CHARLESTON – Police in West Virginia must obtain search warrants before sending "wired" informants into homes, the West Virginia Supreme Court of Appeals has ruled.
The U. S. Supreme Court holds otherwise, but three of five Justices agreed Feb. 28 that West Virginia's Constitution forbids what the U. S. Constitution allows.
They reversed the conviction of Eddie Mullens in Hampshire Circuit Court on a charge of delivering a controlled substance. They agreed that Circuit Judge Lee Schlaegel should have suppressed a tape that an informant recorded in Mullens's home.
Schlaegel relied on the U. S. Supreme Court, which in 1971 held that police could wire "secret agents" for drug deals without search warrants.
He should have relied on a 1979 decision of the Supreme Court of Appeals, Pauley v. Kelly, according to a majority opinion by Chief Justice Robin Davis.
The Pauley decision held that, "The provisions of the Constitution of the State of West Virginia may, in certain instances, require higher standards of protection than afforded by the Federal Constitution."
Davis also cited a 1980 Supreme Court of Appeals decision allowing Justices to interpret state constitutional guarantees differently from U. S. Supreme Court interpretations of comparable federal constitutional guarantees.
She also cited a 1998 decision that the West Virginia Constitution may be more protective of individual rights than its federal counterpart.
While Davis quoted those precedents she tore another to shreds. She wrote that the Court committed serious error in a 1986 decision, State v. Thompson.
The decision held that an informant's warrantless electronic recording did not violate the state Constitution or the federal one.
"We are troubled by the complete lack of any analysis in Thompson on the issue of the expectations of privacy in the home," Davis wrote. "This Court's long history of protecting the sanctity of the home from warrantless searches and seizures counsels against allowing Thompson to stand."
The Mullens decision will not necessarily set free all the convicts serving time because informants taped them in their homes.
Davis wrote that the decision applies only to the retrial of Mullens and to cases in litigation or on appeal during the pendency of his appeal.
She wrote, "In other words, we do not extend full retroactivity to our ruling in this case."
Justices Larry Starcher and Joseph Albright joined Davis in the majority. Justices Spike Maynard and Brent Benjamin dissented.
"Rarely has a holding of this Court rested upon such a weak legal and rational foundation," Maynard wrote in his dissent, adding that the decision "is not supported by federal constitutional law, federal statutory law, the majority of state courts or legislatures, West Virginia statutory law, and the precedent of this Court."
He wrote that an informant can write down what he sees in a home and testify about it.
"But under the majority opinion, if that same informant enters a suspect's house and electronically records conversations, without a warrant first being obtained, that recorded evidence cannot be used against the criminal," Maynard wrote.
"This is the type of nonsense that makes people shake their heads at court decisions."
Police arrested Mullens in 2003 after an informant wearing a body wire entered his home and bought 3.23 grams of marijuana -– about a ninth of an ounce.
A grand jury indicted Mullens in 2004.
Mullens moved to suppress the informant's tape. Schlaegel denied the motion in 2005.
Mullens pleaded guilty under a West Virginia law that would allow him to withdraw the plea if the Supreme Court of Appeals reversed Schlaegel.
Schlaegel ordered a sentence of one year to five, but he suspended the sentence and placed Mullens on probation.
For Mullens, Benjamin Conaway of Madison appealed.
Assistant attorney general Barry Koerber represented the state.
In the majority opinion Davis wrote,
"The impact of this Court's resolution of the issue herein presented reaches literally into the home of every citizen of our State," Davis wrote in the majority opinion.
"To the contrary," Maynard wrote in dissent, "it reaches only into the homes of those criminal suspects who speak freely in the company of informants whom they willingly invite into their homes."
He wrote that the decision "partially rests on the flawed presumption that law enforcement agents are prone to arbitrarily investigate law-abiding citizens."