IMHO the U.S. Constitution is clear on this.
Amendment IV
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
And the Constitution weighs heavier than the opinion of The County Attorney of West Virginia.
PETITIONS OF THE WEEK
What level of suspicion do police need to enter a home without a search warrant for an arrest?
on Mar 3, 2023 at 4:02 pm
The Petitions of the Week column highlights a selection of cert petitions recently filed in the Supreme Court. A list of all petitions we’re watching is available here.
It is unconstitutional for police to enter a home without a warrant to arrest someone if they do not have “reason to believe” the suspect is in the home. This week, we highlight cert petitions that ask the court to consider, among other things, whether that standard is equal to a showing of probable cause needed to obtain a warrant, or something lesser.
Tracy Pennington lives in Ripley, West Virginia. Because her daughter, S.W., missed too many days of school, the state placed her under the care of her paternal grandparents. S.W. soon ran away and stopped going to school entirely. Her grandparents informed social services, who got a judge to declare S.W. an active runaway and issue a “pickup order” to bring her into custody.
After a few unsuccessful months of searching, police received an anonymous tip that S.W. had been seen back at Pennington’s apartment. The county attorney told police that they did not need a warrant to act. So, when officers arrived at the apartment and no one answered the door, they got a key from the landlord and let themselves in. Entering with a weapon drawn, police searched the apartment and eventually found S.W. hiding behind a hollow dresser.
Prosecutors charged Pennington in state court with felony child concealment and conspiracy. Conceding that the officers lacked probable cause to enter the home, the state offered Pennington a plea deal, which she took. Pennington then filed an appeal, arguing that the officers’ search of her home without a warrant or probable cause violated the Fourth Amendment.
The West Virginia Supreme Court denied her appeal. The “reason to believe” standard for warrantless entry, the court held, requires a lower level of suspicion than probable cause. It concluded that S.W.’s outstanding pickup order – the equivalent of an arrest warrant – combined with the uncorroborated anonymous tip were enough to justify the entry.
In Pennington v. West Virginia, Pennington asks the justices to clarify whether “reason to believe” is equivalent to probable cause. She argues that, in the absence of any of the narrow exceptions to the need for a warrant to search a home, the Fourth Amendment prohibits a weaker reading of that standard just because police have a warrant to arrest someone. Pennington contends that the divide among lower courts on this question is so deep that her case would have come out differently had she been charged in federal, rather than state, court in West Virginia.
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