Opposition Brief — Lawrence A. Dibble, Petitioner v. Ohio
Supreme Court briefOct 14, 2020
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No. 20-5303
IN THE SUPREME COURT OF THE UNITED STATES
October Term, 2020
LAWRENCE A. DIBBLE,
Petitioner,
-vsSTATE OF OHIO,
Respondent.
_________________________________________________
On Petition for Writ of Certiorari to the Supreme Court of Ohio
_________________________________________________
RESPONDENT’S BRIEF IN OPPOSITION
_________________________________________________
RON O’BRIEN
Franklin County Prosecuting Attorney
STEVEN L. TAYLOR
(Counsel of Record)
Chief Counsel, Appellate Division
373 South High Street – 13th Floor
Columbus, Ohio 43215
Phone: 614-525-3555
E-mail: staylor@franklincountyohio.gov
COUNSEL FOR RESPONDENT
STATE OF OHIO
QUESTIONS PRESENTED
(as formulated by Respondent)
Whether a court applying the good-faith exception in regard to the
issuance of a search warrant must consider all of the circumstances
involved in the issuance of the warrant, including the information
providing a substantial basis to search in the written affidavit and
including sworn oral information provided by the officer at the time
of the issuance of the warrant that showed an additional substantial
basis to search?
TABLE OF CONTENTS
QUESTIONS PRESENTED
i
TABLE OF CONTENTS
ii
TABLE OF AUTHORITIES
iii
REASONS FOR DENYING THE PETITION
1
OPINIONS BELOW
2
STATEMENT OF THE CASE
2
ARGUMENT
12
IN APPLYING THE GOOD-FAITH EXCEPTION IN REGARD TO
RELIANCE ON THE ISSUANCE OF A SEARCH WARRANT, THE COURT
HEARING THE SUPPRESSION MOTION MUST CONSIDER ALL OF THE
CIRCUMSTANCES, INCLUDING THE INFORMATION PROVIDED IN THE
WRITTEN AFFIDAVIT AND INCLUDING ANY INFORMATION
PROVIDED UNDER OATH BY THE OFFICER AT THE TIME OF THE
ISSUANCE OF THE WARRANT.
12
CONCLUSION
40
ii
TABLE OF AUTHORITIES
CASES
Agricultural Ins. Co. v. Constantine, 144 Ohio St. 275, 58 N.E.2d 658 (1944) ........................... 15
Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) ...................................... 32
Andresen v. Maryland, 427 U.S. 463, 96 S.Ct. 2737, 49 L.Ed.2d 627 (1976) ............................. 19
Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) ......................... 34
Columbus v. Ridley, 10th Dist. No. 13AP-1035, 2014-Ohio-4356, 2014 WL 4923307 ............... 15
D.C. v. Wesby, 138 S.Ct. 577, 199 L.Ed.2d 453 (2018) ................................................................. 30
Davis v. United States, 564 U.S. 229, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011) ......................... 27
Florida v. Harris, 568 U.S. 237, 133 S.Ct. 1050, 185 L.Ed.2d 61 (2013) ................................... 30
Herring v. United States, 555 U.S. 135, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009) ........................ 26
Hortonville Joint School Dist. No. 1 v. Hortonville Educ. Ass’n, 426 U.S. 482, 96 S.Ct. 2308, 49
L.Ed.2d 1 (1976) ....................................................................................................................... 24
Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) ............................... 29, 30
Jennings v. Stephens, 574 U.S. 271, 135 S.Ct. 793, 190 L.Ed.2d 662 (2015).............................. 16
Joyce v. General Motors Corp., 49 Ohio St.3d 93, 551 N.E.2d 172 (1990) ................................ 15
Kaley v. United States, 571 U.S. 320, 134 S.Ct. 1090, 188 L.Ed.2d 46 (2014) ........................... 30
Malley v. Briggs, 475 U.S. 335, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986) .................................... 28
Massachusetts v. Sheppard, 468 U.S. 981, 104 S.Ct. 3424, 82 L.Ed.2d 737 (1984) ............. 33, 36
Massachusetts v. Upton, 466 U.S. 727, 104 S.Ct. 2085, 80 L.Ed.2d 721 (1984) ......................... 29
Messerschmidt v. Millender, 565 U.S. 535, 132 S.Ct. 1235, 182 L.Ed.2d 47 (2012) ...... 18, 28, 33
Montejo v. Louisiana, 556 U.S. 778, 129 S.Ct. 2079, 173 L.Ed.2d 955 (2009) ........................... 25
Nolan v. Nolan, 11 Ohio St.3d 1, 462 N.E.2d 410 (1984) ............................................................ 15
Pennsylvania Bd. of Probation v. Scott, 524 U.S. 357, 118 S.Ct. 2014, 141 L.Ed.2d 344 (1998)
............................................................................................................................................. 25, 26
State v. Allen, 77 Ohio St.3d 172, 672 N.E.2d 638 (1996) ........................................................... 15
State v. Baron, 156 Ohio App.3d 241, 2004-Ohio-747, 805 N.E.2d 173 (8th Dist.) .................... 14
State v. Byrne, 972 A.2d 633 (R.I. 2009) .......................................................................... 21, 22, 23
State v. Campbell, 90 Ohio St.3d 320, 738 N.E.2d 1178 (2000) .................................................. 15
State v. Dibble, 10th Dist. No. 13AP-798 (Memo Decision, 3-3-15) ........................................... 2, 11
State v. Dibble, 10th Dist. No. 13AP-798, 2014-Ohio-5754, 2014 WL 7462904 ........................... 9
State v. Dibble, 10th Dist. No. 16AP-629 (Memo Decision, 3-6-18) ................................................. 2
State v. Dibble, 10th Dist. No. 16AP-629 (Memo Decision, 3-8-18) ................................................. 2
State v. Dibble, 133 Ohio St.3d 451, 2012-Ohio-4630, 979 N.E.2d 247........................................ 8
State v. Dibble, 159 Ohio St.3d 322, 2020-Ohio-546, 150 N.E.3d 912.................................. 12, 32
State v. England, 1st Dist. No. C-040253, 2005-Ohio-375, 2005 WL 267669 ............................ 22
State v. Humphrey, 2nd Dist. No. 25063, 2013-Ohio-40, 2013 WL 139530 ............................... 15
State v. Jackson, 82 Ohio App. 318, 81 N.E.2d 546 (9th Dist. 1948) .......................................... 20
State v. Larkins, 8th Dist. No. 85877, 2006-Ohio-90, 2006 WL 60778 ....................................... 15
State v. Pennington, 10th Dist. No. 91AP-13, 1991 WL 476699 (1991) ...................................... 20
State v. Pinckney, 10th Dist. No. 14AP-709, 2015-Ohio-3899, 2015 WL 5638096 ..................... 15
State v. Williams, 134 Ohio St.3d 521, 2012-Ohio-5695, 983 N.E.2d 1278 ................................ 19
Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976) ...................................... 25
iii
U. S. ex rel. Gaugler v. Brierley, 477 F.2d 516 (3d Cir. 1973) .................................................... 32
United States v. American Ry. Express Co., 265 U.S. 425, 44 S.Ct. 560, 68 L.Ed. 1087 (1924). 16
United States v. Biglow, 562 F.3d 1272 (10th Cir. 2009) ............................................................. 23
United States v. Christian, 893 F.3d 846 (6th Cir. 2018) ............................................................. 37
United States v. Clyburn, 24 F.3d 613 (4th Cir. 1994) ................................................................. 31
United States v. Cote, 569 F.3d 391 (8th Cir. 2009)..................................................................... 31
United States v. Donaldson, 2012 WL 1142922 (S.D. Ga. 2012) ................................................ 39
United States v. Farlee, 757 F.3d 810 (8th Cir. 2014).................................................................. 33
United States v. Farrad, 895 F.3d 859 (6th Cir. 2018)................................................................. 38
United States v. Frazier, 423 F.3d 526 (6th Cir. 2005) .................................................... 33, 35, 38
United States v. Grubbs, 547 U.S. 90, 126 S.Ct. 1494, 164 L.Ed.2d 195 (2006)......................... 30
United States v. Hodson, 543 F.3d 286 (6th Cir. 2008) ................................................................ 37
United States v. Hython, 443 F.3d 480 (6th Cir. 2006) .......................................................... 37, 38
United States v. Knights, 534 U.S. 112, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001) ........................ 34
United States v. Laughton, 409 F.3d 744 (6th Cir.2005) ........................................................ 37, 38
United States v. Legg, 18 F.3d 240 (4th Cir. 1994) ...................................................................... 38
United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984)...................... passim
United States v. Luong, 470 F.3d 898 (9th Cir. 2006) .................................................................. 38
United States v. Robinson, 336 F.3d 1293 (11th Cir. 2003) ......................................................... 33
United States v. Shields, 978 F.2d 943 (6th Cir. 1992)................................................................. 31
United States v. Summage, 481 F.3d 1075 (8th Cir. 2007)........................................................... 21
United States v. Verdugo-Urquidez, 494 U.S. 259, 110 S.Ct. 1056, 108 L.Ed.2d 222 (1990) ..... 34
United States v. Weaver, 99 F.3d 1372 (6th Cir. 1996) ................................................................ 37
United States v. White, 874 F.3d 490 (6th Cir. 2017) ................................................................... 37
United States v. Williamson, 859 F.3d 843 (10th Cir. 2017) ........................................................ 31
Utah v. Strieff, 136 S.Ct. 2056, 195 L.Ed.2d 400 (2016) ............................................................. 26
Virginia v. Moore, 553 U.S. 164, 128 S.Ct. 1598, 170 L.Ed.2d 559 (2008) ................................ 39
Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967) ............................. 18, 20
Whiteley v. Warden, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971) ................................. 32
OTHER AUTHORITIES
1992 Staff Note to Oh.App.R. 3(C) .............................................................................................. 15
2013 Staff Note to Oh.App.R. 3(C)(2) ......................................................................................... 15
RULES
Oh.App.R. 3(C)(2) ........................................................................................................................ 15
Oh.Crim.R. 41(C)(2) ..................................................................................................................... 24
Oh.Evid.R. 404(B) ........................................................................................................................ 19
Oh.Evid.R. 608(B) ........................................................................................................................ 19
TREATISES
Painter and Pollis, Ohio Appellate Practice (2017-18 ed.), §§ 3.3, 5.23 ...................................... 15
iv
CONSTITUTIONAL PROVISIONS
Fourth Amendment, United States Constitution .................................................................... passim
Article IV, Section 5(B), Ohio Constitution ................................................................................. 32
v
REASONS FOR DENYING THE PETITION
Petitioner’s question presented does not fairly portray what occurred in this case.
Petitioner’s arguments also proceed from mistaken views on how the law-of-the-case
doctrine would apply to the question of probable cause. Petitioner builds on those mistaken
views by failing to acknowledge the Fourth Amendment “mere evidence” doctrine that
supported the search of his home based on the search warrant affidavit. Petitioner then
compounds these errors by seeking to prevent a court from considering sworn testimony that
the police officer had given to the judge who issued the search warrant, which provided an
additional substantial basis for believing there was probable cause to search petitioner’s
home. And the supposed conflict of the Ohio Supreme Court with the federal Sixth Circuit
is nonexistent, as the Sixth Circuit has reaffirmed the ability of a court to consider
information that was revealed to the issuing magistrate at the time the warrant was issued.
Considering such sworn testimony as part of assessing good faith is perfectly
consistent with the text of the Fourth Amendment and the purposes underlying the
exclusionary rule and good-faith exception. When the judge swears in the officer, allows
the officer to provide supplemental information under oath, and then approves the
warrant, a reasonable officer has zero reason to think that the Fourth Amendment has
been disregarded. The very act of taking supplemental testimony would reasonably lead
the officer to believe that such testimony has legal significance and that it is being
properly considered, and, under the Fourth Amendment, it can be considered.
Overall, petitioner presents no compelling reason for this Court to grant his petition
for writ of certiorari in a case having this unusual procedural history and posture. And
numerous problems would hinder this Court’s ability to reach the flawed question presented
1
in a way that would make any real difference in the case.
OPINIONS BELOW
Petitioner omits to mention the March 3, 2015, decision of the Tenth Appellate
District. State v. Dibble, 10th Dist. No. 13AP-798 (Memo Decision, 3-3-15). That decision
(and an accompanying defense concession) made it clear that the trial court would not be
prevented on remand from going beyond the four corners of the written affidavit to consider
the sworn oral information that the detective had given the judge who issued the warrant.
Petitioner also omits to mention the decisions of the Tenth Appellate District
rendered on March 6 and 8, 2018. State v. Dibble, 10th Dist. No. 16AP-629 (Memo
Decision, 3-6-18) (denying certification); State v. Dibble, 10th Dist. No. 16AP-629 (Memo
Decision, 3-8-18) (denying reconsideration). Although denying the State’s motions, the
decisions confirmed various flaws in that court’s reasoning, including that court’s mistaken
legal conclusion that the Fourth Amendment would not allow the police to search for
photographic evidence related to victim E.K.
STATEMENT OF THE CASE
I. Initial Proceedings
Petitioner faced twenty counts of voyeurism and one count of sexual imposition.
The evidence for the voyeurism counts had been discovered through the execution of a
search warrant on February 3, 2010. The affidavit supporting the warrant stated:
On February 2, 2010 Victim #1 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
2
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 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, camera’s, media storage devices, etc. may
contain correspondence, and photos to substantiate Victim
#1 and Victim#2’s claims.
The warrant was approved on February 3rd and authorized the seizure of, inter
alia, computers, memory devices, and storage media. The warrant was executed the same
day, and the search resulted in the seizure of a number of media storage devices,
including a laptop computer, camera, and tapes and DVDs.
The search uncovered video evidence that petitioner had used a hidden camera in
a school locker room to tape 20 different girls disrobing and trying on leotard-type
costumes. (6-11-13 Tr. 7) Petitioner had specifically instructed the girls that they should
be wearing nothing underneath while they were trying on the costumes. (Id. 8) The
video showed the girls naked and focused on the mid-part of the girls’ bodies. (Id. 8)
The defense filed a motion to suppress. The defense contended that the inclusion
3
of information regarding “Victim #2” had been intentionally false. The State filed a
memorandum opposing the motion, contending, inter alia, that no constitutional violation
occurred and that the good-faith exception applied.
II. Suppression Hearing
The court convened a hearing on June 29, 2010. (6-29-10 Tr. 2 et seq.) The
defense called Detective Andrew Wuertz of the Upper Arlington Police Department, who
testified that he was involved in an investigation involving Wellington School in
February 2010. (Id. 4-5) Wuertz filed a complaint for gross sexual imposition on
February 3, 2010, and the victim listed therein was E.S. (“Victim #1”). (Id. 5-6, 26)
Wuertz presented a request for a search warrant to Judge Peeples on February 3rd.
(Id. 11) Wuertz conceded that the affidavit did not describe the use of computers or
picture taking regarding E.S. (Id. 13)
Wuertz identified “Victim #2” as E.K. (Id. 14) Wuertz testified that E.K. had
described touching and other activities that occurred after she graduated from Wellington
School and turned 18. (Id. 14)
Under the prosecutor’s cross-examination, Wuertz indicated that the investigation
began on February 2, 2010, when E.K., E.S., and E.S.’s mother came to the police to
report what had happened to E.S. (Id. 23) E.S. said that petitioner was theater director at
Wellington, and every year he picks a student to be his “right-hand” aide to assist him.
(Id. 24) Wellington is a K-12 school, and she had been involved in theater since 7th
grade. (Id. 25-26) He had become a father figure to her. (Id. 25)
In April 2009 in her senior year, E.S. was working as that aide, rehearsing lines
with petitioner. (Id. 24) She was wearing a skirt and stockings. (Id. 24) Petitioner
4
commented that he liked how the stockings felt. (Id. 24) “[A]s they were rehearsing
lines, he said, ‘As a reward every time I get my lines correct, I get to touch your
stockings.’ And she allowed him to do that.” (Id. 25) But the events that followed
resulted in unwanted sexual contact:
At one point while they were rehearsing them, he
got his lines right. And he said, “I believe I deserve a
reward for that.” And she said that she was standing in
front of him. At which time Mr. Dibble closed his eyes,
placed his hand on her leg, ran his hand up her inner thigh,
forcing it up underneath her skirt, brushing his fingers
against her vaginal area, and then took his hands around to
her buttocks area feeling her buttocks, and then removed
his hands.
(Id. 25) Wuertz testified about the unusual relationship between E.S. and petitioner:
Q. As the father figure, did she detail any other
inappropriate or strange conduct that the defendant
committed against her?
A. Part of – part of her role as being an aide to him, I found
to be kind of strange, was that she had to give him back
massages. The back massages turned out to be – they
would be in his office. He would close the door. He would
remove his shirt back so that she could touch her hands
against his skin, and she would have to rub his back
basically any time he asked her to do so.
Q. Did she indicate any other activity, either photographs
or touching or otherwise?
A. She did. She relayed that she felt kind of strange. There
were times that Mr. Dibble took pictures of them in kind of
– she described them as unitard suits in order for costumes
for plays and that in describing those she said he would
have them specific instructions to wear nothing underneath
these unitard suits, and he would then take pictures of them
wearing these unitard suits in some way to aid in the
creation of costumes for them.
Q. And these unitards, they were somewhat see-through,
you indicated?
5
A. Correct. She described them as practically see-through,
if not see-through.
(Id. 26-27) Wuertz viewed E.S. as having been “brain-washed” “to basically get her to
do whatever he asked her to do.” (Id. 27-28)
After the April 2009 incident, E.S. had gone to her next class. (Id. 28) But she
was disturbed by what had happened, and so she wrote a letter to petitioner. (Id. 28) But
he tore it up, saying “You can’t tell anyone about this, or it will ruin my life.” (Id. 28)
The incident continued to weigh on E.S., and so she came forward. (Id. 28)
Wuertz also interviewed E.K., whom he had described as “Victim # 2.” (Id. 29)
She described a very similar situation to what [E.S.] had
described, starting in the 7th grade had been involved in
theater, had been close with Mr. Dibble. She’s a year older
than [E.S.], had been his aide, had had to teach [E.S.] how to
give massages to Mr. Dibble. She said that she had
basically no father figure in her life, that she considered him
as a father. In fact, I believe he would refer to himself to her
as her stepdad or some kind of a situation like that.
It was just all very similar to the way that he had
kind of cultivated [E.S.] along.
***
[E.K.] confirmed about the photos that were taken of them
in the unitard suits, but she did not say there was any
inappropriate contact while she was in school.
(Id. 29-30)
When Wuertz went to see Judge Peeples seeking the warrant, she swore him in,
and he gave her sworn oral information. (Id. 33-34)
Q. Okay. Do you recall what else you told her, whether it
be in answer to a question or other testimony?
A. I believe I went back to a little more detail about how
the relationship with these girls was started in 7th grade,
6
how they were cultivated to the point to where they were.
I told her about the photographs of the unitards and
the see-through unitards that they felt uncomfortable about,
some just different things to give her a little bit more
background than what was actually typed in the search
warrant.
I believe in that I said due to the possible seethrough of the unitards I was very concerned about where
those photos were and what exactly those were being used
for.
(Id. 34, 47) Wuertz was concerned that photographs of the see-through body suits might
be disseminated by petitioner. (Id. 46-47)
III. First Trial Court Ruling
On July 1, 2010, the court filed a decision and entry granting the motion to
suppress. The court found that the “victim” reference to E.K. was false, that Wuertz
knowingly and intentionally made the false statement, and that Wuertz used the false
characterization of E.K. as “victim” in order to create probable cause to search
petitioner’s home. The court refused to consider Wuertz’ testimony that he had provided
additional sworn oral information to Judge Peeples, stating that such information could
not be considered because it was not transcribed. The court rejected the State’s reliance
on the good-faith exception.
The State filed a motion to reconsider or reopen the hearing on July 8, 2010. The
State contended that the court had prematurely reached the full merits.
The State
tendered the affidavit of Judge Peeples as to how she would have testified if called as a
witness at the hearing. Judge Peeples stated she did not believe the detective had lied to
her or intentionally misrepresented “victim” status.
7
Judge Peeples “understood the
reference to ‘victim # 2’ to be provided to me to reflect a M.O. utilized by a theater
teacher at the Wellington school in Upper Arlington as to past and present students.”
Judge Peeples also confirmed that there was a conversation between herself and Wuertz:
“In this case there was conversation with Det. Wuertz when the search warrant
application was submitted regarding the teacher, students who did not have a father figure
in the home, that the court was generally familiar with Wellington school.”
IV. State’s Appeal
The State timely appealed.
The Tenth District (2-1) affirmed, but the Ohio
Supreme Court (6-1) reversed. State v. Dibble, 133 Ohio St.3d 451, 2012-Ohio-4630,
979 N.E.2d 247. The majority agreed with the Tenth District dissenter that the “victim”
characterization was not false. Id. ¶¶ 21-22. “[W]e find that the statements made by the
detective were not false statements made intentionally or with reckless disregard for the
truth.” Id. ¶ 16. The Court indicated it was “remand[ing] this cause to the trial court to
hold a new suppression hearing consistent with this opinion.” Id. ¶¶ 1, 26.
V. New Round of Proceedings on Remand
The parties briefed the remaining issues on remand. At an oral hearing on March
12, 2013, the parties stipulated Wuertz’ prior testimony. (3-12-13 Tr. 3-4) The court
denied a defense motion to strike Wuertz’ testimony about the sworn oral information he
gave to Judge Peeples. (Id. 4-7) There was also a discussion of Judge Peeples’ affidavit
and the prosecution possibly proffering her testimony. (Id. 5-6) The court indicated that,
if there was a motion to strike the affidavit, the court would not strike it, and that the
court “will give [the affidavit] whatever weight is necessary.” (Id. 6-7)
At court’s request, (Id. 23), the parties later submitted supplemental briefing on
8
whether probable cause was so clearly lacking that no reasonable officer could rely on it.
VI. Second Trial Court Ruling
The trial court eventually denied the motion to suppress on April 30, 2013. The
court ruled that the search warrant affidavit had been insufficient to support probable
cause but that the good-faith exception applied. The court abstained from ruling on the
State’s argument that the additional sworn information should be considered in
determining probable cause and good faith, concluding that the issue was now moot.
“Without consideration of the extrinsic conversations between the Detective and the
issuing judge, this Court has found that the good-faith exception applies.”
When the trial court reached the issue of good faith, the court found “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.”
VII. Plea and Sentence
Petitioner later pleaded no contest to all counts and was sentenced to four years.
VIII. Second Appeal and Result
Petitioner appealed. In a decision rendered on December 30, 2014, the Tenth
District reversed the trial court’s denial of the motion to suppress and remanded. State v.
Dibble, 10th Dist. No. 13AP-798, 2014-Ohio-5754, 2014 WL 7462904.
The Tenth District concluded that it was “without jurisdiction to consider the
state’s challenge to the trial court’s probable cause ruling in this appeal” because the
State had not appealed. Id. ¶ 14.
The Tenth District further concluded that “the trial court erred when it failed to
fully consider” the question of whether the search warrant affidavit was so lacking in
9
indicia of probable cause as to render official belief in its existence entirely unreasonable.
Id. ¶ 24. The Tenth District repeatedly indicated that, in addressing the good-faith
exception, the trial court’s focus would be on the “affidavit.”
The State timely sought reconsideration on a number of grounds. In regard to the
emphasis on the “affidavit” in the 12-30-14 decision, the State noted the sworn oral
information that Wuertz had provided to Judge Peeples and pointed out that such
information must be considered in assessing probable cause and the good-faith exception.
The State also moved to certify a conflict on the question of whether a judge
deciding the good-faith exception can consider sworn but unrecorded oral information
that the police gave to the judge who issued the warrant. The State cited another Ohio
appellate decision as the case in conflict.
The defense opposed the State’s motions in a January 30, 2015, memorandum
contra. Insofar as the “affidavit” issue was concerned, the defense contended there was
no basis for reconsideration or certification because the Tenth District in fact did not limit
the trial court’s ability to consider the sworn oral information. The defense conceded that
the assessment of good faith can include looking beyond the four corners of the affidavit:
Appellee is correct in stating that a reviewing court
may look beyond the four corners of an affidavit to
determine whether an officer acted in good faith reliance on
the issuance of a warrant by a magistrate or judge.
However, nothing in this Court’s decision precludes the
trial court from doing so on remand.
(1-30-15 Defense Memo, at 14; emphasis added; see, also, 3-10-16 Tr. 13-14) The
defense further stated that, “[a]lthough this Court did instruct the trial court to first
examine whether the affidavit was lacking in indicia of probable cause, it certainly put
10
forth no language prohibiting the trial court from looking outside of the four corners of
the affidavit.” (1-30-15 Memo, at 14-15) The defense conceded that the court could
consider the unrecorded oral testimony in regard to good faith, and “there is no language
in this Court’s opinion prohibiting the district court from doing so.” (Id. at 15)
On March 3, 2015, the Tenth District denied reconsideration and denied
certification because there was no conflict.
The Tenth District quoted the defense
concession and agreed that the 12-30-14 decision “did not provide any instruction to the
trial court regarding the evidence that it should or should not consider in making its
determination” under the good-faith exception. (3-3-15 Memo Decision, ¶¶ 10-11)
IX. Further Proceedings on Remand
On remand again (now before a different trial judge), the parties provided more
briefing and oral arguments. (3-10-16 Tr. 2 et seq.; 8-16-16 Tr. 3 et seq.)
The court issued its decision on August 16, 2016, concluding that there was
probable cause to search petitioner’s home given the photo-taking of the minor victim
and the similar course of conduct with E.K. The court further stated:
During argument, Defendant argued that the Court
could only decide the issue of the propriety of the good
faith exception and is precluded from addressing the initial
warrant. To that point, the Court finds that an affidavit that
contains evidence sufficient to support a finding of
probable cause is certainly not so lacking in indicia of
probable cause as to render official belief in its existence
unreasonable. More specifically, the Court finds that the
affidavit discusses two similar situations of deviant
behavior and connects aspects of that behavior to the
location specified in the warrant. Further, based upon the
evidence, any deficiencies within the affidavit are not so
egregious that the executing officers could not reasonably
presume the warrant was valid.
11
X. Third Appeal and Result
Upon petitioner’s appeal, the Tenth District reversed (2-1) and ordered
suppression in a decision rendered on December 29, 2017. The Tenth District majority
later denied motions for certification and for reconsideration on March 6 and 8, 2018.
The Ohio Supreme Court (5-2) later reversed the Tenth District’s ruling and
reinstated the trial court’s order denying the motion to suppress. State v. Dibble, 159
Ohio St.3d 322, 2020-Ohio-546, 150 N.E.3d 912.
ARGUMENT
IN APPLYING THE GOOD-FAITH EXCEPTION IN
REGARD TO RELIANCE ON THE ISSUANCE OF A
SEARCH WARRANT, THE COURT HEARING THE
SUPPRESSION MOTION MUST CONSIDER ALL OF
THE
CIRCUMSTANCES,
INCLUDING
THE
INFORMATION PROVIDED IN THE WRITTEN
AFFIDAVIT AND INCLUDING ANY INFORMATION
PROVIDED UNDER OATH BY THE OFFICER AT THE
TIME OF THE ISSUANCE OF THE WARRANT.
Petitioner’s arguments oversimplify the case in ways that demonstrate that this
case would be a poor vehicle in which to review the question he seeks to present. While
petitioner asserts that the “law of the case” makes it a fait accompli that the search
warrant was issued in the absence of probable cause, the issue of the existence of
probable cause is (still) fully in play. Moreover, applying the good-faith exception would
involve more than just the issue of whether the additional sworn testimony given by the
officer to the issuing judge can be considered in assessing good faith.
In fact, as the prosecution has repeatedly argued in this case, a reasonable officer
could believe that there were two substantial bases to support probable cause to search
petitioner’s home. As detailed in the written affidavit, the allegations of former student
12
assistant E.K. reasonably could be viewed as providing probable cause that petitioner’s
home would have photographic evidence related to E.K., thereby showing the ultimate
sexual purpose behind his manipulations and grooming of the student assistants, and,
thus, his ultimate sexual purpose vis-à-vis assistant E.S, who he had touched improperly.
In addition, Detective Wuertz had been sworn in by the issuing judge and had
given additional information about petitioner taking photographs of E.K. and E.S. in seethrough or nearly see-through unitards. A reasonable officer could view this sworn oral
information as providing probable cause that petitioner would still have in his possession
the photographs of E.S. and E.K. in their see-through unitards, thereby also confirming
the modus operandi described in the accounts given by E.S. and E.K., and, again,
providing grounds to think that petitioner’s home would still have such evidence.
While a reasonable officer could believe that both grounds were sufficient
individually to support the issuance of the warrant, it is also necessarily true that such an
officer could believe that the grounds together supported the warrant as well.
Petitioner wrongly portrays this case as being narrowly focused on the additional
sworn information alone. There was more, and, in the State’s view, there was probable
cause to support the search warrant. The flawed question presented does not fairly “fit”
this case and ironically makes this case a poor vehicle to review the question presented.
Petitioner’s arguments ultimately fail under the text of the Fourth Amendment
itself, which requires only that the information be provided under oath or affirmation and
imposes no recording requirement. The exclusionary rule and its accompanying goodfaith exception must be grounded in the requirements of the Fourth Amendment itself,
rather than creating out of whole cloth new after-the-fact requirements that an officer
13
could not be expected to anticipate.
A. Law of the Case
Petitioner errs in arguing that it is undisputable that the search warrant was not
supported by probable cause. According to petitioner, the original trial judge found that
the affidavit was insufficient to find probable cause, and, when the defense appealed from
the denial of the motion to suppress, the State failed to appeal or cross-appeal from the
no-probable-cause conclusion, as the Tenth District concluded in its 12-30-14 decision.
Petitioner assumes that the courts must agree henceforth that probable cause was lacking,
citing, mainly, the Tenth District’s 12-29-17 decision making this point.
But this
assumption breaks down for a number of reasons.
Initially, a dispute over state-law concepts of “law of the case” are ill-suited to
this Court’s review of federal questions, and yet petitioner’s arguments initially depend
on this Court agreeing with his view of state law. In addition, the Tenth District’s 12-2917 assumptions about law of the case are not the governing law of the case that emerges
from the Ohio courts, since that decision now stands reversed and therefore could not be
controlling for “law of the case” purposes. A reversed decision would have no “law of
the case” or other preclusive properties. State v. Baron, 156 Ohio App.3d 241, 2004Ohio-747, 805 N.E.2d 173, ¶ 18 (8th Dist.) (reversed decision “thereby deprived of all
conclusive effect”).
While the Tenth District did conclude in the 12-30-14 decision that it lacked
jurisdiction to entertain the State’s argument against first trial judge’s no-probable-cause
conclusion because the State did not appeal, the Tenth District subsequently made it clear
that a non-appealing appellee can argue alternative grounds for affirming the trial court’s
14
suppression decision, even a ground that had been rejected by the trial court. State v.
Pinckney, 10th Dist. No. 14AP-709, 2015-Ohio-3899, 2015 WL 5638096, ¶ 21 (allowing
appellee to challenge court’s “valid stop” conclusion). An intervening change in law by a
controlling court is an exception to the law-of-the-case doctrine under Ohio law. Nolan
v. Nolan, 11 Ohio St.3d 1, 4, 462 N.E.2d 410 (1984); State v. Larkins, 8th Dist. No.
85877, 2006-Ohio-90, 2006 WL 60778, ¶ 30. As a result, the language in the 12-30-14
decision complaining about the State’s failure to appeal would no longer be controlling.
There would be other strong reasons under Ohio law not to apply “law of the
case” to the issue of whether probable cause supported the warrant: (1) the explicit text of
the Ohio Appellate Rules and accompanying staff notes recognize that the non-appealing
appellee can argue alternative grounds for affirming the trial court’s judgment, even those
grounds rejected by the trial court; and (2) the case law expressly recognizes that same
principle, including in criminal cases. Oh.App.R. 3(C)(2); 1992 Staff Note to Oh.App.R.
3(C); 2013 Staff Note to Oh.App.R. 3(C)(2); Agricultural Ins. Co. v. Constantine, 144
Ohio St. 275, 284, 58 N.E.2d 658 (1944); Joyce v. General Motors Corp., 49 Ohio St.3d
93, 96, 551 N.E.2d 172 (1990); State v. Campbell, 90 Ohio St.3d 320, 329, 738 N.E.2d
1178 (2000); State v. Allen, 77 Ohio St.3d 172, 173, 672 N.E.2d 638 (1996); Columbus v.
Ridley, 10th Dist. No. 13AP-1035, 2014-Ohio-4356, 2014 WL 4923307, ¶ 12 n. 2; State v.
Humphrey, 2nd Dist. No. 25063, 2013-Ohio-40, 2013 WL 139530, ¶ 17 n. 2; see, also,
Painter and Pollis, Ohio Appellate Practice (2017-18 ed.), §§ 3.3, 5.23, pp. 180, 253-54.
The Staff Note to the 2013 amendment to Oh.App.R. 3(C) emphasized that
“App.R. 3(C)(2) is amended to clarify that a party seeking to defend a judgment on a
ground other than that relied on by the trial court need not file a cross-assignment of error
15
to do so; instead, that party may simply raise the arguments in the appellate brief.” The
prosecution would not need to appeal from the denial of a motion to suppress in order to
raise alternative grounds for affirmance in opposing a defendant’s appeal therefrom.
Even viewed from a federal-law perspective, the prosecution would not have
needed to appeal from the denial of the motion to suppress in order to argue alternative
grounds for affirming that denial. This is the federal principle, see United States v.
American Ry. Express Co., 265 U.S. 425, 435, 44 S.Ct. 560, 68 L.Ed. 1087 (1924), as
reaffirmed in Jennings v. Stephens, 574 U.S. 271, 135 S.Ct. 793, 190 L.Ed.2d 662 (2015).
Another flaw with petitioner’s law-of-the-case assumption arises out of the
narrow procedural posture of the case at the time of the second round of appeals. The
trial judge had only made a narrow “no probable cause” ruling at that time, concluding
that the written affidavit alone was insufficient to support probable cause. But because
the trial judge was finding that the good-faith exception applied, he held that the State’s
additional arguments based on the sworn oral information were moot. Thus, the trial
judge did not fully address the existence of probable cause and did not fully reject it.
Because of that narrow procedural posture, the lack of a State’s appeal could not
be entirely preclusive of the existence of probable cause, since the trial judge’s ruling
itself was not entirely dispositive of that issue, as the State noted below. (3-10-16 Tr. 12)
At most, the supposed need for the State to appeal would have applied only to the extent
that the trial judge had rejected the State’s probable-cause argument. But since he had
only rejected that argument in a narrow way and had mooted the remainder of the State’s
argument, the State’s failure to appeal could not create a complete procedural default.
Since probable cause is assessed under the totality of circumstances, the trial
16
judge’s narrow ruling, and the lack of a State’s appeal, could not have been preclusive of
the larger question of whether probable cause existed based on all of the information
provided to the issuing judge. The existence of probable cause remained fully in play in
the latest round of appeals, especially after the new trial judge in the latest remand had
actually relied on the sworn oral information to conclude there was probable cause.
Finally, the issue of probable cause was still in play because the issue remanded
by the Tenth District itself called for the determination of whether the information was so
lacking in “indicia of probable cause” as to make it “entirely unreasonable” for the police
to rely on the judge’s approval of the warrant. The State’s arguments regarding probable
cause were therefore still relevant to the question of whether the police could reasonably
rely on the judge’s approval of the warrant. As the new trial judge correctly noted, if the
“indicia of probable cause” leads to the ultimate conclusion that probable cause supported
the warrant, then the good-faith exception would necessarily be satisfied.
The State has maintained throughout this litigation that the issuance of the search
warrant was supported by probable cause based on the search warrant affidavit and as
supplemented by the sworn oral information. The existence of probable cause supporting
the warrant remains a part of the case.
B. “Mere Evidence” Standard for Probable Cause
In a further effort to take the focus off the entire case, petitioner asserts that the
search warrant affidavit was entirely bereft of any support for probable cause because its
information regarding photo taking as to victim E.K. did not describe a crime and
therefore was irrelevant to probable cause. This is legally false.
Even though the affidavit did not describe a crime against E.K., her allegations
17
related to photo-taking in the affidavit were relevant to support the issuance of the
warrant for petitioner’s home. A warrant can issue for “mere evidence” having a nexus
to criminal behavior because it “will aid in a particular apprehension or conviction.”
Warden v. Hayden, 387 U.S. 294, 306, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967).
The requirements of the Fourth Amendment can secure the
same protection of privacy whether the search is for ‘mere
evidence’ or for fruits, instrumentalities or contraband.
There must, of course, be a nexus – automatically provided
in the case of fruits, instrumentalities or contraband –
between the item to be seized and criminal behavior. Thus
in the case of ‘mere evidence,’ probable cause must be
examined in terms of cause to believe that the evidence
sought will aid in a particular apprehension or conviction.
Id. at 306-307. “[T]here is no viable reason to distinguish intrusions to secure ‘mere
evidence’ from intrusions to secure fruits, instrumentalities, or contraband.” Id. at 310.
In Messerschmidt v. Millender, 565 U.S. 535, 132 S.Ct. 1235, 182 L.Ed.2d 47
(2012), the Court likewise acknowledged that mere evidence is searchable evidence. The
Court quoted the Hayden standard and recognized that the police could search for
evidence of gang affiliation because it was reasonable “for an officer to believe that
evidence regarding * * * gang affiliation would prove helpful in prosecuting him for the
attack” on his ex-girlfriend. Id. at 551-53. In particular, “such evidence help[ed] to
establish motive” because it would explain why he was so angry after the ex-girlfriend
called police about her fear of him because of his domestic violence. Id. The Court also
found that the gang-affiliation evidence could be helpful at trial because “evidence
demonstrating Bowen’s membership in a gang might prove helpful in impeaching Bowen
or rebutting various defenses he could raise at trial. For example, evidence that Bowen
had ties to a gang that uses guns such as the one he used to assault Kelly would certainly
18
be relevant to establish that he had familiarity with or access to this type of weapon.” Id.
This Court concluded that it was not entirely unreasonable that an officer would believe
there was probable cause that “such evidence would aid the prosecution of Bowen for the
criminal acts at issue.” Id.
In Andresen v. Maryland, 427 U.S. 463, 483, 96 S.Ct. 2737, 49 L.Ed.2d 627
(1976), the Court held that it was proper to search for other-acts evidence to show intent.
These authorities allow searches for mere evidence, wherever such evidence
might be found, when the evidence will be relevant to issues at trial like motive, state of
mind, absence of mistake or accident, opportunity, impeachment, and rebuttal.
Admissible “other acts” evidence under Ohio law need not rise to the level of being a
crime unto itself. Oh.Evid.R. 404(B) (“other crimes, wrongs or acts”). Impeachment
with non-crime specific instances is allowed under Ohio law too. Oh.Evid.R. 608(B).
Evidence of “grooming” and the offender’s long-term goals are relevant to show purpose,
motive, preparation, and plan in sex-crime prosecutions involving young victims. State v.
Williams, 134 Ohio St.3d 521, 2012-Ohio-5695, 983 N.E.2d 1278, ¶¶ 21-22.
Although the information contained in the affidavit did not describe a crime
committed against E.K., E.K. was still a witness with valuable information showing the
ultimate sexual purpose behind his manipulations and grooming of the student assistants,
and, thus, his ultimate sexual purpose vis-à-vis his offense committed against student
assistant E.S. The taking of sexual photos of E.K. would show petitioner had harbored
long-term sexual designs on his assistant E.K., which would provide relevant evidence to
the issue of petitioner’s motives, designs, and sexual purposes vis-à-vis his act committed
against assistant E.S. There was a substantial basis to search for such evidence.
19
Even under evidentiary standards governing a trial, “many Ohio courts have held
that nonremote acts of the same sexual perversion may be admissible as tending to show
a motive, purpose, or passion for commission of the offense.” State v. Pennington, 10th
Dist. No. 91AP-13, 1991 WL 476699 (1991). “This enables the state to demonstrate the
present fetish or uncommon deviancy which drove the accused, or was consistent with
the commission of the offense.” Id.; State v. Jackson, 82 Ohio App. 318, 81 N.E.2d 546
(9th Dist. 1948). Petitioner’s deviant acts regarding E.K. were relevant to his motive,
purpose, and passion in committing the act of abuse against E.S., and would have served
to impeach or rebut any claim of accident. Given the relevance of petitioner’s acts with
E.K. in a prosecution for the crime committed against E.S., the mere-evidence principle
justified the search for photographic/digital evidence related to the sexual photos of E.K.
Contrary to petitioner’s assumptions, the sexual photos of E.K. did not need to be
the fruit of a crime in order for those photos to be searchable evidence.
The Tenth District was likewise mistaken when it repeated this flawed theory that
the lack of a crime against E.K. meant that the sexual photos of E.K. were off limits. (1229-17 Decision, ¶¶ 37, 39, 40) The Tenth District majority reached this conclusion based
on the extremely-confused premise that there is no current doctrine allowing the police to
search for “mere evidence” because that “long-since-overruled principle” was
“abandoned” 50 years ago. (3-8-18 Memo Decision, ¶¶ 8-11)
The Tenth District majority did not understand that the State in fact was relying
on Hayden (1967), which recognized that police can search for “mere evidence”, and
such items need not arise from criminal activity themselves. The State was relying on
current law, not a principle abandoned over 50 years ago.
20
The Tenth District majority helpfully conceded that the digital photos of E.K.
were likely to be found at petitioner’s home. (12-29-17 Decision, ¶¶ 39-40) This
concession reflected the common-sense point that persons taking such photos would be
likely to hoard them at home on computers and devices there. See State v. Byrne, 972
A.2d 633, 640-41 (R.I. 2009); United States v. Summage, 481 F.3d 1075, 1078 (8th Cir.
2007).
So, factually, there was a nexus between the information of photo taking
regarding E.K. and petitioner’s home.
What was left to consider was whether the photos legally were a proper object of
a search. The mere-evidence principle placed the photos of E.K. within the plain reach of
the Fourth Amendment and therefore allowed a search on that basis alone.
The defense would contend that the criminal conduct committed against E.S.
occurred only at the school, not at petitioner’s home, and that there was no “direct”
evidence creating a nexus to his home. But the warrant did not need to establish a direct
connection between the crime at the school and his home. Rather, the warrant could seek
evidence that was merely relevant to the crime against E.S. No crime needed to have
occurred at petitioner’s home; there only needed to be a substantial basis to conclude
there was probable cause to believe that the home would have evidence relevant to the
apprehension or prosecution of petitioner for the crime committed against E.S.
Petitioner’s bizarre sexual photo-taking of E.K. easily supported an inference that
his home would still contain such images. Per the warrant affidavit:
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
21
wear a pillow case over her head while he took them.
(Emphasis added)
The very nature of such photo-taking indicated that petitioner has a bizarre sexual
fetish/focus on these matters, thereby giving him a motivation to keep the photos on a
lasting basis. The use of a digital camera confirmed the ability to store such photos
indefinitely in digital formats, such as on computer hard-drives. The use of a pillow case
indicated an intent to share the photos with others by making the subject of the photos
anonymous so that the photos could not later be traced back to E.K. or petitioner. There
is a reasonable inference that offenders tend to hoard sexual images and secrete them in
secure places, like their home. Byrne, 972 A.2d at 640-41. In fact, the Tenth District
majority conceded that such sexual photos would likely be present at petitioner’s home.
It was not necessary that the information supporting the warrant spell out these
reasonable inferences in A-to-Z, chapter-and-verse fashion in order for the issuing judge
to draw such inferences. “[T]he necessary nexus need not be established by direct
evidence. While ideally every affidavit would contain direct evidence linking the place
to be searched to the crime, it is well established that * * * probable cause can be, and
often is, inferred by considering the type of crime, the nature and items sought, the
suspect’s opportunity for concealment and normal inferences about where the criminal
might hide [the] property.” State v. England, 1st Dist. No. C-040253, 2005-Ohio-375,
2005 WL 267669, ¶ 10 (internal quotation marks omitted). The issuing judge “is entitled
to draw reasonable inferences about where evidence is likely to be kept, based on the
nature of the evidence and the type of evidence.” Id. ¶ 12 (internal quotation marks
omitted). The “affiant officer need not draw an explicit connection between a suspect’s
22
activities and his residence for a Fourth Amendment nexus to exist.” United States v.
Biglow, 562 F.3d 1272, 1280 (10th Cir. 2009). The support for finding a nexus “may
also take the form of inferences a magistrate judge reasonably draws from the
Government’s evidence” based on the judge’s “practical considerations of everyday life”
and “common sense conclusions.” Id.
Petitioner was undertaking bizarre, fetishistic steps in photographing E.K.
Common sense supported the inference that a person bent on taking such photographs
would be likely to hoard them at least for the purpose of viewing them in the privacy of
the home. Byrne, 972 A.2d at 641. “Having succeeded in obtaining images,” petitioner
would be “unlikely to destroy them.” Id. (quoting another case). A reasonable officer
could believe that, under these circumstances, there was a substantial basis to conclude
that the sexual photos of E.K. would still be in petitioner’s home.
At the very least, in terms of the good-faith exception, it would not have been
entirely unreasonable for an officer to believe that the Fourth Amendment allowed the
search for the photos of E.K. Wuertz testified that E.K.’s information provided probable
cause to search. (6-29-10 Tr. 17, 22)
C. No Concession that Affidavit Lacked Probable Cause
Petitioner repeats the claim that Wuertz admitted he knew the search warrant
affidavit was insufficient. This is simply untrue, no matter how many times petitioner
repeats it. While Wuertz testified that, as written, the warrant affidavit did not state a
basis “as it applies to [E.S.]” to search petitioner’s home, (6-29-10 Tr. 13), this narrowlyfocused questioning missed the point.
The questioning was focusing on the direct
allegations involving the crime against E.S., and such a narrow focus wrongly ignored the
23
issuing judge’s ability to find probable cause for the home based on the information from
E.K. It also ignored the issuing judge’s ability to draw reasonable inferences about the
location of the evidence.
Wuertz in fact testified that E.K.’s information provided “the probable cause basis
to be able to search the home”. (Id. 17, 22) Thus, Wuertz’ testimony actually confirmed
the existence of probable cause, not the absence of it.
D. Additional Sworn Information Properly Considered
Above and beyond the sexual photos of E.K. providing a basis to search,
Detective Wuertz testified that he gave sworn oral information to the issuing judge that
petitioner had photographed E.S. and E.K. in see-through unitards, thereby providing an
additional basis to search petitioner’s home. Such photographs would have provided
evidence relevant to petitioner’s “grooming” of these two students and to petitioner’s
long-term sexual purposes, including when he touched E.S.
The detective’s testimony about the sworn oral information was admitted without
objection at the suppression hearing, and was later credited by the new trial judge in the
latest remand. But, relying heavily on Oh.Crim.R. 41(C)(2), the Tenth District held that
Ohio courts could not consider such information because it was not recorded or
transcribed at the time it was given to the issuing judge.
The Ohio Supreme Court concluded that the rule posed no such obstacle to the
admission and consideration of such sworn information even though not recorded. That
conclusion under state law is beyond this Court’s review. Hortonville Joint School Dist.
No. 1 v. Hortonville Educ. Ass’n, 426 U.S. 482, 488, 96 S.Ct. 2308, 49 L.Ed.2d 1 (1976).
Even so, petitioner attempts to institute a recording requirement as part of enforcing the
24
Fourth Amendment itself and/or as part of enforcing an exclusionary rule thereunder.
This argument is unsupported by the text of the Fourth Amendment and would wrongly
divert the exclusionary rule from its narrow deterrent purpose.
E. Exclusionary Rule Strictly Construed and Narrowly Applied
The exclusionary rule carries “substantial social costs” and must not be applied
indiscriminately. United States v. Leon, 468 U.S. 897, 907, 104 S.Ct. 3405, 82 L.Ed.2d
677 (1984).
The costs of applying the exclusionary rule even at
trial and on direct review are well known: the focus of the
trial, and the attention of the participants therein, are
diverted from the ultimate question of guilt or innocence
that should be the central concern in a criminal proceeding.
Moreover, the physical evidence sought to be excluded is
typically reliable and often the most probative information
bearing on the guilt or innocence of the defendant. * * *
Application of the rule thus deflects the truthfinding
process and often frees the guilty. The disparity in
particular cases between the error committed by the police
officer and the windfall afforded a guilty defendant by
application of the rule is contrary to the idea of
proportionality that is essential to the concept of justice. * *
*
Stone v. Powell, 428 U.S. 465, 489-90, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976) (footnotes
omitted).
An exclusionary rule “allows many who would otherwise be incarcerated to
escape the consequences of their actions.” Pennsylvania Bd. of Probation v. Scott, 524
U.S. 357, 364, 118 S.Ct. 2014, 141 L.Ed.2d 344 (1998). “The principal cost of applying
any exclusionary rule ‘is, of course, letting guilty and possibly dangerous criminals go
free * * *.’” Montejo v. Louisiana, 556 U.S. 778, 796, 129 S.Ct. 2079, 173 L.Ed.2d 955
(2009) (quoting Herring v. United States, 555 U.S. 135, 141, 129 S.Ct. 695, 172 L.Ed.2d
25
496 (2009)). Letting the guilty go free is “something that ‘offends basic concepts of the
criminal justice system.’” Herring, 555 U.S. at 141, quoting Leon, 468 U.S. at 908.
These negative effects should weigh heavily against any ruling that would
expand the exclusionary rule by limiting the good-faith exception. “‘[T]he rule’s costly
toll upon truth-seeking and law enforcement objectives presents a high obstacle for those
urging [its] application.’” Herring, 555 U.S. at 141, quoting Scott, 524 U.S. at 364-65.
F. Good-Faith Exception Broadly Applied
In an effort to mitigate the harshness of the exclusionary rule, this Court has
recognized that the existence of a Fourth Amendment violation “does not necessarily
mean that the exclusionary rule applies.” Herring, 555 U.S. at 140. “[E]xclusion ‘has
always been our last resort, not our first impulse’ * * *.” Id. (quoting another case).
“[T]he exclusionary rule is not an individual right and applies only where it results in
appreciable deterrence.” Id. at 141 (quote marks & brackets omitted). The exclusionary
rule applies only when its deterrence benefits outweigh its substantial social costs. Utah
v. Strieff, 136 S.Ct. 2056, 2061, 195 L.Ed.2d 400 (2016). “[E]ven when there is a Fourth
Amendment violation, this exclusionary rule does not apply when the costs of exclusion
outweigh its deterrent benefits.” Id. at 2059.
“The pertinent analysis of deterrence and culpability is objective, not an inquiry
into the subjective awareness of arresting officers. We have already held that our goodfaith inquiry is confined to the objectively ascertainable question whether a reasonably
well trained officer would have known that the search was illegal in light of all of the
circumstances” taking into account the “particular officer’s knowledge and experience *
* * but not his subjective intent.” Herring, 555 U.S. at 145-46 (internal quote marks
26
omitted). “The extent to which the exclusionary rule is justified by these deterrence
principles varies with the culpability of the law enforcement conduct.” Id. at 143.
To trigger the exclusionary rule, 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 justice system. As laid out in our cases, the
exclusionary rule serves to deter deliberate, reckless, or
grossly negligent conduct, or in some circumstances recurring
or systemic negligence.
Id. at 144. “[W]hen police mistakes are the result of negligence * * *, rather than
systemic error or reckless disregard of constitutional requirements, any marginal
deterrence does not pay its way. In such a case, the criminal should not go free because
the constable has blundered.” Id. at 147-48 (internal quote marks omitted).
As can be seen, the good-faith exception is not really an “exception” to the
exclusionary rule, but a basic predicate for its applicability “across a range of cases.”
Davis v. United States, 564 U.S. 229, 238, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011).
G. Good-Faith Exception as Applied to Warrants
When an officer relies in reasonably objective good faith on the judge’s approval
of a search warrant, the evidence seized pursuant to such warrant will not be suppressed.
Leon, supra. As stated by the Court in the context of qualified immunity from civil
liability, but equally applicable here because the standard is the same, the standard for
suppression is a high one when a judge has approved the warrant:
Where the alleged Fourth Amendment violation
involves a search or seizure pursuant to a warrant, the fact
that a neutral magistrate has issued a warrant is the clearest
indication that the officers acted in an objectively
reasonable manner or, as we have sometimes put it, in
“objective good faith.” United States v. Leon, 468 U.S.
897, 922-923 (1984). Nonetheless, under our precedents,
the fact that a neutral magistrate has issued a warrant
27
authorizing the allegedly unconstitutional search or seizure
does not end the inquiry into objective reasonableness.
Rather, we have recognized an exception allowing suit
when “it is obvious that no reasonably competent officer
would have concluded that a warrant should issue.” Malley
[v. Briggs, 475 U.S. 335,] 341 (1986)]. The “shield of
immunity” otherwise conferred by the warrant, id., at 345,
will be lost, for example, where the warrant was “based on
an affidavit so lacking in indicia of probable cause as to
render official belief in its existence entirely unreasonable.”
Leon, 468 U.S., at 923 (internal quotation marks omitted).
Our precedents make clear, however, that the
threshold for establishing this exception is a high one, and
it should be. As we explained in Leon, “[i]n the ordinary
case, an officer cannot be expected to question the
magistrate’s probable-cause determination” because “[i]t is
the magistrate’s responsibility to determine whether the
officer’s allegations establish probable cause and, if so, to
issue a warrant comporting in form with the requirements
of the Fourth Amendment.” Id., at 921; see also Malley,
supra, at 346, n. 9 (“It is a sound presumption that the
magistrate is more qualified than the police officer to make
a probable cause determination, and it goes without saying
that where a magistrate acts mistakenly in issuing a warrant
but within the range of professional competence of a
magistrate, the officer who requested the warrant cannot be
held liable” (internal quotation marks and citation
omitted)).
Messerschmidt, 565 U.S. at 546-47 (parallel cites omitted).
Thus, suppression can be justified only if it was “entirely unreasonable” for the
officer to rely on the issuing judge’s approval of the warrant because “no reasonably
competent officer would have concluded that a warrant should issue” because it was
“plainly incompetent” to do so. Id. at 546-47, 555; Leon, 468 U.S. at 923. To trigger
suppression, the officer must have acted with at least a grossly-negligent disregard of
Fourth Amendment rights in relying on the judge’s approval. Herring, 555 U.S. at 144.
“[A] warrant issued by a magistrate normally suffices to establish that a law
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enforcement officer has acted in good faith in conducting the search.” Leon, 468 U.S. at
922 (quote marks omitted). Per Messerschmidt, the threshold is a “high one” for the
defense to establish that it was entirely unreasonable for the officer to rely on the judge’s
issuance of the warrant.
For purposes of the good-faith exception, it makes no difference that the officer
who obtained the warrant also participated in its execution. The test is governed by
objective reasonableness of all of the officers involved, without regard to who obtained it
or executed it . Herring, 555 U.S. at 140; Leon, 468 U.S. at 923 n. 24.
H. Even Reviewing Courts are Deferential to Issuing Judge’s Approval of Warrant
A police officer is not expected to second-guess the judge’s probable-cause
determination. Leon, 468 U.S. at 920-21. Even when a court is reviewing the sufficiency
of probable cause vis-à-vis a search warrant, that court should not substitute its judgment
for that of the issuing magistrate or engage in a de novo review of the facts, as the duty of
a reviewing court is simply to ensure that the magistrate had a substantial basis for
concluding that probable cause existed. Illinois v. Gates, 462 U.S. 213, 238-39, 103 S.Ct.
2317, 76 L.Ed.2d 527 (1983).
Under Gates, a totality-of-the-circumstances approach applies. Great deference is
afforded to the issuing magistrate’s determination, and doubtful or marginal cases should
be resolved in favor of the warrant. Id.; Massachusetts v. Upton, 466 U.S. 727, 732-33,
104 S.Ct. 2085, 80 L.Ed.2d 721 (1984). “A grudging or negative attitude by reviewing
courts toward warrants is inconsistent with the Fourth Amendment’s strong preference
for searches conducted pursuant to a warrant [and] courts should not invalidate warrants
by interpreting affidavits in a hypertechnical, rather than a commonsense, manner.”
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Gates, 462 U.S. at 236 (internal quote marks, brackets, and ellipses omitted).
In short, the issuing judge only needed to have a substantial basis to approve the
search warrant. The reasonableness of the officer’s reliance therefore must be judged in
terms of whether the officer could reasonably believe that there was a substantial basis
for the judge to approve the warrant.
In addition, “[p]robable cause * * * is not a high bar * * *.” Kaley v. United
States, 571 U.S. 320, 338-39, 134 S.Ct. 1090, 188 L.Ed.2d 46 (2014). “Probable cause
exists when ‘there is a fair probability that contraband or evidence of a crime will be
found in a particular place.’” United States v. Grubbs, 547 U.S. 90, 95, 126 S.Ct. 1494,
164 L.Ed.2d 195 (2006), quoting Gates, 462 U.S. at 238.
“[P]robable cause is a fluid concept - turning on the assessment of probabilities in
particular factual contexts – not readily, or even usefully, reduced to a neat set of legal
rules.” Gates, 462 U.S. at 232. “Rigid legal rules are ill-suited to an area of such
diversity.” Id. at 232.
Probable cause is not to be analyzed under a “complex
superstructure of evidentiary and analytical rules.” Id. at 235. “We have rejected rigid
rules, bright-line tests, and mechanistic inquiries in favor of a more flexible, all-thingsconsidered approach.”
Florida v. Harris, 568 U.S. 237, 244, 133 S.Ct. 1050, 185
L.Ed.2d 61 (2013). “Our precedents recognize that the whole is often greater than the sum
of its parts * * *.” D.C. v. Wesby, 138 S.Ct. 577, 588, 199 L.Ed.2d 453 (2018).
I. Sworn Oral Information Properly Considered in Assessing Probable Cause and
Good Faith
The Fourth Amendment by its plain terms only requires that sworn information be
used for the issuance of a warrant: “[N]o Warrants shall issue, but upon probable cause,
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supported by Oath or affirmation, * * *.” “We have previously rejected efforts to expand
the scope of [the Fourth Amendment] to embrace unenumerated matters.” Grubbs, 547
U.S. at 97.
Accordingly, “the Fourth Amendment does not forbid supplementation of written
warrant affidavits with sworn, unrecorded oral testimony * * *.” United States v.
Clyburn, 24 F.3d 613, 614 (4th Cir. 1994). “The Fourth Amendment does not require
that the basis for probable cause be established in a written affidavit; it merely requires
that the information provided the issuing magistrate be supported by ‘Oath or
affirmation.’” Id. at 617. “Moreover, the Amendment does not require that statements
made under oath in support of probable cause be tape-recorded or otherwise placed on the
record or made part of the affidavit. It follows that magistrates may consider sworn,
unrecorded oral testimony in making probable cause determinations during warrant
proceedings, * * *.” Id. at 617 (quoting another case).
As numerous cases have held, “the Fourth Amendment does not require that a
written affidavit establish probable cause”. United States v. Williamson, 859 F.3d 843,
864 (10th Cir. 2017) (citing Clyburn); United States v. Shields, 978 F.2d 943, 946 (6th
Cir. 1992) (citing three federal circuits). “[O]ur court has repeatedly held the Fourth
Amendment does not require the issuing judge to record sworn supplementary oral
testimony.” United States v. Cote, 569 F.3d 391, 392-93 (8th Cir. 2009). Even when a
rule or statute would require recording, such a recording requirement would not be of
constitutional dimension, as “[t]here is no requirement that oral testimony in support of
the warrant be recorded.” United States v. Skarda, 845 F.3d 370, 375 (8th Cir. 2016).
Moreover, as discussed in U. S. ex rel. Gaugler v. Brierley, 477 F.2d 516, 520-22
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(3d Cir. 1973), at least two decisions from this Court have acknowledged that probable
cause is to be determined by reference to the “information brought to the magistrate’s
attention” or “disclosed to the issuing magistrate.” Id., citing Aguilar v. Texas, 378 U.S.
108, 109 n. 1, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Whiteley v. Warden, 401 U.S.
560, 565 n. 8, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971). Sworn oral information can be
brought to the issuing judge’s attention and thereby support probable cause even though
it was not put into a written affidavit or recorded.
Much of petitioner’s argument is premised on the notion that the Ohio rule
required recording. But that premise is now undercut by the Ohio Supreme Court’s
conclusion that the Ohio rule’s reference to recording “is a rule of admission, not a rule
of exclusion”. Dibble, ¶ 30. Recording ensures admissibility at a later suppression
hearing; lack of recording does not bar its admission or consideration altogether. And, as
the Ohio Supreme Court further explained, violation of Ohio’s state-law rule would not
lead to exclusion anyway.
Of some note, too, would be doubts about the constitutionality of the Ohio rule’s
recording provision if it were turned into a substantive bar to prevent the prosecution
from proving that the search warrant complied with Fourth Amendment requirements.
The prosecution repeatedly preserved its contention that such an interpretation would
exceed the Ohio Supreme Court’s procedural rule-making power under Article IV,
Section 5(B), of the Ohio Constitution. The Ohio Supreme Court had no need to reach
that state constitutional question because it rejected petitioner’s interpretation outright.
In any event, regardless of the recording provision in the Ohio rule, the Fourth
Amendment itself imposes no such requirement. Given that the exclusionary rule would
32
be enforcing the Fourth Amendment, the exclusionary rule would not operate differently
in this regard.
It would not impose a recording requirement under the good-faith
exception when the Fourth Amendment does not impose one.
Accordingly, “a court reviewing an officer’s good faith under Leon may look
beyond the four corners of the warrant affidavit to information that was known to the
officer and revealed to the issuing magistrate.” United States v. Frazier, 423 F.3d 526,
535-36 (6th Cir. 2005). “[W]hen assessing the officer’s good faith reliance on a search
warrant under the Leon good faith exception, we can look outside of the four corners of
the affidavit and consider the totality of the circumstances, including what the officer
knew but did not include in the affidavit.” United States v. Farlee, 757 F.3d 810, 819
(8th Cir. 2014). Courts “can look beyond the four corners of the affidavit” to assess the
issue of good faith. United States v. Robinson, 336 F.3d 1293, 1297 (11th Cir. 2003).
Indeed, “the Supreme Court has, in the past, looked beyond the four corners of the
warrant affidavit in assessing an officer’s good faith * * *.” Frazier, 423 F.3d at 534.
The decision in Leon referred to matters outside the affidavit in evaluating the officers’
reasonableness by considering the officers’ interaction with prosecutors after the affidavit
was drafted.
Leon, 468 U.S. at 903, 904 n.4.
The Court in Messerschmidt also
considered matters outside the affidavit in assessing the same question of good faith as
part of determining the qualified immunity of the officers. Messerschmidt, 565 U.S. at
553-55. The Court also has found good faith by considering the back-and-forth between
the officer and issuing magistrate. Massachusetts v. Sheppard, 468 U.S. 981, 989, 104
S.Ct. 3424, 82 L.Ed.2d 737 (1984). Leon itself instructs that “all of the circumstances”
may be considered. Leon, 468 U.S. at 922-23 n. 23.
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Petitioner errs in contending that only the “affidavit” could be considered because
Leon referenced the good-faith exception in relation to what the “affidavit” showed. It is
true enough that Leon at times referenced an affidavit being the source of the court’s
information for issuing a warrant. But this is because most warrants are supported by an
affidavit alone, and no supplemental oral testimony is provided, as occurred in Leon
itself. Just because Leon referenced the most common practice does not mean that such
practice is the only practice.
It is “dubious logic * * * that an opinion upholding the constitutionality of a
particular search implicitly holds unconstitutional any search that is not like it”. United
States v. Knights, 534 U.S. 112, 117, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001). Courts
often “decide particular legal issues while assuming without deciding the validity of
antecedent propositions, and such assumptions – even on jurisdictional issues – are not
binding in future cases that directly raise the questions.” United States v. VerdugoUrquidez, 494 U.S. 259, 272, 110 S.Ct. 1056, 108 L.Ed.2d 222 (1990) (citations omitted).
A decision is not binding precedent on a legal point unless it “squarely addressed the
issue”. Brecht v. Abrahamson, 507 U.S. 619, 631, 113 S.Ct. 1710, 123 L.Ed.2d 353
(1993). Leon’s referring to an “affidavit” in a case in which only an affidavit was
involved does not decide that an “affidavit” is required every time or that only the
“affidavit” counts for good-faith purposes.
Petitioner’s flawed focus on the word “affidavit” in Leon also disregards the text
of the Fourth Amendment and aforementioned case law, all of which recognizes that
warrants can be based in whole or in part on sworn oral information that was presented to
the issuing judge, even if such information was not contemporaneously recorded at the
34
time. Recording is not a Fourth Amendment requirement, and so there is no basis to
think that Leon’s reference to “affidavit” was meant to be determinative on the good-faith
issue, especially in light of Leon’s accompanying statement that all of the circumstances
should be considered, and especially in light of the numerous instances in which the
Court has considered events and statements occurring outside the four corners of the
affidavit in applying the good-faith exception.
A rigid enforcement of a “four corners” restriction would be inconsistent with
these cases and does not serve the deterrent purposes that underlay the exclusionary rule,
especially in a case in which such a restriction would be created out of whole cloth
several years after the fact without any textual basis in the Fourth Amendment. And, in
terms of the deterrent purposes of the exclusionary rule, “we are unable to envision any
scenario in which a rule excluding from the Leon analysis information known to the
officer and revealed to the magistrate would deter police misconduct.” Frazier, 423 F.3d
at 535 (emphasis sic).
Superimposing a “four corners” requirement on the consideration of good faith
would also defy practical workability. Logically, and legally, a “four corners” limitation
cannot be given any be-all and end-all status because Fourth Amendment law is far more
nuanced and complicated than that. The operation of the exclusionary rule often involves
matters that would not appear within the four corners of a search warrant affidavit,
including the existence or absence of standing, the presence or absence of causation,
issues related to independent-source and inevitable-discovery doctrines, and so on.
The give-and-take discussion between the police and the issuing judge could also
be important to the good-faith analysis.
The issuing judge very well could make
35
comments about the warrant that would lead a reasonable officer to believe that the
warrant is properly issued based on the information before the judge. Sheppard, supra.
Equally so, the issuing judge’s taking of supplemental testimony from the officer would
reasonably lead the officer to believe that the taking of such testimony has legal
significance and that such testimony is being properly considered.
Moreover, the nature of the purported error in failing to record the affiant’s
supplemental oral testimony also would implicate all of the reasons for having the goodfaith exception.
The act of ordering recording would be the judge’s role, not the
officer’s, as the court reporter is a court officer supervised and controlled by the judge.
“[I]t was the judge, not the police officers, who [would be making] the critical mistake”.
Sheppard, 468 U.S. at 990.
Having a recording requirement would also likely involve clerical steps –
transcription and making the testimony a part of the affidavit – that would not even occur
until after the officer has left with the judge’s approval in hand. When the judge swears
in the officer, allows the officer to provide supplemental information under oath, and then
approves the warrant, a reasonable officer has zero reason to think that the Fourth
Amendment has been disregarded, which itself does not even require recording. In that
circumstance, it is difficult to envision what more the officer should have done.
Sheppard, 468 U.S. at 989 (“officers in this case took every step that could reasonably be
expected of them”).
The text of the Fourth Amendment plainly does not impose written-affidavit or
recording requirements, as numerous lower-court cases have held. Superimposing such
requirements after the fact here would implicate all of the reasons for having a good-faith
36
exception. Moreover, any noncompliance with a supposed recording requirement would
have been a judicial error. Such noncompliance would not show the officer was acting in
culpable disregard of Fourth Amendment rights. “Penalizing the officer for the [judge’s]
error, rather than his own, cannot logically contribute to the deterrence of Fourth
Amendment violations.” Leon, 468 U.S. at 921.
J. Cited Cases Create No Conflict
Cases cited by petitioner as creating a “conflict” do not create a conflict. One of
the Sixth Circuit decisions actually was vacated by the en banc court. United States v.
Christian, 893 F.3d 846 (6th Cir. 2018), vacated en banc, 925 F.3d 305 (6th Cir. 2019).
In addition, none of the Sixth Circuit cases addressed the issue of additional
information actually being conveyed to the issuing judge. Christian, 893 F.3d 846 (no
additional information beyond affidavit); United States v. Laughton, 409 F.3d 744, 746
(6th Cir. 2005) (rejecting “information known to the officer but not conveyed to the
magistrate”); United States v. White, 874 F.3d 490 (6th Cir. 2017) (upholding good faith
based on affidavit; no indication that any additional information provided to issuing
judge); United States v. Hython, 443 F.3d 480 (6th Cir. 2006) (lack of good faith based
on affidavit alone; no indication that any additional information provided to issuing
judge); United States v. Hodson, 543 F.3d 286 (6th Cir. 2008) (lack of good faith based
on affidavit alone; no indication that any additional information provided to issuing
judge); United States v. Weaver, 99 F.3d 1372, 1376 (6th Cir. 1996) (mentioning that
officer “may have orally supplemented the affidavit with additional information” but not
otherwise addressing that issue or indicating whether information submitted under oath).
The Sixth Circuit authorities have repeatedly acknowledged that information
37
conveyed to the issuing judge can be considered in assessing good faith. Hython, 443
F.3d at 488 (“the rule announced in Laughton is inapplicable when the extra-affidavit
information was made known to the issuing magistrate”); Frazier, 423 F.3d at 534, 534 n.
4, 535 (“we do not read Laughton as prohibiting a court in all circumstances from
considering evidence not included in the affidavit.”; “That case gives no indication that
the officer who applied for the search warrant provided the issuing magistrate with the
information omitted from the affidavit”; “Weaver did not hold that a court is limited to
the four corners of the affidavit for the purposes of the Leon analysis.”). The Sixth
Circuit has cited Frazier as showing that the good-faith exception allows the court
deciding the suppression motion to go outside the four corners of the affidavit to consider
information that was known to the officer and revealed to the issuing judge. United
States v. Farrad, 895 F.3d 859, 891 (6th Cir. 2018). The Sixth Circuit cases simply do
not create any conflict, let alone a conflict that is deep or meaningful enough to
necessitate this Court’s intervention.
Petitioner’s citation to United States v. Luong, 470 F.3d 898 (9th Cir. 2006), and
its disagreement with United States v. Legg, 18 F.3d 240 (4th Cir. 1994), does not show
any conflict that is relevant or meaningful to the present case either. Luong declined to
consider oral information that the officer had conveyed to the issuing magistrate,
emphasizing that the original affidavit had been “entirely lacking in indicia of probable
cause”, and further emphasizing that the additional oral information had been “an
unsworn, unrecorded oral colloquy” that did not comply with the Constitution’s
requirement that probable cause be established “by Oath or affirmation.” Luong, 470
F.3d at 905. Neither of these factors is involved here, as the original affidavit here was
38
not “entirely lacking in indicia of probable cause”, and the additional information here
was sworn and therefore compliant with the Fourth Amendment’s requirement of an oath
or affirmation. A “conflict” with a single Ninth Circuit case would not justify this
Court’s intervention anyway.
In effect, petitioner is attempting to constitutionalize his interpretation of a statelaw criminal rule when that very interpretation was rejected as a matter of state law.
Moreover, it is plain that a rule imposing recording requirements in a particular
jurisdiction would not alter the Fourth Amendment’s protections. Virginia v. Moore, 553
U.S. 164, 176, 128 S.Ct. 1598, 170 L.Ed.2d 559 (2008). “[T]he Court’s analysis must be
guided by the requirements of the Fourth Amendment, not any preferences as to the best
procedure for conducting warrant applications.” United States v. Donaldson, 2012 WL
1142922, *11, n. 11 (S.D. Ga. 2012), aff’d, 558 Fed.Appx. 962, 967 n. 3 (11th Cir. 2014)
K. Probable Cause and Good Faith
There were two substantial bases to support probable cause that petitioner’s home
had evidence that would aid in conviction. E.K.’s allegations reasonably could be viewed
as providing a substantial basis to conclude there was probable cause that petitioner’s
home would have photographic evidence related to E.K., thereby showing the ultimate
sexual purpose behind his manipulations and grooming of the student assistants, and,
thus, his ultimate sexual purpose vis-à-vis assistant E.S.
In addition, the sworn oral information about photo-taking in unitards reasonably
could be viewed as providing probable cause that petitioner would still have in his
possession the photographs of E.S. and E.K. in their see-through unitards, thereby also
confirming the modus operandi described in the accounts given by E.S. and E.K.
39
The officer was prima facie acting in good faith in seeking the issuance of a
warrant. He was not being plainly incompetent or entirely unreasonable or grossly
negligent in thinking there was a substantial basis for the warrant’s issuance.
In light of the totality of the affidavit and additional sworn oral information, and
in light of the “mere evidence” standard, there was probable cause to search petitioner’s
home, and the detective was not acting in a deliberate, reckless, or grossly-negligent
disregard of Fourth Amendment rights.
CONCLUSION
For the foregoing reasons, respondent State of Ohio respectfully requests that this
Court deny the petition for writ of certiorari.
Respectfully submitted,
__________________________________
STEVEN L. TAYLOR
(Counsel of Record)
Chief Counsel, Appellate Division
COUNSEL FOR RESPONDENT
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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.