WV: Court order generally needed to send in wired CI

West Virginia requires an intercept order for officers to send in a wired CI to record a drug transaction, but exigency is an exception, which the court finds. It is determined on the totality of the circumstances. State v. Howells, 2020 W. Va. LEXIS 118 (Feb. 25, 2020) (dissent):

In light of our recognition that exigent circumstances may justify a search and seizure without a court order, we now hold that a law enforcement officer may not engage in electronic interception of conduct or oral communications in a person’s home without first obtaining an order authorizing that interception unless, pursuant to W. Va. Code § 62-1F-9 (2007), the officer can establish: (1) a situation exists such that an order authorizing such interception cannot with due diligence be obtained; (2) a factual basis for issuance of an order exists; and (3) it is determined that exigent circumstances exist which prevent the submission of an application for an order to a court. Subsequent to an electronic interception of conduct or oral communications under W. Va. Code § 62-1F-9 (2007), a law enforcement officer must submit an application in accordance with W. Va. Code § 62-1F-3 (2007), for an order to a magistrate or judge of the circuit within the county wherein the person’s home is located as soon as practicable, but not more than three business days after the electronic interception. An order entered pursuant to W. Va. Code § 62-1F-9 (2007) 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.

The test for exigent circumstances is based on the totality of the circumstances. See State v. Kendall, 219 W. Va. 686, 692, 639 S.E.2d 778, 784 (2006). We have held that “[t]his is an objective test based on what a reasonable, well-trained police officer would believe.” Syl. pt. 2, in part, State v. Canby, 162 W. Va. 666, 252 S.E.2d 164 (1979). Moreover, “[t]he existence of a reasonable belief should be analyzed from the perspective of the police officers at the scene; an inquiring court should not ask what the police could have done but whether they had, at the time, a reasonable belief that there was a need to act without a warrant.” Syl. pt. 7, State v. Lacy, 196 W. Va. 104, 468 S.E.2d 719 (1996).

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