OH10: State law requirement of preserving additional testimony to get SW not violation of 4A; complete failure of PC means no GFE; the state has no 4A rights

Prior holding on complete failure of probable cause wasn’t cross-appealed by the state and remains law of the case. Ohio’s Rule 41 that includes that additional testimony besides the affidavit has to be transcribed and made part of the record does not violate the Fourth Amendment, and it is binding. The statements made and not preserved are not part of the record. The complete failure of probable cause bars the state’s reliance on the good faith exception. “The State can neither assert nor defend its position under the rubric of the Fourth Amendment, since it has no Constitutional rights under the Fourth Amendment that can be violated. [¶] It should be emphasized that the Fourth Amendment establishes a floor, not a ceiling.” State v. Dibble, 2017-Ohio-9321, 2017 Ohio App. LEXIS 5795 (10th Dist. Dec. 29, 2017), prior appeal 2011-Ohio-3817, 195 Ohio App.3d 189, 959 N.E.2d 540 (10th Dist. 2011), rev’d 2012-Ohio-4630, 133 Ohio St.3d 451, 979 N.E.2d 247 (2012).

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