N.D.W.Va.: GFE generally doesn’t apply to warrantless searches

Defendant’s wife did not voluntarily consent to the police entry into the basement of her bar. First, they detained defendant behind the bar. Then police came to the bar in great numbers (6-15, depending on the witness) while the bar was open to investigate a bar fight that occurred a week earlier. She showed them that the surveillance cameras were dummy cameras and recorded nothing. They wanted to look in the basement. She wanted to de-escalate the situation and get them out of the bar. Her taking them to the basement was mere acquiescence to authority (Treatise § 12.15). The government’s argument of good faith exception does not apply to this warrantless search (Treatise § 8.22). United States v. Mallicone, 2017 U.S. Dist. LEXIS 133235 (N.D. W.Va. July 18, 2017), adopted, 2017 U.S. Dist. LEXIS 132023 (N.D. W.Va. Aug. 18, 2017).

As a passenger, defendant had standing to challenge the vehicle stop, which was appropriate. “Brown also challenges the subsequent search of the vehicle’s trunk. Brown does not have standing to challenge the search of the trunk because he had no reasonable expectation of privacy therein. In any event, the search of the trunk was based on probable caused and therefore, did not violate the Fourth Amendment.” United States v. Brown, 2017 U.S. Dist. LEXIS 130195 (E.D. Va. Aug. 14, 2017).*

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