State v. Dibble
| Decision Date | 10 October 2012 |
| Docket Number | No. 2011–1569.,2011–1569. |
| Citation | 979 N.E.2d 247 |
| Parties | The STATE of Ohio, Appellant, v. DIBBLE, Appellee. |
| Court | Ohio Supreme Court |
Ron O'Brien, Franklin County Prosecuting Attorney, and Steven L. Taylor, Assistant Prosecuting Attorney, for appellant.
R. William Meeks Co., L.P.A., Columbus, and David H. Thomas, for appellee.
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan, Assistant Prosecuting Attorney, urging reversal on behalf of amicus curiae Ohio Prosecuting Attorney's Association.
Hunter, Carnahan, Shoub, Byard & Harshman, Russell E. Carnahan, and Robert M. Cody, urging reversal on behalf of amicus curiae Fraternal Order of Police, Capital City Lodge No. 9.
Jeanine Hummer, Upper Arlington City Attorney, and Tom Lindsey, Assistant City Attorney, urging reversal on behalf of amicus curiae city of Upper Arlington.
Timothy Young, Ohio Public Defender, and Stephen Goldmeier and Sarah G. LoPresti, Assistant Public Defenders, urging affirmance on behalf of amicus curiae Ohio Public Defender.
{¶ 1} This is an appeal from a judgment of the court of appeals affirming a trial court's judgment granting a motion to suppress. Today we must decide whether the trial court abused its discretion in granting the motion to suppress after it determined that an officer knowingly and intentionally made false statements in his search-warrant affidavit. Because we determine that the trial court did abuse its discretion, we reverse the judgment of the court of appeals, which upheld the trial court's ruling, and remand the cause to the trial court to conduct a new suppression hearing consistent with our holding.
{¶ 2} On February 3, 2010, Upper Arlington Police Detective Andrew Wuertz asked a Franklin County municipal court judge to issue a warrant to search defendant-appellee Lawrence A. Dibble's home. Detective Wuertz sought the warrant after speaking with two young women, E.S. and E.K., who reported their experiences with Dibble, who was then a theater instructor at a private school for kindergarten through 12th grade.
{¶ 3} The search-warrant affidavit states:
{¶ 4} The warrant was issued on February 3, 2010, and it authorized the seizure of computers, cameras, and data-storage media. The warrant was executed the same day, and the search resulted in the seizure of several items, including a laptop computer, a camera, and several videotapes and DVDs.
{¶ 5} Based in part on the evidence seized, Dibble was arrested and charged with 17 felony counts of voyeurism, four misdemeanor counts of voyeurism, and one misdemeanor count of sexual imposition. None of the charges related to E.K.
{¶ 6} Dibble filed a motion to suppress the evidence obtained from the search of his home, arguing that Detective Wuertz had deliberately included false and misleading information in his search-warrant affidavit in that his references to E.K. as a "victim" were false because, as Wuertz knew, E.K. was an adult when the sexual acts described in the affidavit occurred and the acts had been consensual. The trial court held a hearing on the motion on June 29, 2010.
{¶ 7} Detective Wuertz testified that E.S. came to the police station with her mother and E.K. on February 2 to report what had happened to E.S. E.S. told Wuertz that during her senior year, she was Dibble's aide, which she described as a person who would do whatever Dibble needed done. Wuertz testified that E.S. had told him that she had known Dibble since she was in the seventh grade. Through the years, she had become close to Dibble, and she looked at him as a father figure.
{¶ 8} Detective Wuertz testified that E.S. had relayed to him that one of her duties in being an aide to Dibble was giving him back massages. They would go into his office, he would close the door and remove his shirt, and she would rub his back. In addition, E.S. reported that Dibble had taken pictures of her in see-through or nearly see-through unitards and that Dibble had told her to wear nothing underneath.
{¶ 9} Detective Wuertz testified that the groping incident described in the search-warrant affidavit had taken place nearly a year before E.S. reported it, but he added that in talking to E.S., he felt that Dibble had manipulated her so that he could "get her to do whatever he asked her to do," and he had asked her not to tell anyone. E.S. told Wuertz that after the groping incident, she went to her next class but was upset, so she left that class and wrote Dibble a letter about the incident and took it to him. Before he finished reading it, he tore it up and threw it away and told E.S. that she could not tell anyone about the incident or it would ruin his life. Wuertz reported that E.S. had felt conflicted but had not told anyone. The incident continued to weigh on her to the point that she had trouble sleeping and she knew she had to report it.
{¶ 10} Detective Wuertz also testified that E.K., too, had been Dibble's theater aide when she was a senior and that Dibble had taken pictures of her in a unitard. She had taught E.S. how to give Dibble massages. E.K. also had looked at Dibble as a father figure, and in fact, Dibble had referred to himself as her stepdad.
{¶ 11} Detective Wuertz conceded that the information in the affidavit regarding E.S. would not have led him to believe that there was any evidence of the alleged inappropriate relationship in Dibble's home. He thus acknowledged that the information in the affidavit related to E.S. did not provide probable cause to search Dibble's home. When pressed about his using the term "victim" with regard to E.K., who was 18 years of age and no longer a student of Dibble's when the sexual contact described in the affidavit began, Wuertz refused to agree that she was not a victim. Wuertz acknowledged that he had never filed a report, beyond the search-warrant affidavit, indicating that she was a victim.
{¶ 12} Detective Wuertz testified that when he appeared before the judge and presented her with the application for the search warrant and the supporting affidavit, she asked him some questions and he gave her some additional information verbally, under oath, that was not contained in the affidavit or application. Wuertz stated that he gave her more background information about Dibble's relationships with the young women, explaining that they had known him as a teacher since they were in seventh grade and that they had been manipulated over time by Dibble. In addition, Wuertz told the judge about the photographs in the unitards that Dibble had taken of E.S. and E.K. when they were students and that he was concerned about where those photographs were and how they were being used.
{¶ 13} Detective Wuertz again explained that he had referred to E.K. as a victim even though she was an adult when the incident described in the affidavit occurred because he believed that she had been manipulated by Dibble. To demonstrate how easily Dibble manipulated E.K., Wuertz relayed E.K.'s explanation for allowing Dibble to take naked pictures of her. Dibble had told E.K. that he wanted to teach her about internal power and that the only way to see the ultimate energy was to look at her vaginal area. But he said that because the power was so strong, he could not look at it directly for very long and that he needed photos so he could look at the photos longer and study them to see her internal energy. Wuertz explained that E.K. had trusted Dibble and did not believe that he would do anything to hurt her and that she did not think the photos were sexual in nature.
{¶ 14} Detective Wuertz testified that he had not intended to mislead the judge who issued the search warrant. He explained that at the time he typed the search-warrant affidavit, he thought there was a chance that he could charge Dibble with something related to his conduct with E.K., and he said that he still considers E.K. to be a victim.
{¶ 15} The trial court granted Dibble's motion to suppress evidence, finding that 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 trial court declined to consider sworn oral statements made by Wuertz to the judge issuing the warrant when he submitted...
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State v. Dibble
..."victim" to protect the woman's identity and not in an attempt to intentionally mislead the judge who issued the warrant. State v. Dibble , 133 Ohio St.3d 451, 2012-Ohio-4630, 979 N.E.2d 247 (" Dibble I ").{¶ 8} On remand, the trial court determined that the affidavit filed in support of th......
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