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Ohio Supreme Court reverses trial court's motion to suppress evidence in Search Warrant

Adam Lee Nemann
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Trial and Defense Attorney, Adjunct Professor of Law at Capital University, founder of Nemann Law Offices

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10/10/2012
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In a 6-1 decision announced today, the Supreme Court of Ohio held that  in determining whether information in a search-warrant affidavit is false, a  court must take into account the nontechnical language used by nonlawyers.             

Applying that holding to a Franklin County case, the court found  that a trial judge abused his discretion when he suppressed evidence in a  felony voyeurism case based on a finding that the affidavit through which  police obtained a warrant to search the defendant’s home and computers  intentionally misled the court.             

The decision, authored by Justice Evelyn Lundberg Stratton,  reversed a ruling by the Tenth District Court of Appeals and remanded the case  to the trial court to conduct a new suppression hearing.             

The case involved a search warrant obtained from the Franklin  County Court of Common Pleas by Upper Arlington Police Detective Andrew Wuertz.  The warrant authorized police to search the home, cameras and computers of  Lawrence Dibble, a theater instructor at the private Wellington School.              

In the affidavit he filed with the court to establish probable  cause for the requested warrant, Wuertz stated that two former students of  Dibble’s had come to the police station together to report separate incidents  in which, after establishing a close relationship with each of them as his student  aide, Dibble had engaged in improper sexual touching of one victim, a minor  identified as E.S., at school, and had taken digital photographs of the nude  vaginal area of the second victim, identified as E.K., and had also engaged in  touching of a sexual nature with E.K.              

Based on the information in the affidavit and subsequent sworn but  unrecorded discussion between Wuertz and the judge, the court issued the  requested warrant.  As a result of the  ensuing search of Dibble’s home, police obtained evidence from Dibble’s computer, camera and digital storage devices that led to his indictment on 17  felony counts of voyeurism, four misdemeanor counts of voyeurism, and one  misdemeanor count of sexual imposition.             

Dibble filed a pretrial motion to suppress the evidence obtained  through the search of his home.  He based that motion on a claim that Wuertz’s search-warrant  affidavit had intentionally misled the court by describing E.K. as a “victim,” and  failing to disclose that E.K. had told Wuertz that the incidents involving the  nude photograph and sexual touching of her by Dibble had taken place when she was  an adult, and that she had consented to those acts.              

The trial court granted the motion to suppress, holding that  because nothing in Dibble’s alleged conduct with E.S. established grounds to  issue a search warrant for Dibble’s home, and Wuertz’s  affidavit had portrayed E.K. as a second  “victim” despite his knowledge that Dibble’s consensual adult conduct with E.K.  was not a crime, Wuertz had “knowingly and intentionally made false statements  in his affidavit,” and that without those statements the affidavit did not  support a finding of probable cause to search Dibble’s home.             

The state appealed, and the Tenth District Court of Appeals voted  2-1 to affirm the judgment of the trial court suppressing the evidence from the  search. The state sought and was granted Supreme Court review of the Tenth  District’s ruling.             

In today’s decision reversing the Tenth District and remanding the  case for a new suppression hearing, the court held  that the trial court abused its discretion in  finding that Wuertz’s use of the term “victim” to describe E.K. in his  affidavit constituted a false statement that was made intentionally or with  reckless disregard for the truth.             

Justice Stratton wrote: “The focus of the trial and appellate courts  in this case was on the detective’s use of the word ‘victim’ to describe E.K.,  the woman who was over 18 at the time of the sexual conduct alleged in the  affidavit.  According to Wuertz’s  testimony, however, he considered her to be a victim because Dibble’s  relationship with E.K. involved a pattern of grooming and manipulation that  began when E.K. was a minor and a student of Dibble’s.  Although the affidavit indicated that the ‘’inappropriate’  touching of E.K. occurred after she graduated from high school, Wuertz  testified that he had told the judge about the teacher-student relationship. It  is therefore difficult to understand how the courts could have deemed the  affidavit misleading, since it stated clearly that victim #2 (E.K.) had graduated before the ‘inappropriate’ touching began.”              

“The United States Supreme Court has explained (in United States v. Ventresca, 1965) that  search-warrant affidavits are usually drafted by nonlawyers and should be  reviewed with that in mind. ...  The  detective selected ‘victim’ as a generic term to describe the two women in the  affidavit so as to not identify them by name. The trial court conceded that  Dibble had created ‘some measure of victimization’ with regard to E.K., but  then went on to find that Wuertz had used the term ‘victim’ in reference to  E.K. to intentionally mislead the trial judge who reviewed the search-warrant  affidavit.  A court abuses its discretion when its ruling lacks a sound reasoning process.”             

“In this case, Dibble allegedly sexually exploited two young women  while employed as a teacher at their school. His alleged behavior with each,  including backrubs behind closed doors, other inappropriate touching, and  photographing both women in see-through unitards without any undergarments, if  true, clearly made victims of these young women.  Therefore, the detective’s use of the term ‘victim’ to refer to E.K., even though the sexual activity regarding E.K. that was  described in the search-warrant affidavit occurred after she was 18 and  graduated, did not amount to his knowingly and intentionally including false  information in his search-warrant affidavit.”              

“Since the trial judge’s analysis of whether to suppress the  evidence began with his conclusion that the detective’s testimony was false and  we have called into question his basis for that conclusion, we find that  consideration of the other assignments of error, which relate to later  determinations in the judge’s analysis, would be premature. Consequently, we  reverse the judgment of the court of appeals and remand this cause to the trial  court to hold a new suppression hearing consistent with this opinion.”              

Justice Stratton’s opinion was joined by Chief Justice Maureen  O’Connor and Justices Terrence O’Donnell, Judith Ann Lanzinger, Robert R. Cupp  and Yvette McGee Brown.              

Justice Paul E. Pfeifer  entered a dissent stating that whether Detective Wuertz knowingly made false  statements in the search-warrant affidavit is irrelevant, “because any information about Dibble’s  relationship with E.K., a consenting adult, describes no crime, and thus  provides no basis for a search. ... The detective, the trial court, and the  court of appeals agreed that without the information regarding E.K., there was  no probable cause to search Dibble’s residence. Since there was no basis for  including information about E.K. in the supporting affidavit, we need not  expend further judicial resources to determine that there was no basis for the  search in this case.”



Category: Sex Crimes


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