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No privacy expectation in friend’s apartment

Home is not where your Nintendo is, according to the 4th U.S. Circuit Court of Appeals.

Two men who sold cocaine together in Huntington, W.Va., were more than business partners. Joshua Gray and Terrence Askew hung out together at Gray’s apartment, watching TV and playing video games. Askew even kept a change of clothes and a toothbrush at Gray’s apartment.

But the business relationship was paramount, according to the 4th Circuit in its July 2 decision in U.S. v. Gray. Because the buddies also spent their time selling cocaine base from the apartment, Askew had no reasonable expectation of privacy in the apartment.

That meant that when police pushed their way into Gray’s apartment on July 3, 2003, in response to a neighbor’s complaint about the drug dealing, they could not use the drugs and drug paraphernalia spread out on tables in the apartment against Gray, but they could use the drug evidence against Askew, who had no standing to contest the illegal search.

Writing for a panel majority, Judge J. Harvie Wilkinson III declined to “create a toothbrush or Nintendo rule that would inflexibly mark a relationship as social in the face of testimony of extensive drug operations, replete with scales, large amounts of cash, neighborhood complaints and multiple customers.”

Wilkinson also said the district court was entitled to reinforce its view of the defendants’ business relationship with information from a presentence report.

Judge M. Blane Michael dissented with a lengthy critique of the majority for becoming “the first court to hold that facts from a defendant’s sentencing investigation and proceeding may be used in deciding a suppression appeal.”

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