Ohio's supreme court last week held "that in determining whether information in a search-warrant affidavit was false, a court must take into account the nontechnical language used by nonlawyers."
In overviewing the case in particular, the Court's news service related that "in the affidavit filed with the court to establish probable cause for requesting a search warrant, the detective stated that two former students of a suspect 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, the suspect 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.. Suspect/defendant had filed a pretrial motion to suppress the evidence obtained through the search of his home based on a claim that the search-warrant affidavit had intentionally misled the court by describing E.K. as a "victim," and failing to disclose that E.K. had told police that the incidents involving the nude photograph and sexual touching of her 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 defendant's alleged conduct with E.S. established grounds to issue a search warrant of suspect/defendant's home, and that affidavit had portrayed E.K. as a second "victim" despite knowledge that consensual adult conduct with E.K. was not a crime, 'knowingly and intentionally made false statements in his affidavit,' and that without those statements the affidavit did not support a finding of probable cause. State appealed, and Tenth District Court of Appeals voted 2-1 to affirm the judgment of the trial court suppressing the evidence from the search."
In explaining the Court's decision, Justice Evelyn Lundberg 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 the detective's own testimony, however, he considered her to be a victim because Defendant's relationship with E.K. involved a pattern of grooming and manipulation that began when E.K. was a minor and a student of Defendant. Although the affidavit indicated that the 'inappropriate' touching of E.K. occurred after she graduated from high school, the detective 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 Defendant had created 'some measure of victimization' with regard to E.K., but then went on to find that the detective had used the term 'victim' in reference to E.K. to intentionally mislead the trial judge who reviewed the search-warrant affidavit."
State v. Dibble, Slip Opinion No. 2012-Ohio-4630