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West Virginia: Traffic Stop Cannot Be Used to Justify Home Search
Federal judge rules against cop who followed West Virginia motorist into his home while retrieving ID.

Judge Irene M. Keeley
Police may not use a traffic stop as a pretext to enter a man's "crib," a federal judge ruled last week. US District Judge Irene M. Keeley last week adopted the findings of a federal magistrate overturning the evidence a Morgantown police officer obtained by following a West Virginia man, Samad Harvey, into his home. Harvey had been one of three black men in a silver Jaguar stopped by Officer Kenneth Walker Murphy on University Avenue at around 9:45pm on December 16, 2010.

"My original reason for the stop was because there was no registration," Officer Murphy testified.

The vehicle, in fact, was properly registered. A New Jersey temporary registration card was visible in the rear window, as required by that state's law. Even after he saw the valid registration, Officer Murphy believed it was illegal to drive without a license plate. Under a New Jersey law in effect at the time, the temporary tag "shall be carried in the cab of the vehicle" (New Jersey has since switched to the use of temporary paper plates). Judge Keeley found display in accordance with New Jersey law violated West Virginia law and a city ordinance.

"In the circumstances of this case, the placement of the registration in the rear window of the vehicle rendered it not 'clearly visible' under Morgantown City Code Section 351.03, and Officer Murphy was justified in pursuing the normal incidents of the traffic stop," Judge Keeley wrote.

As the traffic stop proceeded, Officer Murphy questioned the Jaguar driver, Rashawn Billingsley, who was not carrying his driver's license. Three other officers arrived on the scene, and they agreed that they smelled marijuana. The Jaguar and its three occupants were searched. A bong was found in the trunk. Officer Jason K. Ammons asked Harvey, a passenger, for his license.

"My ID is in my crib," Harvey responded.

Officer Ammons ordered him to go into his house, which was nearby, to retrieve his identification. Ammons followed him into the house. Harvey's lawyer insisted this created the opportunity for a search in violation of the Fourth Amendment.

"When Officer Ammons followed Mr. Harvey into the residence without consent, he reportedly smelled marijuana and saw a Rice-a-Roni box 'that was open and had a blunt and a plastic bag sticking out of it,' while Mr. Harvey located his identification," public defender L. Richard Walker argued. "A so-called police 'escort' of a citizen who is not under arrest or detained, without any type of consent or permission, is not an accepted, valid exception to the warrant requirement."

On the basis of what he saw, Officer Ammons decided to obtain a search warrant, and a subsequent search uncovered a .22 pistol. Prosecutors argued Officer Ammons was justified walking into the home because by not stopping Ammons, Harvey gave implied consent. The argument failed to persuade the court.

"Notably, the government has cited to no case stating that consent to search can, in the first instance, be inferred solely from the silence of a defendant who was never asked," Judge Keeley ruled. "Rather, the weight of authority holds that the government may not show consent to enter from the defendant's failure to object to the entry. To do so would be to justify entry by consent and consent by entry."

With the evidence suppressed, the state no longer has a case against Harvey.

A copy of the ruling is available in a 90k PDF file at the source link below.

Source: PDF File US v. Harvey (US District Court, Northern West Virginia, 10/25/2012)

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