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WV Supreme Court: Omnipresent Concern Like ‘Officer Safety’ Can’t Be Used To Excuse Constitutional Violations

from the time-to-find-some-new-catch-phrases dept

The things said by law enforcement when trying to keep evidence from being tossed all sound the same. There are only a handful of acceptable excuses for performing warrantless searches and, man, do they get used so frequently we can probably all repeat them in our sleep.

“Exigent circumstances.” This one means things were happening so fast no one had time to respect the Constitution. “Plain view” is a big one. It means a cop saw something in an area they had access to and used that to justify a broader warrantless search of someone’s premises. “Odor of marijuana.” This means a cop pretended to smell something in order to perform a warrantless search or entry. This trick can also be performed by drug dogs, who will smell whatever cops want them to smell. “Good faith” is probably the worst one. It just means a cop violated the Constitution but was too stupid to realize it at the time. In other words, it’s the excuse offered by a child: “I didn’t do it on purpose!” Then there’s “officer safety,” which usually means nothing more than people exist where cops are doing cop things.

Back to “plain view” because that’s only part of the problem here. In this case, brought to us by FourthAmendment.com, plain view resulted in criminal charges. The real problem is the steps taken by officers to turn something that would never have been in “plain view” into something plainly viewed.

It’s a felon-in-possession case [PDF]. Officers responded to a call (the record doesn’t say much about this but that it appeared to involve people other than the person who was ultimately arrested and charged) and showed up at the residence of Charles Ward’s mother. Ward was outside the home. Officers approached him and asked him for ID. He told them his ID was downstairs in the t-shirt print shop he ran out of his mother’s basement, which had its own entrance.

Detective Roger Queen followed Ward inside the basement entrance door and stood inside the interior door to the print shop. Detective Queen testified he needed to step into the residence uninvited because… cop reasons.

Until this point, Det. Queen had not asked permission to enter because he was there to watch Mr. Ward retrieve his identification and “[f]or officer safety.” Det. Queen indicated he acted with general caution, but that he did not have a specific reason to fear for his safety. Mr. Ward was compliant and did not appear to be impaired, but he did seem “agitated.”

When asked for more detail on this “officer safety” concern by the trial court, Det. Queen was similarly vague:

We don’t know who we’re dealing with on the road. Once we show up at a place, it could be a cordial conversation or it could turn ugly, so you’re always on guard every time you get out of the vehicle. And when you’re talking to people, you want to keep them in front of you. You want to keep their hands available, because you don’t know what’s going to happen next.

None of this is stupid. It’s all very reasonable. But it’s not all that enlightening. And it certainly doesn’t explain why someone concerned about safety would use this non-specific motivation to move further inside someone’s home without so much as a hint of reasonable suspicion, much less probable cause.

Once further inside the residence, the detective saw a gun. He asked Ward about it (indirectly) and finally got an admission that Ward was a felon. (He did not, however, receive an admission that the gun belonged to Ward.) That was the sole evidence submitted by the government to secure a felon-in-possession conviction against Ward, who then moved to challenge this minimal amount of evidence.

The trial court denied the motion to suppress, finding vague claims about officer safety enough to bypass any constitutional concerns raised by Ward.

The West Virginia Supreme Court is far less willing to play along with this vague, cliched assertion. First, it points out that nothing in Det. Queen’s statements or testimony point to anything specifically concerning about this particular interaction with this particular person that would have made him so “concerned” he felt the need to intrude on Ward’s private residence.

While Det. Queen testified that he entered the premises for officer safety because he was “there for a [neighbor] disturbance[,]” he testified that he perceived nospecific or particular threat to his safety. In fact, Det. Queen testified only to a general concern that officers “don’t know what’s going to happen next[,]” which led him to follow Mr. Ward inside the premises. He had limited information about the neighbors’ dispute, and was unaware of the exact reason law enforcement was called to the scene. Det. Queen believed that the neighbor, not Mr. Ward, had called for assistance, but he was unaware of what the neighbor had said to the other officer or whether Mr. Ward had made any specific threats. He stated that Mr. Ward was compliant and did not appear to be impaired during their encounter. There was no testimony or evidence presented that Det. Queen had a particular suspicion that a firearm was present, or that a firearm posed a threat to himself or the other officer present.

Given this dearth of specificity, the state Supreme Court refuses to bless Detective Queen’s actions.

Det. Queen made only a general allegation that Mr. Ward was agitated without elaborating on any particular or specific behavior. He provided no testimony that Mr. Ward was yelling, threatening, or acting erratically. In fact, Det. Queen stated that Mr. Ward was compliant with law enforcement. We do not find this general “agitation” to be a specific and particularized fact supporting a warrantless search and seizure for the purpose of officer safety. Consequently, we find that the officer safety exception does not apply.

“Officer safety” is always a concern. But that doesn’t mean it can always be used to excuse warrantless intrusions. The detective needed specifics about his concerns. He didn’t have them. All he had was the vague assertion that sometimes police work is dangerous. And that excuse is so bad the court doesn’t even have to take a pass at the second prong of its constitutional analysis. This was bad from the start and the lower court blew it by giving Detective Queen a pass on his warrantless search.

The evidence (what there was of it) is suppressed. Considering the sole evidence was the gun the cop saw after violating Ward’s rights, this is going to result in a quick dismissal of charges. And while I appreciate the admonishments delivered by the state’s top court, the courts are the reason cops act like this in the first place. Why not just trot out “officer safety” as an excuse for rights violations? After all, the lower court said it was a perfectly good excuse. That this decision has been reversed is good, but cops wouldn’t do this sort of thing if more trial courts called them out on this bullshit during criminal cases. Until more courts are willing to do that, this sort of thing will remain distressingly common.

Filed Under: 4th amendment, charles ward, officer safety, roger queen, warrantless search, west virginia