S.D.W.Va.: Court doesn’t believe plain view was possible

The gun under defendant’s pickup truck seat at knee high was not visible to the officer standing outside the truck looking down. The picture in the record belies it, so the officer isn’t credible. Suppressed. United States v. Bumgarner, 2021 U.S. Dist. LEXIS 242253 (S.D.W.Va. Dec. 20, 2021):*

This photograph, the only one depicting where the firearm was allegedly positioned before the officer moved it, shows the butt of the gun hidden in a dark area completely under the passenger seat. While Trooper Holden took numerous photographs that day, none illustrate his view from outside the truck. Initially, in looking at the photograph, Trooper Holden claimed he could not testify as to whether it was fully under the seat or whether any part of the firearm was sticking out. Despite this assertion, he claimed with certainty that the gun was in plain view. Upon further questioning, he ultimately acknowledged that the firearm, as the photograph he was viewing depicts, was, in fact, under the seat. Additionally, he later admitted that in his report from that day, he had described the gun as concealed underneath the seat.

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