by Douglas Ankney

The Supreme Court of West Virginia held that an Emergency Protective Order (“EPO”) issued pursuant to West Virginia Code § 48-27-403 (2006) (“EPO Statute”) is not a de facto search warrant.

Jeffery Alan Snyder’s ex-wife petitioned ex parte for an EPO against him. The magistrate court issued the EPO. The EPO form had boxes where the magistrate may indicate whether there are firearms involved or firearms present on the property, but these boxes were not marked. However, the EPO commanded that “Respondent shall surrender any and all firearms and ammunition possessed or owned by the Respondent to the law enforcement officer serving this Order.” The EPO further placed the Respondent on notice that possession of any firearms while the EPO was in place would result in criminal liability.

Snyder’s ex-wife told Roane County Sheriff L. Todd Cole that Snyder had several guns in his residence and that she believed he was using methamphetamine. Cole entered Snyder’s residence, claiming the EPO ordered him to seize all firearms. After entering, he smelled marijuana. He ordered other officers to pat search Snyder and another individual for officer safety. A baggie of white powder, consistent with methamphetamine, was found in Snyder’s pocket. Upon learning another person was upstairs, Cole told officers to conduct a protective sweep. While doing so, officers observed numerous marijuana plants indicating an indoor marijuana growth operation.

Snyder was arrested and taken to jail, and Cole secured a search warrant for the residence where additional evidence of marijuana growth, THC extraction, and distribution was recovered. Snyder was charged with drug-related offenses, and he filed a motion to suppress all evidence.

At the hearing on the motion, Cole testified that he intended to enter Snyder’s residence, with or without his permission, before he (Cole) even exited his vehicle. When Cole was asked what he would have done if Snyder had told him “No, you are not coming in,” Cole replied, “I don’t know that he has a right to tell me no with an order from a judge.” And Cole further stated he would have ignored any protestation from Snyder and entered the residence anyway.

The circuit court determined that the EPO commanded Cole to seize firearms at the time of service of the EPO, and Cole was, therefore, lawfully in the home when he smelled marijuana that led to the lawful searches and discovery of the evidence. The circuit court denied the suppression motion. Snyder pleaded guilty, conditioned on his appeal of the denial of his motion to suppress.

The West Virginia Supreme Court observed, “The Fourth Amendment to the United States Constitution, and the correlative provision of the West Virginia State Constitution, Article III, Section 6, protects people against certain kinds of governmental intrusion. The United States Supreme Court has held that the physical entry of the home by law enforcement is the ‘chief evil against which the wording of the Fourth Amendment is directed.’” Payton v. New York, 445 U.S. 573 (1980). The Court has adhered to the principle that “the touchstone of the Fourth Amendment’s promise is ‘reasonableness,’ which generally, though not always, translates into a warrant requirement.” State v. Lacy, 468 S.E.2d 719 (W. Va. 1996).

The “not always” exceptions to the warrant requirement, e.g., consent, exigent circumstances, searches incident to a valid arrest, and seizures of items in plain view, are “jealously and carefully drawn, and there must be a showing by those who seek exemption that the exigencies of the situation made that course imperative.” State v. Moore, 272 S.E.2d 804 (W. Va. 1980).

However, in the instant case, there was no search warrant, and at the suppression hearing, the State did not argue any of the recognized exceptions applied. Instead, the State argued that the EPO authorized Cole to seize any firearms, and this authorized him to search “all places where a two-to-three inch gun could be found.” The Court determined that position to be constitutionally untenable.

The most obvious problem with that position is that the EPO Statute authorized issuance of an order prohibiting possession of firearms which stands in stark contrast with authorization to search and seize any firearms, the Court stated. The EPO commanded Snyder to surrender his firearms and ammunition to law enforcement and informed him of the ramifications for continued possession of firearms, but nowhere did it authorize a search of his home, person, etc., the Court explained.

Importantly, an EPO is a civil remedy and may issue upon the filing of a petition by any person seeking relief for themselves, on behalf of minor children or incapacitated individual, or who reported or was a witness to domestic violence and who now feels threatened because of it. EPO Statute. A search warrant, on the other hand, is criminal in nature and may issue only upon a sworn affidavit from a law enforcement officer or State’s attorney providing evidence of probable cause to a magistrate to issue a warrant to search or seize, and the warrant must identify with particularity the property or person to be seized and naming or describing the person or place to be searched. W. Va. R. Crim. P. 41.

The Court characterized the facts of the case at issue as a “classic fruit of the poisonous tree scenario.” Because Cole’s warrantless entrance into Snyder’s home was unlawful, the evidence of the initial searches must be suppressed. Lacy. Because the subsequent search warrant issued from the earlier illegal searches, that evidence must also be excluded. State v. Stone, 268 S.E.2d 50 (W.Va. 1980). The Court reiterated that a “later finding of criminality does not a constitutionally-valid intrusion make.”

Accordingly, the Court reversed the denial of the suppression motion, reversed Snyder’s conviction, and remanded for further proceedings. See: State v. Snyder, 857 S.E.2d 180 (W. Va. 2021). 

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