Jim Finnel
Fallen Cannabis Warrior & Ex News Moderator
Most members of the state Supreme Court say police can't use electronic surveillance on oblivious suspects in their homes without first getting a warrant.
But one of the justices said the ruling is "nonsense" and "overblown rhetoric," claiming that an informant could walk into a defendant's home, make some observations and testify in court with no trouble -- but electronic versions of the same observations would not be admissible.
Justices made the 3-2 ruling last week in the case of a Boone County man who was sentenced after police sent a confidential informant into his home while wearing surveillance equipment.
The justices noted that they were ruling only on surveillance inside a home and that their opinion should have no impact on electronic surveillance outside a suspect's home.
Justices did say the ruling could have a widespread effect on law enforcement practices, though.
"The immense import of our ruling in this case demands that we leave no stone unturned and no footnote unread in reaching our decision," according to the court's opinion written by Chief Justice Robin Davis.
Justices considered U.S. Supreme court decisions, West Virginia law and laws in other states.
They were prompted by the case of Eddie Mullens of Whitesville, who pleaded guilty in 2005 to selling 3.23 grams of marijuana to the confidential informant.
Circuit Judge E. Lee Schlaegel ruled the surveillance evidence was permissible for trial. The circuit court sentenced Mullens to five years in prison. The sentence was suspended, and Mullens was placed on two years probation.
In last week's decision, the state Supreme Court remanded Mullens' case and let him withdraw his guilty plea to seek a new trial.
"The police failed to obtain judicial authorization to send the informant into Mr. Mullens' home while the informant was wearing an electronic surveillance device," Davis wrote for the court.
"Consequently, the trial court should have granted Mr. Mullens' motion to suppress the electronic surveillance recordings obtained in his home by the informant."
Davis and Justices Larry Starcher and Joseph Albright voted with the majority. Justices Brent Benjamin and Spike Maynard dissented.
It was Maynard, in his dissent filed the same day the opinion came out, who called it "nonsense."
"Let me try to make this clear to the average West Virginian so that he or she will understand the practical implications of the majority opinion," Maynard wrote.
"If the police, without a warrant, send an informant into a criminal's house, that informant can write down any illegal acts he or she sees in the house, and later testify in court to his observation of all illegal acts, including all conversations he heard and the events he saw, without violating the suspect's constitutional rights."
Maynard then pointed out the majority opinion's contention that the same evidence, if recorded electronically, cannot be used in court if a warrant wasn't obtained first.
"This is the type of nonsense that makes people shake their heads at court decisions," Maynard wrote.
Maynard went on to say his colleagues rely on a presumption that law enforcement agencies are apt to investigate law-abiding citizens without reason. Maynard said there is no evidence to support this.
"Why then should we presume that the fact that informants are permitted to wear a wire would spawn an orgy of arbitrary police conduct?" Maynard asked.
Maynard cited a 1971 U.S. Supreme Court decision that said a person's right to privacy was not violated by electronic surveillance.
That decision said a criminal has no protection in court against the testimony of a "trusted accomplice"-turned-police-informant, so they should also have no protection against electronic surveillance evidence.
The U.S. Supreme Court, in that decision, found that electronic surveillance is often more reliable than the "unaided memory" of an informant.
The court added that electronic evidence would lessen the chance that an informant would change their tune about a defendant when it came time to testify.
"I think that when the Supreme Court, in a well-reasoned opinion, finds that police conduct does not violate the Fourth Amendment, this court should adopt the U.S. Supreme Court's reasoning with regard to our own constitutional search and seizure provisions," Maynard wrote.
"In sum, the majority's new rule essentially is devoid of significant legal support and sound reasoning. The rule is unnecessary to protect the law-abiding citizenry from arbitrary use of confidential informants by the police. It is also useless in protecting criminal suspects from arbitrary police conduct since police can use informants who are not armed with electronic surveillance devices to enter a suspect's home for the purpose of gathering incriminating evidence."
Area police agencies have been following the case since the Supreme Court agreed to hear it. Metro Drug Unit Lt. Chuck Carpenter has contended such a ruling would have major effects on how his officers combat drug dealing.
Carpenter said search warrants usually come after a drug deal. He has said electronic surveillance fills in any credibility gaps the informant might have.
Carpenter said electronic surveillance is a standard investigation tool. Limits on surveillance would result in a significant effect on the ability to investigate drug crimes, he said.
Maynard predicted investigations will become harder for many West Virginia police agencies.
"Finally, and most troubling, is that the likely effect of the majority's new rule is to make legitimate police investigations of criminal suspects more time-consuming, complex and difficult," he wrote.
News Moderator - User 420 MAGAZINE ® - Medical Marijuana Publication & Social Networking
Source: Charleston Daily Mail
Author: Justin D. Anderson
Contact: justin@dailymail.com
Copyright: Charleston Daily Mail
Website: Charleston Daily Mail
But one of the justices said the ruling is "nonsense" and "overblown rhetoric," claiming that an informant could walk into a defendant's home, make some observations and testify in court with no trouble -- but electronic versions of the same observations would not be admissible.
Justices made the 3-2 ruling last week in the case of a Boone County man who was sentenced after police sent a confidential informant into his home while wearing surveillance equipment.
The justices noted that they were ruling only on surveillance inside a home and that their opinion should have no impact on electronic surveillance outside a suspect's home.
Justices did say the ruling could have a widespread effect on law enforcement practices, though.
"The immense import of our ruling in this case demands that we leave no stone unturned and no footnote unread in reaching our decision," according to the court's opinion written by Chief Justice Robin Davis.
Justices considered U.S. Supreme court decisions, West Virginia law and laws in other states.
They were prompted by the case of Eddie Mullens of Whitesville, who pleaded guilty in 2005 to selling 3.23 grams of marijuana to the confidential informant.
Circuit Judge E. Lee Schlaegel ruled the surveillance evidence was permissible for trial. The circuit court sentenced Mullens to five years in prison. The sentence was suspended, and Mullens was placed on two years probation.
In last week's decision, the state Supreme Court remanded Mullens' case and let him withdraw his guilty plea to seek a new trial.
"The police failed to obtain judicial authorization to send the informant into Mr. Mullens' home while the informant was wearing an electronic surveillance device," Davis wrote for the court.
"Consequently, the trial court should have granted Mr. Mullens' motion to suppress the electronic surveillance recordings obtained in his home by the informant."
Davis and Justices Larry Starcher and Joseph Albright voted with the majority. Justices Brent Benjamin and Spike Maynard dissented.
It was Maynard, in his dissent filed the same day the opinion came out, who called it "nonsense."
"Let me try to make this clear to the average West Virginian so that he or she will understand the practical implications of the majority opinion," Maynard wrote.
"If the police, without a warrant, send an informant into a criminal's house, that informant can write down any illegal acts he or she sees in the house, and later testify in court to his observation of all illegal acts, including all conversations he heard and the events he saw, without violating the suspect's constitutional rights."
Maynard then pointed out the majority opinion's contention that the same evidence, if recorded electronically, cannot be used in court if a warrant wasn't obtained first.
"This is the type of nonsense that makes people shake their heads at court decisions," Maynard wrote.
Maynard went on to say his colleagues rely on a presumption that law enforcement agencies are apt to investigate law-abiding citizens without reason. Maynard said there is no evidence to support this.
"Why then should we presume that the fact that informants are permitted to wear a wire would spawn an orgy of arbitrary police conduct?" Maynard asked.
Maynard cited a 1971 U.S. Supreme Court decision that said a person's right to privacy was not violated by electronic surveillance.
That decision said a criminal has no protection in court against the testimony of a "trusted accomplice"-turned-police-informant, so they should also have no protection against electronic surveillance evidence.
The U.S. Supreme Court, in that decision, found that electronic surveillance is often more reliable than the "unaided memory" of an informant.
The court added that electronic evidence would lessen the chance that an informant would change their tune about a defendant when it came time to testify.
"I think that when the Supreme Court, in a well-reasoned opinion, finds that police conduct does not violate the Fourth Amendment, this court should adopt the U.S. Supreme Court's reasoning with regard to our own constitutional search and seizure provisions," Maynard wrote.
"In sum, the majority's new rule essentially is devoid of significant legal support and sound reasoning. The rule is unnecessary to protect the law-abiding citizenry from arbitrary use of confidential informants by the police. It is also useless in protecting criminal suspects from arbitrary police conduct since police can use informants who are not armed with electronic surveillance devices to enter a suspect's home for the purpose of gathering incriminating evidence."
Area police agencies have been following the case since the Supreme Court agreed to hear it. Metro Drug Unit Lt. Chuck Carpenter has contended such a ruling would have major effects on how his officers combat drug dealing.
Carpenter said search warrants usually come after a drug deal. He has said electronic surveillance fills in any credibility gaps the informant might have.
Carpenter said electronic surveillance is a standard investigation tool. Limits on surveillance would result in a significant effect on the ability to investigate drug crimes, he said.
Maynard predicted investigations will become harder for many West Virginia police agencies.
"Finally, and most troubling, is that the likely effect of the majority's new rule is to make legitimate police investigations of criminal suspects more time-consuming, complex and difficult," he wrote.
News Moderator - User 420 MAGAZINE ® - Medical Marijuana Publication & Social Networking
Source: Charleston Daily Mail
Author: Justin D. Anderson
Contact: justin@dailymail.com
Copyright: Charleston Daily Mail
Website: Charleston Daily Mail
