WV prison guard stops our client at gunpoint in Doddridge County, WV

Check out this new case. Police officer impersonation incident by a WV Division of Corrections CO / Parole officer. We met with investigators already, who were extremely concerned about what they saw here….

If you have any information, please contact us.

Open-Carry of Firearms in WV in 2019: “Am I being detained?”

This is the current state of open-carry law in West Virginia (in my opinion), and it’s tricky relationship with a police officer’s right to do a “Terry” frisk under certain instances, as of February of 2019. Note: government lawyers do, and will, disagree with my analysis.  But mine’s supported by the law. However, proceed at your own risk, and the law may change after I write this, especially since litigation is ongoing….

1. If you’re in a vehicle, and an officer has a suspicion you may be armed, or sees that you’re open-carrying, you may be frisked and temporarily disarmed; 

2. If you’re not in a vehicle subject to a traffic stop, a police officer must have some reasonable articulable suspicion that you are engaged in criminal activity in order to seize and disarm you. Open-carrying a firearm alone is not justifiable suspicion to perform an investigative detention, unless the officer has information that you are a prohibited person unable to possess a firearm.


Many of you have probably seen the recent lawsuit I’ve been involved with in the Michael Walker v. Putnam County case where we sued over the violation of Mr. Walker’s right to open carry a firearm in West Virginia.

The defense from the government so far is that they are allowed to perform what’s called a “Terry” stop and frisk when they see someone with a gun.  Just to clarify the law, since they obviously misunderstood then, and continue to misunderstand.

A person’s Fourth Amendment rights under the U.S. Constitution to be free from unreasonable search and seizure are triggered whenever a “seizure” occurs.

When does a seizure occur?

A person is “seized” within the meaning of the Fourth Amendment if, “ ‘in view of all [of] the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” United States v. Gray, 883 F.2d 320, 322 (4th Cir.1989) (quoting United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980)). Specific factors to consider in determining whether a reasonable person would feel free to leave include: (i) the number of police officers present at the scene; (ii) whether the police officers were in uniform; (iii) whether the police officers displayed their weapons; (iv) whether they “touched the defendant or made any attempt to physically block his departure or restrain his movement”; (v) “the use of language or tone of voice indicating that compliance with the officer’s request might be compelled”; (vi) whether the officers informed the defendant that they suspected him of “illegal activity rather than treating the encounter as ‘routine’ in nature”; and (vii) “whether, if the officer requested from the defendant … some form of official identification, the officer promptly returned it.” Mendenhall, 446 U.S. at 554, 100 S.Ct. 1870; Gray, 883 F.2d at 322–23.

The Fourth Circuit has noted that though not dispositive, “the retention of a citizen’s identification or other personal property or effects is highly material under the totality of the circumstances analysis.” United States v. Black, 707 F.3d 531, 538 (2013) (citing Weaver, 282 F.3d at 310 (emphasis added)). In Black, the Court found that, “[i]t is clear that when Officer Zastrow expressly told Black he could not leave, Black was already seized for purposes of the Fourth Amendment.” Black at 538 (emphasis original).

When can a “seizure” be legal as a justified “Terry” Stop and Frisk under Terry v. Ohio?

Federal case law has long been clear that the police officers cannot perform a “Terry stop” of a person lawfully open-carrying a firearm for the purposes of checking his ID and running a background check to determine whether the person is a prohibited person, or to otherwise disarm him, without more.  Although brief encounters between police and citizens require no objective justification, United States v. Weaver, 282 F.3d 302, 309 (4th Cir. 2002), it is clearly established that an investigatory detention of a citizen by an officer must be supported by reasonable articulable suspicion that the individual is engaged in criminal activity. Terry v. Ohio, 392 U.S. at 21, 88 S.Ct. 1868 (1968). 

To be lawful, a Terry stop “must be supported at least by a reasonable and articulable suspicion that the person seized is engaged in criminal activity.” Reid v. Georgia, 448 U.S. 438, 440, 100 S. Ct. 2752 (1980).  The level of suspicion must be a “particularized and objective basis for suspecting the particular person stopped of criminal activity.” United States v. Griffin, 589 F.3d 148, 152 (4th Cir. 2009).  As such, “the officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” Terry, 392 U.S. at 21, 88 S. Ct. 1868. Moreover, the Fourth Circuit has already made it very clear that in states where open carry is legal, such as West Virginia, if officers have no individualized information that a particular individual who is lawfully open-carrying is a prohibited person, the mere exercise of their rights by open-carrying “cannot justify an investigatory detention.”  Indeed, the Court held that “Permitting such a justification would eviscerate Fourth Amendment protections for lawfully armed individuals in those states.” United States v. Black, 707 F.3d 531, 540 (2013) (quoting United States v. King, 990 F.2d 1552, 1559 (10th Cir. 1993)).

Occupants of a vehicle subject to a lawful traffic stop are a different analysis altogether, and are more likely to be subject to a Terry seizure.  An officer who makes a lawful traffic stop and who has a reasonable suspicion that one of the automobile’s occupants is armed may frisk that individual for the officer’s protection and the safety of everyone on the scene. Robinson at 696 (2017 case) (citing Pennsylvania v. Mimms, 434 U.S. 106, 112, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977).

The importance of the Black case to open-carry rights in our circuit:

In 2013, Judge Gregory of the U.S. Fourth Circuit Court of Appeals, whom I have had the honor of appearing in front of, issued an opinion in the case of United States v. Black, 707 F.3d 531, 540 (2013), which is central to the rights of West Virginians to open carry firearms.  Although that case was from North Carolina, it applies equally here.  In his opinion, he admonished law enforcement for regularly abusing the Terry Stop procedure to violate the rights of lawful gun owners:

At least four times in 2011, we admonished against the Government’s misuse of innocent facts as indicia of suspicious activity. See United States v. Powell, 666 F.3d 180 (4th Cir.2011); Massenburg, 654 F.3d 480;United States v. Digiovanni, 650 F.3d 498 (4th Cir.2011); and United States v. Foster, 634 F.3d 243 (4th Cir.2011). Although factors “susceptible of innocent explanation,” when taken together, may “form a particularized and objective basis” for reasonable suspicion for a Terry stop, United States v. Arvizu, 534 U.S. 266, 277–78, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002), this is not such a case. Instead, we encounter yet another situation where the Government attempts to meet its Terry burden by patching together a set of innocent, suspicion-free facts, which cannot rationally be relied on to establish reasonable suspicion. 

Second, Gates’ prior arrest history cannot be a logical basis for a reasonable, particularized suspicion as to Black. Without more, Gates’ prior arrest history in itself is insufficient to support reasonable suspicion as to Gates, much less Black. See Powell, 666 F.3d at 188 (“[A] prior criminal record is not, standing alone, sufficient to create reasonable suspicion.” (citation omitted)). Moreover, we “ha[ve] repeatedly emphasized that to be reasonable under the Fourth Amendment, a search ordinarily must be based on individualized suspicion of wrongdoing.” DesRoches v. Caprio, 156 F.3d 571, 574 (4th Cir.1998) (quotation marks and alterations omitted) (emphasis added). In other words, the suspicious facts must be specific and particular to the individual seized. Exceptions to the individualized suspicion requirement “have been upheld only in ‘certain limited circumstances,’ where the search is justified by ‘special needs’ ”—that is, concerns other than crime detection—and must be justified by balancing the individual’s privacy expectations against the government interests. Id. (quoting Chandler v. Miller, 520 U.S. 305, 308, 313, 117 S.Ct. 1295, 137 L.Ed.2d 513 (1997)); see Treasury Employees v. Von Raab, 489 U.S. 656, 665–66, 109 S.Ct. 1384, 103 L.Ed.2d 685 (1989). Here, the Government has not identified any substantial interests that override Black’s interest in privacy or that suppress the normal requirement of individualized suspicion. 

Third, it is undisputed that under the laws of North Carolina, which permit its residents to openly carry firearms, see generally N.C. Gen.Stat. §§ 14–415.10 to 14– 415.23, Troupe’s gun was legally possessed and displayed. The Government contends that because other laws prevent convicted felons from possessing guns, the officers could not know whether Troupe was lawfully in possession of the gun until they performed a records check. Additionally, the Government avers it would be “foolhardy” for the officers to “go about their business while allowing a stranger in their midst to possess a firearm.” We are not persuaded. 

Being a felon in possession of a firearm is not the default status. More importantly, where a state permits individuals to openly carry firearms, the exercise of this right, without more, cannot justify an investigatory detention. Permitting such a justification would eviscerate Fourth Amendment protections for lawfully armed individuals in those states. United States v. King, 990 F.2d 1552, 1559 (10th Cir.1993) (emphasis added). Here, Troupe’s lawful display of his lawfully possessed firearm cannot be the justification for Troupe’s detention. See St. John v. McColley, 653 F.Supp.2d 1155, 1161 (D.N.M.2009) (finding no reasonable suspicion where the plaintiff arrived at a movie theater openly carrying a holstered handgun, an act which is legal in the State of New Mexico.) That the officer had never seen anyone in this particular division openly carry a weapon also fails to justify reasonable suspicion. From our understanding of the laws of North Carolina, its laws apply uniformly and without exception in every single division, and every part of the state. Thus, the officer’s observation is irrational and fails to give rise to reasonable suspicion. To hold otherwise would be to give the judicial imprimatur to the dichotomy in the intrusion of constitutional protections. 

United States v. Black, 707 F.3d 531, 540 (2013).


West Virginia State Police and asset forfeiture in the news this weekend. The ugly truth.

The Charleston Gazette-Mail had an article this weekend on a New Jersey couple who were pulled over by a West Virginia State Trooper on their way to a casino.  They had $10,000.00 with them.  The state trooper took all but $2.00 and sent them on their way.  He also took their cell phone (presumably to search it for evidence of a crime, such as drug dealing).

This highlights what is perhaps the ugliest, most unconstitutional, most nazi-ish, thuggish, and un-American behavior engaged-in by the government at the present time: asset forfeiture.  This is the way it works.  You get pulled over for a traffic offense.  You have cash on you, or in the vehicle.  The officer seizes the cash, because they consider the cash itself to constitute evidence of being a drug dealer.  They don’t have to charge you criminally whatsoever.  They then serve you with a notice that, if you want to redeem your cash, you have to contact the court and the prosecuting attorney, and formally claim the cash.  In so doing, the process implies that have to explain to the court, and the prosecutor, where you obtained the money, etc.  The theory is, that drug dealers are not going to claim the money.  The the law enforcement agency gets to keep it, and the prosecutor’s office gets 10%.  Talk about a conflict of interest . . . .

In reality, the law provides that in order to keep the currency which was seized from the citizens, the State, pursuant to W. Va. Code § 60A-7-703(a)(6) (1988), is required to demonstrate by a preponderance of the evidence that there is a substantial connection between the property seized and an illegal drug transaction.  This finding is in addition to the initial finding of probable cause that an illegal act under the drug law has occurred. See Syllabus Point 4 of State v. Forty-Three Thousand Dollars, No. 31224 (W. Va. 11/26/2003) (W. Va. 2003).

Only after the State has filed a civil forfeiture petition, and met its’ burden of proof by a preponderance is the citizen required to prove how he/she/they came into ownership of the currency. Id. at 6.

In the case of the couple in the Gazette article, Dimities Patlias and  Tonya Smith, they got nowhere until they contacted the media.  The reporter, Jake Zuckerman, started making some phone calls, including to the prosecuting attorney, and voila, their money was returned in full.  Now the couple is rightly pissed off, and much of the public is learning about this un-American scheme for the first time.

The Prosecuting Attorney of Jefferson County, who returned the money is a good guy.  Kudos to him for doing the right thing after looking into it.  I actually had an asset forfeiture case with him previously, and he returned the money in that case as well.  I also represented some of his family members in a real estate related jury trial, which we won, thankfully.  This is a problem in a national scale.  This occurs everywhere, and is practiced by the federal government as well.

Summersville Speed Trap/Scam on Route 19 in West Virginia Claims an Innocent Disabled Man

UPDATE 8/20/18:  Our FaceBook post on the topic.

UPDATE 8/17/18: I obtained the Criminal Complaint from the incident.  It is indeed signed by both the sheriff’s deputy who was the arresting officer, as well as the Summersville PD officer.  It’s not a notarization, but it is a signature.  While it doesn’t make sense as to why they did it that way, that process would be legal.  The following is the full text of the narrative, which is sworn under oath as the probable cause basis for the arrest:


According to Mr. Jones’ brother, they picked his truck up later that same day/night at the local impound for the exorbitant sum of $350.00, and it was driven home, with a vehicle following behind.  The brake lights worked just fine.  The narrative included no allegations of improper driving.  That means, the only basis for the stop was for a improper equipment violation which didn’t exist.  In other words, it appears to be a lie.  Without improper driving, what other information did this deputy have to want to stop Mr. Jones?  The only information he had was the color of Mr. Jones’ skin.  This is unfortunate, but not unheard of.  The same basis was used to stop my client Antonio Tolliver.  That state trooper is now a former state trooper.

What does that mean?  If the State/Prosecutor can’t prove that the vehicle had no brake lights, in light of testimony and evidence from Mr. Jones’ family and friends that the car’s brake lights worked just fine, the stop will have been illegal.  Under the “fruit of the poisonous tree” doctrine, everything that happened subsequently, is inadmissible in court.  Even assuming the blood draw was legal, which is a big “if,” and the supposed statement about the pill for arthritis and pain was legal, they cannot be used against Mr. Jones.  The arrest, and everything which happened afterwards,  is unconstitutional and illegal.

So he’s driving perfectly normal, gets pulled over for an equipment violation which doesn’t exist, gets put through field sobriety tests and supposedly fails.  So why at that point didn’t they give him a breathalyzer?  Instead they call Deputy Junk Science to arrive, who took a class on recognizing people who had taken prescription drugs?  Then forcibly taken to a hospital and forcibly withdraw blood from his body? He was driving normally, and wasn’t bothering anyone.  The only thing he did wrong was drive into a notorious speed trap, where officers are itching to pull over someone who looks like they’re coming down from one of the rust belt cities with a load of heroin.  Which brings us back to racial profiling.  It would be interesting to look at some of the other cases of stops on Route 19 in Summersville over the past few years.

Yesterday, WVVA ran a story about Jeffrey Jones, a man local to Greenbrier County, who had an unfortunate encounter with the police in Summersville, West Virginia – a place with the reputation as a well known speed trap extortion racket.  As a disclaimer, I don’t represent him in any way, but I do know the man since he works at my local Kroger.  He is the nicest guy, always smiling, and always helpful.  Everyone loves him.  What other grocery store employee has customers that take photos such as these?


These photos speak for themselves, which were posted on the WVVA website.  From the article:

SUMMERSVILLE, W.Va. (WVVA) Jeffrey Jones of Lewisburg is no stranger to hard knocks. As a child, he battled Spinal Meningitis, a condition that left him 90 percent deaf and with one leg longer than the other.

“Growing up, I had Meningitis. Everyone always thought I was stupid because I couldn’t hear. And because I was the smallest in the class, everyone picked on me.”

Despite the physical limitations, Jones said he never misses at day of work keeping track of the carts at the Ronceverte Kroger; the same place where his family said he was hit by a car a couple years ago and broke a hip.

“He stops and checks on everyone everywhere he goes,” said his friend Brianna Barkley. “There’s not a person that’s a stranger. He spreads happiness and friendship to everyone he sees.”

That job may be in jeopardy after Jones said he was unlawfully stopped by a Nicholas County Sheriff’s deputy on Sunday, August 5th, for a broken brake light. He was arrested and charged with Driving Under the Influence (DUI).

Then there was a phone call from a local legislator, to the Attorney General’s Office on his behalf:

Through his work at Kroger over the years, Jones has made friends from all walks of life, including Greenbrier County Del. Jeff Campbell, (D) 42nd Dist., who on Tuesday, personally requested the West Virginia Attorney General’s Office for an investigation.

“I would like to see the charges dismissed. I would like to see the $350 he spent to get his truck out of impound reimbursed. I think his wages should be reimbursed. And I’d like to see an apology.”

Oops.  So the Summersville Chief of Police contacts the news station and makes a stunning denial:

UPDATE: Summersville Police Chief John Nowak said Thursday his officers did not participate in the arrest of Jeffrey Jones on Sunday, August 5th.

Although Patrolman R.L. McClung with the Summersville Police Dept. signed both pages of the criminal complaint, the chief said the officer merely notarized the document for the arresting officer, Deputy J.D. Ellison with the Nicholas County Sheriff’s Dept.

Ok, say what?  Your officer “notarized” a criminal complaint?  Here is a sample Criminal Complaint, which is actually a form provided by the West Virginia Supreme Court, from a recent case of mine (which resulted in a large settlement and an officer being fired):


As you can see, there is no signature block for a “notarization.”  Criminal Complaints, which are standardized forms meant to comply with state and federal constitutional requirements applicable to the process of putting a person temporarily behind bars, are signed by the “Complainant,” who is almost always a sworn law enforcement officer.

The Criminal Complaint notes that the complainant must be present in person before the Magistrate, who will authorize the arrest and subsequent incarceration, assuming the Magistrate believes probable cause exists based on the sworn written testimony/explanation offered by the Complainant/Police Officer.

In my 12 years of experience practicing law around the State of West Virginia, I have never heard of a police officer “notarizing” the Criminal Complaint of another police officer.  And being a civil rights lawyer, I have examined probably thousands of Criminal Complaints.  It would be understandable for one officer to draft and sign the complaint where there were multiple officers involved.  They don’t all have to sign their name to the complaint.  But I’ve never heard of another officer, from an entirely different agency, who wasn’t even present at the incident/arrest, to apply under oath for the signature of the Magistrate, which is effectively an arrest warrant.  That would be hearsay, and would not establish probable cause.  No competent Magistrate would sign such a Criminal Complaint.  The only exception would be, if the Magistrate did not know because that fact was concealed.

I’m not posting Mr. Jones’ Criminal Complaint, but somebody has some explaining to do in Summersville.  I wonder how many other arrests/tickets given by the county sheriff’s department were actually signed by a city police officer in Summersville, given their reputation as a well known speed trap extortion operation?  Hmmm.  Like all the old ways in West Virginia, it all comes down to money.  Maybe when the legislature finishes cleaning up the Supreme Court mess, they can come follow this money trail in Summersville.  I’m sure he isn’t the only victim – just one innocent enough to have people stand behind him.

Anti Texting and Driving Ban Legislation

A form of the proposed anti texting and driving ban passed the West Virginia House of Delegates.  A few days ago I posted about the West Virginia texting and driving laws on the West Virginia Car Accident Law Blog, noting that this legislation was coming up for a vote.  It still has to pass the senate.  It only allows for officers to cite motorists for texting and driving as a “secondary” offense rather than a “primary” offense.  This means that cops cannot pull someone over just because they see someone texting and driving.  There has to be some primary infraction or other reason to make the stop.  Only then can the person be ticketed for texting and driving.

Honestly, even if it was a primary offense under the statute, it wouldn’t stop anybody.  Who is going to be texting with a police cruiser right next to them?  Most idiots who do this aren’t that stupid.  The best enforcement for the texting and driving problem is civil trial attorneys who sue persons who injure others due to texting and driving.  We can easily find out if someone had been texting at the time of, or immediately before, the collision.

See Charleston Gazette article today on the legislation.

A WV Criminal Defense Attorney’s advice on how not to handle a traffic stop

Sometimes I give out free advice, such as my lecture on keeping one’s mouth shut.  Here is another.  At some point in your life you are going to be pulled over by a cop who treats you like crap.  He will either be really young, or will be older and act like a Marine drill sergeant.  He will talk down to you.  He will talk really loudly.  He may ask you personal questions.  You may feel provoked to run your mouth, or to insert a snide comment.

Although he may deserve it, do not say what you want to say.  Do not ask for his badge number (you can find that out after the fact if necessary – his identity will almost never be a mystery).  Do not ask for a supervisor.  Just say, “yes sir” and be polite and cooperative – even if he is not.  And then drive off as soon as he lets you.

Chances are, if he is being a jerk to you, he is capable of arresting you illegally.  They can arrest you for obstruction and/or resisting arrest merely by claiming that you refused to obey his lawful orders.  Then it is up to you after-the-fact to try and fight your way out of it.  Worse yet, maybe he says you took a swing at him.  Then you get charged with assault or battery on an officer.   It’s your word versus his, and his dash cam was conveniently inoperable.  At the very best you end up having to pay a criminal defense attorney to get you out of the mess, and a year later, get it expunged.  At worse, you end up at trial, and potentially get convicted.  Then maybe you appeal, etc.  It all could have been avoided.

Of course, if you have already done this and now have to pay huge sums of money to a West Virginia criminal defense attorney, it might as well be me (1-888-54-JBLAW – available statewide [shameless plug]).

Prosecuted in retaliation for videotaping police misconduct

ABC News ran a story on the growing number of prosecutions for private citizens videotaping police misconduct.  The main story highlighted in the article was a guy who had a helmet mounted video camera, which taped a plain-clothes police officer swerving in front of the motorcyclist, slamming on his brakes, and jumping out with his gun in hand.

Was the officer disciplined for this act of cowboyism?  I don’t think so.  Instead the motorcyclist is being prosecuted for videotaping the officer without his consent.  The state police in Maryland actually busted into the guy’s house, searched it, and confiscated his computer and hard drive, and then indicted him for a felony violation of Maryland’s wiretapping laws.

Okay, arrest the guy for reckless driving.  I don’t have any problem with that.  But give me a break.  This is a bunch of garbage.  Our only means of protecting ourselves from cowboy cops is the video camera.  Almost every police prosecution that you see was forced due to the cop’s actions being caught on tape.  The cops know this, and they try their best to keep citizens from filming them.  The newspapers are full of people being arrested for “obstruction” or whatever, for filming cops.

The motorcyclist had a camera on his helmet.  He didn’t know that this cowboy was going to jump out at him waving his gun.  I am assuming cops in Maryland have dash mounted video cameras (although I am sure they are not on when it suits them not to be on).  Does that mean that every cop in Maryland with a dash cam is guilty of felony violations of Maryland wiretapping laws?  Don’t hold your breath for those prosecutions.

Obviously there is a double standard out there.  And people are getting tired of it.  I had a client who videotaped police shooting tear gas through his windows and them busting in with gas masks, AR-15,s and taser guns, then tasing him, and probably ended with them dragging him out of the picture.  What happened to the video?  It was confiscated by the police and never returned.  When I was finally able to see it, it conveniently “ended” before the gas grenades were shot into the house.

Gestapo tactics.  The ironic thing is, you see this sort of stuff from cops in suburbia, or other areas where there is very little real crime.  Just ask a real cop who has worked in the trenches – NYPD, LAPD, Charlotte PD, Atlanta PD, who deal with all sorts of crap and scumbags – they rarely engage in cowboyism, they have enough to worry about.

New West Virginia Search and Seizure Statute

New legislation has been passed in West Virginia dealing with search and seizure.  It was pushed by the ACLU, who of course were only concerned for minorities having their rights disregarded.  But the fact is that everyone, across the board, has had their rights trampled when it comes to traffic searches and seizures.

It essentially provides that no longer can law enforcement merely testify after-the-fact that the vehicle owner consented to a search of his or her vehicle.  This, by the way, is pretty much the foundation for 80% of criminal prosecutions.  Either people are too dumb/ignorant/naive  to realize that they can say “no” to the officer who is asking to search their vehicle, or the cop just “testi-lies” after-the-fact that consent was given, when in fact it was not.  Who do you think the judge is going to believe, the law enforcement officer, or the guy who had marijuana/concealed weapon, etc. in his car?

Pursuant to this new statute, consent must now be recorded, either in writing through an approved form, or through an audio/video recording.  It must be communicated to the suspect that he or she has the right to refuse the search.  It also provides that he or she can revoke their consent at any time.  Though this may be dicey, because the revocation would not be recorded unless there was a dash cam, or other recorder, recording the audio.  The one exception for the recordation of consent is if there is an issue of officer safety.  Basically, if the cop can articulate some justification for believing there may be some weapon that could potentially harm him or her, then the statute flies out the window.

Remember, states are generally free to provide greater protection of civil liberties than is provided for in the U.S. Constitution (i.e., the US Supreme Court), which West Virginia has done here.  However, states are not free to provide less protection.  Hence, West Virginia could not pass a statute (that would be constitutional) which would allow officers to search vehicles without probable cause or consent.

The statute will take effect January 11, 2011.

Here is the statute:

A BILL to amend of the Code of West Virginia, 1931, as amended, by adding thereto two new sections, designated §62-1A-10 and §62- 1A-11, all relating to searches of motor vehicles by law- enforcement officers; establishing criteria; and requiring rules.

Be it enacted by the Legislature of West Virginia:

That the Code of West Virginia, 1931, as amended, be amended by adding thereto two new sections, designated §62-1A-10 and §62- 1A-11, all to read as follows:

§62-1A-10. Motor vehicle searches.

(a) A law-enforcement officer who stops a motor vehicle for an alleged violation of a law or ordinance regulating traffic may not search the vehicle unless the law-enforcement officer:
(1) Has probable cause or another legal basis for the search;
(2) Conducts a search for weapons based on an articulation of a reasonable fear for the officer’s safety or the safety of others;
(3) Obtains the written consent of the operator of the vehicle on a form that complies with subsection (b), section eleven of this article; or
(4) Obtains the oral consent of the operator of the vehicle and ensures that the oral consent is evidenced by an audio and video recording that complies with subsection (c), section eleven of this article.
(b) This section takes effect on January 1, 2011.

§62-1A-11. Rules for certain evidence of consent to vehicle search.

(a) To facilitate the implementation of section ten of this article the Director of the Governor’s Committee on Crime, Delinquency and Corrections, in consultation with the Division of Motor Vehicles, shall propose emergency and legislative rules in accordance with article three, chapter twenty-nine-a of this code to establish the requirements for:
(1) A form used to obtain the written consent of the operator of a motor vehicle under section ten of this article; and
(2) An audio and video recording used as evidence of the oral consent of the operator of a motor vehicle under section ten of this article.
(b) At a minimum, the rules adopted under subsection (a) of this section must require the form to contain:
(1) A statement that the operator of the motor vehicle fully understands that the operator may refuse to give the law- enforcement officer consent to search the motor vehicle;
(2) A statement that the operator of the motor vehicle is freely and voluntarily giving the law-enforcement officer consent to search the motor vehicle;
(3) A statement that the operator of the motor vehicle may withdraw the consent at any time during the search;
(4) The time and date of the stop giving rise to the search;
(5) A description of the motor vehicle to be searched; and
(6) The name of each law-enforcement officer conducting the stop or search.
(c) At a minimum, the rules adopted under subdivision (2), subsection (a) of this section must require the audio and video recording to reflect an affirmative statement made by the operator that:
(1) The operator of the motor vehicle understands that the operator may refuse to give the law-enforcement officer consent to search the motor vehicle;
(2) The operator of the motor vehicle is voluntarily giving the law-enforcement officer consent to search the motor vehicle; and
(3) The operator of the motor vehicle was informed that the operator may withdraw the consent at any time during the search.
(d) The Director of the Governor’s Committee on Crime, Delinquency and Corrections shall adopt the rules required by this section no later than December 31, 2010.

NOTE: The purpose of this bill is to provide procedures to protect motor vehicle operators with regard to searches of their motor vehicles by law-enforcement officers.

§§62-1A-10 and 62-1A-11 are new; therefore, strike-throughs and underscoring have been omitted.

It’s not our fault…. Civil Liability of West Virginia Police Officers/Departments in Pursuit Situations

In this morning’s Beckley Register-Herald, there was an article about a West Virginia State Police pursuit involving an ATV.  Apparently there was undisputedly a pursuit of an officer in a cruiser, chasing a man on an ATV.  Also undisputed, at some point the ATV wrecked and the man was killed.  Where the issue lies is, did the wreck occur during the pursuit, or had the officer abandoned the pursuit, after which the man wrecked on down the road?  And could the West Virginia State Police be liable for a man fleeing on an ATV only to accidentally kill himself in the process?

The important fact is that the driver of the ATV was killed.  He had apparently stolen the vehicle, and thus had fled.  The end result is that this case is much, much different from a scenario in which a passenger on the ATV was killed, or some other potentially innocent third party.  I’m not going to comment on whether I think there is a case there or not for the deceased’ driver’s estate, but here is some helpful information for cases where the facts are slightly different:

This is a portion of the materials I prepared for a continuing legal education seminar that I presented in Charleston, West Virginia earlier this year which specifically deals with situations where innocent third parties are injured in car accidents resulting from police pursuit situations in West Virginia.  This deals with the liability aspects of the state or political subdivision rather than the liability of the fleeing suspect:

Most civil liability cases arising out of a pursuit situation involve collisions between the suspect and a third party.  It is well-settled in West Virginia that “[w]here the police are engaged in a vehicular pursuit of a known or suspected law violator, and the pursued vehicle collides with the vehicle of a third party, under W. Va. Code, 17C-2-5 (1971) (rules, privileges and immunities of authorized emergency vehicles), the pursuing officer is not liable for injuries to the third party arising out of the collision unless the officer’s conduct in the pursuit amounted to reckless conduct or gross negligence and was a substantial factor in bringing about the collision.” Syl. Pt. 5 Peak v. Ratliff, 185 W. Va. 548 (1991); See also Sergent v. City of Charleston, 209 W. Va. 437 (2001).

As with other types of police liability cases, employees of political subdivisions are individually liable for their grossly negligent or bad faith conduct.  However, there’s no need to name them personally, because pursuant to the West Virginia Governmental Tort Claims and Insurance Reform Act, their employer political subdivisions are already liable for damages due to the “negligent operation of any vehicle by their employees when engaged and within the scope of their authority,” W. Va. Code § 29-12A-4(c)(1) and (2), which encapsulates conduct in violation of the the Peak Criteria balancing test described below – which the Court describes as “negligent, wanton, or reckless.”  Note that if a political subdivision employee officer is named personally in the complaint, there may be a circumstantial argument that the plaintiff believes the officer was acting outside the scope of employment – leading the insurer to potentially issue a reservation of rights.  With respect to state employees, i.e., troopers, they may be named personally without the same limitations, and their conduct will be governed by the Peak Criteria discussed below.

Therefore, with respect to state employees, such as State Police officers, the applicable standard of care is W. Va. § 17C-2-5 and it’s interpretation in the Peak Critera.  The standard of care with respect to deputy sheriffs and municipal officers is both the West Virginia Governmental Tort Claims and Insurance Reform Act and W. Va. Code § 17C-2-5.  For these purposes, the phrase “reckless disregard for the safety of others, as used in W. Va. Code § 17C-2-5, is synonymous with gross negligence.” Peak, 185 W. Va. at 552.

West Virginia Code § 17C-2-5 governs the privileges and immunities of police officers who are driving authorized emergency vehicles in pursuit of actual or suspected violators of the law, which provides:

(a) The driver of an authorized emergency vehicle . . . when in the pursuit of an actual or suspected violator of the law . . . may exercise the privileges set forth in this section, but subject to the conditions herein stated.

(b) The driver of an authorized emergency vehicle may:

(1)      Park or stand, irrespective of the provisions of this chapter;

(2)     Proceed past a red or stop signal or stop sign, but only after slowing down as may be necessary for safe operation;

(3)     Exceed the speed limits so long as he does not endanger life or  property;

(4)     Disregard regulations governing the direction of movement of [or]  turning in specified directions.

(c)     The exemptions herein granted to an authorized emergency vehicle shall apply only when the driver of any said vehicle while in motion sounds audible          signal by bell, siren, or exhaust whistle as may be reasonably necessary, and when the vehicle is equipped with at least one lighted flashing lamp as authorized by section twenty-six [§ 17C-15-26], article fifteen of this chapter which is visible under normal atmospheric conditions from a distance of five hundred feet to the front of such vehicle, except that an authorized emergency vehicle operated as a police vehicle need not be equipped with or display a warning light visible from in front of the vehicle.

(d)      The foregoing provisions shall not relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons, nor shall these provisions protect the driver from the consequences of his reckless disregard for the safety of others.

In interpreting W. Va. Code § 17C-2-5, the West Virginia Supreme Court adopted the following factors to consider in analyzing whether the pursing officer’s conduct was negligent, wanton, or reckless (“The Peak Criteria”): seriousness of the law violation, whether the suspect escaped during a previous pursuit, whether weapons, drugs, stolen property, or kidnap victims could be present, whether the pursued vehicle is stolen, whether the officer is familiar with the road and its attributes, the weather conditions and visibility, the officer’s degree of caution in relation to the speed of the pursuit, whether pedestrians are present, the amount of traffic, the length of the pursuit, whether the officer “forced the pursuit” by attempting to overtake the suspect or force the suspect off the road, whether the officer fired a weapon and caused the suspect to panic.  Specifically, the Peak Court reasoned:

Trooper Ratliff and Corporal Fulknier were confronted with a serious law violator who had escaped capture in a vehicular pursuit the previous evening. The officers knew of Mr. Akers’ past record and the fact that the vehicle he abandoned on September 14, 1987, contained a weapon and drugs. Both vehicles driven by Mr. Akers on these two days were stolen. The officers were familiar with the road on which the pursuit was conducted. There was good visibility during the chase and no inclement weather which would make the road hazardous. Even though the speed was estimated at between 60 and 100 miles per hour, the officers were careful to slow down when passing cars. There were no pedestrians, and the traffic was moderate. The pursuit lasted only a brief period of time. It does not appear that the officers forced the pursuit by attempting to overtake Mr. Akers or by forcing him off the roadway. Neither officer attempted to fire his weapon, an act which might cause a fleeing suspect to panic. When Mr. Akers crossed the center line and drove into the filling station where the collision occurred, the officers were not in sight.

Peak, 185 W.Va. at 558, 408 S.E.2d at 310.

There also may be a proximate cause issue to deal with where you have a collision caused by the criminal behavior of the pursued suspect.  This issue was discussed by the West Virginia Supreme Court in Sergent v. City of Charleston, 209 W. Va. 437, 549 S.E.2d 311, where the Court noted that, given that proximate cause must be proven in a personal injury negligence action, “[t]he proximate cause of an injury is the last negligent act contributing to the injury and without which the injury would not have occurred.” Id. (citing Syl. Pt. 5 Hartley v. Crede, 140 W. Va. 133 (1954), overruled on other grounds).  But, “a tortfeasor whose negligence is a substantial factor in bringing about injuries is not relieved from liability by the intervening acts of third persons if those acts were reasonably foreseeable by the original tortfeasor at the time of his negligent conduct.” Syl. Pt. 13, Anderson v. Moulder, 183 W. Va. 77 (1990).  But, “generally, a willful, malicious, or criminal act breaks the chain of causation.” Yourtee v. Hubbard, 196 W. Va. 683, 690 (1996).

In the Sergent case, the Court held that the intervening criminal acts of “pursuing undercover officers, firing at them, fleeing from the police at high speed, and swerving off the road and onto the berm” were intervening acts which were not foreseeable by the officers involved, thereby “breaking the chain of causation which originally began with their arguably negligent conduct and relieving them, and their employers, of any liability.” Sergent, at S.E. Page 320-21.

Note, in the Sergent case, the plaintiff had proffered an affidavit written by a Maryland State Police officer giving an opinion that, based upon his professional experience, that the actions of the defendant officers

“departed from the standard of professional police conduct, so as to constitute gross negligence, and wanton and reckless conduct on their part, which proximately contributed to the incident causing the death of David Sergent, to include, but not necessarily limited to . . . their high speed pursuit . . . without breaking off the same prior to reaching the congested area; and by otherwise failing to utilize accepted national standards for bringing a fleeing suspect’s vehicle to stop . . . [f]ailing to abide by the Charleston Police Department’s own policies and procedures pertinent to: a. Planning and executing their apprehension of the suspect Jerome Thomas; b. The protection of life during vehicular pursuit; c. Breaking off vehicular pursuit for the public safety; and d. Rendering aid to an injured pedestrian . . . 6. Their failure to abide by and adhere to standards of professional police conduct, such as those contained in the International Association of Chiefs of Police, Inc., Model Policy on Vehicular Pursuits.”

The Court held that no rational jury could find that the conduct of [the officers] . . . was wanton or reckless.  Regarding Sergeant Miller’s affidavit, the Court noted that:

The bulk of Sergeant Miller’s affidavit concerning the officers’ conduct during the vehicular pursuit amounts to nothing more than mere allegations. The affidavit opines that the officers failed to follow applicable local, national and international police standards and failed to protect life during the vehicular pursuit. But without pointing to specific tortious conduct and showing how this conduct caused the suspects’ collision with the decedent, these allegations are wholly insufficient to support a negligence action. Stripped of these allegations, the appellant’s claim is essentially that it was negligence for the officers not to terminate their pursuit prior to the decedent’s death. We reject this claim as being contrary to our law.

Sergent, at S.E. Page 320-21.

– John H. Bryan, West Virginia Attorney

In the name of “officer safety”

Rick Horowitz from Probable Cause had an interesting post regarding “officer safety” and the rights of motorists.  In essence, his theory, which has long been a pet peeve of mine, is that supposed “officer safety” is used to violate the rights of motorists.  If you have ever tried an “obstruction” case, you will hear the prosecutor ask officers who conducted a “traffic” stop questions about their training and “officer safety” and why they instruct persons to get out of the vehicle – or to not get out of the vehicle – or to put their hands in a certain place, and so on and so forth.  Many times this coincidentally coincides with the officer(s) subsequently finding something incriminating in the vehicle.  For example, here is a portion of transcript from an obstruction (among other things) trial:

7       Q   So you turned on your blue lights; right?           

8       A   Yes.                                                

9       Q   And the purpose of doing that is to tell the driver 

10  of the vehicle what?                                         

11       A   To pull over.                                       

12       Q   And, was it clear to you, that there was a driver   

13  of that truck, with the Florida tags; you should see the     

14  driver?                                                      

15       A   Yes.                                                

16       Q   Did you attend the State Police Academy before      

17  becoming a West Virginia State Trooper?                      

18       A   Yes.  All troopers are required to attend the       

19  Academy before —                                            

20       Q   And how long — how long is the Academy?            

21       A   It’s going to be for 30 weeks, equivalent to seven  

22  months.                                                      

23       Q   And, as part of your training, do you receive       

24  specific training in traffic stops?                          

Page 359 

1       A   Yes, we do.  Like a lot if training, they try to go 

2  over and over.  What the purpose of that is – they call it   

3  muscle memory – when you get into a high-stress situation,   

4  or your stress level elevates, whatever you practice, their  

5  theory is that you’ll just automatically — you’ll           

6  automatically do in a high-stress situation.                 

7       Q   And from your training, and experience as a West    

8  Virginia State Trooper, are traffic stops considered high-   

9  stress situations?                                           

10       A   Yes.  Through the training that we received,        

11  everything other than a known felony stop, we actually       

12  consider an unknown stop, which is an unknown risk.  Mainly  

13  because we don’t know the driver, we don’t know who’s in the 

14  vehicle or what’s in the vehicle.  So, yes, they all — all  

15  of them are considered high-stress and possible risk stops.  

16       Q   And, from your training at the Academy, and then    

17  after you were out of the Academy, were you taught, and      

18  trained, in what percentage of police officers — shootings  

19  of police officers occur during what should be routine       

20  traffic stops?                                               

21       A   Yes.  It’s actually a higher percent than I like.   

22  Actually, I believe the US Supreme Court had a case on it,   

23  referenced where up to 30 percent of actual police shootings 

24  occurred during routine police traffic stops.                

Page 360 

1       Q   Now, as a practicing Trooper, can you estimate how  

2  many traffic stops you have made a month, at this point?     

3       A   And I don’t do a lot of traffic, some’s a lot       

4  higher than this, but I usually pull over, I would say,      

5  between 25 to 35 cars a month, for various traffic reasons.  

6       Q   And when you make those traffic stops, do you       

7  follow the procedures that you were taught in your training  

8  at the West Virginia State Police Academy?                   

9       A   Yes, ma’am, every time.                             

10       Q   As to the particular procedures that you were       

11  taught, what is the goal, what’s the purpose of those        

12  procedures that you are to follow in making a traffic stop,  

13  as a State Policeman?                                        

14       A   The main thing is, basically, risk reduction, for   

15  the safety of everybody there.                               

16       Q   And does that include safety of the officer?        

17       A   That includes the safety of the officer, safety of  

18  whoever we’re pulling over in the vehicle, along with the    

19  public safety.                                               

20       Q   And what are the risk factors in the traffic stop,  

21  that your procedures are designed to reduce?                 

22       A   With that, especially, and probably most of you can 

23  relate to seeing videos of being beside the roadway.  First  

24  off, it’s very dangerous for traffic stops, for other        

Page 361 

1  traffic coming by, just ’cause you’re in such close proximity 

2  to the traffic flow; that, in one, is dangerous.             

3       Two, like I said, you don’t never know who the driver   

4  is, or who you’re pulling over.  Mainly, if you’re doing a   

5  traffic stop – and, mostly, I’m going to give somebody a     

6  warning, but the driver don’t know that – and if it’s        

7  somebody else, it could be very dangerous.  Or, if they      

8  robbed a bank, thirty minutes down the road, and I’m unaware 

9  of that, they might have a gun, or something that could      

10  actually hinder myself during this stop, which I’m unaware   

11  of.                                                          

12       Q   And what about the flight risk; could you explain   

13  to the jurors the risk of flight when you have an unknown    

14  traffic stop?                                                

15       A   Yes.  And it is highly likely that, you know, even  

16  when I get out of the vehicle, that the car might pull off.  

17  Several occasions, you go to approach the vehicle and        

18  somebody – I mean, I’m sure you’ve seen it on TV – jumps out 

19  of the vehicle and takes off running.  So — and if I        

20  actually approach the vehicle and, let’s say, they are       

21  wanting to cause me harm, and they are able to do some kind  

22  of harm from me, it’s very possible for them just to take    

23  off without any help to myself.                              

24       Q   When you pull over the vehicle, either because it   

Page 362 

1  — the driver is a suspect in a crime, or because of a       

2  traffic violation, when you pull over a vehicle, is there    

3  information that you are supposed to relay, and also         

4  information that, by your training and experience as a West  

5  Virginia State Trooper, you are supposed to be receiving?    

6       A   Yes, ma’am.  The start off, every time we perform a 

7  traffic stop, we always want to notify our dispatcher —     

8  advise ’em of our location, that we’re actually on a traffic 

9  stop, so they can check on us and know what we’re doing.     

10  Some information you want to give to start off with is color 

11  of the vehicle, like I said, the location of where the stop  

12  is.  And also important, is the license plate of the         

13  vehicle.  With the license plate, they’re able to return the 

14  vehicle it’s supposed to be on, who owns the vehicle.  And   

15  they also can check to see if that license plate or vehicle  

16  has been stolen, or is a stolen vehicle.                     

17       Q   And do you do that, as much as possible, unless you 

18  are obstructed or prevented from doing that, every time you  

19  make a traffic stop?                                         

20       A   Yes, ma’am.                                         

21       Q   Now, do you — are there standard procedures, that  

22  you learned in your training, and you practice in your 25 to 

23  30 traffic stops a month, first of all, as to whether or not 

24  you want the driver to stay in the vehicle, or get out of    

Page 363 

1  the vehicle?                                                 

2       A   Yeah.  Through our training, and it might vary from 

3  department to department, but what we want is the driver to  

4  actually stay in the vehicle.                                

5       Q   And why is that, explain that, if you would?        

6       A   The reason to have them stay in the vehicle, it’s   

7  more of a con — we have more control if they’re in the      

8  vehicle.  For the safety issue, like I said, to mention      

9  first, it’s a — a lot of times, we’re on the highway,       

10  interstate, busy roads, if the driver’s in the vehicle, it’s 

11  a lot less likely that he’s going to get hit by a passing    

12  car.  Two, we’re able to approach the vehicle and kind of    

13  keep an eye on the driver and see what he’s doing.  Where,   

14  if he gets out of the vehicle he could either (a) run, or do 

15  something else, which would make us have a lot less control  

16  over the driver.                                             

17       Q   Are you even taught, and trained, to stand in a     

18  particular relation to the driver’s door?                    

19       A   Yes.  And, as we’re taught, when we’re approaching  

20  a vehicle – and if you ever — anyone’s ever got pulled      

21  over, you maybe even noticed this and wondered – I always    

22  take my hand and touch the back of the vehicle in case       

23  something happens, you know, and the driver leaves.  Maybe   

24  somebody might be able to put my connection with that        Page 363 

1  the vehicle?                                                 

2       A   Yeah.  Through our training, and it might vary from 

3  department to department, but what we want is the driver to  

4  actually stay in the vehicle.                                

5       Q   And why is that, explain that, if you would?        

6       A   The reason to have them stay in the vehicle, it’s   

7  more of a con — we have more control if they’re in the      

8  vehicle.  For the safety issue, like I said, to mention      

9  first, it’s a — a lot of times, we’re on the highway,       

10  interstate, busy roads, if the driver’s in the vehicle, it’s 

11  a lot less likely that he’s going to get hit by a passing    

12  car.  Two, we’re able to approach the vehicle and kind of    

13  keep an eye on the driver and see what he’s doing.  Where,   

14  if he gets out of the vehicle he could either (a) run, or do 

15  something else, which would make us have a lot less control  

16  over the driver.                                             

17       Q   Are you even taught, and trained, to stand in a     

18  particular relation to the driver’s door?                    

19       A   Yes.  And, as we’re taught, when we’re approaching  

20  a vehicle – and if you ever — anyone’s ever got pulled      

21  over, you maybe even noticed this and wondered – I always    

22  take my hand and touch the back of the vehicle in case       

23  something happens, you know, and the driver leaves.  Maybe   


Page 364 

1  vehicle.                                                     

2       As I’m continuing to approach the driver, we can always 

3  look through the back glass and the windows, see if he’s     

4  maybe reaching under his seat to grab a firearm or trying to 

5  hide something he’s not supposed to have.  With standing at  

6  the vehicle, we always like to stand right behind the driver 

7  door, which allows us to have a — the best view we can of   

8  inside the vehicle, to check to see if there’s anything      

9  that’s not supposed to be there, or any weapons that the     

10  driver might be able to reach and grab.                      

11       Q   And would it be fair to say that, obviously, any    

12  time the driver is allowed out of the vehicle, that          

13  increases the flight risk, and the risk to the public?       

14       A   Right, yes.                                         

15       Q   Then what about your training and experience as a   

16  State Policeman, what do you instruct – order – the driver   

17  to do, if he gets out, as to his hands?                      

18       A   And, on traffic stops, it happens, sometimes the    

19  driver will go to get out of the vehicle.  Order them to get 

20  back in the vehicle and, usually, they comply with that      

21  order, and then wait for me to approach ’em.                 

22       Q   And if a driver gets out of the vehicle against     

23  your orders, what do you tell them — where do you want his  

24  hands?                                                       Page 364 

1  vehicle.                                                     

2       As I’m continuing to approach the driver, we can always 

3  look through the back glass and the windows, see if he’s     

4  maybe reaching under his seat to grab a firearm or trying to 

5  hide something he’s not supposed to have.  With standing at  

6  the vehicle, we always like to stand right behind the driver 

7  door, which allows us to have a — the best view we can of   

8  inside the vehicle, to check to see if there’s anything      

9  that’s not supposed to be there, or any weapons that the     

10  driver might be able to reach and grab.                      

11       Q   And would it be fair to say that, obviously, any    

12  time the driver is allowed out of the vehicle, that          

13  increases the flight risk, and the risk to the public?       

14       A   Right, yes.                                         

15       Q   Then what about your training and experience as a   

16  State Policeman, what do you instruct – order – the driver   

17  to do, if he gets out, as to his hands?                      

18       A   And, on traffic stops, it happens, sometimes the    

19  driver will go to get out of the vehicle.  Order them to get 

20  back in the vehicle and, usually, they comply with that      

21  order, and then wait for me to approach ’em.                 

22       Q   And if a driver gets out of the vehicle against     

23  your orders, what do you tell them — where do you want his  

24  hands?                                                       

Page 365 

1       A   If a driver gets out of the vehicle, and he’s not   

2  replying, of course, the stress level and the threat level   

3  increases, first because he’s not obeying my order, which is 

4  a lawful order.  Second, with the hands, I don’t want ’em    

5  anywhere near the coats or pockets, where they could reach   

6  — or anything that might cause me harm.  Either up in the   

7  air where I can see ’em, up on the vehicle where I know he   

8  can’t reach and grab anything to — that might harm myself   

9  or any public.                                               

10       Q   Was there a phrase that you were taught, that your  

11  instructors at the Academy used, to emphasize the need to    

12  keep the suspect hands up in the air or on a car?            

13       DEFENSE ATTORNEY:  Your Honor, I’m going to object to    

14  the leading nature of this —                                

15       THE COURT:  Overruled; 611 allows me to permit this     

16  type of preliminary stuff.  I’m going to allow it; go ahead. 

17       THE WITNESS:  Yes, as the — as the instruction — in   

18  the Academy, they often teach us, they always tell us that   

19  feet can hurt you, but hands can kill you.  Basically,       

20  meaning just, you know, being kicked and stuff can hurt you, 

21  but the hands can always grab a weapon such as a knife or a  

22  firearm.                                                     

23  PROSECUTOR (resuming):                                    

24       Q   Now, on the evening of June 8th of ’07, after you   

Page 366 

1  turned on your blue lights, can you tell the jury what did   

2  the defendant do?    

As I said, this has long been a pet peeve of mine.  Of course we all respect law enforcement officers and acknowledge that they have a sometimes dangerous and difficult job – just like many other professions.  However, they chose to be law enforcement officers.  And they chose to pull someone over for a “traffic” violation.  That they are worried, or trained to be worried, about their own safety, should not make it okay for them to treat someone like a criminal.  It’s one thing if you are pulling over a bank robbery suspect, but if you are pulling someone over for going 6 mph over the limit, you should not have your hand on your gun.  You should not shout at someone as if they are armed and dangerous.  Why should someone pulled over for a traffic violation have to keep their hands on the wheel?  What can be more demeaning that to be treated like a criminal as a practice and procedure of a law enforcement agency?  I would venture to say that more people are probably wrongly shot by law enforcement officers because they are jumpy due to all of this “training” than law enforcement officers who are actually shot by a traffic-stop motorist (especially in high crime areas where “traffic” stops are mostly investigatory pretext stops).  Don’t believe me?  Google it.  And surely, more officers are hit by passing motorists distracted by the emergency lights than who are shot.  And that is unfortunate, but it was their choice to engage in a profession where they have to stand on the side of the road and encounter strangers in cars.  That is just a risk that comes with the job.  It is not okay to feel safer by violating the rights and respect of innocent persons.

And it definitely is not okay to abuse the purpose of “officer safety” in order to assist in more efficient criminal prosecution, which is done in mainly two ways, such as was the case in the above-transcripted case: (1) to achieve an initial arrest of the person in order to question them and inventory/search their vehicle, and (2) to throw in yet another charge to try the suspect on and/or use for plea negotiations.  

Note: the defendant in the above-transcripted case was found not guilty of obstruction, despite the lengthy oratory of the prosecutor and trooper.

 – John H. Bryan, West Virginia Attorney.