Yesterday, October 10, 2012, the Ohio Supreme Court issued its decision in State v. Dibble addressing the law of search warrant affidavits. Mr. Dibble was a theater teacher at Wellington, a private prep school in Columbus. Two young women walked into the Upper Arlington Police Department to talk to a detective about possible criminal charges against their teacher, Mr. Dibble. Victim #1 was still a student and described sexual contact by Mr. Dibble. Victim #2 was a graduate of Wellington yet also told the detective about inappropriate contact between the two while she was a student. Moreover, Victim #2 described photos that Dibble took of her vagina with her consent after she had graduated. The latter information was the basis of the trial court tossing the search warrant (and thusly, the entire case) after it concluded the detective intentionally or recklessly made false allegations in order to secure a search warrant of Dibble's home. The Franklin County Court of Appeals affirmed the trial court's decision on an abuse of discretion review. However, the Ohio Supreme Court reversed and remanded Dibble's case to the trial court. Here's why:
What is required to get a Search Warrant? Did the detective intentionally or recklessly mislead a municipal court judge in order to secure a search warrant of Dibble's home? That is the entire issue. As a criminal defense lawyer, this is one of the murkier areas of my practice. In fact, I don't like seeing search warrants in my client's cases because I always wonder, "what else was mentioned to the judge that I don't know about?" I know that Crim.R. 41(C) states that warrants can only be issued by a judge based upon an Affidavit. I know that a judge can require the Affiant (i.e. detective) to appear before the judge and the judge can "examine [the Affiant] under oath". I also know that I can get that examination only if it was recorded by a court reporter or recording equipment. Then, if it is recorded, it shall be admissible in court. Unfortunately, this rule does not require a record to be made. It should. I don't know why. It is quite common for judges to get search warrants in Central Ohio after discussing the matter with the detective off the record. That's the part that bugs me. In any event, there is no requirement other than the 4th Amendment requiring the information to support probable cause to be "under oath or affirmation". No recording required.
What if the Warrant Contains False or Misleading Information? Every lawyer and defense investigator must review the affidavits supporting probable cause. If the defense believes a detective knowingly and intentionally made a false statement or was reckless in regard to the truth, then the defense must look at whether or not that statement was necessary to secure probable cause. Dibble says that the 4th Amendment requires a hearing at the defendant's request.
Search Warrant Challenge Hearing: once the defense challenges the constitutionality of the search warrant (i.e. based upon false or misleading information) a trial court must conduct a hearing. At the hearing, the standard of proof is merely a preponderance of the evidence that the affidavit contained false or misleading information. In 1992, the Ohio Supreme Court defined "reckless disregard" as "if the Affiant had serious doubts of the truth of the allegations." Also, should a detective omit necessary information that is deemed a "false statement" if it is "designed to mislead". (State v. Waddy) Then, the trial court must review the balance of the Affidavit with that information stricken. If the trial court believes the Affidavit fails to sustain probable cause, the warrant is ruled unconstitutional and all the evidence seized as a result of it is deemed inadmissible as fruit of the poisonous tree.
What Happened with Teacher Dibble? The Ohio Supreme Court found that the detective did not make a false statement when classifying one of the victims as a "victim" (no crime had been committed on her but the detective felt she had been groomed and manipulated as a juvenile). That victim's information was the basis for the search warrant of Dibble's home. Dibble's home had all the evidence sufficient to convict on his felony voyeurism counts. Now, the trial court must conduct a new hearing on the search warrant with the Supreme Court's finding that the warrant is just fine.