[Until this opinion appears in the Ohio Official Reports advanc e sheets, it may be cited as State v. Dibble, Slip Opinion No. 2020-Ohio-546.]

NOTICE This slip opinion is subject to f ormal revision before it is pu blished in an advance sheet of the Ohio Official Reports. Readers are reques ted to promptly notify the Reporter of Decisions, Supreme Court of Ohi o, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published.

S LIP O PINION N O
. 2020-O HIO -546
T HE S TATE OF O HIO , A PPELLANT , v . D IBBLE , A PPELLEE . [Until this opinion appears in t he Ohio Official Reports advanc e sheets, it may be cited as State v. Dibble, Slip Opinion No. 2020-Ohio-546.]
Criminal law—Fourth Amendment—Crim.R . 41(C)(2) does not bar a trial court from considering unrecorded oral tes timony when evaluating a detective’s good-faith reliance on a warrant—Court of appeals’ judgment reversed and
cause remanded. (No. 2018-0552—Submitted May 21, 2019—Decided February 20, 2020 .)

A PPEAL from the Court of Appeals fo r Franklin County, No. 16AP-629,
2017-Ohio-9321.

________________ D E W INE , J. {¶ 1} This case deals with the good-faith exception to the exclusiona ry rule. Specifically, we are asked whether a court may consider evidenc e beyond the four corners of a search-warrant affidavit in determining whether an officer reasonably and in good faith relied o n that warrant. We conclude that a c ourt may do so.S UPREME C OURT OF O HIO

2 I. Nine Years of Litigat ion on a Motion to Suppress {¶ 2} Laurence Dibble was a high-school teacher at the Wellington Sch ool in Columbus. He is accused of groping one student and secretly videotaping
numerous other students in a school locker room while they were undressing. {¶ 3} The police began investigating Di bble after two former students complained about improper sexual behavior. One of the former s tudents told police
that Dibble had touched her in appropriately while at school. S ubsequently, the police obtained a warrant authorizing the search of Dibble’s ho me. During the search, police seized videotape s of female students undressing. The recordings appeared to have been filmed by a camera that Dibble had hidden in the school
locker room. {¶ 4} In 2010, a grand jury indicted Dibble for one count of sexual imposition and 20 counts of voyeu rism. The sexual-imposition c harge related to the school-groping incident, wh ile the voyeurism counts were ba sed on the filming of the students while undressing. {¶ 5} Dibble filed a motion to suppress seeking to invalidate the sea rch
warrant on the basis that the war rant affidavit contained mater ially false statements.
The affidavit described incide nts involving “Victim #1” and “Vi ctim #2.” Victim #1—the subject of the sexual-im position offense—was the 18-year -old student whom Dibble was alleged to have groped at school. Victim #2 wa s the other woman who contacted the police. Dibble engaged in sexual conta ct with and took naked photographs of her. During the motion hearing, the detec tive acknowledged that the conduct involving Victim #2 did not allege a crime bec ause she was an adult and no longer a student of Dibble’s at the time, and beca use she said that she
had consented to the interacti on with Dibble. The detective fu rther conceded that because the allegation of inappropriate physical contact with r espect to Victim #1 occurred only at school, it did not by itself provide a basis f or searching Dibble’s
home.January Term, 2020

3 {¶ 6} But the detective also testified about other sworn statements t hat he had made before the judge at th e time the warrant was issued. Specifically, he told the judge that the women had discussed occasions during which D ibble had taken photos of them and other underage students at school wearing ne arly see-through unitards, purportedly for a theater project. The detective sai d he expressed his concern to the judge about the nature and location of those pho tographs. While that information was provided to the judge under oath, it was not re corded or
transcribed. The affidavit itsel f contained no information abo ut the photographs
that Dibble took of the children at school. {¶ 7} The trial court initially grante d the motion to suppress. It h eld that by referring to the woman who engage d in sexual conduct with Dibbl e in his home as a “victim,” despite her own statements that she was a consentin g adult at the time,
the detective had made false statements in the affidavit with t he intent of misleading the judge. On appeal, this court reversed that judgment, concl uding that the detective had simply used the identifier “victim” to protect th e woman’s identity and not in an attempt to intentionally mislead the judge who is sued 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 deter mined that the affidavit filed in support of the warrant did not establish probable cause to search the h ome. But the court
further found that the detective had acted in good faith in rel ying on the warrant, and the court therefore denied Dibble’s motion to suppress. Af ter pleading no contest to all the charges, Dibble appealed the denial of the m otion to suppress to the Tenth District Court of Appeals. {¶ 9} The arguments on appeal centered on the good-faith exception th at was set forth by the United States Supreme Court in United States v. Leon , 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). We adopted the Leon analysis in State
v. Wilmoth , 22 Ohio St.3d 251, 490 N.E.2d 1236 (1986). Under the good-fai thS UPREME C OURT OF O HIO

4 exception, evidence obtained during a search conducted pursuant to a warrant that is unsupported by probable cause w ill not be excluded if the of ficers who obtained the evidence acted reasonably in relying on the warrant. Leon at paragraph one of the syllabus; Wilmoth at paragraph one of the syllabus. The Leon court explained, however, that suppression would st ill be appropriate in circums tances when (1) the supporting affidavit contained in formation the affiant knew to be false or would
have known to be false but for r eckless disregard of the truth, (2) the issuing magistrate wholly abandoned his j udicial role, (3) the warrant was based on an affidavit “ ‘so lacking in indicia of probable cause as to rend er official belief in its existence entirely unreasonable,’ ” or (4) the warrant is so fa cially deficient in terms of particularity that the executing officers could not reasonab ly presume it to be
valid. Leon at 923, quoting Brown v. Illinois , 422 U.S. 590, 610-611, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975) (Powell, J., concurring in part); State v. George , 45 Ohio St.3d 325, 331, 544 N.E.2d 640 (1989). {¶ 10} The Tenth District determined that the trial court had failed t o consider the third situation discussed in Leon —whether the warrant was based on an affidavit “so lacking in indicia of probable cause as to ren der official belief in its existence entirely unreasonable.” State v. Dibble , 10th Dist. Franklin No. 13AP798, 2014-Ohio-5754 (“ Dibble II ”), ¶ 24. The Tenth Distr ict therefore remanded
the case to the trial cour t to consider the third Leon factor. Id. {¶ 11} On the third go-around, the trial court considered the remainin g Leon factor and concluded that the affidavit was not so lacking in p robable cause as to
render the detective’s reliance on the warrant unreasonable. T hus, the court denied the motion to suppress and Dibble appealed again. {¶ 12} This time, the Tenth District concluded that under Crim.R. 41(C )(2), the detective’s testimony regarding his unrecorded conversation with the judge was not admissible at the suppression hearing. State v. Dibble , 2017-Ohio-9321, 92 N.E.3d 893, ¶ 26 (10th Dist.) (“ Dibble III ”). Then, considering only theJanuary Term, 2020

5 information in the affidavit, the Tenth District decided that i t was not reasonable
for the detective to have relied on the warrant because it was “ ‘based on an affidavit so lacking in indicia of probable cause as to render official b elief in its existence entirely unreasonable.’ ” Id . at ¶ 39, quoting Leon , 468 U.S. at 923, 104 S.Ct. 3405, 82 L.Ed.2d 677. Having determined that the good-faith ex ception did not apply, the court of appeals reve rsed the trial court’s judgment and ordered that judgment be entered i n favor of Dibble. Id. at ¶ 40. {¶ 13} The state appealed, and we accepted the cause on the following proposition of law:

In deciding whether the good-faith exception to the exclusionary rule applies to a search conducted under a search warrant, a court can consider sworn but unrecorded oral informa tion that the police gave to the judge at the time of the approval o f the

warrant.

See 153 Ohio St.3d 1432, 2018-Ohio-2639, 101 N.E.3d 464. We answe r that question in the affirmative.
II. The Good-Faith E xception to the E xclusionary Rule A. The objective of t he exclusionary rule is to deter police m isconduct {¶ 14} The Fourth Amendment to the United States Constitution 1 provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures , shall not be violated, and no Warrants shall issue, but upon pr obable

1. Curiously, the parties have not presented any arguments und er the Ohio Constitution in this court or in the proceedings below. Thus, we have no occasion to cons ider here the protections afforded under Article I, Section 14 of that document.S UPREME C OURT OF O HIO

6 cause, supported by Oath or affirmation, and particularly descr ibing the place to be searched, and the persons or things to be seize d.

While the text of the Fourth Amendment says nothing about suppr essing evidence obtained in violation of the rig hts enunciated therein, the Uni ted States Supreme
Court has created an “exclusiona ry rule”—“a deterrent sanction that bars the prosecution from introducing evidence obtained by way of a Four th Amendment
violation.” Davis v. United States , 564 U.S. 229, 231-232, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011). {¶ 15} Exclusion is not meant to serve as a remedy for the injury caus ed by
an unconstitutional search or seizure but rather as a deterrent against future
violations. Id. at 236-237. Thus, the question whether the exclusionary sanct ion should be imposed is “ ‘an issue separate from the question whe ther the Fourth Amendment rights of the party seeking to invoke the rule were v iolated by police
conduct.’ ” Leon , 468 U.S. at 906, 104 S.Ct. 3405, 82 L.Ed.2d 677, quoting Illinois
v. Gates , 462 U.S. 213, 223, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). {¶ 16} “[T]he deterrence benefits of exc lusion ‘vary with the culpabil ity of
the law enforcement conduct’ at issue.” Davis at 239, quoting Herring v. United
States , 555 U.S. 135, 143, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009) (cle aned up). When a Fourth Amendment violation is occasioned by “deliberate, ” “reckless,” or “grossly negligent” police conduct, the deterrent benefits of e xclusion are said to outweigh its costs. Id . at 238; see also Herring at 144 (“To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclu sion can meaningfully deter it, and sufficiently culpable that such deterrence is wor th the price paid by the justice system”). But, when police act in an objectively reaso nable manner in executing a search believed in good faith to be legal, there is no bad conduct to
deter. Leon at 918-920.January Term, 2020

7 {¶ 17} The United States Supreme Court has held that the exclusionary rule should not be applied in situations in which an officer has rel ied in good faith on a warrant issued by a neutral and detached magistrate or judicial officer, notwithstanding the fact that the warrant is later found to be invalid. Id

. at 913. But “the officer’s reliance on the mag istrate’s probable-cause dete rmination and on the technical sufficiency of the warrant he issues must be objectiv ely reasonable.” Id.
at 922. {¶ 18} Because the exclusionary rule’s purpose is to deter unlawful po lice conduct, evidence should be suppre ssed “ ‘only if it can be sai d that the law enforcement officer had knowledge, or may properly be charged w ith knowledge,
that the search was unconstituti onal under the Fourth Amendment .’ ” Leon , 468 U.S. at 919, 104 S.Ct. 3405, 82 L.Ed.2d 677, quoting United States v. Peltier , 422 U.S. 531, 542, 95 S.Ct. 2313, 45 L.Ed.2d 374 (1975). When a de tached and neutral magistrate has issued a search warrant and the police have acte d within its scope, there is typically nothing more that the police can do to compl y with the law. Leon at 920-921. It is ultimately the responsibility of the magistr ate to determine whether there is a sufficient legal basis to issue a warrant, and in mo st instances, police officers are not expected to second-guess the judge. Id . at 921. Suppressing evidence because of an “error by a magistrate can never deter f uture police
misconduct.” Wilmoth , 22 Ohio St.3d at 266, 490 N.E.2d 1236; see also Leon at
921. {¶ 19} The Leon court ultimately summarized the exclusion calculus this

way:

In the absence of an allegation that the magistrate
abandoned his detached and neutra l role, suppression is appropr iate only if the officers were dishonest or reckless in preparing th eirS UPREME C OURT OF O HIO

8 affidavit or could not have harbored an objectively reasonable belief in the existence of probable cause.

Leon at 926.
B. All of the circumstan ces must be considered {¶ 20} The question we must address in this case is whether a court ma y look to information outside the f our corners of the affidavit w hen evaluating an officer’s good-faith reliance on a warrant. Viewed in light of the exclusionary rule’s emphasis on deterrence, it becomes apparent that the ans wer is yes. {¶ 21} The case of United States v. Frazier , 423 F.3d 526 (6th Cir.2005) is instructive. There, the Sixth Circuit considered whether infor mation omitted from the affidavit but provided to t he magistrate under oath could b e considered in evaluating the officer’s good-faith reliance on the warrant sub sequently issued by the magistrate. In holding that the external information could be considered, the Sixth Circuit pointed out that in both Leon , 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677, and Massachusetts v. Sheppard, 468 U.S. 981, 104 S.Ct. 3424, 82 L.Ed.2d 737 (1984), the Supreme C ourt considered information ou tside the four
corners of the affidavit in deci ding whether the officers had a cted in good faith.
The Leon court explained:

[O]ur good-faith inquiry is confined to the objectively ascerta inable question whether a reasonably well trained officer would have known that the search was illega l despite the magistrate’s authorization. In making thi s determination, all of the circumstances—including whether the warrant application had previously been rejected by a different magistrate—may be
considered.January Term, 2020

9 Leon at 922, fn. 23. By permitting cons ideration of whether the ap plication had previously been rejected, the Leon court necessarily authorized courts to look beyond the four corners of the affidavit. See Frazier at 534. Likewise, in Sheppard , the court relied upon a conversa tion between the judge and the detective at the time the warrant was issued in determining that the detective had re asonably relied on
the warrant. Sheppard at 989-991. {¶ 22} Because the goal of the exclusionary rule is deterrence, it mak es sense to consider information known to the officer and revealed to the judge even
when that information is not inc luded in the affidavit. As the Frazier court explained:

[W]e are unable to envision any scenario in which a rule excluding
from the Leon analysis information known to the officer and revealed to the magistrate w ould deter police misconduct.
Leon only comes into play when an officer has a warrant, albeit a defective one. Because a judge’s initial probable cause determination is limited to the four corners of the affidavit, an officer has no incentive to exclude from the affidavit informat ion that supports a finding of proba ble cause only to reveal this information to the magistrate by parol. If the affidavit is no t sufficient to support a finding o f probable cause, the officer is unlikely to get a search warrant, and if the officer does not g et a search warrant, he may not rely on Leon. Any deterrent—even the exclusionary rule—is wholly unnecessary in the absence of an incentive to engage in undesirable behavior.

(Emphasis sic and citation omitted.) Frazier at 535. Thus, the court held that “a court reviewing an officer’s good faith under Leon may look beyond the fourS UPREME C OURT OF O HIO

10 corners of the warrant affidavit to information that was known to the officer and revealed to the issuing magistrate.” Id. at 535-536. {¶ 23} The Fourth Circuit similarly found it “proper to consider any contemporaneous oral statements to the magistrate in conjunctio n with the supporting affidavit in assessing the reasonableness of an offi cer’s reliance on a
warrant.” United States v. Legg , 18 F.3d 240, 243 (4th Cir.1994), citing United
States v. Edwards , 798 F.2d 686, 691-692 (4th Cir.1986). This is because the go odfaith analysis is based not on the sufficiency of the affidavit , but rather on the
officer’s reliance on the warrant , and the latter inquiry must take into account all
the information both known to the officer and presented to the magistrate. Legg at 243, fn. 1. {¶ 24} The dissent acknowledges that it is appropriate to consider the totality of the circumstances w hen conducting a general review of an officer’s good-faith reliance on a warrant. It contends, however, that e vidence outside the four corners of an affidavit cannot be probative of the third Leon factor—whether the affidavit is so lacking in indicia of probable cause that t he officer could not have reasonably relied upon it, 468 U.S. at 923, 104 S.Ct. 3405, 82 L.Ed.2d 677. {¶ 25} In concluding that a court may not consider an officer’s sworn testimony to the issuing judge in determining whether the offic er executed a warrant in good faith, the dissent loses sight of the purpose o f the exclusionary rule—to prevent police misconduct. Not surprising in light of the rule’s focus on the officer’s state of mind, the federal circuit courts have re ached the opposite
conclusion from that rea ched by the dissent. {¶ 26} In Legg , the Fourth Circuit rejected the notion that an affidavit lacking sufficient indicia of probable cause categorically prec luded application of the good-faith exception. 18 F.3d at 243, fn. 1. As that cour t explained, “even assuming that the affidavit itself lacked sufficient indicia of probable cause to support reasonable reliance on the warrant, the affidavit did n ot contain all of theJanuary Term, 2020

11 facts presented to the magistrate.” Id. at 243. Thus, the Fourth Circuit concluded that statements made to the magistrate, considered “in conjunct ion with” the affidavit, established an officer ’s objectively reasonable reli ance on the warrant.
Id. at 244; see also United States v. Perez , 393 F.3d 457, 463 (4th Cir.2004) (concluding that the affidavit, when considered together with o ral statements presented to the magistrate, was not so lacking in indicia of p robable cause that the
officer could not have reasona bly relied on the warrant). {¶ 27} The Sixth Circuit, in Frazier , also considered information that was provided to the magistrate but was omitted from the affidavit w hen evaluating an officer’s good-faith reliance on a warrant. The Frazier court determined that in light of the additional extrinsic information given to the magi strate, the insufficient affidavit was not so lacking in indicia of probable cause that it could not be reasonably relied upon. 423 F.3d at 535-536. In so holding, t he court explained that evaluating whether an officer’s reliance on a warrant was objectively reasonable requires a “ ‘ “less demanding showing than the ‘sub stantial basis’ threshold required to prove the existence of probable cause in the first place.” ’ ”
Id. at 536, quoting United States v. Carpenter , 360 F.3d 591, 595 (6th Cir.2004), quoting United States v. Bynum , 293 F.3d 192, 195 (4th Cir.2002). {¶ 28} Thus, even though an affidavit presented in support of a warran t might be insufficient, an officer’s reliance on the warrant mig ht nevertheless be reasonable when he has provided in formation to the magistrate b eyond the
affidavit. See Legg at 243, fn. 1. Therefore, a c ourt “should examine the totalit y of the information presented to t he magistrate [or judge] in de ciding whether an
officer’s reliance on the warra nt could have been reasonable.” Id. III. Crim.R. 41(C)(2) Does Not Bar Consideration of Extrinsic Evidence for Purposes of the Good-Faith Analysis {¶ 29} Before reaching the constitutiona l question, the Tenth District
determined that the sworn but unrecorded discussion that took p lace between theS UPREME C OURT OF O HIO

12 detective and the judge was in admissible under Crim.R. 41(C)(2)

. Dibble III , 2017- Ohio-9321, 92 N.E.3d 893, at ¶ 30. T hat rule provides:

If the judge is satisfied that probable cause exists, the judge shall issue a warrant identifying the property to be seized and naming or describing the person or place to be searched or the person or property to be tracked. * * * Before ruling on a re quest for a warrant, the judge may require the affiant to appear pers onally, and may examine under oath the a ffiant and any witnesses the af fiant may produce. Such testimony shall be adm issible at a hearing on a motion to suppress if taken down by a court reporter or recording equipment, transcribed, and made part of the affidavit.

(Emphasis added.) The conversation between the judge and detec tive regarding the unitard photographs was not record ed, transcribed, or made a pa rt of the affidavit. Nonetheless, that information may be considered in evaluating t he detective’s good-faith reliance on the warran t under the totality of the ci rcumstances, subject to any credibility determinations by the trial court. A few po ints compel this
conclusion. {¶ 30} First, the explicit terms of the rule do not bar consideration of such evidence. The recording provi sion in Crim.R. 41(C)(2) is nestl ed into a paragraph focused entirely on a judge’s finding of probable cause when is suing a search warrant. Thus, it is not clear that the provision applies beyo nd the court’s review of the judge’s probable-cause de termination. Further, it is a rule of admission, not a rule of exclusion: if the requi rements of the rule are met, s uch “testimony shall be admissible at a hearing on a motion to suppress.” Nothing in t he language of the rule directs that unrecorded and untranscribed evidence may not be considered in determining an officer’s good faith.January Term, 2020

13 {¶ 31} The dissent concludes, based on the history of Crim.R. 41, that the rule should be read as prohibiting a court from considering unr ecorded testimony for any purpose—not just a probable-cause determination. The r ecording requirement was included in Crim.R. 41 from the time of the rul e’s adoption in
1973. See Katz, Ohio Rules of Criminal Procedure: A Guide to Criminal
Procedure in Ohio Under the New Criminal Rules 154-155 (1973). Thus, that requirement predated the United States Supreme Court’s announce ment of the good-faith exception to the exclusionary rule in its 1984 decis ion in Leon , 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677. Given that the good-faith exception to the exclusionary rule had not been e nunciated at the time that Crim .R. 41 was adopted, it is difficult to conclude that the rule was meant to prohibit the use of unrecorded sworn testimony for the purpos e of evaluating good faith. {¶ 32} Rather, as the dissent notes, th e recording requirement was mad e a part of the rule “to insure a later review of the finding of pr obable cause.” Katz at 157; see also 1 Katz, Giannelli, Lipton, & Crocker, Criminal Law , Section 9:10, 209 (3d Ed.2009) (testimony in suppor t of an affidavit), and at fn. 1, citing Crim.R. 41(C) and Moya v. State , 335 Ark. 193, 202, 981 S.W.2d 521 (1998) (holding pursuant to a state procedural rule that a court may not consid er unrecorded oral testimony in determining probable cause, but that such testimon y could be used to
determine whether an officer r elied in good faith on an otherwi se invalid warrant). Indeed, when supplemental testimony is recorded, the reviewing court may consider that information in its review of the issuing judge’s finding of probable cause; when the testimony is not recorded or transcribed, the c ourt’s review of probable cause is limited to the four corners of the affidavit. See Katz, Giannelli, Lipton, & Crocker at 209; see also State v. Castagnola , 145 Ohio St.3d 1, 2015- Ohio-1565, 46 N.E.3d 638, ¶ 39. {¶ 33} But even if we were to read the rule as requiring that all such statements be recorded, it would not change the result. We hav e previously heldS UPREME C OURT OF O HIO

14 that suppression is warranted for noncompliance with Crim.R. 41 only when the rule violation was of “constitutional magnitude,” Wilmoth , 22 Ohio St.3d at 263, 490 N.E.2d 1236, or, in other words, “ ‘renders the search unco nstitutional under
traditional fourth amendment sta ndards.’ ” (Emphasis deleted.) Id. , quoting United
States v. Vasser , 648 F.2d 507, 510 (9th Cir.1980). The Vasser court explained that
evidence should be excluded fo r nonconstitutional rule violatio ns only when “ ‘ “(1) there was ‘prejudice’ in the sense that the search mig ht not have occurred
or would not have been so abrasive if the Rule had been followe d, or (2) there is evidence of intentional and deliberate disregard of a provision in the Rule.” ’ ”
Vasser at 510, quoting United States v. Radlick , 581 F.2d 225, 228 (9th Cir.1978), quoting United States v. Burke , 517 F.2d 377, 386 (2d Cir.1975). {¶ 34} None of those circumstances apply here. The Fourth Amendment has never been held to require suppression for a failure to rec ord an oral
conversation taken under oath as part of a warrant application. Indeed, the Amendment’s explicit terms requi re only that the probable-cause determination be “supported by oath or affirmati on.” And as explained above, th e court may consider all the circumstances in deciding whether the detectiv e reasonably relied on the warrant. Nor is there any indication that the search wo uld not have taken place or would have been more limite d in scope had the oral con versation been transcribed. Indeed, the additi onal information provided to th e judge about the inappropriate photographs of unde rage students further supporte d a finding of probable cause. Finally, there have been no allegations that e ither the judge or
detective acted with deliberate intent to circumvent the rule’s recording requirement. {¶ 35} In addition, whether a court records an applicant officer’s sta tements has no bearing on the officer’s good-faith reliance on the warr ant, because the
officer has no control over the c ourt’s recording and transcrip tion procedures. It would seem unduly onerous, once probable cause has been establi shed, to requireJanuary Term, 2020

15 a court to delay issuing a search warrant until a court reporte r is able to transcribe additional testimony and attach it to the warrant application. On the contrary, these are requirements that wou ld likely be completed after the warrant has been issued, and the judge’s subsequent failure to ensure fulfillment of tho se requirements would have no bearing on the o fficer’s good-faith reliance that the warrant itself was based on probable cause. Indeed, the very fact that the is suing judge would take supplemental testimony from an officer during the applicat ion process would reasonably lead the officer to be lieve that the testimony has l egal significance and is being properly considere d in assessing probable cause. {¶ 36} For those reasons, we conclude that Crim.R. 41(C)(2) does not b ar consideration of unrecorded oral testimony for the purpose of e valuating a detective’s good-faith r eliance on the warrant.

IV. Considering the Totality of t he Information Presented to t he Judge, the
Detective’s Reliance on the Warrant was Reasonable {¶ 37} Following our remand in Dibble I , the trial court twice determined
that the detective relied on the warrant in good faith. The on ly question that remains is whether the detective’s reliance on the warrant was objectiv ely reasonable, notwithstanding the trial court’s later determination that the affidavit was insufficient to establish probabl e cause. As explained above, we may consider “all of the circumstances,” Leon , 468 U.S. at 922, 104 S.Ct. 3405, 82 L.Ed.2d 677, fn. 23, in evaluating the reasonablen ess of the detective’s relianc e on the warrant. {¶ 38} The detective testified that he told the judge about the allega tions regarding photographs taken by Dibble of underage students in “ practically seethrough” unitards. And he expre ssed concern to the judge about where and how those photographs were being used. The judge issued the search warrant after hearing this testimony. Based on all the information known to the detective and provided to the judge at the time the warrant was issued, it wa s entirely reasonable for the detective to rely on t he judge’s probable-cause determi nation.S UPREME C OURT OF O HIO

16 {¶ 39} This is not a situation in which the applying officer has inten tionally omitted facts that, if included, would tend to undermine a find ing of probable cause. Rather, the information pertaining to the unitard photographs f urther supported a probable-cause determination. See , e.g. , United States v. Martin , 297 F.3d 1308, 1320 (11th Cir.2002). {¶ 40} When viewing the affidavit in light of the totality of the info rmation provided, the affidavit was not s o lacking in indicia of probab le cause that the
detective’s reliance on it was unreasonable. And the oral test imony given to the judge provides additional support for the allegations in the af fidavit. Even if the
statement that Dibble took nake d photographs of a former studen t does not itself allege a crime, it was not unreasonable for the detective to co nnect that conduct with the inappropriate photogra phs that Dibble had taken at sch ool. And since all that information was provided to the judge as well, it was reas onable for the detective to rely on the judge’s verification that probable cau se existed for the
search. {¶ 41} The error in this case belongs to the judge, not the detective. Because application of the exclusionary rule would not serve to deter any bad police conduct, suppression is unwarranted. We therefore reverse the judgment of the
Tenth District and remand the matter to the trial court for fur ther proceedings consistent with this opinion. Judgment reversed
and cause remanded.
K ENNEDY , T UCKER , F ISCHER , and S TEWART , JJ., concur.
D ONNELLY , J., dissents, with an opinion joined by O’C ONNOR , C.J.
M ICHAEL T UCKER , J., of the Second District Court of Appeals, sitting for
F RENCH , J.

_________________January Term, 2020

17 D ONNELLY , J., dissenting. {¶ 42} After multiple appeals arising from appellee Laurence Dibble’s 2010 motion to suppress, one very speci fic question remained before the trial court: was Detective Andrew Wuertz’s search-warrant affidavit, alleging an act of gross sexual imposition at the school in which Dibble taught, so lacking in indicia of probable cause that it was unreasonable for any official to rely on it w hen deciding to search
all of Dibble’s media and data-s torage devices in his home? Ap pellant, the state, could not prevail on that question within the four corners of D etective Wuertz’s affidavit. Instead, it asserted that Detective Wuertz provided supplemental, unrecorded oral testimony to the issuing judge about an indepen dent crime, which
was not even mentioned in the wa rrant, that provided some indic ia of probable
cause to search Dibble’s media and data-storage devices in his home. {¶ 43} An even more specific question is now before this court: did Cr im.R. 41(C)(2) 2 prohibit Detective Wuertz’s alleged unrecorded oral testimony from being considered at Dibble’s suppression hearing? Decidedly, t he answer is “yes.” Crim.R. 41(C)(2) unequivocally requires a warrant applicant’s s upplemental testimony to be recorded in order for it to be “admissible at a hearing on a motion to suppress.” Because the fundame ntal purpose of Crim.R. 41(C) (2) is to prevent the state from providing unrecorded oral testimony to create pr obable cause post hoc and because that is precisely what the state did here, Dete ctive Wuertz’s alleged unrecorded oral testimony should have been excluded from the ev idence that the reviewing judge considered when ruling on Dibble’s motion to su ppress. By

1. Crim.R. 41(C)(2) provides:
Before ruling on a request for a warrant, the judge may require the affiant to appear personally, and may examine under oath the affiant and a ny witnesses the affiant may produce. Such testimony shall be admissible at a h earing on a motion to suppress if taken down by a court reporter or recording equi pment, transcribed, and made part of the affidavit.S UPREME C OURT OF O HIO

18 holding that the state is allowed to present unrecorded testimo ny to supplement a warrant affidavit at a suppression hearing to establish an offi cer’s good-faith reliance on a warrant, the majo rity is providing the state with a complete end run around the very protections inte nded by the rule. The majority ’s holding paves the way for sloppy police work at best and perjury at worst. For t hese reasons, I dissent.
I. BACKGROUND {¶ 44} During the procedural history of this case, I believe some impo rtant facts, which only recently became relevant, were lost in the sh uffle. I am therefore taking pains to detail additional background information from t his case in order to provide adequate context for the many judicial decisions that h ave been entered over the past nine years, as we ll as the decision being entered today. A. The police report, search , charges, and added charges {¶ 45} On February 2, 2010, E.S. reported to police that in April 2009 , when she was a senior in high school, Dibble—her drama teacher—had g roped her genitals and buttocks during an incident when they were in the theater area of the school. E.K., one of Dibble’s former students, accompanied E.S . to the police station to help report what had h appened to E.S. Police interv iewed E.K. as well. E.K. stated that she had been involved in a relationship with D ibble when she was a young adult in college. She s tated that they engaged in cons ensual sexual contact
and that he had taken nu de photographs of her. {¶ 46} Detective Wuertz filed a police report identifying E.S. as a vi ctim of gross sexual imposition. Detective Wuertz did not file a repor t regarding E.K.’s
statements because he concluded that Dibble’s actions with E.K. did not involve any criminal behavior. The next day, February 3, 2010, Detecti ve Wuertz obtained a search warrant from Judge Andrea C. Peeples to search Dibble’ s home for the following:January Term, 2020

19 Evidence of the crime of Gross Sexual Imposition, to include Computers, printers, scanners , photographs, cameras, video cameras, videotapes, * * * memory devices and storage media, * * * and any and all types of related computer equipment and electro nic storage media * * * as well as fruits and instrumentalities of other crimes as yet unknown.

{¶ 47} In Detective Wuertz’s affidavit in support of the warrant, he
described the sexual contact at the school reported by E.S., wh om he identified as “Victim #1.” Despite the fact that no crime was associated wit h the young adult, E.K., the affidavit also described Dibble’s sexual interactions with E.K., identifying
her as “Victim #2.” The affidavit states that any of Dibble’s media or media-storage devices might contain evidence “to substantiate Victim #1 and V ictim #2’s claims.” That same day, February 3, 2010, po lice arrested Dibble and fil ed a complaint at the Franklin County Municipal C ourt, charging him with gross se xual imposition. {¶ 48} The police confiscated 183 pieces of media or media storage fro m Dibble’s home. {¶ 49} According to the state:

Detectives sought this evidence based on E.K.’s statements that he digitally photographed her on se veral occasions. While going through the vast number of video tapes, CD’s and DVD’s taken fr om defendant’s home, police found a tape that appeared to have bee n made using a hidden camera in a locker room at the * * * School

. The video tape showed 20 different girls trying on costumes. A ll of the girls would strip naked before trying on the leotard-type
costumes. It was later learned by police that the defendantS UPREME C OURT OF O HIO

20 instructed these girls to be completely nude underneath the cos tume in order for it to fit properly.

(Emphasis added.) The video tap e showing 20 female students tr ying on costumes
was made sometime around 2003. Whe n Detective Wuertz contacted the young women identified in the video tape, several of them informed De tective Wuertz
about Dibble’s instruction that t hey wear nothing under their c ostumes. Subsequent to the discovery and investigation into the circumstances of th e video tape, Dibble was indicted on March 29, 2010, in the Franklin County Court of Common Pleas on one count of sexual imposition involving E.S. and 20 counts of voyeurism involving the other students identified in the video tape. B. The first suppression proceedings and appellate review {¶ 50} At the first hearing on Dibble’s motion to suppress—and the onl y hearing in which evidence was pr esented—Detective Wuertz was th e only witness who testified. He acknowledged that both the police report and the criminal complaint were limited to a crime involving only E.S., and noth ing about the crime of gross sexual imposition against E.S. provided probable cause to search Dibble’s home. He acknowledged that althoug h he used E.K.’s statements to justify searching Dibble’s home, there w as nothing illegal about Dibble ’s interactions with E.K. He provided new information, though, as to why he sought to search Dibble’s
home. {¶ 51} Detective Wuertz testified that in addition to E.S. describing the groping incident at school, she also described occasions during which Dibble photographed theater students wear ing leotard costumes that wer e “practically seethrough, if not see-through,” aft er instructing the students to wear nothing
underneath the costumes. Detective Wuertz testified that he to ld Judge Peeples about the photographs when answering her questions about the se arch warrant. He stated that he told Judge Peeple s that “due to the possible see -through of theJanuary Term, 2020

21 unitards [he] was very concerned about where those photos were and what exactly those were being used for.” {¶ 52} In the trial court’s decision on Dibble’s motion to suppress, i t primarily applied Franks v. Delaware , 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). Pursuant to Franks , if a statement is knowingly and intentionally false or made with reckless disregard for the truth, and if the remai ning statements fail to establish probable cause, “the search warrant must be voided and the fruits of the
search excluded.” Id . at syllabus. The trial court he ld that by portraying E.K. as a “victim” in his affidavit, Detec tive Wuertz knowingly and inten tionally made false
statements about her in order to c reate probable cause to searc h Dibble’s home. After striking the false stateme nt from consideration, the cour t concluded that the warrant was not supported by probable cause. The court furtherheld that the goodfaith exception to suppression c ould not apply because Detectiv e Wuertz could not objectively and in good faith rely on a warrant that was given based on statements that he knew to be false. It also held that the good-faith exc eption could not apply through consideration of Detective Wuertz’s alleged off-the-rec ord statements to Judge Peeples because he lacked credibility regarding that conv ersation. Accordingly, the trial court suppressed the evidence that was s eized during the
search of Dibble’s residence. {¶ 53} After the Tenth District Court of Appeals affirmed the trial co urt’s judgment, this court accepted jurisdiction over the state’s app eal, 130 Ohio St.3d 1493, 2011-Ohio-6556, 958 N.E.2d 956, a nd addressed the narrow issue of whether
Detective Wuertz’s use of the word “victim” to describe E.K. r ose to the level of a statement that is knowingly and intentionally false or made wit h reckless disregard
for the truth as stated in Franks , 133 Ohio St.3d 451, 2012-Ohio-4630, 979 N.E.2d
247. This court held that a determination pursuant to Franks must consider the affiant’s statements in light of their lay meaning rather than any technical legal meaning. This court concluded that the lower courts were overl y technical inS UPREME C OURT OF O HIO

22 construing the word “victim” by relying on strictly legal terms and that those courts
should not have concluded that D etective Wuertz’s common, every day use of the word “victim” was a purposeful attempt to create probable cause necessary for a
search warrant for Dibble’s home.
C. The second round {¶ 54} On remand to the trial court, no new evidence was offered. In its second decision, the trial court denied Dibble’s motion to supp ress. The court first held that Detective Wuertz’s affidavit, by his own admission, c learly lacked any
basis that evidence of a cr ime would be found in Dibble’s home. Accordingly, the warrant was not supported by probable cause. The court went on to hold, without much explanation, that Detective Wuertz must have been acting i n good-faith reliance on the warrant, preventin g suppression of the evidence pursuant to United
States v. Leon , 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). Finally , the court specified that it was not considering Detective Wuertz’s extrinsic statements to Judge Peeples. The court noted that Crim.R. 41(C)(2) prohib ited it from considering such unrecorded testimony. The court declined to r ule on the state’s argument that Crim.R. 41(C)(2) was unconstitutional, concluding that its finding of good faith mooted the matter. {¶ 55} In its second appellate decisi on, 10th Dist. Franklin No. 13AP- 798, 2014-Ohio-5754, the Tenth District noted that the trial court f ailed to address one circumstance in which the good-faith exception under Leon does not apply: when a warrant’s supporting affidavit is so devoid of indicia of pro bable cause that an officer could not objectively believe that probable cause exist ed. Leon at 923. Because an examination of that specific issue was crucial to th e good-faithexception analysis and judgment in Dibble’s case, the Tenth Dis trict reversed and
remanded the case to the t rial court yet again.January Term, 2020

23 D. The third round {¶ 56} By the third time Dibble’s suppression motion was before the tr ial court, a new judge had been assigned to the case. Although the new judge indicated that the appellate court’s evid ence-specific mandate should req uire a new evidentiary hearing, the parties asked the court to simply revi ew the evidence that had already been provided from the original hearing. After rev iewing that evidence, the trial court denied Dibble’s motion to suppress. The trial court did not discuss Crim.R. 41(C)(2), but it pointed specifically to Detect ive Wuertz’s alleged unrecorded testimony regarding Dibble’s “illicit photos of the minor victim [E.S.]” as helping to establish probable cause to search Dibble’s home. The trial court
stated that since it decided that Detective Wuertz’s sworn oral and written statements provided probable caus e for the warrant outright, th e affidavit certainly was not so lacking in indicia of probable cause as to render be lief in probable cause
unreasonable. {¶ 57} Dibble appealed and in its third decision, the Tenth District r eversed, holding that the trial court had exceeded the scope of the rema nd by making a general probable-cause determination that was contrary to the s ettled law of the case. 2017-Ohio-9321, 92 N.E.3d 893. The appellate court furt her held that Crim.R. 41(C)(2) prohibited the trial court from considering De tective Wuertz’s alleged unrecorded testimony regarding Dibble’s illicit photogr aphs of E.S. Id. at ¶ 27. Setting that evidence asid e, the appellate court conclud ed that “the affidavit objectively produces no set of facts that a reasonable law enfo rcement officer could in good faith rely on to search a house.” Id. at ¶ 40.
II. ANALYSIS {¶ 58} The state contends that Crim.R. 41(C)(2) does not bar the admis sion of a warrant applicant’s unrecorded oral testimony at later sup pression hearings or, at the very least, it does not b ar such evidence for purposes o f a good-faithexception analysis pursuant to Leon , 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677.S UPREME C OURT OF O HIO

24 The state is wrong, particularly in the context of this case. The plain language of the rule prohibits such evidence in general, and its history de monstrates an express purpose to exclude exactly the kind of evidence presented by th e state in this case. Crim.R. 41(C)(2)’s recorded-testimony requirement must be appli ed in this case in order to ensure that officers of the law protect the Fourth Ame ndment rights of our citizenry.

A. The relationship between the Fourth Amendment and Crim.R. 4 1(C)(2) {¶ 59} As the Tenth District noted, it is already the law of the case that Detective Wuertz’s affidavit fell short of establishing probabl e cause to justify the search of Dibble’s home. The gen eral issue of probable cause i s therefore not technically before the court, and the issue that remains is lim ited to whether the good-faith exception to the exclusionary rule provided in Leon applies here and to future cases with similar fact patterns. That being said, in a pplying Leon , this court

must examine whether Detective Wuertz’s affidavit does not merely ju st fall short of establishing probable cause but whether the affidavit failed to provide any arguable indication of probable cause. The existence of probab le cause therefore remains at the very heart of thi s court’s review. The procedur e for establishing probable cause is also at the very heart of the purposes underl ying Crim.R. 41(C)(2). In order to properly review the probable-cause argum ent contained within the state’s good-faith-ex ception argument, as well as th e role of Crim.R. 41(C)(2) in this case, it is essential for this court to examin e the general issue of probable cause and its con stitutional underpinnings. {¶ 60} The Fourth Amendment to the United States Constitution 3 requires that a search warrant may issue only upon a showing of “probabl e cause, supported

2. As noted in the majority opinion, the parties’ failure to pr esent arguments regarding the Ohio Constitution limits this court’s discussion to the Fourth Amend ment of the United States Constitution. This leaves open the question whether the Ohio C onstitution might offer greater rights and protections to our citizenry under these circumstances. See State v. Mole , 149 Ohio St.3d 215,January Term, 2020

25 by Oath or affirmation.” When a court reviews a probable-cause determination, it must review the facts that supported the issuing judge’s probab le-cause determination. In fact, a c ourt must limit its review to only those facts that were presented to the issuing judge. See Aguilar v. Texas , 378 U.S. 108, 109, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), fn. 1, abrogated on other grounds by Illinois v. Gates , 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); Giordenello v. United States , 357 U.S. 480, 486, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958). Thus, any information known by the warrant applicant that is not presented to the iss uing judge is irrelevant to a probable-cause determination. United States v. Abernathy , 843 F.3d 243, 249-250 (6th Cir.2016). {¶ 61} In some jurisdictions, courts are limited in probable-cause
determinations to a review of the “four corners” of the affidav it. See , e.g. , Commonwealth v. O’Day , 440 Mass. 296, 297, 798 N.E.2d 275 (2003); Bonds v.
State , 403 S.W.3d 867, 873 (Tex.Crim.App.2013). In many jurisdictio ns, including Ohio, warrant applicants may supplement the information in thei r affidavits with
sworn oral statement s to the issuing judge. 1 John M. Burkoff, Search Warrant
Law Deskbook , Section 6:7, at 224-225 (2019), fn. 3. Some jurisdictions ha ve held that the Fourth Amendment’s failure to specify any format for t he requisite “Oath or affirmation” before obtaining a warrant means that there is no constitutional requirement to record, write, or otherwise memorialize any swor n statements made to an issuing judicial officer. United States v. Clyburn , 24 F.3d 613, 617 (4th Cir.1994); United States v. Shields , 978 F.2d 943, 946 (6th Cir.1992) (“The Fourth Amendment does not require that statements made under oath in s upport of probable cause be tape-recorded or otherwise placed on the reco rd or made part of the affidavit”). But, although there is no specific format or recording requirement

2016-Ohio-5124, 74 N.E.3d 368, ¶ 20; State v. Brown , 143 Ohio St.3d 444, 2015-Ohio-2438, 39 N.E.3d 496, ¶ 23; State v. Farris , 109 Ohio St.3d 519, 2006-Ohio-3255, 849 N.E.2d 985, ¶ 46-48.S UPREME C OURT OF O HIO

26 in the text of the Fourth Amendment, many have opined that the constitutional provision would be meaningless w ithout the ability to objective ly review the
statements that informed the i ssuing judge’s probable-cause det ermination:

The substantive right created by the requirement of probable ca use is hardly accorded full sweep without an effective procedural m eans of assuring meaningful review of a determination by the issuing magistrate of the existence of p robable cause. Reliance on a r ecord prepared after the fact involves a hazard of impairment of that right. It is for this reason that some States have imposed the require ment of a contemporaneous record.

Christofferson v. Washington , 393 U.S. 1090, 1090-1091, 89 S.Ct. 855, 21 L.Ed.2d 783 (1969) (Brennan, J., dissenting); see also State v. Fariello , 71 N.J. 552, 559, 366 A.2d 1313 (1976); United States v. Hittle , 575 F.2d 799, 802 (10th Cir.1978). {¶ 62} The dangers in not requiring a record of a warrant applicant’s statements to an issuing judge are manifold. It is well establ ished that evidence discovered during a search cannot be used after the fact to est ablish the probable cause that was necessary to have lawfully conducted the search in the first place. Whiteley v. Warden , 401 U.S. 560, 567, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971), fn. 11; Johnson v. United States , 333 U.S. 10, 16-17, 68 S.Ct. 367, 92 L.Ed. 436 (1948); Akron v. Williams , 175 Ohio St. 186, 189, 192 N.E.2d 63 (1963). Yet, allowing an officer to establish probable cause on the record f or the first time at a suppression hearing invites the officer to use evidence that ha s been discovered after a search has been conducted to bolster the issuing judge’ s probable-cause
determination and to then bolster the officer’s and the state’s good-faith-exception argument. Taylor, Using Suppression Hearing Testimony to Prove Good Faith
Under United States v. Leon , 54 U.Kan.L.Rev. 155, 221 (2005) (“a police officerJanuary Term, 2020

27 at a suppression hearing may be e specially willing to lie to sa ve the fruits of a search because the officer’s suspicions (whatever their original basis ) have turned out to be justified”). {¶ 63} Moreover, the human memory remains fallible. Fariello at 560-561; Christofferson at 1091, quoting Glodowski v. State , 196 Wis. 265, 271, 220 N.W. 227 (1928) (Brennan, J., dissenting). By the time a suppressio n hearing takes place, a warrant applicant may not remem ber the exact succession of ev ents that led up to an indictment, including when a nd where he gathered certain inf ormation and when
and where he shared that infor mation to others. “[T]he possibl e initial uncertainty of the affiant may vanish when the search proves to be fruitful . Inadvertent
additions to the remembered c onversation are not unlikely.” Boyer v. Arizona , 455 F.2d 804, 807 (9th Cir.1972) (Ely, J., dissenting). And the is suing judicial officer may not be able to recall some or all of the information that h ad been provided
when the warrant was issued. Id. at 808; see also State v. Sims , 127 Ohio App.3d 603, 613, 713 N.E.2d 513 (2d Dist.1998); State v. White , 707 P.2d 271, 276 (Alaska App.1985); Daitch v. State , 168 Ga.App. 830, 833, 310 S.E.2d 703 (1983). {¶ 64} Problems in procedure are apparent as well. A defendant may no t be afforded a reasonable opportunity to challenge the validity of a warrant if he is not apprised, prior to the suppre ssion hearing, of the informat ion that allegedly supported the warrant. See State v. Liesche , 228 N.W.2d 44, 48 (Iowa 1975) (the failure to record statements depr ives a defendant of notice of relevant facts and therefore a meaningful opportunity to attack their veracity). Issuing judges and magistrates would be dragged into the evidentiary process as wi tnesses, which would waste judicial resources and blur an important line betwe en the judicial process in issuing the warrant a nd the separate, independent ju dicial process of reviewing its sufficiency. See In re Gault , 387 U.S. 1, 58, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967) (failure to record proceedings forces the reviewer t o reconstruct the record and imposes on the original judge “the unseemly duty of testifying underS UPREME C OURT OF O HIO

28 cross-examination as to the events that transpired in the heari ngs before him”); State v. Lindsey , 473 N.W.2d 857, 862 (Minn.1991). In sum, allowing courts to
consider such unrecorded statem ents would significantly hinder the courts’ ability to reasonably and accurately determine whether the state actual ly complied with the Constitution before obtaining a search warrant for someone’ s home. {¶ 65} The majority of jurisdictions in the United States that allow supplemental testimony for warra nt applications have attempted to avoid the foregoing dangers by requiring that such testimony be recorded, transcribed, or officially memorialized in some way. 1 Burkoff at 226, fn. 5 a nd Appendix 2. Most of those jurisdictions place an affirmative duty on the issuing judge, the warrant applicant, or both, to create a record at the time of testimony . For example, the Federal Rules of Criminal Procedure provide that “[t]estimony t aken in support of a warrant must be recorded by a court reporter or by a suitable recording device, and the judge must file the trans cript or recording with the cl erk, along with any affidavit.” Fed.R.Crim.P. 41(d)(2)(C). See also Ariz.Rev.Stat.Ann. 13-3914 (sworn oral statements “shall be recorded”); N.Y.Crim.Pro. 690. 35 (oral testimony must be sworn to and recorded). These rules fail to place any duty on the reviewing judge, though, which provides plenty of room for disagreement o ver the appropriate consequences at a suppression hearing if it turns out that the issuing judge failed to adhere to her duty. Our rule doe s not lack such explanation. {¶ 66} Ohio’s rule on sworn oral statements is relatively unique in th at it goes one step further in the process. Crim.R. 41(C)(2) does no t require that a warrant applicant’s testimony be recorded in all instances. Ho wever, it does make the recording process a prerequisite to the admissibility of th e testimony at a suppression hearing:

Before ruling on a request for a warrant, the judge may require the affiant to appear personally, a nd may examine under oath the af fiantJanuary Term, 2020

29 and any witnesses the affiant may produce. Such testimony shal l be admissible at a hearing on a motion to suppress if taken down b y a court reporter or recording equipm ent, transcribed, and made pa rt of
the affidavit.

Crim.R. 41(C)(2). Our rule therefore places affirmative duties on the suppression judge rather than on the warrant applicant or the issuing judge . In other words, Crim.R. 41(C)(2) put Judge Peeples and Detective Wuertz on noti ce that their failure to record Detective Wuertz’s supplemental testimony wou ld have a definitive outcome in the event that Dibble were to challenge t he sufficiency of Detective Wuertz’s warrant affidavit at a suppression hearing: the reviewing court
would be forbidden from consider ing the supplemental testimony because it would
be inadmissible. {¶ 67} The unique and specific language of Crim.R. 41(C)(2)’s recordin gadmissibility requirement is not accidental. It is not merely “nestled,” majority opinion at ¶ 30, into the rule lik e a superfluous piece of ribb on that just happened
to be woven into a bird’s nest. It s presence in the rule is in tentional and it serves a specific and important purpose. When Ohio’s Criminal Rules wer e first adopted in 1973, there was a “disputed issue which [was] clarified by Crim inal Rule 41(C).” Katz, Ohio Rules of Criminal Procedure: A Guide to Criminal Procedure in Ohio
Under the New Criminal Rules 157 (1973). The disputed issue was whether a warrant applicant’s supplemental oral testimony to an issuing j udge could be considered later at a motion to suppress in order to “validate an otherwise
insufficient affidavit.” Id. , citing Cleveland Hts. v. Spellman , 7 Ohio Misc. 149, 213 N.E.2d 206 (M.C.1965) (disallowing oral testimony); State v. Misch , 23 Ohio Misc. 47, 260 N.E.2d 841 (C.P.1970) (allowing oral testimony). Requiring that supplemental oral testimony be recorded was “the only way to in sure a later review of the finding of probable cause.” Katz at 157. Thus, Crim.R. 41(C)(2) resolvedS UPREME C OURT OF O HIO

30 the dispute by allowing consider ation of supplemental oral test imony at a suppression hearing if, and only if , that testimony was recorde d. {¶ 68} Given the foregoing, the plain language of Crim.R. 41(C)(2) dic tates that unrecorded oral testimony that was given to an issuing jud ge when a warrant was signed cannot be admitted at a subsequent suppression heari ng for any reason. State v. Shingles , 46 Ohio App.2d 1, 2, 345 N.E.2d 614 (9th Dist.1974) (in a motion-to-suppress hearing, an un recorded statement is inadmiss ible); see also State v. Graddy , 55 Ohio St.2d 132, 136, 378 N.E.2d 723 (1978), fn. 2, citing Shingles . And given the history and purpose behind Crim.R. 41(C)(2), s uch testimony absolutely cannot be considered to bolster probable c ause at a suppression hearing to remedy a warrant affidavit’s failure to establish probable

cause. B. The good-faith e xception to the e xclusionary rule {¶ 69} Despite the clear purpose and sc ope of Crim.R. 41(C)(2), the st ate urges that the rule is inapplicable in this case because our fo cus is not on probable cause but instead is on the narrower issue of the good-faith ex ception to the exclusionary rule outlined in Leon , 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677. {¶ 70} In Leon , the United States Supreme Court provided a nonexhaustive list of four exceptions to an officer’s alleged good-faith reli ance on an invalid
warrant. It is unreasonable for an officer to rely on a warran t (1) when the warrant affidavit contains knowing or reckless falsehoods, (2) when the issuing judge abandons her neutral role, (3) when the affidavit is so devoid of indicia probable cause that it is unreasonable for any official to believe in it s existence, and (4) when the warrant itself is facially deficient regarding the location to be searched or the
items to be seized. Id

. at 922-923. In any of the foregoing circumstances, any reasonably well-trained officer would know that the warrant wou ld not have been constitutionally compliant and therefore the officer could not have reasonably
relied on that warrant.January Term, 2020

31 {¶ 71} It is true that “all of the circumstances” may be considered wh en determining if a competent po lice officer would reasonably rely on a search

warrant. Id

. at 922, fn. 23. But our inquiry in this case does not involve a general exploration of good faith. It is limited to the third exceptio n stated in Leon , which contains a probable-cause revie w and prohibits the application of the good-faith exception when the warrant affida vit is “ ‘so lacking in indici a of probable cause as to render official belief in its existence entirely unreasonabl e.’ ” Id

. at 923, quoting
Brown v. Illinois , 422 U.S. 590, 611, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975) (Powe ll, J., concurring in part). Unlik e the first two exceptions descr ibed in Leon , which would require a reviewing court to consider evidence outside th e four corners of a warrant’s affidavit, the third exception evaluates the facial v alidity of the affidavit. {¶ 72} The quintessential example of the third exception described in Leon , 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677, is found within Leon itself. Although the warrant affidavit in question in Leon fell just short of probable cause, it still had “provided evidence sufficient to create disagreeme nt among thoughtful and competent judges as to the existence of probable cause.” Id

. at 926. Consequently, the officer’s reliance on the warrant was found t o have been objectively reasonable. Id . Conversely, the good-faith exception does not apply when a warrant is supported by a “bare bones” affidavit that le aves no room for debate that the affidavit completely failed to provide a single indicia of probable

cause. Id

. {¶ 73} The state’s argument does not align with Leon ’s analysis of the third exception. Pursuant to Leon , the state would need to establish that Detective Wuertz’s affidavit, despite its failure to fully establish prob able cause, provided at least some information—on its face—that could lead reasonable j udges to disagree over the existence of probable cause. The state failed to do s o, as it was clear from the testimony of Detective Wuertz that neither he nor any reaso nable officer or judge could objectively conclude f rom the face of the affidavit that there wasS UPREME C OURT OF O HIO

32 probable cause to search Dibble’s home. Instead, the state sou ght to amend the face of the affidavit itself by supplementing it with alleged testim ony to the issuing judge. {¶ 74} The state essentially asked the suppression court to consider a n allegation of a completely separa te crime for purposes of estab lishing probable cause, approximately akin to ille gal use of a minor in nudity-o riented material in violation of R.C. 2907.323. Thus, the state used the good-fait h exception as a back door to insert a new, alternative theory of probable cause afte r the affidavit’s utter lack of probable cause was alr eady a foregone conclusion. {¶ 75} Because the specific good-faith inquiry in this case arises fro m an affidavit that lacks any indicia of probable cause, it would su bvert the purpose of the analysis to allow the state to establish good faith by shoe horning probable cause
back into the affidavit. See United States v. Luong , 470 F.3d 898, 905 (9th Cir.2006); State v. Klosterman , 114 Ohio App.3d 327, 332-333, 683 N.E.2d 100 (2d Dist.1996); State v. Lee , 1st Dist. Hamilton No. C-070056, 2008-Ohio-3157, ¶ 26. Accordingly, I do not believe that the evidence promoted by the state is even appropriate for purposes of esta blishing good-faith reliance on the warrant pursuant to the third exception in Leon . Even if the state’s evidenc e were appropriate in this specific good-faith analysis, it remains true that the state is attempting to establish some indicia of probable cause on which a reasonable official c ould rely, to which the recording-admissibility requirement of Crim.R. 41(C)(2) wou ld apply. Although the level and intensit y of a reviewing court’s probabl e-cause inquiry might differ within the good-faith analysis compared to a revie wing court’s initial
determination that the warrant a ffidavit lacked probable cause, it is still a probablecause inquiry. Accordingly, Crim.R. 41(C)(2)’s recording-admis sibility rule applied to Dibble’s suppression proceedings irrespective of the fact that the trial court was tasked with reviewing the good-faith exception to sup pression rather than the initial review of probable cause.January Term, 2020

33 C. Barring unrecorded testimo ny serves a deterrent purpose {¶ 76} The potential inadmissibility of a warrant applicant’s unrecord ed testimony at a suppression hearin g, pursuant to Crim.R. 41(C)(2 ), is a completely separate inquiry from the ultimate determination that the evide nce from an unlawful search should be suppressed. The state and the majority opinio n combine the two matters by examining whether the exclusionary rule’s emphasis o n deterrence prohibits the application of C rim.R. 41(C)(2) at a suppression hearing. Even if the combination of the two inquiries is legitimate, it is clear tha t the recordingadmissibility requirement in Crim.R. 41(C)(2) deters police fro m improperly enhancing the issuing judge’s finding of probable cause after t he search has
occurred. {¶ 77} The majority cites to State v. Wilmoth , 22 Ohio St.3d 251, 490 N.E.2d 1236 (1986), to emphasize t hat any noncompliance with Cr im.R. 41(C)(2) should lead to suppression only if the violation of the rule ro se to the level of “constitutional magnitude,” id . at 263. But Wilmoth stands for the proposition that a “magistrate’s technical failure to use the proper words in ad ministering the oath,”
id . at 266, would not render the otherwise properly recorded and transcribed testimony inadmissible pursuant to Crim.R. 41(C)(2). Wilmoth explains that negligible technical or ministerial irregularities related to s worn testimony should be disregarded when they do not impair the suppression court’s review of the issuing court’s probab le-cause determination. Id. at 266-267. {¶ 78} The complete failure to preserve a record of the alleged showin g of probable cause is not a mere technical failing. The lack of an y record of probable cause is wholly substantive, and the trial court’s decision to admit Detective Wuertz’s unrecorded testimony constitutes a violation of Crim.R . 41(C)(2) of constitutional magnitude because it fails to safeguard the “int erests sought to be protected by the Fourth A mendment and Crim.R. 41.” Wilmoth at 264. Excluding
evidence that has been collected in contravention of Crim.R. 41 (C)(2) serves anS UPREME C OURT OF O HIO

34 important deterrent purpose; it deters officials from violating the Fourth Amendment by denying them the opportunity to cover up such viol ations at suppression hearings with backda ted information in support of p robable cause. Accordingly, I believe the Tenth District Court of Appeals corr ectly determined that Detective Wuertz’s alleged supplemental testimony to Judge Peeples was not admissible at the hearing on D ibble’s motion to suppress. {¶ 79} The only information regarding pr obable cause that was properly before the trial court in the suppression hearing was the affid avit itself. As already stated, Detective Wuertz agreed that the information in his aff idavit regarding the crime against E.S. failed to establish probable cause to search Dibble’s residence for media materials. Although obscene media involving minors a nd sexual contact
with minors are both criminaliz ed, an allegation of one of thos e crimes does not automatically provide probable cause to search for evidence of the other. United States v. Doyle , 650 F.3d 460, 472 (4th Cir.2011); United States v. Hodson, 543 F.3d 286, 292 (6th Cir.2008); United States v. Falso, 544 F.3d 110, 124 (2d Cir.2008). Detective Wuertz’s affi davit lacked any indicia of probable cause that would allow an official to reasonably believe in its existence, and the state failed to meet its burden of proving that the good-faith exception should apply. The Tenth District properly held that the fruits of the search of Dibble’ s residence should have been suppressed.
III. CONCLUSION {¶ 80} Common sense tells us that a person who has committed crimes of an obscene and depraved nature de serves punishment. But common sense also tells us that the police cannot search for anything they want for any reason they want just because they have a piece of paper in hand that states, “W arrant.” In order to ensure that the latter remains true, enforcement of the admissi bility rules of Crim.R. 41(C)(2) is appropriate in this case. I would affirm the decis ion of the Tenth District Court of Appeals.January Term, 2020

35 O’C ONNOR , C.J., concurs in the foregoing opinion.

_________________ Ron O’Brien, Franklin County Pros ecuting Attorney, and Steven L . Taylor, Assistant Prosecuting Attorney, for appellant. Carpenter, Lipps & Leland, L. L.P., Kort Gatterdam, and Erik P. Henry, for appellee.

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