Citing himself, AG petitions Court to rehear 'wiring' case

By Steve Korris | Apr 6, 2007

Warren McGraw

CHARLESTON – West Virginia Attorney General Darrell McGraw thinks the Supreme Court of Appeals should heed advice he wrote 25 years ago when deciding a drug suspect's appeal.

In a petition for rehearing of the Court's Feb. 28 decision in State v. Mullens, Attorney General McGraw urges Justices to follow a "well-reasoned opinion" that he wrote when he was a Justice. McGraw was on the Supreme Court from 1976 to 1988.

The petition notes that the majority in Mullens chose not to address Justice McGraw's opinion.

In Mullens, three of five Justices held that police must obtain warrants before "wiring" informants and sending them into homes.

Police in most states routinely wire informants and send them into homes, under a 1974 decision of the U. S. Supreme Court in U. S. v. White.

In West Virginia, police have also taped in homes under authority of a 1986 decision of the Supreme Court of Appeals in State v. Thompson.

The majority in Mullens held that neither White nor Thompson applied.

Chief Justice Robin Davis wrote that White did not apply because the state Constitution can afford greater protection than the U. S. Constitution. She branded Thompson as an error that could not stand.

Justices Joseph Albright and Larry Starcher concurred, while Justices Spike Maynard and Brent Benjamin dissented.

McGraw's office filed for rehearing March 30. He did not sign the petition. Deputy attorney generals Dawn Warfield and Robert Goldberg signed it.

They wrote that the majority did not explain why protections under the state Constitution were greater than those under the U. S. Constitution.

They wrote that Thompson should apply, saying it was based on a 1982 decision, Blackburn v. State.

In Blackburn, they wrote, "Analyzing a search and seizure/privacy claim over covertly recorded tapes, this Court held, in a well-reasoned opinion authored by then-Justice Darrell McGraw:

"Warrantless electronic recording of a defendant's conversation with the consent of a participant to the conversation who, unknown to the defendant, is acting in concert with the police does not violate the prohibition against unreasonable searches and seizures contained in article 3, section 6 of our state constitution."

They wrote that according to then-Justice McGraw, the Court had previously approved the U. S. Supreme Court's White decision.

They wrote that, according to him, "the vast majority of jurisdictions" had adopted the White decision,

Warfield and Goldberg then offered their own argument.

"One who opens his home to the public for the purpose of transacting illegal business should not have any reasonable expectation of privacy, they wrote. "The 'sanctity of the home' is waived when the homeowner invites anyone to come inside to buy illicit narcotics."

They wrote that recordings prevent fabrication by informants.

"This protects the innocent, as well as convicting the truly guilty," they wrote, noting that only five circuit judges in West Virginia can issue orders for electronic surveillance.

They wrote that the five could soon be overwhelmed with applications.

The Supreme Court of Appeals designates the five on an annual basis. The current roster includes Irene Berger of Kanawha County, Donald Cookman of Hampshire County, David Janes of Marion County, James Mazzone of Ohio County and Darrell Pratt of the 24th Circuit.

They cannot sign orders for police in their own circuits.

Because police have relied on the White and Thompson decisions, the five judges receive few applications for orders.

Berger guessed in an April 5 interview that she has signed fewer than five.

"We all are now bound to follow the decision," she said. "People discussing their likes and dislikes is not helpful."

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