Attorney worries residents misunderstand taping opinion

MADISON – Attorney Benjamin Conaway, who persuaded the Supreme Court of Appeals to throw out taped evidence against a drug suspect, worries that many West Virginians misunderstand the decision of the Justices.

Police in West Virginia can continue sending "wired" informants into homes, he said. The decision means they must first obtain a warrant.

"It doesn't take very long at all to get a warrant," Conaway said March 20. "The way it has been reported, we just can't do this any more. My only answer to that is, you can do it but you have to follow the code.

"The people of West Virginia will no longer have to worry that they will be secretly recorded in their homes without police having probable cause.

"If people understood that this kind of evidence could come in for any reason, they would be glad."

Conaway represents Eddie Mullens in Boone County on a charge of delivering a controlled substance. Police arrested Mullens after an informant secretly taped him in his home.

The public defender bowed out because he had represented the informant. The court hired Conaway, who moved to suppress the tape. Circuit Judge Lee Schlaegel denied the motion.

Mullens entered a conditional guilty plea and appealed to the Supreme Court of Appeals. The Justices reversed Schlaegel Feb. 28, and remanded the case to him.

Chief Justice Robin Davis wrote that Mullens "may exercise his right to withdraw the guilty plea and let a jury decide his fate."

She wrote that the decision reached into every home.

In dissent, Justice Spike Maynard wrote, "To the contrary, 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."

Police generally agree with Maynard.
"The theme that's out there is that this only benefits drug dealers," Conoway said. "I have heard some say they do this every day. Unless you have been indicted you don't know if that recording is out there.

"There may be recordings out there of you and me, and it's kind of scary."