Bluefield PD obtains search warrant for video footage, then searches fridge, etc. – Off-duty Officer Rampage Incident Part 2

I already posted the crazy video footage showing an off duty police officer on a rampage at Greg’s Sports Bar in October of 2021. It’s long, but highly interesting:

Here’s the backstory which led up to that night. About a week before the rampage incident, there was a shooting in the parking lot of the same bar. Someone basically fired a gun in the air. The same police department that the rampaging officer worked for arrived at the bar to investigate. Bodycam footage shows what happened next, resulting in a late-night search where the officers can be seen looking in refrigerators and whatnot, rather than following the language of the warrant. As you’ll hear on the video, the main officer threatened to get Greg in trouble with the ABC, which is exactly what happened after the rampage from the first video……

“The text of the [Fourth] Amendment thus expressly imposes two requirements. First, all searches and seizures must be reasonable. Second, a warrant may not be issued unless probable cause is properly established and the scope of the authorized search is set out with particularity.” Kentucky v. King, 563 U.S. 452, 459, 131 S.Ct. 1849, 179 L.Ed.2d 865 (2011) (citing Payton v. New York, 445 U.S. 573, 584, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) ). The particularity requirement “prevent[s] a ‘general, exploratory rummaging.’ ” United States v. Oloyede, 982 F.2d 133, 138 (4th Cir. 1993) (quoting Coolidge v. New Hampshire, 403 U.S. 443, 467, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) ).

This [particularity] requirement ensures that the search is confined in scope to particularly described evidence relating to a specific crime for which there is probable cause.” Id.; see also Maryland v. Garrison, 480 U.S. 79, 84, 107 S.Ct. 1013, 94 L.Ed.2d 72 (1987) (“The manifest purpose of this particularity requirement was to prevent general searches. By limiting the authorization to search to the specific areas and things for which there is probable cause to search, the requirement ensures that the search will be carefully tailored to its justifications, and will not take on the character of the wide-ranging exploratory searches the Framers intended to prohibit.”).7 “[T]he ultimate touchstone of the Fourth Amendment is reasonableness.” Riley v. California, 573 U.S. 373, 381-82, 134 S.Ct. 2473, 189 L.Ed.2d 430 (2014) (quoting Brigham City v. Stuart, 547 U.S. 398, 403, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006) ). United States v. Nasher-Alneam, 399 F.Supp.3d 579 (S.D. W.Va. 2019).

Opposition to general warrants in America predates the American Revolution and is one of the guiding principles of individual freedom under our Constitution. In an effort to combat smuggling to avoid import tariffs, British colonial governments issued general warrants, known as “writs of assistance,” that invested the bearer with power to compel any local official to enter any property and make a general search for contraband. The writs of assistance case in colonial Massachusetts, Paxton’s case (1761), is said to have been “the most important legal event leading up to the American Revolution.” Presser and Zainaldin, Law and Jurisprudence in American History 65 (6th ed. 2006). According to John Adams, “Then and there the child Independence was born.” Id. While the writ in Paxton’s case was granted, the result only fueled growing opposition to the practice of general searches, an opposition confirmed in countless cases subsequently decided in the United States. (FN 7 from United States v. Nasher-Alneam, 399 F.Supp.3d 579 (S.D. W.Va. 2019)).

Federal Judge Finds a Pattern of Illegal Drug Task Force Search Warrants in West Virginia

Reuters reported a few days ago on a recent set of court orders from a federal judge in West Virginia finding a troubling pattern of illegal search warrants obtained by drug task force officers.

In December, Goodwin issued an order suppressing evidence seized from a house in 2021. The judge questioned the accuracy of certain statements made by law enforcement in an affidavit to obtain a search warrant of the defendant’s house. The government has since filed a new indictment.

After the judge issued the suppression order, the U.S. attorney’s office sent two investigators to interview the state magistrate judge who issued the search warrant. Goodwin said it was “improper” for investigators to seek such an interview and for the judge to entertain it.

“It is inherently intimidating to send federal officers to question a state magistrate judge,” Goodwin wrote, “and it is clearly out of bounds for the magistrate judge to provide the interview regarding his judicial decision-making in a matter pending before this court.”

Reuters published yet another article today expanding on the earlier report, noting that more than one federal judge in West Virginia, as well as a unanimous panel of the Fourth Circuit Court of Appeals found that this particular drug task force in West Virginia has been engaged in unconstitutional violations pertaining to search warrants.

Goodwin, in fact, has criticized the practices of the Metropolitan Drug Enforcement Network (MDENT) in particular in at least three other decisions since 2017, a review of court records shows. The MDENT is composed of officers from agencies including the Charleston Police and Kanawha County Sheriff’s Office, the Drug Enforcement Agency and the state police.

The judge tossed out evidence in a drug case last year, holding that the Charleston Police, MDENT, and a Kanawha County magistrate had again failed to respect constitutional limits on searches and seizures. The MDENT’s warrant was based on “unsourced and undescribed” information that someone was selling drugs and the discovery of three marijuana stems in the trash from that person’s home – which the judge said was clearly insufficient.

“I fear this is becoming a pattern,” Goodwin wrote on April 28, 2021, pointing to a similar ruling in another MDENT case from a week earlier.

The MDENT has also been admonished for what courts described as open and purposeful disregard of the legal limits on searches and seizures by at least one other judge of the Southern District of West Virginia, and in a unanimous opinion by the 4th U.S. Circuit Court of Appeals.

This is the same federal court who presided over the Keith Sizemore case I litigated, where the Court denied a police officer qualified immunity in a civil rights lawsuit for providing false information in a search warrant application.

What you’re about to see, demonstrated in black and white courtesy of the federal judiciary, is proof of a pattern and practice of police misconduct. This is a documented pattern of Fourth Amendment violations, where drug task force officers knowingly violate the Constitution, with the complicity, or ignorance, of multiple state-level magistrate judges, who are not required to have law degrees to hold office, and who generally don’t. Moreover, many times the state-level magistrates, elected in countywide elections, are themselves retired law enforcement officers.

West Virginia is in serious need of search warrant reform. By the way, federal investigators in West Virginia, so I’m told, are required to go to Circuit Court judges, rather than magistrates, in federal criminal investigations in West Virginia.

Here’s the Court’s ruling on the motion for reconsideration in the case of U.S. v. Lark, as cited in the Reuters article:

Here’s the original suppression order which the government was seeking reconsideration in the Lark case. Note that the federal prosecutors here are not interested in actually having the Court reconsider the admissibility of the evidence, but rather solely with the career prospects of the police officer found by the federal judge to have provided false information in a search warrant application:

Here are the other suppression orders to which the Court referred in the Lark orders, of which I’m aware.

Here’s the suppression order from the Keith Sizemore case, to which I referred earlier. This was the criminal case:

And here’s the opinion from the subsequent civil lawsuit. Note that this was a different drug task force than is featured in the other opinions, but same federal Court, and same underlying issues:

It would be interesting to find out if a single one of these police officers who were determined by the federal judiciary to have provided false information in a search warrant application were ever thereafter placed on a “Brady List” for disclosure to criminal defendants in cases involving these officers…..

Update, 3/17/22: The West Virginia Record reported that the U.S. Attorney for the Southern District of West Virginia has an open investigation into the matter.

Deanna Eder, public affairs officer for Thompson, declined to comment in the pending case. But she did issue a statement to The West Virginia Record about Goodwin’s concerns.

“Upon taking office on October 13, 2021, U.S. Will Thompson began a thorough review of all of his office’s policies and procedures to determine what, if any, changes were needed,” Eder told The Record. “The United States Attorney served as a state circuit court judge for almost 15 years prior to his role as U.S. Attorney and brings that experience analyzing constitutional and suppression issues to the U.S. Attorney’s Office.

“As a result of his review of policies and procedures, and prior to the order in the Lark case, U.S. Attorney Thompson implemented a new process for reviewing search warrant applications. The U.S. Attorney’s Office has reviewed the court’s order in the Lark matter and takes the Court’s concerns seriously.”

Case of Michigan Man Sitting in WV Jail Begs the Question: Do Police Need a Warrant to Enter/Search/Seize an RV or Motorhome?

In my last video I featured the case of a Michigan man currently rotting in a West Virginia jail for the high crime of traveling through West Virginia with a few hemp plants, possibly marijuana, I don’t know. A video of him refusing to consent to police entering his RV was shown in a Youtube video by the Real News Network, highlighting the actions of the Milton Police Department (which is in Cabell County, WV), including the fact that they take in a huge amount of fines as a result of their policing, despite having only around 2,500 residents. This begs the question, first of all, in general, do police need a warrant to enter, search, seize, etc., an RV or motorhome? Or is it just like regular automobiles, where only probable cause is required, rather than a warrant? Here’s the video, and below I’ll post an explanation of the applicable law:

Do police need a warrant to search an RV?

The Fourth Amendment generally requires the police to obtain a warrant before conducting a search. There is a well-established exception to this requirement, however, for automobile searches. See, e.g., Carroll v. United States, 267 U.S. 132, 153, 45 S.Ct. 280, 69 L.Ed. 543 (1925). Under this exception, “[i]f a car is readily mobile and probable cause exists to believe it contains contraband, the Fourth Amendment thus permits police to search the vehicle without more.” Pennsylvania v. Labron, 518 U.S. 938, 940, 116 S.Ct. 2485, 135 L.Ed.2d 1031 (1996). Thus, once police have probable cause, they may search “every part of the vehicle and its contents that may conceal the object of the search.” Id. 

In California v. Carney, 471 U.S. 386, 390, 105 S.Ct. 2066, 85 L.Ed.2d 406 (1985), the Supreme Court held that a mobile home, on the facts presented, was more characteristic of an automobile than a fixed residence. 

The Court did look to the nature of the location where the vehicle was discovered, but only to ascertain whether the vehicle itself was, in an ontological sense, in use as a “movable vessel” or as a fixed residence. Hence, the Court’s reference to a “place not regularly used for residential purposes,” Carney, 471 U.S. at 392, 105 S.Ct. 2066 — from which the police would be less likely to infer that the object was residential in nature — served as a guidepost to determine, whether the object encountered was a vehicle or a residence. 

Summed up: was the RV on a public road, or situated such that it is reasonable to conclude that the RV was not being used as a residence?

1. Is the vehicle readily mobile? Absent an immediate search and seizure, could it have quickly been moved beyond reach of the police? Was the vehicle licensed “to operate on public streets” and subject to inspection as a motor vehicle?

2. Was the vehicle so situated that an objective observer would conclude that it was eing used not as a residence, but as a vehicle?

3. The search still must be reasonable under the circumstances. Was the search that occurred otherwise reasonable as would have been approved by a neutral judge had the officer applied for a search warrant?

If the vehicle can be categorized somewhere within the realm of a residence, rather than an automobile, then a warrant may be required. As with many search and seizure issues, the result will turn on the particular facts of each case. Or they should anyways…..