Personnel File Discovery Issue Litigated – another helpful plaintiff’s opinion

There was in interesting three part series in the Charleston Gazette’s “Watchdog blog,” “Sustained Outrage” by Andrew Clevenger, focusing on a civil lawsuit against the West Virginia State Police on behalf of Charleston attorney Roger Wolfe – a case I posted on awhile back.

Part 1 deals with a FOIA issue that popped up in that case.  Law enforcement agencies (or rather their defense counsel) do not want to hand over the contents of internal investigations of law enforcement officers, citing concerns over sustaining the integrity of the internal investigation process.

Wolfe’s attorneys made a discovery request for those documents, and the WVSP objected claiming that under a Freedom of Information Act Request (FOIA), those documents would be exempt from disclosure.  However, Cleavinger quickly points out that:

Except…

A state Supreme Court ruling in a 2000 case, Maclay v. Jones, SPECIFICALLY addresses theVERY ISSUE of police records and civil litigation. Here’s what the syllabus point says:

The provisions of this state’s Freedom of Information Act, West Virginia Code §§ 29B–1 to -7 (1998), which address confidentiality as to the public generally, were not intended to shield law enforcement investigatory materials from a legitimate discovery request when such information is otherwise subject to discovery in the course of civil proceedings.

But Andrew, that’s a STATE case. The rules are different in FEDERAL court, right?

Wrong.

U.S. District Judge Charles H. Haden II, in a 2003 ruling in the case Floren v. Whittington, reached the same conclusion. He even cited the Supreme Court’s Maclay opinion.

Cleavinger then hammers the last nail in the coffin, pointing out that:

Virginia Lanham should remember this ruling, as she was one of the two attorneys fromShuman, McCuskey & Slicer who represented some of the defendants in the Floren case. (So should Michael Mullins, who represents Trooper Green in the Wolfe suit; he defended former Dunbar Police Chief Earl Whittington in Floren.)

This case is pending in federal court.  The presiding judge issued a ruling in an eleven page opinion  - by the way this is another helpful opinion for any plaintiff’s attorneys litigating this issue – calling the WVSP’s objection to the discovery request “unpersuasive” and “unconvincing” and even ordered the WVSP to pay Wolfe attorney’s fees for their improper objection and refusal to produce the personnel filed, etc.

Let’s see if the defense counsel try to use these objections in state court….

 - John H. Bryan, West Virginia Attorney.

Venue Issue Decided in Flanary Case

A venue issue had popped up in the Flanary case when counsel for Pocahontas County filed a motion to dismiss based on improper venue.  Basically, there is a law stating that if you sue a county in West Virginia, you have to sue that county in it’s own courthouse, or in any either county in which the cause of action arose (which would be rare to be anywhere else).  But there is also a law stating that if you sue the State of West Virginia, you must sue in Kanawha County (location of the state capitol).  So what happens when both a county and the State are named defendants in a lawsuit?

Well we faced that very issue, and after the issue was briefed and argued, the Circuit Court Judge ended up ruling in my client’s favor, finding that venue was proper where the lawsuit was originally filed – in Kanawha County.  As a courtesy to defense counsel who represent governmental entities in West Virginia, since they are so generous among themselves with sharing circuit court orders and submitting them against plaintiff’s counsel, I will post a copy of the Judge’s order for submission or review by anyone who may find it helpful.

 - John H. Bryan, West Virginia Attorney.

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Laws of Search and Seizure in West Virginia

Here is a portion of the materials which I prepared for a continuing legal education seminar which I presented in Charleston, West Virginia a few weeks ago, dealing with some of the “black letter law” of searches and seizures in West Virginia.  But as I emphasized to the audience of mostly-civil litigation attorneys, this is “ivory tower” stuff that doesn’t always make a whole lot of difference in the trench warfare style of litigation that is criminal defense by jury trial.

Arrests

There first must be legal authority to arrest.  There must be a State law authorizing the arrest of a person who commits any particular act (See criminal offenses in the West Virginia Code).  Secondly, if the violation alleged is a felony, the officer must have probable cause to believe that the particular act was committed, and that the person being arrested was the person who committed the particular act, or else the act (whether felony or misdemeanor) must have been committed in the presence of the officer.  The arrest is then effectuated when the officer intends to arrest the person and communicates that intent to the person being arrested, and the person is physically restrained by the officer – either with their hands, through the aiming or discharge of a weapon, or through verbal commands that would lead a reasonable person to believe that he or she was not free to leave.

Arrest Warrants

The officer must submit a written complaint under oath or affirmation to a neutral or detached magistrate or judge, particularly describing the person to be arrested, and setting out the officer’s basis of probable cause to believe that a crime has been committed and that the person sought to be arrested committed the crime. See W. Va. Code § 62-1-1 and 62-1-2; State v. Schofield, 175 W. Va. 99 (1985).  The warrant may be executed (i.e., the person arrested) at any time or place within the state, unless the magistrate or judge restricts the execution to only such times as during which a magistrate is available to conduct an initial appearance. See Rule 4(a) of the West Virginia Rules of Criminal Procedure for Magistrate Courts.  The subject of the arrest warrant may be arrested in his or her own home, regardless of whether there is consent to enter the home.  However, there is a “knock and announce” requirement that officers must comply with, with a few exceptions. See Richards v. Winsconsin, 520 U.S. 385, 387 (1997) and Wilson v. Arkansas, 514 U.S. 927 (1995).  In order to arrest the subject in the home of a third party, the officer must have both an arrest warrant and either the third party’s consent, or exigent circumstances (see below).

Warrantless Arrests

Officers may make warrantless arrests in certain circumstances.  Such arrests are permitted for crimes committed in the presence of an officer, or for any felony for which the officer has probable cause to believe the subject committed.  Probable cause for a warrantless arrest is identical to probable cause required to secure a warrant. See Gerstein v. Pugh, 420 U.S. 103, 113 (1975).  In order to make a warrantless arrest for a misdemeanor, the facts and circumstances within the knowledge of the arresting officer must be sufficient to warrant a prudent man in believing that a misdemeanor is being committed in his presence. Syllabus, Simon v. West Virginia Dep’t of Motor Vehicles, 181 W. Va. 267 (1989).  

A warrantless arrest in the subject’s home must be justified not only by probable cause, but by exigent circumstances which make an immediate arrest imperative. Syl. Pt. 2, State v. Mullins, 177 W. Va. 531 (1987).  The test for “exigent circumstances” is whether the facts would lead a reasonable, experienced police officer to believe the evidence might be destroyed or removed before a warrant could be secured, or whether there is evidence both that the officer was actually motivated by a perceived need to render aid or assistance, or whether a reasonable person under the circumstances must have thought that an emergency existed.” See State v. Cecil, 173 W. Va. 27 (1983).  After the arrest, the subject must be taken “without unnecessary delay” before a magistrate in the county in which the arrest was made. See W. Va. Code § 62-1-5.

Jurisdiction

The arrest must occur within the proper jurisdiction of the arresting officer.  For municipal police officers, the jurisdiction is within the corporate limits of the municipality. See W. Va. Code § 8-14-3.  In some circumstances there may be a “mutual aid agreement” that could extend the jurisdictional range. See W. Va. Code § 15-10-1.  Municipal officers also may arrest suspects outside the municipality if they are within the county or counties in which the municipality is located (as if they were a deputy), if the violations were committed within the municipality – especially in pursuit situations.  Deputy sheriff’s have essentially the same arrest powers as a municipal police officer, except that their jurisdiction is always the county in which they are employed.  State troopers have statewide jurisdiction to make arrests, and can furthermore command any other state, county, or municipal law enforcement officers to assist him or her (under proclamation of the governor).  

Search and Seizure

Amendment IV of the U.S. Constitution provides that “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 probable cause, supported by Oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.  Article III, Section 6 of the West Virginia Constitution provides for the same protections, almost-verbatim.

Search warrants may be issued by municipal judges, magistrates, and circuit court judges, if they are within the jurisdiction of the location of the items sought to be seized.  Probable cause must be set forth in a written affidavit detailing the probable cause and listing and describing the place to be searched and the items to be seized.  The warrant must be executed by the officer who obtained the warrant within ten days of being issued. See W. Va. Code § 62-1A-4; State v. Clements, 175 W. Va. 463 (1985).

All warrantless searches are per se unconstitutional, but there are several exceptions, one of which is consent. See State v. Buzzard, 194 W. Va. 544 (1995).  Another exception is the “emergency doctrine,” which provides that a warrantless entry into a suspect’s home can be proper where there is an immediate need for assistance in the protection of human life, the search or entry by the officers is motivated by an emergency, rather than by an intent to secure evidence, and there is a reasonable connection between the emergency and the area in question. State v. Cecil, 173 W. Va. 27 (1983).  

Another exception is a search incident to a lawful arrest, which covers the individual’s person and “immediate geographic area under his physical control,” namely for physical safety purposes. See State v. Sugo, 193 W. Va. 388 (1995).  Another exception is the “open fields doctrine,” which excepts areas outside the “curtilage” from the warrant requirement (i.e., land, vacant lots, water). See State v. Lilly, 194 W. Va. 595 (1995).  Yet another exception is the “plain view doctrine,” which holds that if an officer observes what he has probable cause to believe is incriminating evidence or contraband, and if he is legally in a physical location that he is entitled to be, then he may seize any of those items without a warrant.  

Warrantless searches may also be allowed in situations of “hot pursuit,” where the officer is pursuing a suspect with “speed” and with “continuous knowledge of the alleged perpetrator’s whereabouts.”  Items that can be searched or seized includes anything observed while looking for the suspect. See Goins v. James, 189 W. Va. 634 (1993).  However, a warrantless entry into a home still requires that exigent circumstances exist. See State v. Cecil; U.S. v. Shelton, 737 F.2d 1292 (4th Cir. 1984).

Vehicles

Moving vehicles can be stopped if reasonable suspicion exists, and they can be searched if probable cause exists.  Reasonable suspicion requires that an officer articulate facts which provide some minimal, objective justification for the stop.  It has to be something more than an “inchoate and unparticularized suspicion or hunch.”  Probable cause exists when the facts and circumstances as established by probative evidence are sufficient to warrant a prudent person in the belief that an offense has been committed and that the subject committed it.  

Pursuant to the lawful arrest of the driver of a moving vehicle, the passenger compartment of the vehicle may be searched, as well as any open or closed containers in the passenger compartment that are not locked. See New York v. Belton, 453 U.S. 454 (1981).  After an arrest, officers may perform a vehicle inventory of the contents of an arrestee’s vehicle if the vehicle is being legally impounded and the owner of the vehicle is not present or otherwise available to provide for the safekeeping of the vehicle contents.  However there are requirements that must be met. See State v. Goff, 166 W. Va. 47 (1980); State v. Perry, 174 W. Va. 212 (1984); South Dakota v. Opperman, 428 U.S. 364 (1976).

Traffic stops are not considered arrests, unless the driver is detained above and beyond what is necessary to issue a traffic citation or warning, or unless physical force or intimidation is used to detain a driver.  Both drivers and passengers may be ordered out of a vehicle at any time for any reason. See Pennsylvania v. Mims, 434 U.S. 106 (1977).  Officers are not required to inform drivers that they are free to go following the issuing of a citation or warning. Ohio v. Robinette, 519 U.S. 33 (1996).

Pedestrian Stops

Regarding pedestrian stops, usually involving an officer requesting identifying information from an individual, refusal to produce identification may not alone form the basis for an arrest.  Wilmoth v. Gustke, 179 W. Va. 771 (1988).  However, if there is express statutory direction requiring one to do so, or if the officer communicates a specific reason why the information is being sought with respect to official duties of the officer, then the refusal may form the basis for a charge of obstruction under W. Va. Code § 61-5-17(a). State v. Srnsky, 213 W. Va. 412 (2003).

Computers

To search or seize a computer located in a suspect’s home, an officer must obtain a search warrant.  In order to obtain a warrant, there must be a written complaint under oath, as with arrest warrants, which must adequately describe the computer and/or other items to be seized – such as all of the various accessories and drives that may be connected with the computer (i.e., backup or portable hard drives, digital cameras, printers, DVD’s, etc.) and which connects the same to some crime alleged to have been committed.  Proper procedures must be used in disconnecting and dismantling the computer or drives, and should be performed at the direction and instruction of whatever forensic computer examiner will be analyzing the computer, or else data may be lost or destroyed. U.S. v. Simons, 206 F.3d 392 (4th Cir. 2000)

To search or seize computers outside a suspect’s home, i.e., place of employment, the suspect must not have a legitimate expectation of privacy in the computer – it must not be one that society is prepared to accept as objectively reasonable.  Thus, each situation is unique and turns on the specific facts involved, such as whether the office is private or locked, whether the computer is password protected, whether other employees have access to the computer, whether the employer has an applicable computer policy that allows a search, whether the employer monitors computer use.  Law enforcement officers routinely may, and do, obtain subpoena’s for the suspect’s information held by the ISP provider, such as their account information, their “ISP”, address, and website history, for which there is no legitimate expectation of privacy. See U.S. v. Hambrick, 225 F.3d 656 (4th Cir. 2000); Smith v. Maryland, 442 U.S. 735 (1979).

Note:   Please understand that an infinite amount of time was not spent on this material ensuring it’s accuracy.  Thus, there may be mistakes in it.  If you are faced with a specific legal situation, you need to speak with an attorney individually about your particular circumstances.  If you are an attorney, you need to rely on your own research and work product rather than what I have written here.  This is meant merely to be helpful.

 - John H. Bryan, West Virginia Attorney.

Finally the rest of the country finds out that prosecutors have too much power

Not that I care what happens to former Senator Stevens in Alaska….  In fact I despise career politicians on both sides and believe that there should be term limits for all congressmen.  But when a federal judge tossed a conviction and opened his own special prosecution of the prosecutors who “secured” Stevens’ conviction, I think it was a great moment for our country.  I wish there could be more.  Because the same conduct happens every day across the country at the state level with hardly a sigh from the presiding trial judges, much less an overturned conviction and a reverse prosecution.

The fact is that we give prosecutors way too much power.  We have so many damned laws in West Virginia – and in every other state – that almost everything you do everyday is illegal.  Everything.  Want to take your grandson rabbit hunting?  In all likelihood you will violate a dozen laws governing the transport of firearms and hunting regulation red-tape before you return home.  

And if it’s not illegal, then all it takes to be prosecuted is for some lying cop to say that you did something illegal.  In West Virginia, every allegedly illegal act carries a potential sentence of up to 1 year for most misdemeanors, and years and years for the felonies.  Then, the prosecutors can charge you with a dozen counts for every allegedly illegal act, putting you in the position of spending the rest of your life in prison.  They have the power to take away your freedom and your property.  This power is unchecked.  It’s not usually a problem when you have an honest and sensical prosecutor.  But what happens when you have a devious or evil person as the prosecutor?  You have a real problem – one which has occurred and has been documented across the country time after time.

Our only defense?  Criminal defense attorneys and judges.  And good luck getting a judge to toss a conviction for a non-former U.S. Senator.

 - John H. Bryan, West Virginia Attorney.

2009 National Champions….