Current through Register Vol. XLI, No. 44, November 1, 2024
Section 149-3-7 - Initial Law Enforcement Officer Response7.1. Approaching the scene. 7.1.1. Whenever possible, at least two law enforcement officers shall respond to a domestic violence call. The responding law enforcement officer should approach the scene of a domestic incident as one of high risk.7.1.2. The law enforcement officer should obtain all available information from the dispatcher/telecommunicator before arriving at the scene and should notify the dispatcher/telecommunicator upon arrival.7.1.3. Unless the circumstances of a particular incident require different measures, the law enforcement officer should follow the approach procedures set out in the remainder of this section. The law enforcement officer should:7.1.3.a. Approach the scene inconspicuously. The law enforcement officer should not use sirens or lights in the immediate area of the scene of the incident;7.1.3.b. Park away from the immediate scene of the incident;7.1.3.c. Keep a safe exit route in mind;7.1.3.d. Be alert for the employment of weapons from doors, windows, or nearby vehicles;7.1.3.e. Be alert for persons moving away from the immediate scene of the incident; and,7.1.3.f. Employ other standard precautionary measures for approaching high risk incident scenes.7.2. Initial contact. 7.2.1. The responding law enforcement officer should identify himself or herself, explain the law enforcement presence, and request entry into the residence or business. The law enforcement officer shall ask to see the person who is the subject of the call. The law enforcement officer shall not reveal the caller's name.7.2.2. If a domestic violence protective order is in effect, the law enforcement officer may enter for the purpose of enforcing the protective order if written or verbal consent has been given to do so. Written consent to enter may have been given by the victim/petitioner on the domestic violence protective order petition which will be on file with the court or contained on the domestic violence database.7.2.3. In some exigent circumstances, forced entry is necessary and appropriate. Exigent Circumstances include but are not limited to:7.2.3.a. The residence area shows signs of a fight or scuffle;7.2.3.b. When a person from inside the residence calls for assistance or is yelling;7.2.3.c. When law enforcement officer has reason to believe that the person is wounded, injured, or is otherwise in need of assistance;7.2.3.d. When the accused is suspected of concealing the victim;7.2.3.e. When the call came from the residence and the victim is identified as the caller and entry is denied by others present on the scene;7.2.3.f. When the officer has articulable suspicion that serious bodily injury or death may result if entry is not immediate.7.3. Establishing control of scene. 7.3.1. Once at the scene of the incident, the responding law enforcement officer should establish control by: 7.3.1.a. Identifying and securing potential weapons;7.3.1.b. Separating the victim and the accused when circumstances are appropriate;7.3.1.c. Assessing injuries (including inquiry about possible internal injuries), administering first aid, and notifying emergency medical services as necessary (Due to high lethality and possibility of delayed death, if strangulation, suffocation, or asphyxiation is reported, or suspected, the officer shall request EMS respond to the scene);7.3.1.d. Identifying all occupants and witnesses on the premises;7.3.1.e. Separating occupants and witnesses from the victim and accused and keeping them out of hearing range (to avoid compromising their witness status), and,7.3.1.f. Maintaining visibility and restricting mobility of all persons present at the scene.7.4. On-scene investigation. 7.4.1. The law enforcement officer shall conduct an investigation using the same procedures that the law enforcement officer would use in any other on-scene criminal investigation. While conducting the investigation the law enforcement officer shall attempt to establish the existence of credible corroborative evidence. The law enforcement officer shall make specific note of and document all statements made by the victim, accused and all witnesses, including children, particularly those statements that may be admissible as evidence as exceptions to the hearsay rule such as excited utterances, present sense impression and statements made for medical treatment. The law enforcement officer shall also determine if such statements were made to the dispatcher/telecommunicator and take appropriate measures to secure and preserve such evidence.7.4.2. The law enforcement officer should ensure the victim's safety and privacy by interviewing the victim in an area apart from the accused, witnesses, and bystanders if possible.7.4.3 While interviewing the victim, the law enforcement officer should use trauma informed interview techniques. The law enforcement officer should not tell the victim what action the law enforcement officer intends to take until all available information has been collected.7.4.4. The law enforcement officer should talk to and document the victim and any witnesses (including all child witnesses) as fully and as soon as circumstances allow, taking down names, addresses, and other relevant information. These discussions should be conducted consistent with the information in subdivisions 7.5.10. and 7.5.11. of this rule. When talking to the victim and any witnesses (including all child witnesses) law enforcement officer should determine whether the victim and any witnesses (including all child witnesses) allege facts establishing probable cause that criminal activity has occurred. If so, the law enforcement officer should inquire whether the victim and any witnesses are willing to sign a statement containing those facts.7.4.5. On all incidents of domestic violence requiring a report pursuant to §48-27-801, the law enforcement officer shall conduct a private interview with the victim utilizing "Dangerousness-Lethality Information form for Use by Law Enforcement Officers" included in the "Dangerous-Lethality Assessment Guide" as approved by the "Rural Access in Criminal and Civil Systems" committee and distributed by the West Virginia State Police. The "Dangerousness-Lethality Information form for Use by Law Enforcement Officers" shall be attached to the police incident report and any lethality indicators found should be summarized on the criminal complaint. Summarization on the complaint should include information determined to be pertinent by the officer through the course of their investigation.7.4.6. The law enforcement officer should proceed with the investigation even in the absence of a statement from both a victim and any witnesses (including child witnesses). Again, these discussions should be conducted consistent with the information in subdivisions 7.5.10. and 7.5.11. of this rule. Proceed with the understanding that there may be no further assistance from the victim.7.4.7. The responding law enforcement officer should interview the accused as fully as circumstances allow, inquiring about the nature of the domestic violence, and document the information obtained. The law enforcement officer should be alert to possible incriminating statements.7.4.8. In cases where the accused or victim does not speak English, law enforcement officer should use a neutral interpreter. Officers shall not use family, friends, and especially children, to provide interpreter services.7.4.9. If the accused has fled the scene, the law enforcement officer should gather information as to the possible whereabouts of the accused (place of employment, relatives, friends, etc.). The law enforcement officer should make reasonable efforts to locate and interview the accused as to any statements or evidence they may wish to provide prior to arrest or obtaining a warrant.7.4.10. The law enforcement officer shall collect and preserve all physical evidence reasonably necessary to support prosecution, including evidence substantiating the victim's injuries, evidentiary articles that substantiate the attack (weapons, torn clothing, etc.), and evidence recording the crime scene. The law enforcement officer should ensure that photographs are taken of visible injuries on the victim and of the crime scene. The law enforcement officer shall document the location of any injuries that may result in potential bruising. The law enforcement officer shall document all evidence that supports a violation of any WV state code. All physical evidence shall be collected, noted in reports, and vouchered as in other criminal investigations.7.4.11. The law enforcement officer should encourage the victim to seek medical attention for injuries that do not require emergency treatment at the scene. The law enforcement officer should inquire about injuries of the victim that are concealed by clothing or otherwise not readily apparent.7.5. On Scene Investigation When Children are Present. 7.5.1. If a law enforcement officer has reasonable cause to suspect that a child is neglected or abused or observes the child being subjected to conditions that are likely to result in abuse or neglect, the law enforcement officer shall immediately report the circumstances to Child Protective Services (CPS) pursuant to W.Va. Code § 49-2-803. The law enforcement officer should provide notification to an adult caretaker of the child who is not the perpetrator of the abuse.7.5.2. In addition to the domestic violence crimes, assess for crimes against children pursuant to W.Va. Code § 61-8D-1, et seq.7.5.3. If the victim is the sole caretaker of a child and can no longer provide care (for example, when the victim is hospitalized) and is not incapacitated, the officer shall consult with the victim about arrangements for the child. If the accused is arrested and was the sole caretaker of a child or if both caretakers are arrested, the law enforcement officer shall contact Child Protective Services (CPS). CPS will determine whether there is a responsible relative who can care for the child. The law enforcement officer shall remain with the child until CPS arrives.7.5.4. Determine the location of all children. Check to see if they are hurt.7.5.5. Keep children with adults the children know when safe and appropriate.7.5.6. Provide victim parent with information about safety and resources.7.5.7. Help support victim parent (to help them care for their children).7.5.8. It is recommended to not arrest in front of the children.7.5.9. If there has been a murder, suicide, or serious bodily injury of any household member, after making a mandated report to CPS, refer family/caregiver for children to community resources that provide trauma-informed care.7.5.10. When assessing for child wellbeing, the following is recommended:7.5.10.a. Speak at children's level by sitting or squatting;7.5.10.b. Describe your role in simple terms;7.5.10.c. Talking with children on scene is not the same as a forensic interview conducted by a trained forensic interviewer. The on-scene engagement of children is primarily for the purpose of checking for safety, controlling the scene, comforting the child, and documenting statements, excited utterances, and demeanor of the child;7.5.10.d. Don't force the child to speak;7.5.10.e. Refrain from talking badly about either parent in front of children;7.5.10.f. Don't say everything will be okay, or make promises you cannot keep;7.5.10.g. Reassure children that the violence was not their fault; and,7.5.10.h. Explain to children why any law enforcement use of force was necessary.7.5.11. When assessing harm to children at the scene of a domestic violence call, assess for:7.5.11.b. If children are in imminent danger;7.5.11.c. The need to take custody without a court order in cases of abandonment or medical neglect pursuant to W.Va. Code § 49-4-301; and,7.5.11.d. Whether or not children are at risk of substantial harm due to domestic violence as determined by the following indicators (if children are at risk of substantial harm due to domestic violence, make a report to child protective services): 7.5.11.d.i. Proximity of the children to the domestic violence;7.5.11.d.ii. Nature of the violence or crime;7.5.11.d.iii. Child physically intervening;7.5.11.d.iv. Child forced to participate in the domestic violence;7.5.11.d.v. Use of weapons or objects that could cause harm in the presence of children; 7.5.11.d.vi. Direct threats (including verbal threats) of serious bodily injury or death to or regarding children;7.5.11.d.vii. A domestic violence offender with indicators of highly dangerous/potentially legal behaviors;7.5.11.d.viii. Past criminal history of child abuse and/or neglect; and,7.5.11.d.ix. Criminal history of domestic violence related crimes.7.5.12. The law enforcement officer should make a Handle With Care notification where the program is available. W.Va. Code § 7-26-2(b) provides that sheriffs of each county of the state to provide Handle With Care program training to law-enforcement supervisors and patrols and actively participate in and use all law enforcement-related components of the Handle With Care program.7.5.13. The law enforcement officer shall document any statements, information, excited utterances, and demeanor of the child (pursuant to §7.4.1. of this rule). 7.6. Enforcing any protective orders or bond conditions.7.6.1. To determine the existence of a protective order, ask the victim whether there is a valid protective order in effect the officer should attempt to verify the existence of an order by accessing the statewide domestic violence database, NCIC, and identifying the issuing county and court. The law enforcement officer shall enforce all orders. Where the respondent has been served with the protective order or has actual notice of the protective order, then the law enforcement officer shall follow the arrest authorization provisions as set forth in this rule. (See W.Va. Code § 48-27-1001.)7.6.2. If a law enforcement officer determines that an otherwise valid protective order cannot be enforced because the respondent has not been notified of or served with the order, the officer shall inform the respondent of the content of the order and make a reasonable effort to serve any available copy of the order upon the respondent. The officer shall allow the respondent a reasonable opportunity to comply with the order, such as vacating the premises, surrendering firearms, etc. Once the officer has notified or served the respondent, and the respondent fails to comply with the order, the officer shall enforce the order. (See W.Va. Code § 48-27-1001.) 7.6.2.a. If the officer serves the protective order on the respondent, the officer ensures the service is recorded in the Domestic Violence Database.7.6.3. If the officer makes verbal notice, the officer shall notify the respondent of the following minimum mandatory relief:7.6.3.a. Order the respondent to refrain from abusing, harassing, stalking, threatening or otherwise intimidating the petitioner or the minor children, or engaging in other conduct that would place the petitioner or the minor children in reasonable fear of bodily injury.7.6.3.b. Inform the respondent that he or she is prohibited from possessing any firearm or ammunition, notwithstanding the fact that the respondent may have a valid license to possess a firearm, and that possession of a firearm or ammunition while subject to the court's protective order is a criminal offense under federal law.7.6.3.c. Inform the respondent that the order is in full force and effect in every county of this state.7.6.4. The law enforcement officer shall document the notification by contacting the local 911 center, state police center or their own agency (if they have access to the database) to record notification on the WV statewide domestic violence database and submitting the return of service in writing to the circuit clerk's office within 24 hours.7.6.5. Verbal notification does not relieve the agency or officer from serving the order.7.6.6. If the victim is aware of pending criminal charges against the accused and bond conditions, the law enforcement officer should verify such information by contacting the local law enforcement department specified by the victim or the issuing court to verify the conditions of release on bond.7.7. Violations of Protective Orders. 7.7.1. Pursuant to W. Va. Code § 62-1C-17c(d), when the law enforcement officer observes any violations of a known bond condition in cases of crimes between family or household members, including family or household members who are children, the law enforcement officer shall arrest the accused for violations of the bond conditions; which may include the presence of the accused at the residence of the victim. (See W.Va. Code § 48-27-1001(c).)7.7.2. The law enforcement officer shall enforce all protective or similar type orders that have been issued by a circuit judge, family court judge or magistrate of this state, and from courts of another state, territory, or tribe.7.7.3. In addition to being charged for the violation of a protective order, a person should be charged with any other crimes committed during the violation.7.7.4. The law enforcement officer shall provide for the safety of the parties and remain at the location when they are ordered to accompany one or both of the parties to obtain personal property or other items from a location, including temporary possession of motor vehicles owned by either or both of the parties.7.7.5. Notwithstanding the issue of violation of the state law, the crossing or causing the crossing of a state line or territory or tribal boundary to violate a valid protective order is a violation of federal law and should also be referred to federal authorities.7.8. Missing Persons Investigation; Domestic Violence.7.8.1. A law enforcement agency, under WV Code § 48-27-601(e), shall initiate a missing persons investigation if the agency: 7.8.1.a. Has possession of a valid protective order, or has notice of the existence of a protective order which is in effect, or has been expired for a period of less than thirty (30) days, and receives a report that a person protected by the order has been reported missing; or,7.8.1.b. Receives information that at the time of disappearance the missing person was subjected to domestic violence.7.8.2. The investigating officer cannot release the whereabouts of the alleged missing person, if found, without expressed consent of that person.7.9. Follow-up Investigation; Domestic Violence.7.9.1. All domestic violence reports prepared by the law enforcement officer should be reviewed and given follow-up investigation as needed.7.9.2. Follow up investigations should include the following:7.9.2.a. Take photographs of injuries approximately two days after the incident to exhibit changes in injury as well as the long-term effects of abuse. Contact or meet the victim at a safe location if necessary, such as his or her work place.7.9.2.b. Obtain all available medical reports after receipt of medical release from the victim.7.9.2.c. Obtain a copy of 911 recordings, body camera video, or other communications with police or emergency personnel.7.9.2.d. Preserve all body camera footage involving domestic violence.7.9.2.e. Interview victims and witnesses who were physically or emotionally unable to be properly interviewed or to provide a statement at the time of the incident due to victim trauma. Interviews should also include the victim's family members, previous intimate partners of the accused, and as necessary interview family of the accused.7.9.2.f. Interview potential witnesses (neighbors, co-workers, friends, etc.).7.9.2.g. Ascertain if the accused is on parole or probation or bond and obtain the name and contact the parole or probation officer.7.9.2.h. Obtain all corrections facilities telephone and communication logs associated with the accused (i.e. jail calls, emails, video calls and visitor contact list).7.9.2.i. Conduct a complete NCIC check, and, if possible, a criminal history check of the accused.7.9.2.j. Collect all types of threatening communication (sent by the accused to the victim, family members and friends) to include: letters, cards, emails, text messages, social media, and notes.