Sarah Goines
Parkersburg, West Virginia
Pro Se

Steven M. McGowan
Andrew L. Paternostro
Steptoe & Johnson
Charleston, West Virginia
Counsel for Appellees

Larry N. Sullivan
Parkersburg, West Virginia
Counsel for Curtis E. Goines

CHIEF JUSTICE WORKMAN Delivered the Opinion of the Court.

    1. "Government officials performing discretionary functions are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. A policeman's lot is not so unhappy that he must choose between being charged with dereliction of duty if he does not arrest when he has probable cause, and being mulcted in damages if he does." Syllabus, Bennett v. Coffman, 178 W. Va. 500, 361 S.E.2d 465 (1987).

    2. Under the doctrine of qualified immunity, a police officer is absolved from civil liability for following a misdemeanant in hot pursuit into the residence of a third party, with neither a warrant nor the permission of the third party, in order to effect a warrantless arrest of the misdemeanant, so long as such entry violates no clearly established statutory or constitutional rights.

Workman, Chief Justice:

    This case is before the Court upon the appeal of Sarah Goines and Curtis Goines from an April 16, 1992, order of the Circuit Court of Wood County denying the Appellants' motion to set aside a jury verdict and grant a new trial. The Appellants filed suit on June 13, 1988, pursuant to 42 U. S. C. A. § 1983 (West 1981) based upon alleged violations of their Fourth Amendment rights.See footnote 1 On March 6, 1992, the jury returned a defense verdict.See footnote 2 The Appellants' primary contention turns upon the single issue of whether a police officer's conduct in following a misdemeanant in hot pursuit into the residence of a third party,See footnote 3 with neither a search warrant authorizing such entrance nor with permission of the owner, in order to effect the arrest of the misdemeanant constitutes a civil cause of action for which damages may be recovered.See footnote 4 The Appellants argue that this warrantless search to effect a misdemeanor arrest was unconstitutional. The Appellees maintain that the police officers had the right to enter the Appellants' premises to effect the arrest. Moreover, the Appellees argue that regardless of what this Court decides on this underlying issue, the officers are entitled, as a matter of law, to the defense of qualified immunity in the civil action for damages because their conduct did not violate clearly established constitutional law. Based upon a review of the record, the parties' briefs and arguments and all other matters submitted before the Court in this matter,See footnote 5 we hold that the officers involved were entitled to qualified immunitySee footnote 6 for their actions since the law concerning this constitutional issue was not clearly established. Accordingly, we affirm the decision of the circuit court.

    On June 14, 1986, Officer Jeffrey James of the Parkersburg City Police Department was dispatched to respond to a complaint of disorderly conduct. Upon his arrival at the scene, Officer James observed a subject, later identified as Gary Shaffer, standing in front of the Appellants' home holding an open beer bottle. The officer testified that he observed Mr. Shaffer consume the contents of a beer bottle he had in his hand, while Mr. Shaffer stood in the street. Mr. Shaffer then broke the bottle by throwing it onto the street. Officer James exited his vehicle, approached Mr. Shaffer, and requested his identification. Mr. Shaffer refused to show the officer the requested identification and walked away from the officer into the Appellants' backyard.

    Officer James followed Mr. Shaffer, but encountered the Appellant, Sarah Goines, before reaching him. The officer asked Ms. Goines if he could question Mr. Shaffer. When Ms. Goines responded that he could, the officer proceeded to enter the Appellants' backyard where Mr. Shaffer was standing in the middle of an ongoing party. When Officer James reached Mr. Shaffer in the backyard, he again asked Mr. Shaffer for identification. Mr. Shaffer again refused and walked away. At Appellant Sarah Goines' direction, Mr. Shaffer entered the Appellants' home through the back door.

    Officer James followed Mr. Shaffer and when he reached him, the officer grabbed Mr. Shaffer in the doorway to the porch of the Appellants' home, but Mr. Shaffer pulled away, retreating into the house. Officer James proceeded into the home. At trial, the officer testified that he was arresting Mr. Shaffer for public intoxication. The officer also testified that he had no warrant for Mr. Shaffer's arrest, no search warrant to enter the premises, and no resident of the home had consented to or invited the officer to enter the premises.

    Mrs. Goines alleges that the officer made an unprovoked assault upon her during his entry of the home, which caused serious bodily injury. Further, while Officer James was attempting to arrest Mr. Shaffer, the officer was confronted by Steven Goines, Appellant Sarah Goines' son. Steven Goines demanded that the officer produce a warrant and that the officer leave the premises. When the officer tried to explain that he had a right to be in the home to arrest Mr. Shaffer, a fight between the two ensued. Steven Goines was then arrested.

    Other officers responding to the scene were directed into the Appellants' home by Officer Hunley to assist Officer James. It was during all this commotion that Curtis Goines claimed that he was struck by an object over the ear by an unidentified person who appeared to be a uniformed officer.See footnote 7

    According to the Supreme Court of Michigan in Guider v. Smith, 431 Mich. 559, 571 431 N.W.2d 810, 815 (1988), since the United States Supreme Court defined the limits of qualified immunity in terms of an objective reasonableness standard of good faith, "[w]hat the defendant [police officer] believed at the time of the incident . . . is irrelevant to a determination of the threshold question whether the defendant's undisputed conduct violated clearly established law." See Harlow, 457 U.S. at 818. If, however, the law was clearly established, the immunity defense should fail unless "the . . . [officer] pleading the defense claims extraordinary circumstances and can prove that he neither knew nor should have known of the relevant legal standard. . . ." Id. at 819.

    Accordingly, the United States Supreme Court in Harlow directed that in cases such as these, the lower court judge may determine on summary judgmentSee footnote 10  not only the currently applicable law, but whether that law was clearly established at the time an action occurred. If the law at that time was not clearly established, an official could not reasonably be expected to anticipate subsequent legal developments, nor could he fairly be said to 'know' that the law forbade conduct not previously identified as unlawful. Until this threshold immunity question is resolved, discovery should not be allowed.
Id. at 818 (footnote omitted).

    Consequently, we now turn to an examination of federal and State law in order to ascertain whether the constitutional law surrounding the Appellants' Fourth Amendment rights was clearly established at the time the officer's conduct occurred, thereby enabling this Court to ascertain whether the officers are entitled to qualified immunity as a matter of law.

    The United States Supreme Court, examining the exigent circumstance of hot pursuit, upheld the warrantless arrest and search, stating that "a suspect may not defeat an arrest which has been set in motion in a public place, . . . by the expedient of escaping to a private place." Id. at 43. The Supreme Court also addressed the hot pursuit exception and found that

        'hot pursuit' means some sort of a chase, but it need not be an extended hue and cry 'in and about [the] public streets.' The fact that the pursuit here ended almost as soon as it began did not render it any the less a 'hot pursuit' sufficient to justify the warrantless entry into Santana's house.
Id.

    Subsequently in Welsh v. Wisconsin, 466 U.S. 740 (1984), a witness observed a car which was being driven erratically and which eventually swerved off the road. The driver got out of the car and walked away from the scene. When the police arrived a few minutes later, the witness told the officer that the driver was either sick or intoxicated. After ascertaining the identification of the owner of the vehicle [the petitioner Welsh], the police went to his home without a warrant. The petitioner's step-daughter allowed the police to enter the petitioner's home.See footnote 11 The officers found the petitioner lying naked in bed. Id. at 742-43. The petitioner was arrested for a first offense driving while under the influence of an intoxicant, which in Wisconsin was a noncriminal violation subject only to a civil forfeiture proceeding for a maximum $200 fine. Id. at 743 and 746.

    In Welsh, the Supreme Court, in determining whether the petitioner's arrest was in violation of the Fourth Amendment, held in a case not involving any exigent circumstances, that the "warrantless, nighttime entry into the petitioner's home to arrest him for a civil [nonjailable] traffic offense[,]" constituted a violation of the petitioner's Fourth Amendment rights. Id. at 754. The Supreme Court relied upon its prior decision in Payton v. New York, 445 U.S. 573 (1980), in which the Court held that "warrantless felony arrests in the home are prohibited by the Fourth Amendment, absent probable cause [to believe the felony offense has been committed] and exigent circumstances." Welsh, 466 U.S. at 749 (citing Payton, 466 U.S. at 583-90).

    While the Supreme Court stated that "application of the exigent-circumstances exception in the context of a home entry should rarely be sanctioned when there is probable cause to believe that only a minor offense . . . has been committed[,]" there was no definitive holding or even dicta by the Court which would clearly establish under what circumstances a warrantless home arrest upon hot pursuit from a commission of a misdemeanor in the officer's presence would constitute a Fourth Amendment violation.See footnote 12 Id. at 753.

    The closest the Supreme Court came to shedding any light on the present issue before this Court came in the Welsh decision after the Supreme Court noted that most jurisdictions had not permitted warrantless home arrests for nonfelonious crimes,See footnote 13 but recognized that some courts had when exigent circumstances were present.See footnote 14 The Supreme Court stated "without necessarily approving any of these particular holdings or considering every possible factual situation, we note that it is difficult to conceive of a warrantless home arrest that would not be unreasonable under the Fourth Amendment when the underlying offense is extremely minor." Id. Unfortunately, the Supreme Court is simply not clear about what it considers to be an "extremely minor offense."See footnote 15 Id. Moreover, just because it is "difficult to conceive" of circumstances which would warrant such an arrest does not mean it is impossible to conceive of circumstances, especially exigent circumstances, in which the Court would consider as justifying a warrantless home arrest for a misdemeanor offense.See footnote 16 Id.

    The unsettled nature of this constitutional question was yet again highlighted by this Court's decision in Bennett v. Coffman, 178 W. Va. 500, 361 S.E.2d 465 (1987), decided approximately one year after the facts forming the basis of the present appeal occurred. In Bennett, the police officers went to a bar in response to a disturbance call. The officers were told by the proprietor of the bar that the defendant, Mr. Bennett, had assaulted him and caused property damage before leaving the bar in an extremely intoxicated state. Meanwhile, the defendant had phoned the police station and requested to meet with officers. Id.

at 501, 361 S.E.2d at 466. The officers proceeded to the defendant's home, but found no one there. As they were driving away, they encountered the defendant driving a car towards the officer's vehicle and the car was left of center. The defendant pulled the car into his driveway. The officers pursued. The defendant ran around to the back of his home and the officers followed. The officers proceeded to search for the defendant, but to no avail. After about an hour, one officer observed the defendant enter his house. Id. The officers then knocked on the door and Willard Westfall answered. Mr. Westfall indicated that the defendant was not in the house. The officers entered the home, without Mr. Westfall's consent. The officers found the defendant hiding under a bed. Id.

    This Court ultimately held that:

         Government officials performing discretionary functions are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. A policeman's lot is not so unhappy that he must choose between being charged with dereliction of duty if he does not arrest when he has probable cause, and being mulcted in damages if he does.

Id. at 500, 361 S.E.2d at 465, Syllabus; see State v. Chase Sec., Inc., ___ W. Va. ___, 424 S.E.2d 591 (1992). In rendering the above-mentioned holding, however, this Court first had to distinguish the Welsh case. We did so on the basis that in Bennett, the doctrine of hot pursuit clearly applied and that in West Virginia, driving while intoxicated was a serious traffic offense. More importantly, we also noted in distinguishing the Welsh decision, "the substantial difference of opinion among the justices of the U. S. Supreme Court [on the issue of a warrantless home entry to effect a misdemeanor arrest] as expressed in Welsh 18 months after this incident. . . ." Id. at 505, 361 S.E.2d 470 (some emphasis added). These differences of opinions on this issue as reflected by the Supreme Court in the non-unanimous Welsh decision only serve to demonstrate how murky the waters remain and how unclear the law is in this area of search and seizure.

    While it is clear that in West Virginia a police officer can effect a warrantless arrest for the serious misdemeanor of driving under the influence by following the misdemeanant into his own home in hot pursuit, without a warrant, we find it unnecessary to resolve the constitutionality of a warrantless arrest for other types of less serious misdemeanors where that arrest occurs after a police officer has followed the offender in hot pursuit into a third-party residence. Whatever the outcome were we to answer that substantive question, it is sufficient in this case to conclude that even if such an arrest was unconstitutional, the law thereon was not clearly established at the time of the officer's conduct, and consequently, the officer is entitled to qualified immunity from civil liability.

    Consequently, we hold that under the doctrine of qualified immunity, a police officer is absolved from civil liability for following a misdemeanant in hot pursuit into the residence of a third party, with neither a warrant nor the permission of the third party, in order to effect a warrantless arrest of the misdemeanant, so long as such entry violates no clearly established statutory or constitutional rights.

    For the foregoing reasons, the judgment of the Circuit Court of Wood County is affirmed.

Clearly, none of the officers' conduct regarding the entry into the Appellants' home met any of the exceptions for which personal tort liability might be imposed. See id. at ___, 428 S.E.2d at 318.