Petition for Writ of Certiorari — Lawrence A. Dibble, Petitioner v. Ohio

Supreme Court briefJul 31, 2020

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No. __-____

IN THE SUPREME COURT OF THE UNITED STATES

LAWRENCE A. DIBBLE,

Petitioner,

STATE OF OHIO,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF OHIO

PETITION FOR WRIT OF CERTIORARI

KORT W. GATTERDAM

Member of the Bar of This Court

Counsel of Record

Carpenter Lipps & Leland LLP

280 Plaza, Suite 1300

280 North High Street

Columbus, Ohio 43215

(614) 365-4100 (phone)

(614) 365-9145 (fax)

gatterdam@carpenterlipps.com

Counsel for Petitioner

QUESTION PRESENTED

In considering whether a search warrant affidavit is so lacking in indicia of probable

cause as to render official belief in its existence entirely unreasonable under United States v.

Leon, 468 U.S. 897 (1984), may a court also consider unrecorded, oral information that the law

enforcement official purportedly gave to the magistrate or judge at the time of the approval of the

warrant, or instead should the proper inquiry require review of the affidavit only?

PARTIES TO THE PROCEEDINGS

AND CORPORATE DISCLOSURE STATEMENT

There are no parties to the proceedings other than those listed in the caption. Pursuant to

Rule 29.6, Petitioner states that no parties are corporations.

TABLE OF CONTENTS

QUESTION PRESENTED ....................................................................................................

PARTIES TO THE PROCEEDINGS AND CORPORATE DISCLOSURE STATEMENT

................................................................................................................................................

TABLE OF AUTHORITIES .................................................................................................

PETITION FOR WRIT OF CERTIORARI ..........................................................................

OPINIONS BELOW ..............................................................................................................

JURISDICTIONAL STATEMENT ......................................................................................

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ............................

INTRODUCTION .................................................................................................................

STATEMENT OF THE CASE ..............................................................................................

STATEMENT OF FACTS ....................................................................................................

REASONS FOR GRANTING THE PETITION ...................................................................

IN CONSIDERING WHETHER A SEARCH WARRANT AFFIDAVIT IS SO

LACKING IN INDICIA OF PROBABLE CAUSE AS TO RENDER OFFICIAL

BELIEF IN ITS EXISTENCE ENTIRELY UNREASONABLE, A COURT MAY

NOT CONSIDER UNRECORDED, ORAL INFORMATION THAT THE LAW

ENFORCMENT OFFICIAL ALLEGEDLY GAVE TO THE MAGISTRATE OR

JUDGE AT THE TIME OF THE APPROVAL OF THE WARRANT; INSTEAD,

THE PROPER INQUIRY REQUIRES REVIEWING THE AFFIDAVIT ITSELF.

The Warrant at Issue Lacked Probable Cause, Contrary to the Fourth

Amendment. ...................................................................................................

Because the Warrant at Issue Lacked Probable Cause, the Evidence Seized

Must Be Excluded Unless the Good-Faith Exception Applies. .....................

III.

The Supreme Court of Ohio Created a Conflict with Federal Case Law. .....

IV.

The Detective’s Reliance on the Warrant Was Unreasonable. ......................

CONCLUSION ......................................................................................................................

II.

iii

APPENDICES

Appendix A

Opinion, Supreme Court of Ohio, February 20, 2020

Appendix B

Opinion, Court of Appeals of Ohio, Tenth Appellate District, December

29, 2017

Appendix C

Opinion, Court of Appeals of Ohio, Tenth Appellate District, December

30, 2014

Appendix D

Opinion, Supreme Court of Ohio, October 10, 2012

Appendix E

Opinion, Court of Appeals of Ohio, Tenth Appellate District, August 3,

2011

Appendix F

Decision and Entry, Franklin County Court of Common Pleas, August

16, 2016

Appendix G

Decision and Entry, Franklin County Court of Common Pleas, April 30,

2013

Appendix H

Decision and Entry, Franklin County Court of Common Pleas, July 1,

2010

Appendix I

Reconsideration Entry, Supreme Court of Ohio, April 14, 2020

TABLE OF AUTHORITIES

Cases

Herring v. United States, 555 U.S. 135 (2009) ............................................................................ 17

Illinois v. Gates, 462 U.S. 213 (1983) ......................................................................................... 15

Messerschmidt v. Millender, 565 U.S. 535 (2012) ...................................................................... 20

State v. Dibble, 133 Ohio St.3d 451, 2012-Ohio-4630, 979 N.E.2d 247............................. 1, 6, 13

State v. Dibble, 143 Ohio St.3d 1464, 2015-Ohio-3733, 37 N.E.3d 1249..................................... 8

State v. Dibble, 158 Ohio St.3d 1467, 2020-Ohio-1393, 142 N.E.3d 690 .................................... 1

State v. Dibble, 195 Ohio App.3d 189, 2011-Ohio-3817, 959 N.E.2d 540 ............................... 2, 7

State v. Dibble, 2014-Ohio-5754, 2014 WL 7462904 (Ct. App. Dec. 30, 2014) ................. passim

State v. Dibble, 2017-Ohio-9321, 92 N.E.3d 893 (Ct. App.)................................................ passim

State v. Dibble, 2020-Ohio-546, __ N.E.3d __, 2020 WL 826407 ....................................... passim

United States v. Calandra, 414 U.S. 338 (1974) ......................................................................... 17

United States v. Christian, 893 F.3d 846 (6th Cir. 2018) ............................................................ 23

United States v. Frazier, 423 F.3d 526 (6th Cir. 2005) ......................................................... 21, 22

United States v. Hodson, 543 F.3d 286 (6th Cir. 2008) ......................................................... 18, 23

United States v. Hython, 443 F.3d 480 (6th Cir. 2006) ............................................................... 23

United States v. Laughton, 409 F.3d 744 (6th Cir. 2005) ............................................................ 22

United States v. Legg, 18 F.3d 240 (4th Cir. 1994) ..................................................................... 23

United States v. Leon, 468 U.S. 897 (1984).......................................................................... passim

United States v. Luong, 470 F.3d 898 (9th Cir. 2006) ................................................................. 24

United States v. Weaver, 99 F.3d 1372 (6th Cir. 1996) ......................................................... 22, 26

United States v. White, 874 F.3d 490 (6th Cir. 2017) .................................................................. 23

Statutes

28 U.S.C. § 1257 ............................................................................................................................ 2

42 U.S.C. § 1983 .......................................................................................................................... 20

Ohio Rev. Code § 2907.06............................................................................................................. 6

Ohio Rev. Code § 2907.08............................................................................................................. 6

Rules

Ohio Crim. R. 41 .................................................................................................................. 2, 7, 25

Constitutional Provisions

Fourth Amendment to the United States Constitution ............................................................ passim

PETITION FOR WRIT OF CERTIORARI

Petitioner, Lawrence Dibble, respectfully petitions for a writ of certiorari to review the

judgment of the Supreme Court of Ohio.

OPINIONS BELOW

The 2020 opinion of the Supreme Court of Ohio, State v. Dibble, 2020-Ohio-546, __

N.E.3d __, 2020 WL 826407, is reproduced as Appendix A. (Pet. App. 1a–17a) The Supreme

Court of Ohio’s order denying reconsideration, State v. Dibble, 158 Ohio St.3d 1467, 2020-Ohio1393, 142 N.E.3d 690, is reproduced as Appendix I. (Pet. App. 84a)

The 2017 opinion of the Court of Appeals of Ohio, Tenth Appellate District (“Tenth

District”), State v. Dibble, 2017-Ohio-9321, 92 N.E.3d 893 (Ct. App.) is reproduced as Appendix

B. (Pet. App. 18a–32a)

The 2014 opinion of the Tenth District, State v. Dibble, 2014-Ohio-5754, 2014 WL

7462904 (Ct. App. Dec. 30, 2014), is reproduced as Appendix C. (Pet. App. 33a–38a)

The 2012 opinion of the Supreme Court of Ohio, State v. Dibble, 133 Ohio St.3d 451,

2012-Ohio-4630, 979 N.E.2d 247, is reproduced as Appendix D. (Pet. App. 39a–44a)

The 2011 opinion of the Tenth District, State v. Dibble, 195 Ohio App.3d 189, 2011Ohio-3817, 959 N.E.2d 540, is reproduced as Appendix E (Pet. App. 45a–56a)

The 2016 opinion of the Franklin County Court of Common Pleas is reproduced as

Appendix F. (Pet. App. 57a–59a)

The 2013 opinion of the Franklin County Court of Common Pleas is reproduced as

Appendix G. (Pet. App. 60a–72a)

The 2010 opinion of the Franklin County Court of Common Pleas is reproduced as

Appendix H. (Pet. App. 73a–83a)

JURISDICTIONAL STATEMENT

The Supreme Court of Ohio issued its opinion on February 20, 2020, and denied Dibble’s

timely filed motion for reconsideration on April 14, 2020. Dibble now timely files this petition

and invokes the Court’s jurisdiction under 28 U.S.C. § 1257(a).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

The constitutional provision involved is the Fourth Amendment to the United States

Constitution:

The right of the people to be secure in their persons, houses, papers, and effects,

against unreasonable searches and seizures, shall not be violated, and 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.

Ohio Crim. R. 41(C) provides:

(1) A warrant shall issue on either an affidavit or affidavits sworn to before a

judge of a court of record or an affidavit or affidavits communicated to the judge

by reliable electronic means establishing the grounds for issuing the warrant. In

the case of a search warrant, the affidavit shall name or describe the person to be

searched or particularly describe the place to be searched, name or describe the

property to be searched for and seized, state substantially the offense in relation

thereto, and state the factual basis for the affiant's belief that such property is there

located. In the case of a tracking device warrant, the affidavit shall name or

describe the person to be tracked or particularly describe the property to be

tracked, and state substantially the offense in relation thereto, state the factual

basis for the affiant’s belief that the tracking will yield evidence of the offense. If

the affidavit is provided by reliable electronic means, the applicant

communicating the affidavit shall be placed under oath and shall swear to or

affirm the affidavit communicated.

(2) If the judge is satisfied that probable cause exists, the judge shall issue a

warrant identifying the property to be seized and naming or describing the person

or place to be searched or the person or property to be tracked. The warrant may

be issued to the requesting prosecuting attorney or other law enforcement officer

through reliable electronic means. The finding of probable cause may be based

upon hearsay in whole or in part, provided there is a substantial basis for

believing the source of the hearsay to be credible and for believing that there is a

factual basis for the information furnished. Before ruling on a request for a

warrant, the judge may require the affiant to appear personally, and may examine

under oath the affiant and any witnesses the affiant may produce. Such testimony

shall be admissible at a hearing on a motion to suppress if taken down by a court

reporter or recording equipment, transcribed, and made part of the affidavit. The

warrant shall be directed to a law enforcement officer. A search warrant shall

command the officer to search, within three days, the person or place named for

the property specified. A tracking device warrant shall command the officer to

complete any installation authorized by the warrant within a specified time no

longer than 10 days, and shall specify the time that the device may be used, not to

exceed 45 days. The court may, for good cause shown, grant one or more

extensions of time that the device may be used, for a reasonable period not to

exceed 45 days each. The warrant shall be executed in the daytime, unless the

issuing court, by appropriate provision in the warrant, and for reasonable cause

shown, authorizes its execution at times other than daytime. The warrant shall

provide that the warrant shall be returned to a designated judge or clerk of court.

INTRODUCTION

Through years of litigation before multiple Ohio courts, by 2017, several points had been

established in this case. First, it is the law of the case that a search warrant affidavit submitted in

February 2010 by a detective with the Upper Arlington Police Division and approved by a judge

from the Franklin County Municipal Court, in actuality, lacked probable cause contrary to the

Fourth Amendment to the United States Constitution. Dibble, 2017-Ohio-9321, ¶ 24; Dibble,

2014-Ohio-5754, ¶ 14, 23. (Pet. App. 24a–25a, 36a–37a, 63a–67a) Accordingly, the issue was

then, and remains now, whether the evidence obtained from execution of the search warrant

should be excluded pursuant to the exclusionary rule, or instead should remain admissible under

the good-faith exception.

In United States v. Leon, 468 U.S. 897, 900 (1984), this Court discussed how the

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.”

The Leon Court noted, however, “that in some circumstances the officer will have no reasonable

grounds for believing that the warrant was properly issued.” Id. at 922–23 (emphasis added). To

aid courts in determining reasonableness, the Court outlined four such circumstances where

exclusion would remain the proper remedy: (1) “if the magistrate or judge in issuing a warrant

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) “where the issuing magistrate wholly

abandoned his judicial role;” (3) where an officer relies on “a warrant based on an affidavit ‘so

lacking in indicia of probable cause as to render official belief in its existence entirely

unreasonable;’” and (4) where a warrant is “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.” Id. at 923.

In this case, the trial court determined in 2013 that the first, second, and fourth

circumstances outlined in Leon did not apply. (Pet. 67a–68a) The trial court, however, failed to

meaningfully consider the third circumstance. Dibble, 2014-Ohio-5754, ¶ 21. (Pet. App. 36a) In

2014, the Tenth District subsequently remanded for consideration of the third Leon circumstance:

to allow 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.” Dibble, 2014-Ohio-5754, ¶ 24. (Pet. App. 37a)

Upon remand in 2016, the trial court found the affidavit did not lack the indicia of

probable cause, and relied in part upon alleged unrecorded testimony regarding “illicit photos of

the minor victim [E.S.].” (Pet. App. 57a–58a) Upon appeal in 2017, the Tenth District stated that

trial court should not have considered the unrecorded testimony. Dibble, 2017-Ohio-9321, ¶ 26–

30 (Pet. App. 25a–26a) The Tenth District further held that the affidavit did lack the indicia of

probable cause. Dibble, 2017-Ohio-9321, ¶ 36–39 (“The detective’s affidavit in support of the

search warrant that was issued to search Dibble’s home described two things: first, a sexual

course of conduct with one adult woman (E.K.) involving photographs taken with a digital

camera that did not indicate a crime, and second, offensive sexual contact while clothed with a

student (E.S.) at a school (who later proved to be of legal age). No reasonable law enforcement

officer could think that these two pieces of information, separately or together, would suggest a

warranted belief that there was probable cause to search Dibble’s home.”). (Pet. App. 27a–28a)

When the State of Ohio asked the Supreme Court of Ohio to review the case in 2018, the

State asserted that the detective provided supplemental, unrecorded oral testimony to the issuing

judge about an independent crime, not even mentioned in the affidavit, that provided some

indicia of probable cause to search Petitioner’s home. Stated differently, because the four corners

of the affidavit did not supply the indicia of probable cause, the State asked the Supreme Court

of Ohio to permit unrecorded, oral testimony to be considered in the good-faith analysis of

Leon’s third circumstance. The Supreme Court of Ohio eventually agreed with the State, holding

that “a court may consider evidence beyond the four corners of a search-warrant affidavit in

determining whether an officer reasonably and in good faith relied on that warrant.” Dibble,

2020-Ohio-546, ¶1. (Pet. App. 2a) In other words, despite this Court’s clear guidance that

consideration of the third Leon circumstance requires only a review of the affidavit, law

enforcement officials in Ohio, and potentially elsewhere if the Supreme Court of Ohio’s

reasoning is adopted, can draft and submit clearly insufficient affidavits so long as they present

additional, oral information to the issuing judge or magistrate.

The Supreme Court of Ohio’s holding has enormous implications for defendants and law

enforcement in Ohio, and furthermore conflicts with case law from federal courts and other state

courts. If not reversed, the third circumstance from Leon becomes meaningless.

STATEMENT OF THE CASE

On March 29, 2010, a grand jury from Franklin County, Ohio, returned an indictment

charging Mr. Dibble with 20 counts of voyeurism contrary to Ohio Rev. Code § 2907.08 and one

count of sexual imposition contrary to Ohio Rev. Code § 2907.06. (03/29/2010 Indictment) Of

the 20 counts of voyeurism, 17 were felonies due to the alleged age of the purported victim. The

dates for all the voyeurism counts ranged from August 1, 2002, to June 30, 2003, and were based

on videotape recovered from Mr. Dibble’s home. The sexual imposition count was dated April

28, 2009.

On May 12, 2010, Mr. Dibble filed a motion to suppress any evidence obtained pursuant

to the search warrant executed at his residence on February 3, 2010. (05/12/2010 Motion to

Suppress Evidence)

After a suppression hearing was held, on July 1, 2010, Franklin County Common Pleas

Judge Timothy Horton granted the suppression motion. (Pet. App. 73a–83a) Judge Horton

found Det. Wuertz falsely characterized E.K. as a “victim” in as much as he knew that E.K. was

a consenting adult when Mr. Dibble and E.K. voluntarily engaged in the acts described in the

affidavit. (Pet. App. 76a–80a) Judge Horton found Det. Wuertz knowingly and intentionally

made false statements in the search warrant affidavit, and used the false characterization of a

“victim” to create probable cause to search Mr. Dibble’s home. (Id.) Without these false and

misleading characterizations, no probable cause to search Mr. Dibble’s home would have existed

because “[n]othing in E.S.’s testimony gives rise to evidentiary material located in Defendant’s

home.” (Pet. App. 80a) Judge Horton also rejected the good-faith exception to the exclusionary

rule. (Pet. App. 80a–81a)

On August 4, 2011, the Tenth District affirmed Judge Horton’s suppression order. State v.

Dibble, 195 Ohio App.3d 189, 2011-Ohio-3817, 959 N.E.2d 540 (Ct. App.). (Pet. App. 45a–56a)

However, on October 10, 2012, the Supreme Court of Ohio reversed and remanded the case and

ordered the trial court to hold a new suppression hearing. State v. Dibble, 133 Ohio St.3d 451,

2012-Ohio-4630, 979 N.E.2d 247, syllabus, ¶ 25–26 (holding that “[a] determination whether

information in a search-warrant affidavit is false must take into account the nontechnical

language used by nonlawyers” and calling into question the basis for the trial court’s “conclusion

that the detective’s testimony was false,” namely the use of the word “victim” to describe the

two women in the affidavit). (Pet. App. 43a–44a)

On February 4, 2013, Dibble filed a new motion to suppress. (02/04/2013 Motion to

Suppress Evidence Obtained in Violation of Defendant’s Fourth Amendment Rights) A hearing

was held on March 12, 2013, and Judge Horton requested supplemental briefing on the issue of

the good-faith exception. (3/12/2013 Hrg. Tr. at 23–26) The State sought to call as a witness

Judge Andrea Peeples from the Franklin County Municipal Court who issued the warrant, but

Judge Horton declined to allow the testimony based on Ohio Crim. R. 41(C)(2), which allows

testimony in support of a warrant to be admitted only “if taken down by a court reporter or

recording equipment, transcribed, and made part of the affidavit.” (03/12/2013 Hrg. Tr. at 5–7)

The parties did not present any new evidence, and instead agreed to resubmit the transcript and

exhibits from the first suppression hearing. (Id. at 3–6)

On April 30, 2013, Judge Horton issued a decision denying the motion to suppress. (Pet.

App. 60a–72a) Judge Horton concluded that even though Det. Wuertz’s affidavit did not provide

a substantial basis for concluding that probable cause existed (Pet. App. 63a–67a), the officers

obtained the evidence from Mr. Dibble’s home while acting in objectively reasonable reliance on

a search warrant issued by a detached and neutral judge (Pet. App. 67a–68a). Judge Horton’s

analysis was incomplete, however, because the court did not discuss or consider whether Det.

Wuertz relied upon a warrant affidavit so lacking in indicia of probable cause as to render

official belief in its existence entirely unreasonable.

On June 11, 2013, Mr. Dibble entered a plea of no contest to each of the counts in the

indictment, provided he have the opportunity to appeal the suppression decision. (6/11/2013

Entry of No Contest Plea) On August 15, 2013, Judge Horton sentenced Mr. Dibble to an

aggregate sentence of 4 years in prison. (8/16/2013 Judgment Entry)

On December 30, 2014, the Tenth District reversed. State v. Dibble, 2014-Ohio-5754,

2014 WL 7462904 (Ct. App. Dec. 30, 2014). (Pet. App. 33a–38a) The Tenth District first

indicated that the State could not challenge Judge Horton’s initial determination that the search

warrant was not issued upon probable cause. Id. at ¶ 11–14 (“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.”). (Pet. App.

35a) The Tenth District then stated that in conducting the “good faith” analysis, Judge Horton

failed to consider whether Det. Wuertz’s affidavit was so lacking in indicia of probable cause as

to render official belief in its existence entirely unreasonable. Id. at ¶ 18–24. (Pet. App. 36a–37a)

The Tenth District did not wish to make that determination in the first instance in the appeal, and

therefore remanded for this determination to be made at the trial level. Id. at ¶ 24, 29. (Pet. App.

37a) The Ohio Supreme Court denied jurisdiction on the State’s appeal on September 16, 2015.

State v. Dibble, 143 Ohio St.3d 1464, 2015-Ohio-3733, 37 N.E.3d 1249.

Upon remand, the matter was transferred to Franklin County Common Pleas Court Judge

Michael Holbrook. On August 16, 2016, Judge Holbrook issued a written decision denying the

motion to suppress. (Pet. App. 57a–59a) Judge Holbrook concluded that the affidavit contained

sufficient facts to support a finding of probable cause, and therefore was not so lacking in indicia

of probable case as to render official belief in its existence unreasonable. (Pet. App. 57a–58a)

Specifically, Judge Holbrook found that “[t]he officer discussed events involving a camera used

to take illicit photos of the minor victim and a similar course of conduct with victim E.K.,” found

“that the affidavit discusses two similar situations of deviant behavior and connects aspects of

that behavior to the location specified in the warrant,” and determined that “any deficiencies

within the affidavit are not so egregious that the executing officers could not reasonably presume

the warrant was valid.” (Pet. App. 58a) In other words, Judge Holbrook relied upon Det.

Wuertz’s alleged unrecorded testimony regarding “illicit photos of the minor victim [E.S.]” as

helping to establish probable cause.

Following Mr. Dibble’s timely appeal of Judge Holbrook’s decision, on December 29,

2017, the Tenth District stated that trial court should not have considered the unrecorded

testimony. Dibble, 2017-Ohio-9321, ¶ 26–30 (Pet. App. 25a–26a) The Tenth District further held

“that the affidavit submitted for the search warrant did not supply probable cause to search

Dibble’s house and was ‘so lacking in indicia of probable cause as to render official belief in its

existence entirely unreasonable.’” Id. at ¶ 1, 39. (Ct. App.) (Pet. App. 21a, 28a) Regarding E.K.,

the Tenth District concluded that “E.K. reported that Dibble had touched her and taken

photographs of her nude vaginal area, but nothing in the affidavit states that in taking these

actions Dibble violated criminal statutes,” and that “[t]his does not tend toward a finding of

probable cause to search Dibble’s house.” Id. at ¶ 37. (Pet. App. 27a) Regarding E.S., the Tenth

District concluded that “probable cause to believe that Dibble offensively touched E.S. at school

will not support a warrant to search Dibble’s home.” Id. at ¶ 38. (Pet. App. 28a) Therefore, the

affidavit lacked probable cause because, in regards to the information supplied by E.K. and E.S.,

“[n]o reasonable law enforcement officer could think that these two pieces of information,

separately or together, would suggest a warranted belief that there was probable cause to search

Dibble’s home.” Id. at ¶ 39; see also id. (“In short, no events, legal or illegal, described in the

detective’s affidavit occurred at Dibble’s home, and his alleged, illegal touching of E.S. did not

result in any physical evidence that reasonably could be believed to be stored at his home.”). (Pet.

App. 28a)

On July 5, 2018, the Supreme Court of Ohio accepted the State’s appeal as to the

following Proposition of Law: “In deciding whether the good-faith exception to the exclusionary

rule applies to a search conducted under a search warrant, a court can consider sworn but

unrecorded oral information that the police gave to the judge at the time of the approval of the

warrant.” On February 20, 2020, the Supreme Court of Ohio reversed the Tenth District in a 5–2

decision. The Supreme Court of Ohio held that “a court may consider evidence beyond the four

corners of a search-warrant affidavit in determining whether an officer reasonably and in good

faith relied on that warrant.” Dibble, 2020-Ohio-546, ¶ 1. (Pet. App. 2a)

On April 14, 2020, the Supreme Court of Ohio denied Mr. Dibble’s timely filed motion

for reconsideration. (Pet. App. 84a)

STATEMENT OF FACTS

On February 2, 2010, two women went to the Upper Arlington Police Division and spoke

with Detective Andrew Wuertz. (06/29/2010 Hrg. Tr. at 23) The first woman, “E.S.”, claimed

that while she was a student at the Wellington School, Lawrence A. Dibble, her teacher, touched

her inappropriately while on school property. (06/29/2010 Hrg. Tr. at 24–25) E.S. indicated to

Det. Wuertz that there was only one inappropriate touching incident and it took place in April

2009. (06/29/2010 Hrg. Tr. at 28–29)

The second woman, “E.K.”, told Det. Wuertz that after she had graduated from the

Wellington School and turned 18, she allowed Mr. Dibble to take nude photographs of her

vaginal area. (06/29/2010 Hrg. Tr. at 14, 34–35) This activity occurred within a consensual,

sexual relationship between E.K. and Mr. Dibble, again after her high school graduation and

while she was over 18 years of age. (06/29/2010 Hrg. Tr. at 14–21, 35) Further, E.K. never

indicated that any inappropriate conduct took place while she was a student or while she was

underage. (06/29/2010 Hrg. Tr. at 14–21, 30)

Det. Wuertz completed reports regarding his investigation on February 3, 2010.

(06/29/2010 Hrg. Tr. at 7–9, 39–40; R.50, 6/29/2010 Hearing Exhibits, Defendant’s Exhibits 3 &

4) In the Ohio Uniform Incident Report, in the box asking for the number of total victims, Det.

Wuertz answered one, which Det. Wuertz acknowledged was E.S. (06/29/2010 Hrg. Tr. at 40–42)

On February 3, 2010, Det. Wuertz caused a gross sexual imposition charge to be filed

against Mr. Dibble with regards to the allegations made by E.S. (06/29/2010 Hrg. Tr. at 5–6;

R.50, 6/29/2010 Hearing Exhibits, Defendant’s Exhibit 2) Det. Wuertz never filed charges

against Mr. Dibble regarding the allegations made by E.K because no crime was committed

against her. (06/29/2010 Hrg. Tr. at 5–7, 14–15, 21, 43)

On February 3, 2010, Det. Wuertz appeared before Franklin County Municipal Court

Judge Andrea Peeples and requested a warrant to search Mr. Dibble’s residence. (06/29/2010

Hrg. Tr. at 10–13) The search warrant affidavit stated:

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 a 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.

(06/29/2010 Hearing Exhibits, Defendant’s Exhibit 1) (emphasis added)1

Judge Peeples swore Det. Wuertz in and the two had a discussion. (6/29/2010 Hrg. Tr. at

33) However, no recording, transcript, or other form of preservation of the record was

made of this discussion. Det. Wuertz claimed he told Judge Peeples more background about

how Mr. Dibble had known E.S. and E.K. since seventh grade, and how Mr. Dibble took

photographs of students in unitards which were somewhat see-through. (06/29/2010 Hrg. Tr. at

33–34) In her affidavit, Judge Peeples claimed to have discussed with Det. Wuertz “the teacher,

students who did not have a father figure in the home, that the court was generally familiar with

Wellington [S]chool.” (07/08/2010 State’s Motion, Affidavit at 2) Judge Peeples understood that

to be admissible at a subsequent suppression hearing, oral information from Det. Wuertz needed

to be transcribed. (Id.) However, Judge Peeples decided it was not necessary to have the

information transcribed or the warrant reissued, and instead issued the warrant “based on the

information contained in the search warrant affidavit.” (Id.) In order words, in issuing the

warrant, Judge Peeples only relied upon the search warrant affidavit, and not upon the

unrecorded, oral information from Det. Wuertz.

Although the affidavit does not address it, E.S. later disclosed that she was over 18 when Mr.

Dibble touched her at school, and she was legally an adult at the time it occurred. (08/15/2013

Sentencing Hearing Transcript at 16)

Despite the issuance of the search warrant, Det. Wuertz knew his affidavit had problems.

He admitted he had no probable cause to be searching the home of Mr. Dibble based on

“Victim # 1,” i.e., E.S.:

Okay. And I’m going to ask you in that attachment you identify someone

as Victim Number 1, correct?

Correct.

And nothing about Victim Number 1 indicates anything that would lead

you to believe that there was any type of computer conversation, phone

calls, picture taking, or anything else, any of the information in your

affidavit, your sworn statement here, as it applies to Victim Number 1. Is

that fair to say?

Correct.

So as it applies to Victim Number 1, it’s fair to say also that there’s no real

probable cause to be searching the home of Mr. Dibble. Is that correct?

As far as what’s written here, correct.

(06/29/2010 Hrg. Tr. at 13) See also State v. Dibble, 133 Ohio St.3d 451, 2012-Ohio-4630, 979

N.E.2d 247, ¶ 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.”). (Pet. App. 41a)

To search Mr. Dibble’s home, Det. Wuertz acknowledged that only information from

“Victim # 2,” i.e., E.K., could potentially form the basis for probable cause:

Okay. And only the information from her would be the probable cause to

be able to search the home of Mr. Dibble, correct? At that point in time,

detective, that’s correct, is it not?

At that point in time.

(06/29/2010 Hrg. Tr. at 22) However, Det. Wuertz conceded he had no probable cause for a

criminal charge involving E.K. because she reported she had consented to the photographs and

was an adult when they were taken. (06/29/2010 Hrg. Tr. at 43–45) In fact, Det. Wuertz

admitted that “Victim # 2” was not a victim of any crime, even though he called her a victim 6

times in the search warrant affidavit:

THE WITNESS: Not at the time that that was taken or subsequently because I

didn’t find anything that I could charge Mr. Dibble on with regards to

[E.K.].

(By Mr. Weisman) And I guess that’s ultimately my point. There is no

probable cause for a charge against [E.K.], is there?

Against Mr. Dibble for [E.K.].

Correct.

Right.

(06/29/2010 Hrg. Tr. at 43–44) He also agreed that she had not been described as a victim

anywhere else in his file (except in his efforts to obtain a search warrant). (06/29/2010 Hrg. Tr. at

40–44)

Despite these admitted deficiencies with the search warrant affidavit, Judge Peeples

issued the search warrant and Det. Wuertz executed it on Mr. Dibble’s residence on February 3,

2010. The search resulted in the seizure of several items, including a laptop computer, a camera,

and several videotapes and DVDs. (06/29/2010 Hrg. Tr. at 38; R.50, 06/29/2010 Hearing

Exhibits, Defendant’s Exhibit 1)

REASONS FOR GRANTING THE WRIT

IN CONSIDERING WHETHER A SEARCH WARRANT AFFIDAVIT IS SO LACKING

IN INDICIA OF PROBABLE CAUSE AS TO RENDER OFFICIAL BELIEF IN ITS

EXISTENCE ENTIRELY UNREASONABLE, A COURT MAY NOT CONSIDER

UNRECORDED, ORAL INFORMATION THAT THE LAW ENFORCMENT OFFICIAL

ALLEGEDLY GAVE TO THE MAGISTRATE OR JUDGE AT THE TIME OF THE

APPROVAL OF THE WARRANT; INSTEAD, THE PROPER INQUIRY REQUIRES

REVIEWING THE AFFIDAVIT ITSELF.

The Warrant at Issue Lacked Probable Cause, Contrary to the Fourth Amendment.

The Fourth Amendment to the United States Constitution 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.” U.S. Constitution, Amendment IV.

In deciding whether probable cause exists, issuing officials must “make a practical, common sense

decision whether, given all the circumstances set forth in the affidavit before him, . . . there is a

fair probability that contraband or evidence of a crime will be found in a particular place.”

Illinois v. Gates, 462 U.S. 213, 238 (1983) (emphasis added).

In this case, the search warrant was not issued upon probable cause, contrary to the

Fourth Amendment. In the opinion filed April 30, 2013, the trial court wrote:

The 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. The affidavit does not contain any indication that the illegal

activity that E.S. complained of occurred in Defendant’s home. Detective Wuertz

freely admitted that the affidavit is void of any allegation by E.S. that “would lead

[him] to believe that there was any type of computer conversation, phone calls,

picture taking, or anything else” as it applied to E.S.. (June 29, 2010 Hearing Tr.

at 13:8-15). According to the affidavit, all inappropriate touching occurred at the

Wellington School. The affidavit does not contain any information indicating that

there was any written correspondence between E.S. and Defendant. Nor does the

affidavit indicate that Defendant took any photographs of E.S., let alone kept the

pictures in his home. When testifying, Detective Wuertz admitted that based upon

what was written in the affidavit, there was “no real probable cause to be

searching the home of Mr. Dibble.” (June 29, 2010 Hearing Tr. at 13:16-20).

Consequently, the affidavit clearly lacks any basis that evidence of a crime would

be found in Defendant's home in regards to E.S.

As it pertains to E.K., the record is devoid of a substantial basis that evidence of

any crime regarding E.K. would be found in Defendant’s home based upon the

allegations of E.K. Wherefore, as aptly stated by Justice Pfeiffer’s dissent, “any

information about Dibble’s relationship with E.K., a consenting adult, describes

no crime, and thus provides no basis for a search.” State v. Dibble, 133 Ohio St.3d

451, at ¶28. When testifying, Detective Wuertz stated that any touching that

occurred between Defendant and E.K. occurred after E.K. graduated from high

school and occurred after she was 18 years old. (June 29, 2010 Hearing Tr. at

14:7-17). In fact, Detective Wuertz admitted to receiving a four-page statement

from E.K. that indicated that her interactions with Defendant were consensual. (Id.

at 14:18-17:13). Detective Wuertz admitted that the Defendant took photographs

of E.K. with her permission:

Q: Okay. And it is this person [E.K.] who claims pictures were

taken with her okay, correct, with her permission? Nothing in there

indicates it wasn’t. Is that correct?

A: Correct.

(June 29, 2010 Hearing Tr. at 17:9-13). Ultimately, E.K. was a consenting adult,

and thus the statements regarding E.K. within the affidavit provides no basis for a

search of Defendant’s home. . . .

Unfortunately, the affidavit contains no evidence that any illegal activity ever

took place at Defendant’s home, nor any indication that his home contained

evidence related to E.S. The information contained in the affidavit is insufficient

to create a nexus between the Defendant’s home—perhaps the most sacred of all

personal property—and illegal conduct that took place at the school. There must

be specific information to provide a sufficient nexus between the Defendant’s

alleged illegal behavior and his residence to establish probable cause to search

Defendant's home, but the evidence supported fails to provide a mere suspicion

that illegal (not morally reprehensible) conduct took place in the home.

(Pet. App. 64a–66a) (emphasis in original)) The trial court’s probable cause determination is

now the law of the case. Dibble, 2017-Ohio-9321, ¶ 24 (“That the detective and municipal court

lacked probable cause to issue the warrant to search Dibble’s home is therefore the law of the

case.”) (Pet. App. 25a); Dibble, 2014-Ohio-5754, ¶ 14. (Pet. App. 35a)

II.

Because the Warrant at Issue Lacked Probable Cause, the Evidence Seized Must Be

Excluded Unless the Good-Faith Exception Applies.

Evidence obtained via search warrants which do not meet the requirements of the Fourth

Amendment are subject to the exclusionary rule. See United States v. Leon, 468 U.S. 897, 906

(1984). This rule exists “as a judicially created remedy designed to safeguard Fourth Amendment

rights generally through its deterrent effect.” United States v. Calandra, 414 U.S. 338, 348

(1974). For the exclusionary rule to apply, “police conduct must be sufficiently deliberate that

exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the

price paid by the judicial system.” Herring v. United States, 555 U.S. 135, 144 (2009).

In Leon, 468 U.S. at 900, this Court discussed how the 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.” “Leon’s exception is

predicated on the idea that the purpose of the exclusionary rule, which is to deter police

misconduct, will not be served by excluding evidence seized by an officer acting in good faith.”

United States v. Frazier, 423 F.3d 526, 533 (6th Cir. 2005). “The exclusion of evidence will have

no deterrent effect if it does not alter the behavior of individual law enforcement officers or the

policies of their departments.” Id.

The Leon Court noted, however, “that in some circumstances the officer will have no

reasonable grounds for believing that the warrant was properly issued.” Leon, 468 U.S. at 922–

23 (emphasis added). To aid courts in determining reasonableness, the Court outlined four such

circumstances where exclusion would remain the proper remedy: (1) “if the magistrate or judge

in issuing a warrant 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) “where the

issuing magistrate wholly abandoned his judicial role;” (3) where an officer relies on “a warrant

based on an affidavit ‘so lacking in indicia of probable cause as to render official belief in its

existence entirely unreasonable;’” and (4) where a warrant is “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.” Id. at 923. In other words, this Court

determined “that officers can never assert reasonable reliance, nor courts find good faith, under

these four scenarios.” United States v. Hodson, 543 F.3d 286, 292 (6th Cir. 2008).

In this case, the trial court determined in 2013 that the first, second, and fourth

circumstances outlined in Leon did not apply. (Pet. 67a–68a) The trial court, however, failed to

meaningfully consider the third circumstance in 2013. Dibble, 2014-Ohio-5754, ¶ 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.”). (Pet. App. 36a) In 2014, the Tenth District subsequently remanded for

consideration of the third Leon circumstance: to allow 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.” Dibble, 2014-Ohio-5754, ¶ 24

(emphasis in original). (Pet. App. 37a)

Upon remand in 2016, the trial court found the affidavit did not lack the indicia of

probable cause, and relied in part upon allege unrecorded testimony regarding “illicit photos of