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State v. Dibble

Court of Appeals of Ohio, Tenth District

December 29, 2017

State of Ohio, Plaintiff-Appellee,
v.
Lawrence A. Dibble, Defendant-Appellant.

         APPEAL from the Franklin County Court of Common Pleas (C.P.C. No. 10CR-1958)

         On brief:

          Ron O'Brien, Prosecuting Attorney, and Steven L. Taylor, for appellee.

          Carpenter Lipps & Leland LLP, Kort W. Gatterdam, and Erik P. Henry for appellant.

         Argued:

          Steven L. Taylor.

          Kort W. Gatterdam.

          DECISION

          BRUNNER, J.

         {¶ 1} Defendant-appellant, Lawrence A. Dibble, appeals an entry of the Franklin County Court of Common Pleas filed on August 16, 2016 which denied his motion to suppress evidence obtained in a search of his house. Because we find that the affidavit submitted for the search warrant did not supply probable cause to search Dibble's house and was "so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable, " we reverse. (Citations and internal quotation marks omitted.) See United States v. Leon, 468 U.S. 897, 923 (1984).

         I. FACTS AND PROCEDURAL HISTORY

         {¶ 2} On March 29, 2010, a Franklin County Grand Jury indicted Dibble for 20 counts of voyeurism and one count of sexual imposition. (Mar. 29, 2010 Indictment.) The voyeurism counts were based on videotape recovered from Dibble's home which apparently showed girls in their early and mid-teens disrobing in the locker room of the school where Dibble was then a teacher. Id. Dibble pled not guilty on March 31. (Mar. 31, 2010 Plea Form.) Shortly thereafter, on May 12, Dibble filed a motion to suppress. (May 12, 2010 Mot. to Suppress.)

         {¶ 3} The trial court held a hearing on the motion on June 29, 2010. (June 29, 2010 Hearing Tr., filed Aug. 17, 2010.) At the hearing, the defense introduced four exhibits: the warrant documents, the complaint against Dibble, the arrest information form, and the uniform incident report. (Hearing Exs. 1-4, filed Aug. 17, 2010.) The affidavit in support of the warrant provided the following statement in support of probable cause:

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 [sic], Lawrence A Dibble touched her inappropriately. Victim #1 stated that she was rehearsing line [sic] 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 hand up 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 [sic] 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 [sic], 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". [sic] Investigators from Upper Arlington believe Dibble's computers, camera's [sic], media storage devices, etc. may contain correspondence, and photos to substantiate Victim #1 and Victim #2's claims.

(Hearing Ex. 1 at 5.)

         {¶ 4} Only one witness testified at the hearing, the detective who had sworn out the affidavit for the search warrant, obtained the search warrant, and conducted the search. (Hearing Ex. 1 at 5-6; June 29, 2010 Hearing Tr. at 3-4.) The detective admitted that "Victim #2, " also known as E.K., was legally an adult when the nude photographs were taken and the touching occurred. Id. at 18-20. He also admitted that E.K. had told him the contact and photographs were consensual. Id. at 35. He admitted that he did not refer to E.K. as a "victim" in any other report he filed in connection with the case and that his uniform incident report stated there was only one victim. Id. at 5-9. However, he testified that he felt that E.K. had seemed uncomfortable about her activities with Dibble and still considered her a victim. Id. at 15, 35.

         {¶ 5} The detective admitted that the information given to him by "Victim #1, " also known as E.S., did not, on its own, provide probable cause to search Dibble's house. Id. at 13. That is, E.S.'s report of unwanted physical contact was contact that occurred only at school. (Hearing Ex. 1 at 5.) Allegations regarding photographs taken with a digital camera came only from E.K., who reported that she had consented to the photographs and was an adult when they were taken. Id.

         {¶ 6} The detective testified at the trial court's hearing on Dibble's motion to suppress that, in addition to providing the affidavit, he was sworn in before the municipal court judge issuing the search warrant and then had a discussion with that judge. (June 29, 2010 Hearing Tr. at 33.) No recording or transcript or other form of preservation of the record was made of the hearing before the municipal judge who issued the search warrant concerning Dibble. So the evidence before the trial judge of the common pleas court was primarily that of the sworn testimony of the detective involved in all stages of obtaining and executing the search warrant and an affidavit from the detective sworn in support of the warrant. This detective testified before the common pleas court on the motion to suppress that he told the issuing judge more background about how Dibble had known E.K. and E.S. since seventh grade, and how Dibble took photographs of students in unitards which were somewhat see-through. Id. at 33-34.

         {¶ 7} On July 1, 2010, the trial court concluded that the evidence must be suppressed. (July 1, 2010 Decision & Entry Granting Suppression.) It found that the detective knowingly and intentionally made false statements in referring to E.K. as a victim in order to obtain a search warrant for Dibble's house. Id. at 4-10. The trial court did not perceive that the photographs of E.K. were unlawful and it found that the evidence regarding E.S. did not give probable cause to search Dibble's house. Id. at 8. That is, nothing about the fact that Dibble touched E.S. inappropriately at school supported an inference of illegal activity occurring in Dibble's home such that a judicial warrant should have issued to search it. Id.

         {¶ 8} This Court affirmed the trial court's decision on August 4, 2011. State v. Dibble, 195 Ohio App.3d 189, 2011-Ohio-3817, 959 (10th Dist.).

         {¶ 9} The Supreme Court of Ohio reversed our decision on October 10, 2012. State v. Dibble, 133 Ohio St.3d 451, 2012-Ohio-4630. The high court found that the trial court's construction of the definition of "victim" was too hypertechnical and narrow. Id. at ¶ 20-22. The Supreme Court opined that the detective had merely selected "victim" as a generic term to describe E.K. and E.S. so as to avoid identifying them by name and that the trial court had abused its discretion in finding that the detective had intentionally misled the municipal judge who reviewed the search warrant affidavit. Id. at ¶ 22-26.

         {¶ 10} On remand, Dibble filed with the trial court a new motion to suppress. (Feb. 4, 2013 Mot. to Suppress.) His counsel argued in the new motion that, although the detective may have had a subjective basis to refer to E.K. as a "victim, " Dibble's conduct toward her did not constitute a crime as it was described in the affidavit in support of the warrant. Id. at 6. There is no dispute that no probable cause existed to search Dibble's house based on statements concerning E.K. Additionally, the detective had admitted no probable cause existed to search Dibble's house based on Dibble's alleged inappropriate touching of E.S. at school. Id. at 6-8.

         {¶ 11} The parties thoroughly briefed the matter and the trial court heard oral argument at a new hearing. (Mar. 12, 2013 Hearing Tr., filed Oct. 24, 2013.) The State indicated at the outset that it wanted to call the municipal judge as a witness. Id. at 5. But the trial court declined to allow it based on Ohio Rule of Criminal Procedure 41(C)(2), which allows testimony in support of a warrant to be admitted into evidence only "if taken down by a court reporter or recording equipment, transcribed, and made part of the affidavit." Id. at 5-7. The State did not otherwise seek to present any new evidence and neither did Dibble's counsel in his defense. Id. at 3-6. Instead, the parties relied on materials and testimony developed during the original June 2010 suppression hearing. Id.

         {¶ 12} On April 30, 2013, the trial court denied the new motion to suppress. (Apr. 30, 2013 Decision & Entry Denying Suppression.) The trial court found that, based on the affidavit supporting the warrant, there was no probable cause to search Dibble's house. Id. at 4-8. However, it found that because the Supreme Court had determined that the trial court had erred in finding that the detective had intentionally misled the municipal judge, it could no longer conclude that the detective had not exercised good-faith reliance on the warrant. Id. at 8-9. It also found that the municipal judge who issued the search warrant of Dibble's home did not "wholly abandon[] her role." Id. at 9. The trial court found that the case did not present a warrant "so inadequate in terms of its particularity of the place to be search[ed] or items to be seized as to" otherwise circumvent the good-faith reliance exception. Id. at 9. But, despite quoting the four circumstances in which good-faith reliance on a warrant does not excuse a violation of the Fourth Amendment, the trial court did not discuss or consider the third circumstance, where "an officer purports to rely upon a warrant based on an affidavit 'so lacking' in indicia of probable cause as to render official belief in its existence entirely unreasonable." (Apr. 30, 2013 Decision & Entry at 8-9, quoting State v. George, 45 Ohio St.3d 325, 332-33 (1989), citing Leon at 923).

         {¶ 13} After the trial court denied Dibble's motion to suppress, on June 11, 2013 Dibble pled "no contest" to each of the multiple counts of the indictment. (June 11, 2013 Plea Form; June 11, 2013 Hearing Tr. at 14, filed Oct. 24, 2013.) On August 15, 2013, the trial court held a sentencing hearing and sentenced Dibble to serve 6 months on each of the 17 fifth-degree felony counts of voyeurism, 90 days on each of the three second-degree misdemeanor counts of voyeurism, and 60 days on the single count of sexual imposition. (Aug. 16, 2013 Entry at 2.) The trial court ordered Dibble to serve 8 of the fifth-degree felony 6-month voyeurism terms (Counts 1-5, 7, 9, and 10) consecutively to each other. Id. It permitted Dibble to serve all other sentences on all other counts concurrently with each other and the 8 consecutively sentenced fifth-degree felony counts for a total term of imprisonment of 4 years. Id.

         {¶ 14} On December 30, 2014, this Court reversed and remanded. State v. Dibble, 10th Dist. No. 13AP-798, 2014-Ohio-5754. We determined that the State could have sought leave to appeal the trial court's initial determination post-Supreme Court remand that the affidavit did not supply probable cause, but it did not do so. Id. at ¶ 13-14. We concluded that because the State did not elect to appeal the trial court's finding that the affidavit did not supply probable cause, we could not consider that question. Id. at ¶ 11-14. We also determined that the trial court should have engaged, but did not, in a further examination of the affidavit to determine whether the affidavit was "so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable." Id. at ¶ 23. We thus remanded for the trial court to consider that issue. Id. at ¶ 23, 29.

         {¶ 15} On March 3, 2015, we denied reconsideration and certification of a conflict and, on September 16, 2015, the Supreme Court declined to exercise any further jurisdiction concerning the affidavit and search warrant at issue in Dibble's second motion to suppress. State v. Dibble, 10th Dist. No. 13AP-798 (Mar. 3, 2015) (memorandum decision); State v. Dibble, 2014-Ohio-5754, discretionary appeal not allowed, 143 Ohio St.3d 1464, 2015-Ohio-3733.

         {¶ 16} On remand, and before a new trial judge, the parties engaged in further briefing and the trial court held two hearings. At the first hearing, on March 10, 2016, each party presented arguments but no new evidence. (Mar. 10, 2016 Hearing Tr., filed Oct. 12, 2016.) At the second hearing, on August 16, 2016, the trial court raised the issue of whether it had been established in prior proceedings that probable cause to search Dibble's house had been lacking. (Aug. 16, 2016 Hearing Tr. at 5, filed Oct. 12, 2016.) The State requested that the trial court limit its decision to the issue of whether the detective had a good-faith basis to rely on the warrant issued by the municipal court judge. Id. at 15. At this point, the trial court opined that this Court had "missed the point" of the Supreme Court's 2012 decision. Id. at 5; see also id. at 15. The trial court therefore issued a decision and entry later the same day finding that the affidavit did "contain sufficient facts to support a finding of probable cause" because a camera was "used to take illicit photos of the minor victim" and the affidavit disclosed two instances of "deviant behavior" which were "connect[ed]" to the "location specified in the warrant." (Aug. 16, 2016 Decision & Entry at 1-2.) It then concluded, "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." Id. at 2.

         {¶ 17} Dibble now appeals.

         II. ASSIGNMENT OF ERROR

         {¶ 18} Dibble raises a single assignment of error for review:

         THE TRIAL COURT ERRED AND DEPRIVED APPELLANT OF HIS DUE PROCESS RIGHTS UNDER THE OHIO AND U.S. CONSTITUTIONS AND RIGHTS PROTECTED UNDER THE FOURTH AMENDMENT TO THE U.S. CONSTITUTION IN DENYING APPELLANT'S MOTION TO SUPPRESS EVIDENCE BECAUSE THE AFFIDAVIT AT ISSUE WAS SO LACKING IN INDICIA OF ...


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