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Court News Ohio

Search Recovering Teacher’s Recording of Girls Undressing at School Ruled Lawful

A Franklin County trial court appropriately ruled a police officer was acting in good faith when he searched a high school drama teacher’s home and found secret recordings of girls undressing in the school locker room, the Ohio Supreme Court ruled today.

The Supreme Court voted 5-2 to reverse a Tenth District Court of Appeals decision that found the trial court should have excluded the materials taken from Laurence Dibble’s home in 2010. The Tenth District concluded the officer’s search warrant request failed to contain any information that justified searching the home.

The trial court had allowed the evidence from the search because the officer obtained a search warrant from a judge after providing sworn, but unrecorded statements, which led the judge to suspect Dibble had photos of nude minor girls that he had taken at the Wellington School in Columbus.

Writing for the Court majority, Justice R. Patrick DeWine stated that when considering a motion to suppress the evidence, a trial court can rely on more than just the officer’s written affidavit and can consider the “totality of the information” presented to the judge issuing the warrant when determining if the officer was acting in good faith.

The Court concluded that the trial court properly denied Dibble’s motion to suppress and remanded the case to the Franklin County Common Pleas Court for further proceedings. Today is the second time the Supreme Court has ruled on the matter after either Dibble or the Franklin County Prosecuting Attorney’s Office appealed prior lower court rulings over the past 10 years.

Justices Sharon L. Kennedy, Patrick F. Fischer, and Melody J. Stewart joined Justice DeWine’s opinion. Second District Court of Appeals Judge Michael Tucker also joined the opinion, sitting in for Justice Judith L. French, who did not participate in the case.

In a dissenting opinion, Justice Michael P. Donnelly noted the officer conceded his written request for the warrant was not sufficient to justify searching Dibble’s home and was only able to justify the search by claiming that he had provided off-the-record testimony to the judge about photos of minor students.

The Ohio Rules of Criminal Procedure only allow the officer’s testimony when requesting the warrant to be considered if the conversation was recorded. In this case, it was not, and the trial court should have suppressed the evidence, Justice Donnelly concluded. Chief Justice Maureen O’Connor joined Justice Donnelly’s opinion.

Former Students Contact Police
In February 2010, a former student of Dibble’s, identified in court records as E.S., reported to police an incident that occurred in April 2009 while she was a student at Wellington. She accused Dibble of groping her in the school theater. Another former student, identified as E.K., accompanied E.S. in her interview with Detective Andrew Wuertz. E.K. stated she was involved in a consensual relationship with Dibble when she was a young adult in college and that he had taken nude photographs of her at his home. The two women also discussed occasions when Dibble had taken photos of them and others at school wearing nearly see-through unitards purportedly for a theater project.

Wuertz filed a police report identifying E.S. as a victim of gross sexual imposition. He did not file a police report based on E.K.’s statements, having concluded Dibble’s involvement with E.K., an adult, did not involve any criminal behavior. The next day Wuertz applied for a warrant to search of Dibble’s house based on the claims of E.S. and E.K. and sought to search his computers and storage devices as well as to look for videotapes, photographs and other materials.

The written request stated Wuertz sought evidence of gross sexual imposition that took place at the school. The affidavit contained no information about the photographs taken at the school. The judge who considered the warrant request questioned Wuertz about the need to search Dibble’s home, and Wuertz then explained the women’s statements about the photographs and his suspicion they were located in Dibble’s home. The statements made to the judge were under oath, but were not recorded or transcribed.

With the warrant, the police discovered numerous videos of girls Dibble secretly recorded trying on theater costumes. He was charged with one count of gross sexual imposition based on groping E.S. and 20 counts of voyeurism based on the videos.

Teacher Seeks to Suppress Evidence
Dibble sought to suppress the evidence based on an invalid search warrant. He claimed that the materials taken from his home should not be used as evidence against him because the search violated his rights under the Fourth Amendment to the U.S. Constitution.

In the latest hearing on the request, the trial court denied the motion to suppress the evidence, and Dibble appealed to the Tenth District. The Tenth District ruled that under Crim.R. 41(C)(2), the trial court could not consider Wuertz’s unrecorded testimony regarding the need for the warrant, but could only consider the information in the affidavit. The criminal rule only allows recorded testimony to be considered at hearings to suppress evidence, the appeals court ruled.

The prosecutor appealed the decision to the Supreme Court, which agreed to consider the case.

Permitting Search Results Justified
Justice DeWine explained that the U.S. Supreme Court adopted the exclusionary rule, which prevents evidence gathered from an illegal search or seizure from being used against a criminal defendant in order to deter police misconduct. The U.S. Supreme Court in its 1984 United States v. Leon decision adopted a good-faith exception to the exclusionary rule. Under the good-faith exception, evidence obtained during a search conducted with a faulty warrant will not be excluded if the officers who obtained it acted reasonably in relying on the warrant, the majority opinion stated.

The Court wrote that because the objective of the exclusionary rule is to deter police misconduct, evidence should be excluded when police violate the Fourth Amendment through “deliberate,” “reckless” or “grossly negligent” conduct. Under the good faith exception, the rule only should be applied if the officer knew or should have known the search was unconstitutional.

The opinion noted that Wuertz explained the reason for searching the house when asked by the judge, and police officers are not expected to second-guess a judge’s legal determination that a search is valid. The Court concluded that suppressing evidence due to an “error” by the judge would not deter police misconduct.

Court Examines Meaning of Evidence Rule
The Court then considered if it could rely on information other than the written statement Wuertz gave to the judge to decide whether he acted in good faith.

Crim.R. 41(C)(2) explains that before ruling on a request for a warrant, the judge may take additional testimony in support of the warrant, and the rule states, “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.”

While the Tenth District interpreted the rule to mean an unrecorded statement cannot be considered at a suppression hearing for any purpose, the Court majority held today that the rule applies only to the trial court’s review of whether there was probable cause to issue the warrant. The court also explained that Crim.R. 41(C)(2) is “a rule of admission, not a rule of exclusion.” The Court stated the rule means that if the testimony was recorded, the trial court must allow it to be considered.

“Nothing in the language of the rule directs that unrecorded and untranscribed evidence may not be considered in determining an officer’s good faith,” the opinion stated.

Regardless of whether Wuertz’s testimony was recorded, there was no allegation that either the judge or Wuertz acted with deliberate intent to circumvent the recording rule. An officer who supplied additional information in response to the warrant-issuing judge’s questions would reasonably believe that the testimony had legal significance, so that information should be properly considered in assessing whether the officer relied on the warrant in good faith, the opinion stated.

The Court concluded the rule did not bar the trial court from considering Wuertz’s unrecorded testimony when considering the validity of the search. The Court noted that even if the statement by a former student about a photograph taken of her as an adult does not itself allege a crime, it was not unreasonable for Wuertz to connect that conduct with the statements about the inappropriate recordings Dibble made at the school.

“And since all that information was provided to the judge as well, it was reasonable for the detective to rely on the judge’s verification that probable cause existed for the search,” the opinion concluded.

Recording Rule Deters Police Misconduct, Dissent Stated
In his dissent, Justice Donnelly wrote the provision of Crim.R. 41(C)(2) stating that only recorded statements are admissible serves “a specific and important purpose” of preventing the state from creating probable cause after the search was already conducted. Allowing the use of alleged unrecorded statements at suppression hearings to consider good-faith reliance on a deficient warrant “paves the way for sloppy police work at best and perjury at worst,” he wrote.

While the warrant has been the subject of three suppression hearings, the dissenting opinion noted that the trial court only considered testimony at the first hearing, and Wuertz was the only witness to testify. He conceded his warrant was only to investigate the crime of gross sexual imposition, which took place at the school and had no connection with Dibble’s home.

To establish he acted in good faith, the prosecution would had to have proved the affidavit included at least some information that probable cause existed. But Wuertz testified it was clear to him that his written information was insufficient to search the house, and only his alleged off-the-record testimony before the judge supported the search.

If a warrant applicant supplements the written information with oral statements to a judge, a trial court at a suppression hearing can only consider those statements if they were recorded, the dissent stated. This prevents police from “improperly enhancing” probable cause after a search is completed and turns up incriminating evidence to justify the search. Without consideration of Wuertz’s alleged unrecorded statements, the state failed to prove the good-faith exception should apply, the dissent stated, and the Tenth District properly excluded the evidence.

2018-0552. State v. Dibble, Slip Opinion No. 2020-Ohio-546.

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