Lawmakers quickly change wiretapping law

By Steve Korris | Aug 23, 2007

CHARLESTON – One day, police planning to send "wired" informants into West Virginia homes needed special permission from far away.

The next day, they could do it with a call to a local magistrate or they could declare an emergency and gain permission three days later.

West Virginia wiretap law changed drastically overnight as legislators overpowered a decision of the Supreme Court of Appeals.

The Justices in February threw out electronic evidence of a drug deal in a suspect's home, ruling that police should have obtained a warrant.

At the time, no circuit judge could sign a wiretap warrant for local police.

Only five West Virginia circuit judges possessed authority to sign warrants at all, and they could not sign warrants in their own circuits.

The Court's decision stirred Manchin to action. He asked legislators in their second special session to wage "all out war on drugs."

Legislators introduced his bill Aug. 19, and passed it Aug. 21. They made it effective immediately.

Manchin and legislators practically begged police to wire snitches and send them into homes.

When prosecutors asked for warrants by phone, legislators added that.

Legislators set up a procedure, but they granted generous exceptions.

According to procedure, an officer must petition a magistrate or a circuit judge for an interception order.

The officer must sign an affidavit swearing that a wire would probably intercept evidence.

If the petition and the affidavit do not satisfy the magistrate or the judge, the officer must furnish further evidence or testimony.

Procedure, however, can melt away under pressure.

The law provides that, "No such order or affidavit shall be required where probable cause and exigent circumstances exist."

It provides that instead of a petition, "…the magistrate or judge may take an oral statement under oath…"

Finally, police can declare an emergency, cast aside all procedure and tape conversation in a home on their own authority.

In such emergencies they can obtain retroactive orders within 72 hours.

Citizens cannot readily check for abuses, for the law requires magistrates and judges to seal the files.

They may unseal the files "only upon a showing of good cause."

Although legislators expanded police power, they made sure police would not wire snitches and send them into law offices.

The old law provided that no interception device would be "placed or installed" in a law office.

The new law provides that no such device shall be "placed, installed or carried" in a law office.

Although Manchin and legislators promoted the law as war on drugs, nothing restricts it to drug investigations.

The Legislature's statement of purpose says nothing about drugs. It covers "conduct and oral communications in the person's home."

Delegate Joe Talbott of Webster cast a protest vote as a minority of one.

According to The Associated Press he said, "I don't believe the bill expresses the spirit of the Fourth Amendment."

According to AP, House judiciary chair Carrie Webster of Kanawha said the bill addressed concerns of law enforcement.

She said, "This body has done everything that it can do to give them the tools they need and still respect the constitution."

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