OH10: Trial court’s findings supporting GFE are lacking where it found no PC; remanded

The trial court found the affidavit didn’t show probable cause, but its findings on whether it was so inadequate that the good faith exception shouldn’t be applied were lacking. Remanded; the appellate court declines to make that determination first. State v. Dibble, 2014-Ohio-5754, 2014 Ohio App. LEXIS 5570 (10th Dist. December 30, 2014):

[*P21] Although the trial court concluded that the good-faith exception applied in this case, the trial court’s decision contains no meaningful consideration of whether Detective Wuertz’s affidavit is so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable. We cannot infer any such consideration from the trial court’s statement that “this is not an extraordinary circumstance where the warrant or affidavit were so inadequate in terms of its particularity of place to be searche[d] or items to be seized as to qualify under the other remaining Leon categories.” (Emphasis added.) (Decision, 9.) In our opinion, this statement may only be interpreted as a determination of the facial validity of the warrant itself. It is not a proper determination whether Detective Wuertz’s affidavit is so bare bones as to preclude application of the good-faith exception.

[*P22] As noted above, the trial court found that the affidavit did not provide a substantial basis to conclude that probable cause existed. Indeed, the trial court expressly stated that “[t]he affidavit does not contain any information that establishes there is a substantial basis to conclude that evidence of gross sexual imposition or evidence of correspondence or photographs that substantiate E.S.’s claims would be found in Defendant’s home.” (Emphasis sic.) (Decision, 5.) The trial court also noted that “[t]he information contained in the affidavit is insufficient to create a nexus between Defendant’s home *** and illegal conduct that took place at the school.” (Decision, 7.)

[*P23] Having determined that the information in the affidavit fails to supply probable cause to search appellant’s home for evidence of gross sexual imposition, the trial court was obligated to conduct further examination of the affidavit to determine whether it is “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.” However, the trial court’s decision contains no discussion or analysis whether the information in the affidavit satisfies the less demanding standard set forth in Leon and George. Such an examination is critical to a proper determination whether to apply the good-faith exception to the exclusionary rule.

[*P24] In short, we find that the trial court erred when it failed to fully consider whether the circumstances of this case precluded the application of the good-faith exception. Accordingly, we sustain appellant’s sole assignment of error. Consistent with the reasoning of the Supreme Court in Dibble, we shall remand the case for the trial court to re-examine Detective Wuertz’s affidavit and to consider whether it is so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable. We will not make that determination in the first instance in this appeal. Dibble at ¶ 26.

Query: Why isn’t this largely just a question of law that would be determined de novo, no matter what the findings were?