WV Civil Rights Lawyer

Police Misconduct, Civil Rights Law

Civil Rights Trial in Federal Court in Charleston This Week

Starting tomorrow, the Carpenter civil rights case will be tried before a jury in federal court in Charleston.

Stay tuned for the results.

The U.S. District Court for the Southern District of West Virginia already issued an order finding that the Carpenters civil rights were likely violated, and ordering the case to trial:

Carpenter v. Perry (S.D. W. Va., 2017)

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December 4, 2017 Posted by | Civil Liability, John H. Bryan, Searches and Seizures, Trials | Leave a comment

Fourth Circuit Open Carry Decision

The Fourth Circuit issued a decision bolstering our 2nd Amendment rights.  The case is styled  USA v. Nathaniel Black, out of the Western District of North Carolina.  Essentially, a guy who was a convicted felon was open carrying a firearm.  He was then seized by police, who were subsequently able to determine that he was not allowed to possess a firearm.  But, was it an unconstitutional seizure since they didn’t know before they seized the guy that he was committing a crime by possessing a firearm?

The 4th Circuit held that it was unconstitutional to seize the man merely because they observed him with a holstered handgun, since they had no reason to believe that he was legally barred from possessing firearms, or that he was engaging in any other illegal activity.  The importance of this decision is that it protects our 2nd Amendment rights.  If it is legal for us to openly carry a handgun, then law enforcement is unable to seize us in order to determine our criminal record, harass us, etc.  The case has all the goodies when it comes to search and seizure case law in the Fourth Circuit (WV, VA, NC, MD).

March 20, 2013 Posted by | Concealed Weapons, Police, Police Misconduct, Searches and Seizures, Self Defense, Suppression, West Virginia Concealed Carry Laws, West Virginia Gun Laws | 3 Comments

New West Virginia Search and Seizure Statute

New legislation has been passed in West Virginia dealing with search and seizure.  It was pushed by the ACLU, who of course were only concerned for minorities having their rights disregarded.  But the fact is that everyone, across the board, has had their rights trampled when it comes to traffic searches and seizures.

It essentially provides that no longer can law enforcement merely testify after-the-fact that the vehicle owner consented to a search of his or her vehicle.  This, by the way, is pretty much the foundation for 80% of criminal prosecutions.  Either people are too dumb/ignorant/naive  to realize that they can say “no” to the officer who is asking to search their vehicle, or the cop just “testi-lies” after-the-fact that consent was given, when in fact it was not.  Who do you think the judge is going to believe, the law enforcement officer, or the guy who had marijuana/concealed weapon, etc. in his car?

Pursuant to this new statute, consent must now be recorded, either in writing through an approved form, or through an audio/video recording.  It must be communicated to the suspect that he or she has the right to refuse the search.  It also provides that he or she can revoke their consent at any time.  Though this may be dicey, because the revocation would not be recorded unless there was a dash cam, or other recorder, recording the audio.  The one exception for the recordation of consent is if there is an issue of officer safety.  Basically, if the cop can articulate some justification for believing there may be some weapon that could potentially harm him or her, then the statute flies out the window.

Remember, states are generally free to provide greater protection of civil liberties than is provided for in the U.S. Constitution (i.e., the US Supreme Court), which West Virginia has done here.  However, states are not free to provide less protection.  Hence, West Virginia could not pass a statute (that would be constitutional) which would allow officers to search vehicles without probable cause or consent.

The statute will take effect January 11, 2011.

Here is the statute:

A BILL to amend of the Code of West Virginia, 1931, as amended, by adding thereto two new sections, designated §62-1A-10 and §62- 1A-11, all relating to searches of motor vehicles by law- enforcement officers; establishing criteria; and requiring rules.

Be it enacted by the Legislature of West Virginia:

That the Code of West Virginia, 1931, as amended, be amended by adding thereto two new sections, designated §62-1A-10 and §62- 1A-11, all to read as follows:

ARTICLE 1A. SEARCH AND SEIZURE.
§62-1A-10. Motor vehicle searches.

(a) A law-enforcement officer who stops a motor vehicle for an alleged violation of a law or ordinance regulating traffic may not search the vehicle unless the law-enforcement officer:
(1) Has probable cause or another legal basis for the search;
(2) Conducts a search for weapons based on an articulation of a reasonable fear for the officer’s safety or the safety of others;
(3) Obtains the written consent of the operator of the vehicle on a form that complies with subsection (b), section eleven of this article; or
(4) Obtains the oral consent of the operator of the vehicle and ensures that the oral consent is evidenced by an audio and video recording that complies with subsection (c), section eleven of this article.
(b) This section takes effect on January 1, 2011.

§62-1A-11. Rules for certain evidence of consent to vehicle search.

(a) To facilitate the implementation of section ten of this article the Director of the Governor’s Committee on Crime, Delinquency and Corrections, in consultation with the Division of Motor Vehicles, shall propose emergency and legislative rules in accordance with article three, chapter twenty-nine-a of this code to establish the requirements for:
(1) A form used to obtain the written consent of the operator of a motor vehicle under section ten of this article; and
(2) An audio and video recording used as evidence of the oral consent of the operator of a motor vehicle under section ten of this article.
(b) At a minimum, the rules adopted under subsection (a) of this section must require the form to contain:
(1) A statement that the operator of the motor vehicle fully understands that the operator may refuse to give the law- enforcement officer consent to search the motor vehicle;
(2) A statement that the operator of the motor vehicle is freely and voluntarily giving the law-enforcement officer consent to search the motor vehicle;
(3) A statement that the operator of the motor vehicle may withdraw the consent at any time during the search;
(4) The time and date of the stop giving rise to the search;
(5) A description of the motor vehicle to be searched; and
(6) The name of each law-enforcement officer conducting the stop or search.
(c) At a minimum, the rules adopted under subdivision (2), subsection (a) of this section must require the audio and video recording to reflect an affirmative statement made by the operator that:
(1) The operator of the motor vehicle understands that the operator may refuse to give the law-enforcement officer consent to search the motor vehicle;
(2) The operator of the motor vehicle is voluntarily giving the law-enforcement officer consent to search the motor vehicle; and
(3) The operator of the motor vehicle was informed that the operator may withdraw the consent at any time during the search.
(d) The Director of the Governor’s Committee on Crime, Delinquency and Corrections shall adopt the rules required by this section no later than December 31, 2010.

NOTE: The purpose of this bill is to provide procedures to protect motor vehicle operators with regard to searches of their motor vehicles by law-enforcement officers.

§§62-1A-10 and 62-1A-11 are new; therefore, strike-throughs and underscoring have been omitted.

April 14, 2010 Posted by | Searches and Seizures, Suppression, Vehicular Crimes | 4 Comments

In the name of “officer safety”

Rick Horowitz from Probable Cause had an interesting post regarding “officer safety” and the rights of motorists.  In essence, his theory, which has long been a pet peeve of mine, is that supposed “officer safety” is used to violate the rights of motorists.  If you have ever tried an “obstruction” case, you will hear the prosecutor ask officers who conducted a “traffic” stop questions about their training and “officer safety” and why they instruct persons to get out of the vehicle – or to not get out of the vehicle – or to put their hands in a certain place, and so on and so forth.  Many times this coincidentally coincides with the officer(s) subsequently finding something incriminating in the vehicle.  For example, here is a portion of transcript from an obstruction (among other things) trial:

7       Q   So you turned on your blue lights; right?           

8       A   Yes.                                                

9       Q   And the purpose of doing that is to tell the driver 

10  of the vehicle what?                                         

11       A   To pull over.                                       

12       Q   And, was it clear to you, that there was a driver   

13  of that truck, with the Florida tags; you should see the     

14  driver?                                                      

15       A   Yes.                                                

16       Q   Did you attend the State Police Academy before      

17  becoming a West Virginia State Trooper?                      

18       A   Yes.  All troopers are required to attend the       

19  Academy before —                                            

20       Q   And how long — how long is the Academy?            

21       A   It’s going to be for 30 weeks, equivalent to seven  

22  months.                                                      

23       Q   And, as part of your training, do you receive       

24  specific training in traffic stops?                          

Page 359 

1       A   Yes, we do.  Like a lot if training, they try to go 

2  over and over.  What the purpose of that is – they call it   

3  muscle memory – when you get into a high-stress situation,   

4  or your stress level elevates, whatever you practice, their  

5  theory is that you’ll just automatically — you’ll           

6  automatically do in a high-stress situation.                 

7       Q   And from your training, and experience as a West    

8  Virginia State Trooper, are traffic stops considered high-   

9  stress situations?                                           

10       A   Yes.  Through the training that we received,        

11  everything other than a known felony stop, we actually       

12  consider an unknown stop, which is an unknown risk.  Mainly  

13  because we don’t know the driver, we don’t know who’s in the 

14  vehicle or what’s in the vehicle.  So, yes, they all — all  

15  of them are considered high-stress and possible risk stops.  

16       Q   And, from your training at the Academy, and then    

17  after you were out of the Academy, were you taught, and      

18  trained, in what percentage of police officers — shootings  

19  of police officers occur during what should be routine       

20  traffic stops?                                               

21       A   Yes.  It’s actually a higher percent than I like.   

22  Actually, I believe the US Supreme Court had a case on it,   

23  referenced where up to 30 percent of actual police shootings 

24  occurred during routine police traffic stops.                

Page 360 

1       Q   Now, as a practicing Trooper, can you estimate how  

2  many traffic stops you have made a month, at this point?     

3       A   And I don’t do a lot of traffic, some’s a lot       

4  higher than this, but I usually pull over, I would say,      

5  between 25 to 35 cars a month, for various traffic reasons.  

6       Q   And when you make those traffic stops, do you       

7  follow the procedures that you were taught in your training  

8  at the West Virginia State Police Academy?                   

9       A   Yes, ma’am, every time.                             

10       Q   As to the particular procedures that you were       

11  taught, what is the goal, what’s the purpose of those        

12  procedures that you are to follow in making a traffic stop,  

13  as a State Policeman?                                        

14       A   The main thing is, basically, risk reduction, for   

15  the safety of everybody there.                               

16       Q   And does that include safety of the officer?        

17       A   That includes the safety of the officer, safety of  

18  whoever we’re pulling over in the vehicle, along with the    

19  public safety.                                               

20       Q   And what are the risk factors in the traffic stop,  

21  that your procedures are designed to reduce?                 

22       A   With that, especially, and probably most of you can 

23  relate to seeing videos of being beside the roadway.  First  

24  off, it’s very dangerous for traffic stops, for other        

Page 361 

1  traffic coming by, just ’cause you’re in such close proximity 

2  to the traffic flow; that, in one, is dangerous.             

3       Two, like I said, you don’t never know who the driver   

4  is, or who you’re pulling over.  Mainly, if you’re doing a   

5  traffic stop – and, mostly, I’m going to give somebody a     

6  warning, but the driver don’t know that – and if it’s        

7  somebody else, it could be very dangerous.  Or, if they      

8  robbed a bank, thirty minutes down the road, and I’m unaware 

9  of that, they might have a gun, or something that could      

10  actually hinder myself during this stop, which I’m unaware   

11  of.                                                          

12       Q   And what about the flight risk; could you explain   

13  to the jurors the risk of flight when you have an unknown    

14  traffic stop?                                                

15       A   Yes.  And it is highly likely that, you know, even  

16  when I get out of the vehicle, that the car might pull off.  

17  Several occasions, you go to approach the vehicle and        

18  somebody – I mean, I’m sure you’ve seen it on TV – jumps out 

19  of the vehicle and takes off running.  So — and if I        

20  actually approach the vehicle and, let’s say, they are       

21  wanting to cause me harm, and they are able to do some kind  

22  of harm from me, it’s very possible for them just to take    

23  off without any help to myself.                              

24       Q   When you pull over the vehicle, either because it   

Page 362 

1  — the driver is a suspect in a crime, or because of a       

2  traffic violation, when you pull over a vehicle, is there    

3  information that you are supposed to relay, and also         

4  information that, by your training and experience as a West  

5  Virginia State Trooper, you are supposed to be receiving?    

6       A   Yes, ma’am.  The start off, every time we perform a 

7  traffic stop, we always want to notify our dispatcher —     

8  advise ’em of our location, that we’re actually on a traffic 

9  stop, so they can check on us and know what we’re doing.     

10  Some information you want to give to start off with is color 

11  of the vehicle, like I said, the location of where the stop  

12  is.  And also important, is the license plate of the         

13  vehicle.  With the license plate, they’re able to return the 

14  vehicle it’s supposed to be on, who owns the vehicle.  And   

15  they also can check to see if that license plate or vehicle  

16  has been stolen, or is a stolen vehicle.                     

17       Q   And do you do that, as much as possible, unless you 

18  are obstructed or prevented from doing that, every time you  

19  make a traffic stop?                                         

20       A   Yes, ma’am.                                         

21       Q   Now, do you — are there standard procedures, that  

22  you learned in your training, and you practice in your 25 to 

23  30 traffic stops a month, first of all, as to whether or not 

24  you want the driver to stay in the vehicle, or get out of    

Page 363 

1  the vehicle?                                                 

2       A   Yeah.  Through our training, and it might vary from 

3  department to department, but what we want is the driver to  

4  actually stay in the vehicle.                                

5       Q   And why is that, explain that, if you would?        

6       A   The reason to have them stay in the vehicle, it’s   

7  more of a con — we have more control if they’re in the      

8  vehicle.  For the safety issue, like I said, to mention      

9  first, it’s a — a lot of times, we’re on the highway,       

10  interstate, busy roads, if the driver’s in the vehicle, it’s 

11  a lot less likely that he’s going to get hit by a passing    

12  car.  Two, we’re able to approach the vehicle and kind of    

13  keep an eye on the driver and see what he’s doing.  Where,   

14  if he gets out of the vehicle he could either (a) run, or do 

15  something else, which would make us have a lot less control  

16  over the driver.                                             

17       Q   Are you even taught, and trained, to stand in a     

18  particular relation to the driver’s door?                    

19       A   Yes.  And, as we’re taught, when we’re approaching  

20  a vehicle – and if you ever — anyone’s ever got pulled      

21  over, you maybe even noticed this and wondered – I always    

22  take my hand and touch the back of the vehicle in case       

23  something happens, you know, and the driver leaves.  Maybe   

24  somebody might be able to put my connection with that        Page 363 

1  the vehicle?                                                 

2       A   Yeah.  Through our training, and it might vary from 

3  department to department, but what we want is the driver to  

4  actually stay in the vehicle.                                

5       Q   And why is that, explain that, if you would?        

6       A   The reason to have them stay in the vehicle, it’s   

7  more of a con — we have more control if they’re in the      

8  vehicle.  For the safety issue, like I said, to mention      

9  first, it’s a — a lot of times, we’re on the highway,       

10  interstate, busy roads, if the driver’s in the vehicle, it’s 

11  a lot less likely that he’s going to get hit by a passing    

12  car.  Two, we’re able to approach the vehicle and kind of    

13  keep an eye on the driver and see what he’s doing.  Where,   

14  if he gets out of the vehicle he could either (a) run, or do 

15  something else, which would make us have a lot less control  

16  over the driver.                                             

17       Q   Are you even taught, and trained, to stand in a     

18  particular relation to the driver’s door?                    

19       A   Yes.  And, as we’re taught, when we’re approaching  

20  a vehicle – and if you ever — anyone’s ever got pulled      

21  over, you maybe even noticed this and wondered – I always    

22  take my hand and touch the back of the vehicle in case       

23  something happens, you know, and the driver leaves.  Maybe   

 

Page 364 

1  vehicle.                                                     

2       As I’m continuing to approach the driver, we can always 

3  look through the back glass and the windows, see if he’s     

4  maybe reaching under his seat to grab a firearm or trying to 

5  hide something he’s not supposed to have.  With standing at  

6  the vehicle, we always like to stand right behind the driver 

7  door, which allows us to have a — the best view we can of   

8  inside the vehicle, to check to see if there’s anything      

9  that’s not supposed to be there, or any weapons that the     

10  driver might be able to reach and grab.                      

11       Q   And would it be fair to say that, obviously, any    

12  time the driver is allowed out of the vehicle, that          

13  increases the flight risk, and the risk to the public?       

14       A   Right, yes.                                         

15       Q   Then what about your training and experience as a   

16  State Policeman, what do you instruct – order – the driver   

17  to do, if he gets out, as to his hands?                      

18       A   And, on traffic stops, it happens, sometimes the    

19  driver will go to get out of the vehicle.  Order them to get 

20  back in the vehicle and, usually, they comply with that      

21  order, and then wait for me to approach ’em.                 

22       Q   And if a driver gets out of the vehicle against     

23  your orders, what do you tell them — where do you want his  

24  hands?                                                       Page 364 

1  vehicle.                                                     

2       As I’m continuing to approach the driver, we can always 

3  look through the back glass and the windows, see if he’s     

4  maybe reaching under his seat to grab a firearm or trying to 

5  hide something he’s not supposed to have.  With standing at  

6  the vehicle, we always like to stand right behind the driver 

7  door, which allows us to have a — the best view we can of   

8  inside the vehicle, to check to see if there’s anything      

9  that’s not supposed to be there, or any weapons that the     

10  driver might be able to reach and grab.                      

11       Q   And would it be fair to say that, obviously, any    

12  time the driver is allowed out of the vehicle, that          

13  increases the flight risk, and the risk to the public?       

14       A   Right, yes.                                         

15       Q   Then what about your training and experience as a   

16  State Policeman, what do you instruct – order – the driver   

17  to do, if he gets out, as to his hands?                      

18       A   And, on traffic stops, it happens, sometimes the    

19  driver will go to get out of the vehicle.  Order them to get 

20  back in the vehicle and, usually, they comply with that      

21  order, and then wait for me to approach ’em.                 

22       Q   And if a driver gets out of the vehicle against     

23  your orders, what do you tell them — where do you want his  

24  hands?                                                       

Page 365 

1       A   If a driver gets out of the vehicle, and he’s not   

2  replying, of course, the stress level and the threat level   

3  increases, first because he’s not obeying my order, which is 

4  a lawful order.  Second, with the hands, I don’t want ’em    

5  anywhere near the coats or pockets, where they could reach   

6  — or anything that might cause me harm.  Either up in the   

7  air where I can see ’em, up on the vehicle where I know he   

8  can’t reach and grab anything to — that might harm myself   

9  or any public.                                               

10       Q   Was there a phrase that you were taught, that your  

11  instructors at the Academy used, to emphasize the need to    

12  keep the suspect hands up in the air or on a car?            

13       DEFENSE ATTORNEY:  Your Honor, I’m going to object to    

14  the leading nature of this —                                

15       THE COURT:  Overruled; 611 allows me to permit this     

16  type of preliminary stuff.  I’m going to allow it; go ahead. 

17       THE WITNESS:  Yes, as the — as the instruction — in   

18  the Academy, they often teach us, they always tell us that   

19  feet can hurt you, but hands can kill you.  Basically,       

20  meaning just, you know, being kicked and stuff can hurt you, 

21  but the hands can always grab a weapon such as a knife or a  

22  firearm.                                                     

23  PROSECUTOR (resuming):                                    

24       Q   Now, on the evening of June 8th of ’07, after you   

Page 366 

1  turned on your blue lights, can you tell the jury what did   

2  the defendant do?    

As I said, this has long been a pet peeve of mine.  Of course we all respect law enforcement officers and acknowledge that they have a sometimes dangerous and difficult job – just like many other professions.  However, they chose to be law enforcement officers.  And they chose to pull someone over for a “traffic” violation.  That they are worried, or trained to be worried, about their own safety, should not make it okay for them to treat someone like a criminal.  It’s one thing if you are pulling over a bank robbery suspect, but if you are pulling someone over for going 6 mph over the limit, you should not have your hand on your gun.  You should not shout at someone as if they are armed and dangerous.  Why should someone pulled over for a traffic violation have to keep their hands on the wheel?  What can be more demeaning that to be treated like a criminal as a practice and procedure of a law enforcement agency?  I would venture to say that more people are probably wrongly shot by law enforcement officers because they are jumpy due to all of this “training” than law enforcement officers who are actually shot by a traffic-stop motorist (especially in high crime areas where “traffic” stops are mostly investigatory pretext stops).  Don’t believe me?  Google it.  And surely, more officers are hit by passing motorists distracted by the emergency lights than who are shot.  And that is unfortunate, but it was their choice to engage in a profession where they have to stand on the side of the road and encounter strangers in cars.  That is just a risk that comes with the job.  It is not okay to feel safer by violating the rights and respect of innocent persons.

And it definitely is not okay to abuse the purpose of “officer safety” in order to assist in more efficient criminal prosecution, which is done in mainly two ways, such as was the case in the above-transcripted case: (1) to achieve an initial arrest of the person in order to question them and inventory/search their vehicle, and (2) to throw in yet another charge to try the suspect on and/or use for plea negotiations.  

Note: the defendant in the above-transcripted case was found not guilty of obstruction, despite the lengthy oratory of the prosecutor and trooper.

 – John H. Bryan, West Virginia Attorney.

July 15, 2009 Posted by | Police, Police Misconduct, Searches and Seizures, Vehicular Crimes | 1 Comment

Interesting Appeal Filed to the West Virginia Supreme Court of Appeals

About a month and a half ago, I mentioned that I was working on a petition for appeal that contained a factual scenario extremely similar to the Arizona v. Gant holding.  Well, it was filed early this month, and now my client has authorized me to post a copy of the filed petition.  I think it contains some interesting legal issues which have yet to be examined in West Virginia, one of which will be the use of Arizona v. Gant as it applies to “inventory” searches in West Virginia.

Additionally, this is an extremely odd case (factually).  And its one of those where the police and the prosecutor really went after the guy and he ended up getting the proverbial “book” thrown at him.  It illustrates the danger of jury trials, and the power of the prosecutor.  If they want you punished, there are enough laws out there that they can bend the facts around, that they can turn you into a felon pretty quickly – not to mention a registered sex offender.  And then they can charge you with multiple counts, basically restricted only by their whim.  The only way to stop them is to appeal.

Also, a H/T to Tom Rist for assisting with the case.

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June 24, 2009 Posted by | Appeals, Evidence, John H. Bryan, Searches and Seizures, Suppression, Trials | Leave a comment

Arizona v. Gant

A great opinion recently came down from the US Supreme Court.  The case is Arizona v. Gant.  What law enforcement officers in West Virginia, and elsewhere love to do is this: they pull someone over for a traffic violation, or even an investigatory stop, and they arrest them for a traffic charge, or for some bogus “obstruction” type charge (i.e., he or she failed to put their hands on the steering wheel despite being ordered to do so).  Basically these arrests are an outright lie and are merely meant to allow the officer to search the vehicle.  And they do.  All the time.  If they don’t find anything incriminating, maybe they let the person go.  But if they do, they take them to jail and collect the evidence.

Well now, according to the US Supreme Court, this is unreasonable and therefore unconstitutional.  The original rationale for a search incident to a lawful arrest is officer safety.  The Court reiterated that and confined this type of search to only that concern.  It is now clear that such searches are not reasonable if the suspect is already handcuffed or otherwise detained in the patrol car.  The Court held that “[p]olice may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or if it is reasonable to believe that the vehicle contains evidence of the offense of arrest.  When these justifications are absent, a search of the arrestee’s vehicle will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies.”

For the past 28 years, police academies across the country have basically taught that it was proper police procedure to search the vehicle at every arrest of a recent automobile occupant, regardless of whether there was any concern of officer safety.  Now we will see how law enforcement agencies across the country can re-train their officers.

This could also affect a great number of pending cases.  For instance, I have one appeal I am working on right now where this exact scenario occurred, and the conviction almost surely would not have occurred without the evidence seized during the “traffic stop arrest.”  Maybe I will get the first West Virginia case based on Arizona v. Gant to the West Virginia Supreme Court of Appeals….

 – John H. Bryan, West Virginia Attorney.

May 1, 2009 Posted by | Appeals, Searches and Seizures, Suppression | 3 Comments

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.

April 9, 2009 Posted by | John H. Bryan, Searches and Seizures, Suppression | 2 Comments