Benjamin

CHARLESTON – West Virginia legislators cannot overturn a Supreme Court of Appeals decision requiring search warrants before police send "wired" informants into homes, according to Justice Brent Benjamin.

In dissent from a Feb. 28 decision in State v. Mullens, Benjamin wrote that by deciding the case on constitutional grounds the majority prevented the Legislature from making the policy decision on behalf of the people.

"Does our Constitution authorize us to announce this anomalous rule and, by styling it a constitutional decree, to put it beyond the reach of the ordinary processes of representative government?" Benjamin wrote. "I fear my colleagues misapprehend the shallow depth of the jurisprudential ice upon which they now so boldly tread."

He wrote that Florida voters amended their constitution after their Supreme Court reached a similar decision.

In the majority opinion, Chief Justice Robin Davis and Justices Joseph Albright and Larry Starcher agreed that police must obtain a warrant before sending an informant into a home with recording devices. They ruled that police could not introduce as evidence against Mullens a tape of an alleged drug transaction in his home.

Police in most states wire informants without warrants under a 1974 U. S. Supreme Court decision in U. S. v. White, but the majority held that they did not have to follow White.

Davis wrote that the West Virginia Constitution can provide greater protection than the U. S. Constitution.

Police in West Virginia also relied on State v. Thompson, a 1986 decision of the Supreme Court of Appeals, but the majority discarded that decision.

Justice Spike Maynard wrote a short dissent Feb. 28. Benjamin spent weeks on his dissent, which filled 30 pages.

The majority "simply ignored, or avoided reference to, the overwhelming mountain of legal reasoning and authority that shatters any semblance of an acceptable legal basis for the majority's result," Benjamin wrote, adding that they used provocative, misleading and inaccurate wording.

He called their judgment reactive, incoherent and confusing, and he said they arbitrarily overturned impeccably reasoned decisions.

"There was no intrusion, no force and no compulsion," Benjamin worte. "The electronics simply recorded what the informant was seeing and hearing."

He agreed that the state Constitution can provide greater protection than the U. S. Constitution, but he wrote that the majority picked an unworthy case on which to make that point. He said provisions in the two Constitutions on searches and seizures match word for word, except where one uses "and" and the other uses "or."

The difference, Benjamin wrote, gives more strength to the U. S. Constitution. He noted that the Supreme Court of Appeals ruled in 1922 that it should construe the state's provision in harmony with the U. S. Supreme Court.

He wrote that there was no search or seizure by technology. He wrote, "Any 'search' or 'seizure' was accomplished by the State's informant" and that the majority misplaced its emphasis on the home as the location of the drug sale.

"The proper analysis is upon whether Mullens had a legitimate or reasonable expectation of privacy in the illegal transaction," Benjamin wrote.

He referenced a 1966 decision, Lewis v. U. S., in which the U. S. Supreme Court held that unlawful business in a home entitles the business to no greater sanctity than if it were carried on in a store or on a street.

"Mullens lowered the expectation of privacy which may ordinarily be afforded to that location by transforming it from a home to a place of business and inviting outsiders in to conduct business," Benjamin wrote. He noted that while the majority cited three decisions from other states, no other jurisdiction had relied on any of them.

"As these decisions are contrary to this Court's precedent, the law in the vast majority of states and federal law, I simply do not find them persuasive enough," Benjamin wrote.

He wrote that under the West Virginia wiretapping act, only State Police can seek a warrant and only five judges can authorize it.

"Given the limited ability to obtain the warrant required by the majority under the Act, I fear this Court has sent the message to drug dealers throughout this state to simply go into your house, call it your home, conduct your illegal business there and law enforcement may not be able to easily stop you," he wrote.

Benjamin also disputed a statement in the majority opinion that the decision was not retroactive.

"Due to the substantive nature of the constitutional right found by the majority in this matter, I cannot agree with their statement that the majority's holding does not apply retroactively," he wrote. "It does."

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