through-12 school.

The search-warrant affidavit stated: “On February 2, 2010 Victim #1 (E.S.) reported” that while she was a student at the school, Dibble had touched her inappropriately. According to the affidavit, “Victim #2 (E.K.) was with Victim #1 while she made the report.”

E.K. claimed that she also had inappropriate contact with Dibble, although the contact occurred after she had graduated high school. E.K. said Dibble had taken nude photos of her using a digital camera, and made her wear a pillowcase over her head while he took the pictures.

The search-warrant affidavit next stated, “On February 2, 2010, Victim #1 went” to the school at the direction of the police, wearing a recording device. “She had a conversation with Dibble about the inappropriate touching where he stated, ‘I just wasn’t thinking.’”

The Upper Arlington investigators, the affidavit said, believed that Dibble’s computers and cameras contained correspondence and photos that would substantiate the claims against him, and they sought a warrant to search his home.

The warrant, issued the next day, authorized the seizure of computers, cameras, and data-storage media. 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. – “Victim #2.”

Dibble filed a motion to suppress the evidence obtained from the search of his home, arguing that Wuertz had deliberately included false and misleading information in the affidavit. He claimed the references to E.K. as a “victim” were false because Wuertz knew E.K. was an adult when the sexual acts occurred, and the acts had been consensual.

Wuertz conceded that the information in the affidavit regarding E.S. – “Victim #1” – wouldn’t 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 that was related to E.S. did not provide probable cause to search Dibble’s home.

The trial court granted Dibble’s motion to suppress, 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 court held that evidence outside the “false” affidavit, standing alone, was insufficient to support probable cause.

The court of appeals affirmed the trial court’s judgment. After that, the case came before us – the Supreme Court of Ohio.

Was there probable cause to search Dibble’s home? In 1978, the United States Supreme Court ruled that if a search-warrant affidavit contains a false statement with “reckless disregard for the truth,” and if the false statement is necessary to the finding of probable cause, then evidence discovered during the search must be suppressed. In a 1992 decision, our court said that “reckless disregard” means that the person filing the affidavit had “serious doubts of an allegation’s truth.”

In Dibble’s case, the focus of the trial court and court of appeals was on Wuertz’s use of the word “victim” to describe E.K. Wuertz considered her to be a victim because Dibble’s relationship with her involved a pattern of grooming and manipulation that began when she was a minor and Dibble’s student.

The trial court concluded that Wuertz’s use of the term “victim” amounted to knowingly and intentionally including false information in order to establish probable cause to search Dibble’s home. The court of appeals held that competent and credible evidence supported that finding.

By a six-to-one vote, our court disagreed. According to the majority, it was “difficult to understand how the courts could have deemed the affidavit misleading, since it stated clearly that Victim #2 had graduated before the ‘inappropriate’ touching began.” The majority concluded that the trial court used too narrow a definition of “victim” by viewing the term to encompass only victims of crime. It found this “hypertechnical analysis inappropriate.”

The majority noted that the United States Supreme Court has explained that search-warrant affidavits are usually drafted by nonlawyers and should be reviewed with that in mind. The majority said the validity of a search-warrant affidavit shouldn’t turn on the identifier that an officer selects when trying to protect a person’s identity.

Having concluded that the trial court abused its discretion in suppressing the evidence discovered at Dibble’s house, the majority reversed the judgment of the court of appeals and sent the case back to the trial court for a new suppression hearing.

I cast the dissenting vote because I would have affirmed the judgment of the court of appeals, although I wouldn’t adopt its reasoning. Whether Wuertz knowingly made false statements in his affidavit is ultimately irrelevant. That’s because any information about Dibble’s relationship with E.K – a consenting adult – describes no crime, and thus provides no basis for a search.

There’s no allegation in the affidavit that any illegal activity regarding “Victim #1” took place in Dibble’s home. At the suppression hearing, Wuertz was asked about the importance of information about E.K. to the probable-cause determination: “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 ... that’s correct, is it not?”

Wuertz responded: “At that point in time.”

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 house. 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.

EDITOR'S NOTE: The case referred to is State v. Dibble, 133 Ohio St.3d 451, 2012-Ohio-4630. Case No. 2011-1569. Decided October 10, 2012. Majority opinion written by Justice Evelyn Lundberg Stratton.