West Virginia Requires Written or Recorded Consent to Search After a Traffic Stop

The rule in §62-1A-10(a) is addressed to a specific moment: a law-enforcement officer who has stopped a motor vehicle for an alleged violation of a traffic misdemeanor law or ordinance. In that situation the officer may not search the vehicle unless one of three things is true. The officer has probable cause or another lawful basis for the search. Or the officer obtains the written consent of the operator of the vehicle on a form complying with §62-1A-11. Or, alternatively, the officer obtains the operator's oral consent and ensures that the oral consent is evidenced by an audio recording that complies with §62-1A-11. The consent that matters is the operator's, not a passenger's, and the statute does not extend to stops made for a felony or for a non-traffic offence.

Section 62-1A-11 tells the driver exactly what a lawful consent form has to contain, which is what makes the West Virginia scheme worth reading before a stop rather than after one. The form must state that the operator fully understands that he or she may refuse to give consent to search. It must state that the operator is freely and voluntarily giving consent. It must state that the operator may withdraw the consent at any time during the search. It must record the time and date of the stop, the make and registration number of the vehicle to be searched, and the name of the law-enforcement officer seeking consent. The audio route carries the same three substantive points: the recording must reflect an affirmative statement by the operator that he or she understands the right to refuse, that consent is being given voluntarily, and that he or she was informed of the right to withdraw consent at any time during the search.

Three escape hatches sit in the same section and they matter as much as the rule. Subsection (b) allows a handwritten consent executed by the vehicle operator, meeting the substantive requirements of §62-1A-11, where neither a compliant form nor an audio recording device is available. Subsection (c) disapplies the recording requirements entirely where a court finds that the officer had a reasonable suspicion of dangerousness to his or her safety that precluded recordation of the consent. Subsection (e) disapplies them where a court finds that the operator voluntarily and verbally consented to the search, which is a significant qualification: a judge who believes the driver said yes can excuse the absence of any form or tape.

The two limits at the end of the section define what a driver can actually do with a breach. Subsection (d) provides that failure to comply with the section shall not, standing alone, constitute proof that any consent to search was involuntary. Subsection (f) provides that nothing in the section may be construed to create a private cause of action. So §62-1A-10 does not carry an exclusionary rule of its own and it does not give rise to a damages claim. Its practical value is evidentiary: a documented refusal, or the absence of a form or a recording, is a fact a driver's lawyer can put in front of a court on a suppression motion argued on ordinary Fourth Amendment and state constitutional grounds.

The implementing rule has lapsed, and a reader should know that. Section 62-1A-11(a) directed the Governor's Committee on Crime, Delinquency and Corrections to promulgate emergency and legislative rules establishing the requirements for the form and the audio recording no later than December 31, 2010. The Committee did so: Title 149, Series 6 of the Code of State Rules, titled Motor Vehicle Search Standards, was filed and became effective on April 6, 2012. The Secretary of State's Code of State Rules now carries 149 CSR 6 as Historical, and the Committee has no active rule under that series. The statutory content requirements in §62-1A-11(b) and (c) remain in the Code and are self-executing enough to read, but the administrative specification behind them is no longer in force.

One thing West Virginia does not have is a cannabis-derived limit on searches. The state has not legalised adult-use cannabis, and the Medical Cannabis Act in chapter 16A contains no clause making lawful possession something other than grounds for a search. There is also no odour-and-probable-cause provision and no pretextual-stop statute. The traffic-stop consent rule in §62-1A-10 is the whole of the state's statutory protection in this area, and the traffic-stop data collection scheme that once recorded whether consent was given, in chapter 17G, expired by its own terms: §17G-2-3(d) provides that the chapter is of no force or effect after June 30, 2009.

There is no penalty attached to §62-1A-10, and that is deliberate. Subsection (f) says nothing in the section may be construed to create a private cause of action, so a driver cannot sue over a search conducted without the form or the recording. Subsection (d) says a failure to comply does not, standing alone, constitute proof that consent was involuntary, so the breach is not self-proving in a criminal case either. Two judicial findings can wipe the requirements out altogether: under subsection (c) a court finding that the officer had a reasonable suspicion of dangerousness to his or her own safety that precluded recording the consent, and under subsection (e) a court finding that the operator voluntarily and verbally consented.

The remedy a driver actually has is a motion to suppress in the criminal case, argued on constitutional grounds, in which the absence of a compliant form or recording is evidence bearing on whether consent was voluntary. Refusing consent is not itself an offence anywhere in the Code, and §62-1A-11(b)(1) requires the form to say in terms that the operator may refuse.