Court News Ohio
Court News Ohio
Court News Ohio

Tuesday, May 21, 2019

State ex rel. the Cincinnati Enquirer, a division of Gannett GP Media Inc. v. the City of Cincinnati Police Department, Case no. 2017-1618
Writ of Mandamus

Cleveland Metropolitan Bar Association v. Matthew J. King, Case no. 2018-1762
Cuyahoga County

Beverage Holdings LLC v. 5701 Lombardo LLC dba Valentino VAL LLC, Case no. 2018-0616
Eighth District Court of Appeals (Cuyahoga County)

State of Ohio v. Lawrence A. Dibble, Case no. 2018-0552
Tenth District Court of Appeals (Franklin County)

Were Cincinnati Police Required to Promptly Release Bodycam Footage?

State ex rel. the Cincinnati Enquirer, a division of Gannett GP Media Inc. v. the City of Cincinnati Police Department, Case no. 2017-1618
Writ of Mandamus


  • Is a recording made by a police body-camera system a public record under the act?
  • Was any of the bodycam footage taken by the Cincinnati Police Department in this case a confidential law enforcement investigatory record, which is exempt from disclosure to the public under the act?
  • Is the Cincinnati Enquirer entitled to reasonable attorney fees and court costs?

Three Cincinnati police officers responded on Aug. 8, 2017, to a call for assistance from a woman who wanted her adult sons to leave her apartment. After entering the home, the officers confronted Richard Coleman and James Crawley, who reacted angrily. The officers, who were wearing body cameras, used a Taser on both men and arrested them.

Coleman and Crawley were charged that day with resisting arrest and other offenses. The police prepared a standard incident report.

One of the men submitted a complaint to the city’s Citizen Complaint Authority. The Hamilton County prosecutor asked a court for a temporary restraining order (TRO) to keep the organization from holding a hearing about the matter because a hearing would reveal “work product” and harm the prosecution’s case. A trial court granted the TRO on Oct. 30, 2017.

On Oct. 31, Cincinnati Enquirer reporter James Pilcher requested any bodycam footage from the men’s arrests. The Cincinnati Police Department denied the request on Nov. 1, stating that the footage wasn’t subject to release under the Ohio Public Records Act because it was a confidential law enforcement investigatory record (CLEIR). A few days later, on Nov. 6, an assistant county prosecutor told the police department that the footage shouldn’t be released based on the CLEIR exemption because the criminal case hadn’t yet gone to trial.

Police Body-Camera Policy
The Cincinnati Police Department’s policies state:

“[Body Worn Camera (BWC)] systems promote accountability and transparency for law enforcement by providing a video record of policy activity. Police operations become more transparent to the public and help resolve questions following encounters between officers and citizens.”

According to the policies, “Officers are required to activate their BWC system during all law enforcement-related encounters and activities as defined in this procedure.”

Police Body-Camera Policy
The Cincinnati Police Department’s policies state:

“[Body Worn Camera (BWC)] systems promote accountability and transparency for law enforcement by providing a video record of policy activity. Police operations become more transparent to the public and help resolve questions following encounters between officers and citizens.”

According to the policies, “Officers are required to activate their BWC system during all law enforcement-related encounters and activities as defined in this procedure.”

Media Outlet Files Lawsuit Against Police Department
The Enquirer asked the Ohio Supreme Court on Nov. 14 for a writ of mandamus ordering the police department to release the bodycam footage. Coleman and Crawley subsequently pled guilty, and the police department released copies of 19 bodycam videos with redactions on Dec. 1, 2017. Because the officers on the scene called for assistance, there were videos from 19 different cameras.

Some footage is redacted to hide the faces of police officers in plain clothes, the Enquirer states. The media outlet indicates it isn’t clear whether any audio was redacted from the files.

Groups Agree on Certain Issues
The Enquirer and the police department agree that a mandamus action is the correct legal path to compel compliance with the public records act. They also agree that recordings made by bodycams are public records, although the department maintains that images of police officers operating in plain clothes aren’t a public record.

Bodycam Videos Not Investigatory Technique, Procedure, or Work Product, Enquirer Argues
A CLEIR isn’t a public record “only to the extent that the release of the record would create a high probability of disclosure of” four types of information. The arguments in this case center on two of those categories – “(c) specific confidential investigatory techniques or procedures or specific investigatory work product” and “(d) information that would endanger the life or physical safety of law enforcement personnel, a crime victim, a witness, or a confidential information source.”

Because the police department released the bodycam footage on Dec. 1, the Enquirer notes that the department clearly decided there was no risk of disclosure of “specific confidential investigatory techniques or procedures.” Thus, this exemption to disclosure of a record wasn’t a legitimate basis for the department’s earlier Nov. 1 refusal to release the footage, the Enquirer maintains.

Nor do the videos qualify as “specific investigatory work product,” the Enquirer argues. Citing State ex rel. Cincinnati Enquirer v. Ohio Department of Public Safety (2016), the Enquirer explains that the Ohio Supreme Court ruled that only 90 seconds of audio in 151 minutes of footage from law enforcement’s dashboard cameras qualified as specific investigatory work product. The Enquirer points to the Court’s reasons for that ruling:

  • The investigative information in the recordings duplicated much of the information in the publicly available police incident reports.
  • The recordings weren’t made in anticipation of litigation because Ohio Highway Patrol policy required troopers to record all pursuits and traffic stops regardless of whether a criminal prosecution may follow.
  • Most of the recordings included no investigative functions at all.

The Enquirer maintains that the incident report stemming from Coleman’s and Crawley’s arrests describe the same events that appear in the bodycam footage. Also, department policy requires officers to activate the bodycams during law enforcement-related encounters and activities, including when they’re responding to service calls, like the one in this case. They had no cause to turn off the bodycams for privacy because they obtained consent from the resident to use the cameras before entering the apartment, the Enquirer states. And, the footage had no investigative function, the media outlet adds. As a result, the Enquirer concludes, the police department had no reason to withhold the bodycam footage when first requested.

Footage Has Investigatory Purpose, Police Department Maintains
The police department argues that the exemption for specific confidential investigatory techniques or procedures or specific investigatory work product applied to the bodycam videos. The department draws distinctions between this case and the dashcam videos in the 2016 case cited by the Enquirer. Dashcam videos don’t record inside a home or give a first-person perspective of events, the department states. In its view, most of the bodycam footage in this case has concrete investigative value tied to the prosecution of the defendants. The law, the police assert, doesn’t protect individual privacy concerns related to bodycams.

Also, the department states, the prosecutor directed it not to release the footage until after trial because the videos were work product that was exempt from disclosure.

The department disputes that the information in the incident report allows for the release of the bodycam videos. In the 2016 Supreme Court case, the dashcam was far from, and not pointed at, the crash site. In this case, though, the bodycams “record[] the entire encounter in graphic and fine detail,” the department’s brief states. Bodycams don’t operate automatically like dashcams, the department notes, maintaining that its policy that officers must activate their bodycams shouldn’t mean the footage doesn’t qualify as investigatory work product.

It acknowledges that, despite the prosecutor’s direction, it should have released the videos that had no investigative value. However, the footage wasn’t held back to hide information of public significance, the police argue, and adds that they also needed time to review and analyze video from 19 cameras.

Media and Police Debate Redaction of Plain-Clothes Officers
The Enquirer states that the redacted images in the videos appear to be the faces of plain-clothes officers who responded to the scene. The media outlet explains that those images could fall only under the exemption in (d), if the police department showed that disclosure would endanger the officer’s life or safety. However, the department has the burden to establish that the redactions were needed to protect the plain-clothes officers, but no evidence exists in the case record to support the redactions, the Enquirer argues. Without evidence, the Supreme Court must conclude the police department failed to show that the CLEIR exemption applied to the redactions.

The department responds that “[p]roducing [bodycam] footage showing the faces of plainclothes police officers up close, personal, and in fine detail, would lessen their ability to work in plainclothes assignments and would put them at an increased risk of harm.” There is no case law to support the Enquirer’s contention that footage of plain-clothes officers doesn’t fall under the techniques and procedures exemption to disclosure, the department argues. The police also assert that photographs of plain-clothes officers can be withheld under another part of the public records act, so it is logical and appropriate that bodycam footage of such officers be redacted.

Parties Disagree on Whether Enquirer Entitled to Attorney Fees
Because the department initially released none of the bodycam videos that the Enquirer requested, the media outlet states it was forced to file a lawsuit to obtain the information. The department had no good-faith reason for withholding the records, and the Enquirer is entitled to attorney fees, the media outlet argues.

Noting the TRO and the prosecutor’s direction, the department counters that it reasonably believed the footage was investigatory work product that shouldn’t be released. The department adds that it supplied the videos 31 days after the initial request and immediately after Coleman and Crawley pled guilty. An award of attorney fees to the Enquirer isn’t appropriate, the department states.

Open Government Group Supports Enquirer
The Ohio Coalition for Open Government has filed an amicus curiae brief supporting the Enquirer. The coalition urges the Supreme Court to uphold its precedent  that the investigatory work product category of the CLEIR exemption is narrow, applying only to materials prepared in anticipation of litigation, and to rule that the police department should have promptly supplied the bodycam footage to the Enquirer.

- Kathleen Maloney

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Representing the Cincinnati Enquirer, a division of Gannett GP Media Inc.: John Greiner, 513.629.2734

Representing the City of Cincinnati Police Department: Peter Stackpole, 513.352.3350

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Professional Conduct Board Recommends Suspension for Attorney Convicted of Money Laundering

Cleveland Metropolitan Bar Association v. Matthew J. King, Case no. 2018-1762
Cuyahoga County

In June 2016, Cleveland attorney Matthew J. King was convicted of two counts of money laundering and one count of attempted money laundering. The trial court sentenced King to 44 months in prison for the felonies, and he was released in August 2018 after serving part of his sentence.

The Ohio Board of Professional Conduct suspended King from practicing law on an interim basis following his convictions. The board now suggests an indefinite suspension for King with no credit for the time on the interim suspension. The Cleveland Metropolitan Bar Association objects to the proposed sanction, arguing for King’s disbarment.

Early in his legal career, King worked as an assistant law director and prosecutor for the city of Lakewood and as an assistant Cuyahoga County prosecutor.

Attorney Agrees to Set Up Fake Business for Drug Money
In 2014, King had a conversation with a law-enforcement confidential informant, who indicated he was a drug dealer connected to a Mexican cartel. In recorded discussions, King talked about forming a corporation and opening a bank account for the informant to launder money obtained from drug deals and first depositing the money through his client trust account (IOLTA). The lawyer accepted $20,000 from the man.

However, King never filed the paperwork for the corporation, and didn’t deposit any of the man’s money into his IOLTA account. During the next several weeks, whenever the informant asked, King gave him cash. The lawyer also gave the informant a check from his personal account for $2,000 as a way to show the informant that a bank account was being used to launder the money.

The informant absconded with all of the money. King subsequently offered to help the FBI recover the money. In October 2015, the attorney was indicted for money laundering and found guilty.

Board Considers Mitigating Factors
At his disciplinary hearing, King argued the government’s case was flawed because he only held the cash and gave the informant a personal check. He noted he is considering a habeas corpus petition to try to overturn his convictions. King also described his struggle with drinking, his father’s death, a difficult divorce, and his estrangement from a daughter during the time that he engaged in the money-laundering scheme. A common pleas judge, who is King’s Alcoholic Anonymous’ sponsor, testified for King.

While the panel that handled the hearing noted King’s dishonest and selfish motive, it also acknowledged his prison sentence, completion of an alcohol and drug rehabilitation program in prison, cooperation during the disciplinary process, and evidence of his legal abilities and good character.

Although the bar association advocates for disbarment, the board concluded that the sanction isn’t necessary to protect the public. The board recommends to the Ohio Supreme Court an indefinite suspension for King with no credit for the time he has spent on the interim suspension. Along with the standard requirements for reinstatement to the practice of law, King must show proof of his continued sobriety, under the board’s recommendation.

Bar Association Argues for Disbarment Based on Crimes
The bar association objects to the board’s suggested sanction. The bar association points to a few cases from 1993 in which the Ohio Supreme Court permanently disbarred lawyers in circumstances similar to King’s.

The bar association also maintains that King’s testimony reveals that he hasn’t acknowledged the seriousness of his conduct. Nor has he offered evidence that his illegal actions were caused by his alcoholism or stemmed from his personal family troubles, the bar association argues. Although the board stated in its report that it appreciates King’s efforts to change his life since his crimes, the bar association contends that those steps aren’t enough to warrant his return to practicing law.

Attorney Stresses He Didn’t Pursue Illegal Plans
Noting that he never formed a corporation for the informant nor took any of the other steps they had discussed, King maintains that he didn’t intend to commit money laundering and notes the assistance he provided to the FBI when arrested. He argues that he never followed through with any of the plans for setting up a shell corporation, unlike the lawyers in the 1993 cases cited by the bar association.

The bar association ignores not only his actions to take responsibility and better his life, but also the board’s finding that he accepted that his conduct was immoral and unethical, King states. Pointing out that the Supreme Court can exercise independent judgment when considering all relevant factors in disciplinary cases, he asks for a sanction less severe than disbarment.

- Kathleen Maloney

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Representing Cleveland Metropolitan Bar Association: Heather Zirke, 216.696.3525

Representing Matthew J. King: Matthew Golish, 216.831.0042

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Can Trial Court Interpret Contract Language in Disputed Preschool Franchise Sale?

Beverage Holdings LLC v. 5701 Lombardo LLC dba Valentino VAL LLC, Case no. 2018-0616
Eighth District Court of Appeals (Cuyahoga County)


  • Can a court disregard the plain meaning of the words in a contract, if doing so would lead to a manifestly absurd result?
  • Can an appellate court direct a trial court to determine the “most sensible and reasonable interpretation” of a disputed contract?

Two couples entered into a creative real estate transaction in hopes of transferring the ownership of a Goddard School early childhood education center franchise in Independence, Ohio. Vince and Beth Valentino owned the Goddard franchise and the building in which it was located. Paula and Robert Beverage contracted with the Valentinos to buy the franchise and the property. Under Goddard rules, the franchise and the property needed to be sold through separate agreements. A company in Paula Beverage’s name bought the school for $950,000. The $1.7 million debt owed by the Valentinos’ real estate company, 5701 Lombardo, exceeded the building’s value by nearly $500,000, making it impossible to secure financing for a sale.

Rather than sell the building, Beverage Holding and Lombardo negotiated a deal in which Beverage would lease the property from Lombardo. The April 2011 agreement between the two required Beverage to make $12,500 monthly rental payments until Beverage provided “notice of intent to close the transaction” at a time when the debt on Lombardo’s loans and the market value of the property were more closely aligned.

Lombardo’s attorney drafted the contract, which listed the selling price at the amount of the debt owed, then made “adjustments” that reflected the payments the company would receive from Beverage. One clause stated that Beverage would get credit for: “Rents received by Seller from the tenant of the Premises, prorated to date of closing.”

Purchase Price Disputed
In March 2015, Beverage presented the notice to close and offered about $1.2 million for the property, factoring in that the company paid $462,500 in rent in the four years of leasing the premises. Lombardo responded with a notification that it was revoking the agreement, stating that Beverage misread the contract clause and that the rent credit was for a far lower amount. Lombardo stated the term “rents” meant a credit for the rent paid for the month of closing, prorating the amount to the date it actually closed.

Beverage filed a lawsuit in Cuyahoga County Common Pleas Court, claiming the terms of the contract meant all rents paid during the time it was leasing the property. The company asked the court for a declaratory judgment that indicated the purchase price had to be reduced by all rent paid and for summary judgment that obligated Lombardo to honor the purchase agreement. The trial court sided with Beverage, and Lombardo appealed to the Eighth District Court of Appeals.

In May 2017, the Eighth District initially affirmed the trial court’s decision by a 2-1 vote. Lombardo asked the court to reconsider. The argument to the appellate court contained two charts that indicated that had Beverage invoked its notice to close at the end of the lease terms, which could extend up to 20.5 years, Lombardo would have to give Beverage the building and possibly owe money. In a second 2-1 decision, the Eighth District reversed its decision and remanded the case back to the trial court to conduct further fact-finding into what the parties meant by the confusing clause.

Beverage appealed the decision to the Supreme Court, which agreed to hear the case.

Contract’s Language Must Be Followed, Buyer Argues
Beverage argues that when a court interprets a written contract, it must presume the parties selected the words they chose to make the agreement and that the words have their ordinary and commonly understood meanings unless the parties specifically say otherwise. When the language of a contract is unambiguous, the court has no authority to question the validity of the contract provision and must interpret it as written, Beverage maintains. Lombardo’s attorney drafted the contract and included the word “rents,” which means more than one rent payment. Beverage states that the contract didn’t need to describe rents more specifically because its meaning is common sense.

Beverage argues the arrangement doesn’t make sense using Lombardo’s interpretation. If Beverage wasn’t credited for all its rent payments, then the company would have to pay a purchase price that was $516,000 higher than the market value at the time the option to close was filed in 2015. In the meantime, Beverage wouldn’t have enjoyed the benefits of owning the property, such as tax deductions for loan payments, during the four years of paying rent.

The company claims that the commitments the Beverages made to help the Valentinos refinance some of the debt compelled the tenant to act on the option to buy within five years of signing the agreement. Although the lease terms allowed Beverage to rent the property for 10.5 years with two five-year options to renew, Beverage argues it would have been financially devastating to wait that long because the delay would trigger penalties the buyers faced by co-signing for the sellers’ loan adjustments.  Beverage described Lombardo’s lease scenario as a “hypothetical fantasy.” If Beverage leased the property the entire 20.5 years, it would have paid $3 million in rent for a property worth $1.7 million, the company notes.

Beverage argues the Eighth District shouldn’t have entertained Lombardo’s 20.5-year lease scenario because Beverage had filed its notice to close after four years of renting. The company maintains the decision was arbitrary and bore no relation to the facts of the case. The contract states the lease terminates once the notice to close is filed and since Beverage did that, there was no need to speculate on what the deal could have looked like after 20 years, the buyer asserts. A court should limit its analysis to the terms and conditions of the contract and the actions that actually took place, the company states.

Beverage also argues that courts don’t have the authority to “rewrite” a contract to find the “most sensible and reasonable interpretation.” The trial court must interpret the contract by the intent of the parties, and through experience and negotiation, one side might gain a considerable advantage, it notes. Beverage concludes that the Eighth District conceded the contract language was plain and unambiguous and is required to uphold the plain and ambiguous terms as written.

Seller Says Buyer Wants Double Credits
Lombardo argues that along with the credit for a rent deduction, the contract states that rents paid by Beverage would be used to pay down the principal of the loans Lombardo had on the building. If the contract was interpreted to give Beverage credit to reduce the purchase price dollar-for-dollar from the rent payment and also reduce the principal owed on the loan, then Beverage would be getting a “double credit.” The seller argues that the Eighth District found that to be a “manifestly absurd result.”

Lombardo states that $244,450 of rent payments went to pay down the principal on the loan. If the company had to give Beverage credit for the for all rents paid ($462,500) and for the principal, Beverage would be entitled to more than $700,000 in rent credits, leaving the Valentinos the obligation of having to pay more than $600,000 on the loan from their own pockets. For the trial court to grant summary judgment for Beverage without considering the ambiguity of the disputed language led to an absurd result, Lombardo argues, and the Eighth District was correct in remanding the case to trial court to receive evidence that could better determine the intent of the parties.

Lombardo argues the court does have the right to direct the trial court to determine the most sensible interpretation. It notes that in the Ohio Supreme Court’s 1984 Inland Refuse Transfer Co. v Browning-Ferris Industries of Ohio case, the Court stated that when a contract clause was susceptible to two interpretations, it is appropriate for a trial court to determine the intent of the parties. The seller maintains that when looking just at the “rents” clause alone, the language appears to support Beverage’s position, but when viewed in context with the entire agreement, the provision supports Lombardo’s interpretation.

Friend-of-the-Court Briefs
An amicus curiae brief supporting Beverage’s position has been submitted by the West Shore Bar Association and another filed jointly by contract attorneys Harlan D. Karp and Tina R. Haddad.

- Dan Trevas

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Representing Beverage Holdings LLC: Joseph Burke, 440.895.1234

Representing 5701 Lombardo LLC dba Valentino VAL LLC: J. Reid Yoder, 330.762.7477

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Can Court Consider Unrecorded Police Statement to Issue Search Warrant?

State of Ohio v. Lawrence A. Dibble, Case no. 2018-0552
Tenth District Court of Appeals (Franklin County)

ISSUE: When deciding if a police officer acted in good faith while conducting a search that led to the seizure of items, can a court consider sworn, but unrecorded oral information given by the police officer to the judge to obtain a search warrant?

This is the second time the Ohio Supreme Court will address whether a search by Upper Arlington police of a high school theater teacher’s house was valid, and if video seized during the search can be used as evidence against the teacher. In 2012, the Supreme Court overturned a lower court’s decision that invalidated the search and suppressed the evidence. The Court instructed the trial court to reconsider the validity of the search. The case now returns after a trial court ruling that allowed the search was reversed by the Tenth District Court of Appeals.

In February 2010, a student at the Wellington School in Upper Arlington identified in court records as E.S. and her mother went to the Upper Arlington police department to report an incident between E.S. and her school theater director, Lawrence Dibble. The event happened nearly a year earlier in April 2009. The two were accompanied by another former Wellington student, who also was in theater class, identified as E.K.

Both E.S. and E.K. had been involved in theater since the seventh grade. E.S. told Detective Andrew Wuertz that Dibble picked a student each year to be his “right hand” aide to assist him. E.S. was chosen in 2009. The year before E.K. had been the aide. E.S. was working with Dibble rehearsing lines when he asked to touch her stockings. He proceeded to run his hands under her skirt, along her inner thigh and then feeling her buttocks. She also described times where she was asked to give Dibble back massages.

E.K. told Wuertz that after she graduated from high school, she became romantically involved with Dibble and at a meeting in his home, he took nude photos of her in which he instructed her to wear a pillow case over her head while he was taking them. Both E.S. and E.K. explained there were times at school when Dibble would take pictures of the girls in outfits they described as “unitards.” The alleged purpose was to photograph the girls in the unitards and use the pictures to assist in making theater costumes. The girls were instructed to wear nothing under the unitards, and they described them as see-through or practically see-through.

Wuertz drafted an affidavit to support a search warrant of Dibble’s house and sought to search for any cameras, recording devices, computers, and storage devices. The affidavit noted the touching of E.S. at school, and the photographing of E.K. at Dibble’s house. It didn’t contain information about the photographs of girls in unitards. To obtain the warrant, Wuertz appeared before a municipal court judge, who swore him in. He gave a sworn, oral statement, in which he provided more background, including the incidents involving the unitards. The judge issued the search warrant, but didn’t have her conversation with the officer recorded or transcribed for the record.

Search Leads to Criminal Charges
The search uncovered video evidence that Dibble used a hidden camera to tape 20 different girls disrobing and trying on leotard-type costumes in 2003. The video shows the girls naked. He was indicted on 20 counts of voyeurism, 16 of which were felonies because of the ages of the girls, and one count of sexual imposition related to the incident with E.S.

Dibble filed a motion to suppress the evidence, arguing the search warrant was invalid based on the lack of information presented by Wuertz to the judge. The trial court in 2010 sided with Dibble, primarily because Wuertz listed E.K. as a “victim” in his affidavit, despite Wuertz acknowledging that E.K. told him she was an adult at the time the photographs were taken and that she consented to the photos.

The Franklin County Prosecutor’s Office appealed the decision to the Tenth District Court of Appeals, which affirmed the trial court’s ruling in a 2-1 decision. The prosecutor appealed to the Supreme Court, which reversed the Tenth District’s opinion that the warrant was invalid.

The high court remanded the case to the trial court. In 2013, the trial court denied the motion to suppress. It again found that Wuertz’s affidavit was insufficient, but that a “good-faith exception” applied that allowed the search to proceed.

Dibble then pleaded no contest to all the charges , noting he intended to continue to challenge the validity of the search warrant. He was given a four-year prison sentence.

Appeals Court Overrules Trial Court Again
In December 2014, the Tenth District, again in a 2-1 split, reversed the lower court, ruling the judge failed to fully follow the rules when granting the search warrant. It remanded the case to the trial court again to reconsider the suppression motion. This time another judge heard the case, and ruled against suppression. Dibble appealed and, for a third time, the Tenth District ruled in his favor.

The prosecutor appealed the Tenth District’s 2-1 decision to the Supreme Court, which agreed to hear the case. The Court only agreed to consider one proposition of law concerning whether the sworn, but unrecorded information provided by Wuertz could be used to support the decision that he acted in good faith.

Court Determines if Exclusionary Rules Applies
The Court is considering whether the exclusionary rule applies and if the search violated Dibble’s rights under the U.S. Constitution’s Fourth Amendment. If so, the evidence, including the videos of the girls undressing cannot be used against him. The prosecutor explains that if a search warrant lacks proof of probable cause that a crime will be uncovered by conducting the search, the police still can conduct the search if they act in “good faith.” The office explains the U.S. Supreme Court set up a test to determine good faith in its 1984 United States v. Leon decision. The prosecutor seeks to prove Wuertz acted in good faith based on the sworn testimony he gave to the judge who issued the warrant.

The first trial court judge, who supported the motion to suppress, noted that Ohio Criminal Rules of Procedure Rule 41(C)(2) didn’t permit Wuertz’ sworn statements to the municipal judge to be considered as evidence in a suppression hearing. The prosecutor’s office argued the prior judge and the Tenth District wrongly applied Crim.R. 41(C)(2) to the case and wouldn’t consider the sworn, but unrecorded testimony.

The prosecutor argues the judge and the Tenth District misread and misapplied the criminal rule. A provision of the rule states: “Before ruling on a request for a warrant, the judge may require the affiant to appear personally, and may examine under oath the affiant and any witnesses  the affiant may produce. Such testimony shall be admissible at a hearing on a motion to suppress if taken down by a court reporter or recording equipment, transcribed, and made part of the affidavit.”

The rule is meant to allow a judge to consider additional testimony to supplement the information in the affidavit, the prosecutor explains. If the information is taken under oath and recorded, then the court is required to consider it. That doesn’t mean that when the information isn’t recorded, the trial court can’t accept it, the office contends.

The prosecutor also notes that the rule has never been used before in an Ohio case to assess whether the officer acted in good faith after the officer acknowledged the information in the affidavit probably wasn’t enough to secure a warrant. The ruling that the trial court only can examine the affidavit to consider if Wuertz acted in good faith would be inconsistent with other Ohio courts that have allowed for additional sworn evidence to be considered, the prosecutor concludes.

‘Bare Bones’ Affidavit Not Enough to Warrant Search, Teacher Argues
Dibble argues that regardless of what Wuertz said to the municipal court judge, the trial court allowed him to act on a “bare bones” affidavit that violated Dibble’s Fourth Amendment right against unreasonable searches and seizures. He notes the affidavit describes the touching of E.S. at school, and photos taken at his home when E.K. was an adult, which wasn’t a crime. He maintains nothing in the warrant links his home to any crime involving the touching of E.S. at school. Dibble maintains an affidavit, such as Wuertz’, is traditionally described in disputed trials as “bare bones” without any supporting information in detail to raise enough probable cause to conduct a search. He notes the affidavit doesn’t even describe the time when the events took place, which was reported 10 months after it occurred.

Dibble notes the judge issuing the warrant at the time determined it wasn’t necessary to record the statements Wuertz made regarding the photographs of the girls in unitards because the judge had already concluded that the affidavit alone had enough information in it to conduct a search.

In Leon, the U.S. Supreme Court outlined four scenarios in which good-faith exceptions to searches apply. Only one is applicable to this case, Dibble explains. A search isn’t in good faith if a reasonable, well-trained officer would find the affidavit “so lacking” in stating probable cause that it would be unreasonable to act on it.

The Tenth District determined that judge was going to issue the warrant based only on the affidavit, and that Wuertz should’ve known after having the conversation with the judge that his affidavit lacked the information that would link any crime involving E.S. to Dibble’s house. Dibble argues that it would have been reasonable for Wuertz to re-examine his affidavit and revise it after knowing that it was lacking. Because Wuertz should’ve known his warrant was insufficient, he didn’t act in good faith and relied on an admittedly invalid warrant to search the house, Dibble concludes.

Dibble supports the Tenth District’s assessment that Crim.R. 41(C)(2) requires the sworn statement to be recorded before admitting it into evidence, and without the evidence, the court had to examine only the affidavit.

- Dan Trevas

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Representing the State of Ohio from the Franklin County Prosecutor’s Office: Steven Taylor, 614.525.3555

Representing Lawrence A. Dibble: Kort Gotterdam, 614.365.4100

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These informal previews are prepared by the Supreme Court's Office of Public Information to provide the news media and other interested persons with a brief overview of the legal issues and arguments advanced by the parties in upcoming cases scheduled for oral argument. The previews are not part of the case record, and are not considered by the Court during its deliberations.

Parties interested in receiving additional information are encouraged to review the case file available in the Supreme Court Clerk's Office (614.387.9530), or to contact counsel of record.