WV: Family court judge can’t conduct searches for marital property; search and seizure is an executive function

In a judicial discipline case, a family court judge who had a 20 year practice of searching parties’ homes for marital property is censured. Search and seizure is an executive function, not a judicial one. This is just inappropriate. In re Goldston, 2021 W. Va. LEXIS 639 (Nov. 19, 2021):

Looking for things is a “search” by any sensible definition of the term. As the United States Supreme Court stated in Terry v. Ohio, 392 U.S. 1, 16 (1968), “it is nothing less than sheer torture of the English language to suggest that a careful exploration of the outer surfaces of a person’s clothing all over his or her body in an attempt to find weapons is not a ‘search'” (emphasis added). Accord Kyllo v. United States, 533 U.S. 27, 32 n.1 (2001) (“When the Fourth Amendment was adopted, as now, to ‘search’ meant ‘[t]o look over or through for the purpose of finding something; to explore; to examine by inspection; as, to search the house for a book; to search the wood for a thief.’ N. Webster, An American Dictionary of the English Language 66 (1828) (reprint 6th ed.1989).”); Doe v. Heck, 327 F.3d 492, 510 (7th Cir. 2003), as amended on denial of reh’g (May 15, 2003) (“[T]he defendants went to the school for the specific purpose of gathering information, an activity that most certainly constitutes a search under the Fourth Amendment.” (emphasis added)); § 2.1(a) Definition of “searches” and “seizures,” 1 Search & Seizure § 2.1(a) (6th ed.) (“Under the traditional approach, the term ‘search’ is said to imply ‘some exploratory investigation, or an invasion and quest, a looking for or seeking out.'” (quoting C.J.S., Searches and Seizures § 1 (1952)).

Searches are an activity of the executive department. State ex rel. Parma Cmty. Gen. Hosp. v. O’Donnell, 2013-Ohio-2923, ¶ 7 (stating that “searches are executive in nature.”). “Indeed, searches are so quintessentially executive in nature that even a judge who participates in one acts ‘not *** as a judicial officer, but as an adjunct law enforcement officer.'” State ex rel. Hensley v. Nowak, 52 Ohio St. 3d 98, 99, 556 N.E.2d 171, 173 (1990) (per curiam) (quoting Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 327 (1979)) (holding that a writ of prohibition would not issue to restrain administrative searches because they are neither judicial nor quasi-judicial acts).

To say that searches are an executive activity is to announce no new principle of law. The United States Supreme Court assumed as much in 1979 when it rejected a conviction resulting from a search led by a town justice. According to the Supreme Court, the town justice in question “allowed himself to become a member, if not the leader, of the search party which was essentially a police operation.” Lo-Ji Sales, Inc. at 327 (emphasis added). The Supreme Court found that, in doing so, the town justice “was not acting as a judicial officer but as an adjunct law enforcement officer[,]” ibid., and that “[i]t [wa]s difficult to discern when he was acting as a ‘neutral and detached’ judicial officer and when he was one with the police and prosecutors in the executive seizure,” id. at 328 (emphasis added). Other courts, often following Lo-Ji Sales, routinely assume that searching is a law enforcement activity. United States v. Barnes, 895 F.3d 1194, 1202 (9th Cir. 2018) (noting that “Lo-Ji Sales was an extreme case where the judicial officer allowed himself to become a member, if not the leader, of the search party which was essentially a police operation.” (internal quotation marks removed)); United States v. Clyburn, 806 F. Supp. 1247, 1252 (D.S.C. 1992), aff’d, 24 F.3d 613 (4th Cir. 1994) (noting that, “[i]n Lo Ji Sales, the Court held that the judge who issued the warrant did not manifest that neutrality and detachment demanded of a judicial officer because the judge took an active law enforcement type role in conducting the search” (internal quotation marks removed)).

Under our system of government, judges may not exercise executive powers. The West Virginia Constitution declares that “[t]he legislative, executive and judicial departments shall be separate and distinct[.]” W. Va. Const. art. V, § 1 (emphasis added). The Constitution further specifies, in unmistakable terms, that no department “shall exercise the powers properly belonging to either of the others” and forbids “any person [to] exercise the powers of more than one of them at the same time[.]” Ibid. In light of these clear prohibitions, we hold that the West Virginia Constitution forbids a judicial officer to participate in a search because a search is an exercise of executive power. W. Va. Const. art. 5, § 1. Because Judge Goldston plainly engaged in such a search, we find that the so-called “view” was improper.