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No. 18-0963 – State of West Virginia v. Howells

WORKMAN, J., dissenting:

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 

 

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“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.

FILED

February 25, 2019

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
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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.” 
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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 2and 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 

 

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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.
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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.

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 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). 

 

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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.” 
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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 . . . . 

 

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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. 
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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.” 
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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
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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 
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“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 § 62-1F9 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,

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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. 
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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.
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For the foregoing reasons, I respectfully dissent.