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W.Va. officials express concerns over wiretap law

June 20, 2007|by MATTHEW UMSTEAD

MARTINSBURG, W.Va. - A Jefferson County lawmaker on Tuesday questioned the purpose of a press conference scheduled today to highlight law enforcement agencies' concerns with a recent state Supreme Court of Appeals decision that challenged the use of electronic surveillance devices.

"To me, it's everybody trying to grab the headlines," said Del. Bob Tabb of the event scheduled for 3 p.m. at the Berkeley County Sheriff's Department.

Tabb said has been assured by a member of Gov. Joe Manchin's staff that a "full legislative package" was being prepared for lawmakers to consider in wake of the majority opinion delivered in February by Chief Justice Robin Jean Davis.

In the state's case against Boone County resident Eddie Mullens, the high court, in a 3-2 decision, reversed the county circuit court's conviction and sentencing order for Mullens, who was indicted in September 2004 on drug charges stemming from an electronically recorded drug transaction made possible through an informant.

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Davis noted in the majority opinion that "police failed to obtain judicial authorization to send the informant into Mr. Mullens' home while the informant was wearing an electronic surveillance device."

"... the trial court should have granted Mr. Mullens' motion to suppress the electronic surveillance recordings obtained in his home by the informant."

Jefferson County Prosecutor Michael D. Thompson said he is supportive of overhauling the state's wiretapping law, which he never has used in his 27 years as a prosecutor because it is so difficult to use.

"Our state wiretap statute is so antiquated that nobody uses it," Thompson said.

Thompson said the statute is limited because it only applies to four crimes - drug cases, conspiracy, kidnapping and concealment of children.

Thompson also said the statute wrongfully limits applications for a court order allowing electronic surveillance to be submitted by the West Virginia State Police and not county or municipal agencies.

Even the State Police superintendent has to approve the application, which Thompson said was "extraordinarily cumbersome."

In place of that process, Thompson said he had relied upon the "one-party consent" clause in past legal decisions from the state and federal bench, which allowed for informants to enter a home without a judge's authorization.

Along with the application process itself, Thompson said only a handful of circuit judges have been given the authority to issue the court orders for electronic surveillance when all 66 should have that power.

Jefferson County Sheriff Everett "Ed" Boober said the court ruling has caused certain investigations in the region to come to a "complete standstill."

"There are agencies that have cases that hinge on a wiretap," Boober said.

Berkeley County Prosecutor Pamela J. Games-Neely said the court's ruling has had a "devastating" impact on law enforcement and her office has relied on federal prosecutors to handle cases normally tried in state court.

She described the opinion as "shortsighted" and "harmful to the war on drugs."

Attorney Kevin Mills, president of the Eastern Panhandle Criminal Defense Lawyers Association, challenged the impact of the ruling and suggested residents consider the possibility of police sending an informant into their home donning a recording device without a warrant.

"This is not to protect criminals, it's to protect citizens." Mills said of the Mullens decision. "It's easy to get carried away."

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