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.”