from the Franklin County Court of Common Pleas (C.P.C. No.
O'Brien, Prosecuting Attorney, and Steven L. Taylor, for
Carpenter Lipps & Leland LLP, Kort W. Gatterdam, and Erik
P. Henry for appellant.
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,
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
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.
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
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.
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.
ASSIGNMENT OF ERROR
18} Dibble raises a single assignment of error for
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