                                                                         FILED
No. 18-0963 – State of West Virginia v. Howells                     February 25, 2019
                                                                     EDYTHE NASH GAISER, CLERK
                                                                     SUPREME COURT OF APPEALS
WORKMAN, J., dissenting:                                                 OF WEST VIRGINIA


              With a dismissive wave of its hand, the majority distinguishes the case at bar

from a nearly-identical case decided thirteen years ago wherein this Court came to the

opposite conclusion—that a warrantless electronic interception in a person’s home is a

violation of article III, section 6 of the West Virginia Constitution1. See State v. Mullens,

221 W. Va. 70, 650 S.E.2d 169 (2007). The majority justifies this distinction by arguing

that the electronic interception statutory scheme enacted by the Legislature in response to

Mullens, West Virginia Code § 62-1F-1 et seq., has cured the constitutional infirmity

occasioned by such interceptions through its regulatory scheme and, particular to this case,

its retroactive authorization provisions. Despite the fact that the “retroactive” electronic

intercept order (“EIO”) in this case in no way purports to be retroactive, the majority

nonetheless deems it properly retroactive by gutting each of the specific requirements for

a retroactive order. By creating a fictitious “retroactive” EIO and effectively rendering

West Virginia Code § 62-1F-9 a complete nullity, we are left with nothing more than the

same bare electronic interception deemed unconstitutional in Mullens.



              On June 12, 2017, the officers’ investigation led them to arrange a drug buy

from petitioner, to be consummated “a while later.” While waiting in their vehicle for a



       1
         “The rights of the citizens to be secure in their houses, persons, papers and effects,
against unreasonable searches and seizures, shall not be violated.” W. Va. Const. art. III,
§ 6, in part.
                                               1
return to petitioner’s home, the officers activated an audio/video recording device. They

returned and consummated the drug buy inside petitioner’s home while recording it without

an electronic interception order (“EIO”) and obtained petitioner’s phone number,

ostensibly for the purpose of contacting him for additional controlled buys. Accordingly,

on June 13, 2017, the officers obtained an EIO and arranged a second controlled buy. The

EIO application stated they had “purchased methamphetamine from this subject on one (1)

occasion on 06/12/2017 during a controlled purchase.” This is the lone reference to the

previous buy. The order makes no mention of purportedly being for the purpose of

retroactively authorizing the previous interception, much less contains any information

detailing an exigency which would have justified the prior interception without an order.

In fact, in response to “the period of time for which the interception is requested,” the

application states: “twenty (20) days from the date of issuance of this order.” The order

makes absolutely no provisions for retroactivity; instead, it deems itself effective “20(

TWENTY [sic] days from the issuance of this order.”



              At trial, the officers admitted they had no order authorizing the first

interception and argued they were taken off guard by being invited inside petitioner’s home

to consummate the drug buy, as justifying their failure to obtain an order. The officers

assert that they inexplicably thought the drug buy would occur in the open on petitioner’s

porch (where no EIO would be necessary) and identified being invited inside as “the

exigent circumstance.”


                                            2
              Before this Court, petitioner challenges the use of the recording of the first,

June 12, 2017, drug buy at trial as evidence obtained in violation of West Virginia Code §

62-1F-9 which provides that a “communications in [a] person’s home may be electronically

intercepted on an emergency basis” and retroactively authorized if:

              (1) a situation exists with respect to engaging in electronic
              interception before an order authorizing such interception can
              with due diligence be obtained; (2) the factual basis for
              issuance of an order under this article exists; and (3) it is
              determined that exigent circumstances exist which prevent the
              submission of an application under section three of this article
              ....

(emphasis added). The statute further specifically requires that “[i]f granted, the order shall

recite the exigent circumstances present . . . .” Id. The majority creates three new syllabus

points merely restating the salient provisions of the statute, including the exigent

circumstances recitation requirement, and then affirms petitioner’s conviction on the basis

that exigent circumstances were in fact present 2 and that, despite the EIO’s lack of

recitation of exigent circumstances, this statutory violation was harmless.



              First, as even a cursory review of the EIO application and order at issue

reveal, in no way do they purport to be retroactive to the June 12, 2017 drug buy. The idea

that this order has any retroactive effect on the illicit electronic interception at issue is


       2
         It does so despite insisting in a footnote that petitioner did not argue the absence
of exigent circumstances. This attempt to “thread the needle,” while admirable, ignores
the fact that petitioner argues a wholesale violation of the statute, rendering the recording
a warrantless seizure in violation of article III, section 6 of the West Virginia Constitution.
Regardless, the absence of an exigency, in any event, is patently plain error.

                                              3
absolute fiction. It very plainly and explicitly applies for intercepts conducted within the

ensuing twenty days after entry—obviously, for the purpose of covering the second buy

officers arranged for that day. How the lower court or this Court reaches the conclusion

that the subject EIO even qualifies for consideration under the retroactivity provisions of

West Virginia Code § 62-1F-9 is impossible to discern.



              Next, the majority demonstrates a startling lack of appreciation for the

meaning of the word “exigent” and the near-canon body of caselaw regarding what type of

circumstances qualify for this exception, concluding that an exigency existed justifying

retroactive application of the subject EIO. It reaches this conclusion because the officers

testified that they believed the drug buy would occur on petitioner’s porch, yet petitioner

invited them inside, to their purported surprise. Therefore, the majority declares it was

simply “not practical” to leave and get an EIO, creating exigent circumstances to proceed

with the recording.3 In fact, it may not have been practical to abort the drug buy and get

an EIO; however, there was absolutely no exigency which necessitated electronically

recording the ensuing drug buy.



              In State v. Buzzard, 194 W.Va. 544, 549 n.11, 461 S.E.2d 50, 55 n.11 (1995),

this Court explained: “Exigent circumstances exist where there is a compelling need for

the official action and there is insufficient time to secure a warrant[.]” (emphasis added).


       3
         I will not belabor the obvious as suggested by the statement of facts, i.e. the
officers waited in their vehicle to consummate the drug buy “a while later.”
                                            4
Further, in Ullom v. Miller, 227 W. Va. 1, 12 n.10, 705 S.E.2d 111, 122 n.10 (2010), the

Court stated that “‘exigent circumstances’ . . . require a compelling and immediate need

for the police to take swift action to prevent something adverse from occurring[.]”

(emphasis added). See also Chen, Jacob Y., 48 No. 5 Crim. Law Bulletin (2012) (“[T]he

determination of exigent circumstances vel non necessarily turns upon whether there is an

urgent need that justifies a warrantless [seizure].” (emphasis added)); 79 C.J.S. Searches §

75 (“[An officer] ought to be in a position to justify [the exigency] by pointing to some real

immediate and serious consequences if he or she postponed action to get a search warrant.”)



              There was absolutely no compelling or urgent need for the officers to record

the drug buy—the drug buy could and would have occurred regardless. At trial, the

officers’ first-hand testimony regarding the drug buy would serve as compelling and

sufficient evidence before the jury—precisely as occurred.            The recordation was

duplicative corroboration which, while convenient and ideal, was absolutely gratuitous.

“Circumstances are exigent where . . . necessary to prevent some consequence improperly

frustrating law enforcement efforts. However, mere inconvenience does not give rise to

exigent circumstances.” Id. (emphasis added). It may indeed have been “impractical” for

the officers to stop and get an EIO upon being invited in, but that does not create an

exigency necessitating the continued recording of the buy.4 “Exigent circumstances . . . .



       4
         In fact, there was no apparent need for the State to introduce this recording into
evidence upon discovering that the statutory requirements had been plainly violated. This
is particularly true given its insistence in its brief that the recording was inaudible.
                                                 5
is a rule of practical necessity to search or seize evidence before a warrant can be obtained.

However, ‘practical necessity’ is not simply a matter of the convenience of the searching

officers.” State v. Saunders, 799 P.2d 159, 163 (Or. Ct. App. 1990) (citations omitted).

Moreover, the statute itself only authorizes a retroactive authorization of an electronic

interception where such interception was conducted “on an emergency basis.” W. Va.

Code § 62-1F-9.



              This Court has acknowledged three universally-recognized, and nearly

exclusive, exigencies:

              [T]hree well recognized situations are when police reasonably
              believe (1) their safety or the safety of others may be
              threatened, (2) quick action is necessary to prevent the
              destruction of potential evidence, or (3) immediate action is
              necessary to prevent the suspect from fleeing.

Buzzard, 194 W. Va. at 549 n.11, 461 S.E.2d at 55 n.11; see also State v. Kendall, 219 W.

Va. 686, 692, 639 S.E.2d 778, 784 (2006) (same).              So well-understood are these

exigencies—flight/pursuit, destruction of evidence, and safety of others—that our “test”

for such circumstances references these specific scenarios:

              The test for the existence of exigent circumstances is whether
              the facts would lead a reasonable, experienced police officer to
              believe the evidence might be destroyed or removed before a
              warrant could be secured. There must be evidence both that an
              officer was “actually . . . motivated by a perceived need to
              render aid or assistance” and “that a reasonable person under
              the circumstances must have thought that an emergency
              existed.”



                                              6
State v. Lacy, 196 W. Va. 104, 112 n.7, 468 S.E.2d 719, 727 n.7 (1996) (citing State v.

Cecil, 173 W.Va. 27, 32 n.10, 311 S.E.2d 144, 150 n.10 (1983)). “Recognized situations

in which exigent circumstances exist include: danger of flight or escape; danger of harm

to police officers or the general public; risk of loss, destruction, removal, or concealment

of evidence; and hot pursuit of a fleeing suspect.” Id. See also Stamm, Claire Frances,

Defining the Destruction of Evidence Exigency Exception: Why Courts Should Adopt A

Strict Probable Cause Standard in the Wake of Kentucky v. King, 82 Miss. L.J. 1417, 1418

(2013) (“The main categories of exigent circumstances include the need to provide

emergency aid, apprehend a fleeing suspect, and prevent the destruction of evidence[.]”).



              Moreover, not only does the majority conflate impracticality with exigency,

it fails to appreciate that the statutory language itself appears to anticipate this possible

construction and is written in such a way as to specifically prevent this conflation. The

statute provides that retroactive authorization may be obtained upon the satisfaction of

three separately and specifically-enumerated conditions: 1) “a situation exists” before an

EIO can be obtained; (2) a “factual basis” for an EIO exists; and (3) “exigent

circumstances” exist. W. Va. Code § 62-1F-9. The majority has collapsed requirements

one and three into one circumstance of convenience.



              That is, the “situation” referenced in the first requirement is the situation in

which the officers found themselves upon arranging the drug buy—an opportunity to

electronically intercept criminal activity which developed in a way allegedly precluding
                                              7
obtaining an EIO. Simply because circumstances occurred in a manner preventing,

complicating, or making “impractical,” obtaining an EIO does not alone permit a

retroactive authorization. There must also exist an exigency—a urgent need to act to

prevent an untoward occurrence. The officers here may have had “a situation” which

developed before they could get an EIO, but that did not make the unlawful intercept

necessary and urgent, justifying retroactive authorization. Proceeding with the drug buy is

not the official act requiring exigency—it is the recording of the drug buy that is at issue.



              Having engineered its analysis to create a fictitious “retroactive” EIO and

find the existence of exigent circumstances, however, the majority finds itself still faced

with the blatant violation of the requirement that such exigencies be recited in the

retroactive EIO. This is where the majority’s result-oriented analysis reaches its zenith.

The opinion goes out of its way to incorporate this statutory requirement—to which there

is no stated exception—into a new syllabus point: “An order . . . that approves of an

electronic interception of conduct or oral communications and is made retroactive, must

recite the exigent circumstances that prevented a law enforcement officer from obtaining

an order before engaging in electronic interception in a person’s home.” (emphasis added).

It then immediately declares violation of the statutory requirement and its newly-created

syllabus point “harmless,” thereby eviscerating this requirement altogether. The effect of

the opinion is to nullify this requirement insofar as officers can cobble together a purported




                                              8
“exigency” at some later point in time. It cannot be lost on the majority that it is precisely

this “after-the-fact” justification that this requirement is plainly intended to prevent.5



                As noted at the outset of my dissent, once the majority opinion effectively

abolishes the two most important requirements contained in West Virginia Code § 62-1F-

9 for retroactive authorization of electronic interceptions—exigency and contemporaneous

recitation of the exigency—we are left with nothing more than a garden-variety warrantless

interception of an in-home communication. This precise occurrence was declared to be a

violation of article III, section 6 and therefore unconstitutional in Mullens. Proudly touting

our ability to fashion constitutional protections in excess of those guaranteed by the United

States Constitution,6 the Mullens court held that

                [i]t is a violation of West Virginia Constitution article III, § 6
                for the police to invade the privacy and sanctity of a person's
                home by . . . surreptitiously us[ing] an electronic surveillance

       5
         Much as the officers, under any common sense view of their testimony, conformed
their testimony to characterize the EIO as “retroactive,” when at the time, it clearly was
only intended to cover future controlled buys.
       6
           The Mullens court justified its departure from federal authority stating:

                “This Court has determined repeatedly that the West Virginia
                Constitution may be more protective of individual rights than
                its federal counterpart.” State ex rel. Carper v. West Virginia
                Parole Bd., 203 W.Va. 583, 590 n. 6, 509 S.E.2d 864, 871 n. 6
                (1998). In other words, we may “interpret state constitutional
                guarantees in a manner different than the United States
                Supreme Court has interpreted comparable federal
                constitutional guarantees.” Peters v. Narick, 165 W.Va. 622,
                628 n. 13, 270 S.E.2d 760, 764 n. 13 (1980).

Id. at 89, 650 S.E.2d at 188.
                                                9
              device to record matters occurring in that person's home
              without first obtaining a duly authorized court order[.]

Syl. Pt. 2, in part, id. The majority deals with Mullens by declaring it inapplicable in view

of the enactment of West Virginia Code § 62-1F-9; it is correct to this limited extent.

However, once it proceeds to gut the Legislature’s specifically enacted remedy for the

constitutional infirmity in Mullens, we are left with the same blatant constitutional violation

previously deemed reversible error.



              The majority should have vacated this conviction and its failure to do so

under such strained analysis has cast a troubling cloud over our citizens’ right to be free of

unlawful interception of their in-home communications. Unlike the majority herein, the

Mullens Court was cognizant of the gravity of its decision: “The impact of this Court’s

resolution of the issue herein presented reaches literally into the home of every citizen of

our State. The immense import of our ruling in this case demands that we leave no stone

unturned and no footnote unread in reaching our decision.” 221 W. Va. at 73, 650 S.E.2d

at 172. Given the majority’s tortured analysis, one cannot even be certain it actually read

the EIO at issue. More importantly, the opinion lends the Court’s imprimatur to an

obviously fictitious recharacterization of the purpose and purported reach of the EIO as

well as an inscrutable expansion of the term “exigency.” After the majority’s obliteration

of a statutorily mandated element for retroactive EIOs, determining which requirements of

West Virginia Code § 62-1F-9 are still validly enforceable to preclude introduction of

unlawfully obtained evidence is anyone’s guess.

                                              10
For the foregoing reasons, I respectfully dissent.




                              11
