No. 33289 - State of West Virginia v. Kenneth Bookheimer
Maynard, Justice, dissenting:
I dissent because I believe the circuit court properly concluded that the deputies
had a right to enter the appellants' residence based on exigent circumstances.
The deputies below responded to a report of a potential domestic dispute
involving a gunshot and yelling. Once the deputies arrived on the scene, they were
confronted by Ms. Tingler who was acting in an agitated manner. The deputies also had
reason to believe that Mr. Bookheimer was in the residence either armed with a gun or
wounded. Under the law as articulated by this Court and the United States Supreme Court,
this emergency afforded the deputies the right to enter the residence without first obtaining
The United States Supreme Court has indicated that [t]he Fourth Amendment
does not require police officers to delay in the course of an investigation if to do so would
gravely endanger their lives or the lives of others. Warden v. Hayden,
387 U.S. 294, 298-
299, 87 S.Ct. 1642, 1646, 18 L.Ed.2d 782 (1967). This Court has held that the warrantless
search of a residence by police officers was proper where the police were attempting to locate
an injured or deceased child whom the officers had reason to believe was in the residence. See State v. Cecil,
173 W.Va. 27, 311 S.E.2d 144 (1983). In the instant case, the deputies
had a duty to enter the residence and speak with Mr. Bookheimer face to face to ensure that
he was not injured and that he was not a threat to Ms. Tingler. Also, until the deputies
determined Mr. Bookheimer's whereabouts, they had reason to fear for their own safety due
to the fact that Mr. Bookheimer may have been armed. Anytime a gunshot is fired inside a
home, the police have a right and a duty to enter the home to investigate without a warrant.
The majority has created a dangerous precedent for domestic violence situations with this
decision. To say the police cannot enter a home without a warrant where there is gunfire and
loud yelling does great damage to domestic violence victims. In sum, the deputies in the
instant case were compelled to act quickly to ensure their own safety as well as the safety of
Ms. Tingler and Mr. Bookheimer.
Finally, the majority opinion is based on wholly unwarranted assumptions. The
majority opinion assumes that Ms. Tingler's anger and yelling were not caused by
circumstances occurring prior to the officers' arrival, but rather were aimed at the fact that
the officers were present on her property. The majority opinion also assumes that the
deputies' entry into the residence was not motivated by a possible emergency, but rather by
an intent to arrest or secure evidence. Neither of these assumptions is compelled by the
For the reasons stated above, I would affirm the judgment of the circuit court.
Accordingly, I dissent.