United States v. Gary Spurlock , 642 F. App'x 206 ( 2016 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4276
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
and
STATE OF WEST VIRGINIA,
Intervenor – Appellee,
v.
GARY DALE SPURLOCK,
Defendant – Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. Thomas E. Johnston,
District Judge. (2:14-cr-00094-1)
Argued: January 28, 2016 Decided: March 22, 2016
Before SHEDD and FLOYD, Circuit Judges, and Loretta C. BIGGS,
United States District Judge for the Middle District of North
Carolina, sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: James McCall Cagle, Charleston, West Virginia, for
Appellant. Jennifer Rada Herrald, OFFICE OF THE UNITED STATES
ATTORNEY, Charleston, West Virginia, for Appellee. Jonathan Zak
Ritchie, OFFICE OF THE WEST VIRGINIA ATTORNEY GENERAL,
Charleston, West Virginia, for Intervenor-Appellee. ON BRIEF:
R. Booth Goodwin II, United States Attorney, Carol Casto, Acting
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Charleston, West Virginia, for Appellee United States of
America. Patrick Morrisey, Attorney General, Elbert Lin,
Solicitor General, OFFICE OF THE WEST VIRGINIA ATTORNEY GENERAL,
Charleston, West Virginia, for Intervenor-Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Gary Dale Spurlock appeals the denial of his motion to
suppress firearms seized during a search of his home, arguing
that the district court erred in concluding that the search was
valid under the third-party consent doctrine. Because the
firearms are admissible under the good-faith exception, we
affirm.
I.
On December 5, 2013, Spurlock’s live-in girlfriend (“J.W.”)
filed a domestic violence complaint against him in Boone County,
West Virginia. J.W. alleged that Spurlock was “threating to kill
me, my daughter and son-in-law,” and “trying to hold me captive
in the bathroom.” (J.A. 43). J.W. also indicated that Spurlock
owned guns and used them to threaten her. J.W. requested an
emergency protective order (EPO), and she checked the following
box on the form:
I give my consent for any law-enforcement officer to
enter my separate residence or household that
Respondent and I shared at the time the acts of
domestic violence occurred for the purpose of
enforcing a Protective Order.
(J.A. 44).
A magistrate judge issued an EPO later that day. As
relevant here, the EPO provides that:
According to W. Va. Codes § 48–27–403 and § 48–27–
502(b), the Respondent shall not possess any firearms
(even those for which the Respondent has a license to
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possess) or ammunition while this Protective Order is
in effect, and you are hereby informed of this
prohibition.
(J.A. 51). Elsewhere, the EPO warns that “it may be a VIOLATION
of State and Federal Law to possess any firearm or ammunition
while this Order is in effect, even those for which Respondent
has a license.” (J.A. 49). The magistrate also checked the
following pre-printed provision:
Pursuant to the Rules of Practice and Procedure for
Domestic Violence Civil Proceedings, Rule 10b and to
enforce the provisions of W. Va. Code Chapter 48,
Article 27 regarding firearms; it is hereby ORDERED to
protect the physical safety of the Petitioner and
other protected individuals herein that:
Respondent shall surrender any and all firearms and
ammunition possessed or owned by the Respondent to the
law enforcement officer serving this Order.
(J.A. 52) (emphasis added).
Consistent with J.W.’s complaint, the magistrate also
checked and initialed a box stating: “Petitioner gives consent
for any law enforcement officer to enter his or her separate
residence or the household jointly owned by the parties and
awarded herein to Petitioner with or without a warrant to
enforce the Emergency Protective Order as provided by W. Va.
Code § 48–27–601.” (J.A. 52). Finally, the EPO awarded J.W.
“temporary possession of the residence or household jointly
resided in by the parties at the time the abuse occurred” and
stated that Spurlock should vacate the premises once the EPO was
filed. (J.A. 52).
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Despite the issuance of the EPO on December 5, no action
occurred for several days. In fact, on December 9, J.W. returned
to the Boone County Sheriff’s Office and spoke with Corporal
Michael Foster to ask about the delay. During this period,
Spurlock remained in the home with several of J.W.’s relatives,
although J.W. herself had vacated the residence.
Spurlock was finally served with the EPO on December 10
when he voluntarily reported to the Sheriff’s Office. 1 Corporal
Foster served Spurlock with the EPO, explaining that it was a
civil order, not criminal, and that Spurlock was not being
arrested. Foster then asked Spurlock if he had any firearms.
Spurlock responded affirmatively, and Foster told Spurlock that
the EPO required him to surrender those weapons. Spurlock was
cooperative and agreed that Foster and another officer could
follow Spurlock to his house. Once at the house, Spurlock took
the officers to a walk-in closet in the master bedroom and
opened a combination safe that contained most of his firearms.
Spurlock testified at the suppression hearing that J.W. “had the
combination to my safe,” that “[h]er jewelry” was in the safe,
and that she “had full access, the same as I did.” (J.A. 109).
After Spurlock opened the safe, the officers asked him to move
back into the bedroom while they secured the guns. Among the
1 Spurlock’s attorney informed him about the EPO.
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guns Foster retrieved was a sawed-off shotgun. Foster told
Spurlock that the barrel looked short and the gun might be
illegal. Spurlock responded “[m]aybe most of the guns I have are
illegal.” (J.A. 82). Spurlock was not arrested at that time, and
the officers left peacefully after recovering 22 guns.
That night, Foster checked the guns on a national database
and found that several had been stolen. In addition, one of the
guns had an obliterated serial number. Based on these findings,
Foster obtained a search warrant for Spurlock’s house. During
the subsequent search of the house, officers recovered several
additional guns. Foster also obtained a warrant for Spurlock’s
arrest. Based on the foregoing, Spurlock was charged in a two-
count indictment relating to the sawed-off shotgun and the gun
with the obliterated serial number with: (1) possession of a
illegal sawed-off shotgun, in violation of 26 U.S.C. §§ 5841,
5861(d), and 5871; and (2) possession of a firearm with an
obliterated serial number in violation of 18 U.S.C. §§ 922(k)
and 924(a)(1)(B).
Spurlock moved to suppress the two guns, arguing that the
search and seizure violated his constitutional rights, primarily
his Fourth Amendment right against unreasonable seizures.
Spurlock also apparently challenged the constitutionality of the
West Virginia domestic violence protection statutes to the
extent those statutes authorized the seizure of firearms as part
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of an EPO. The district court held an evidentiary hearing at
which Foster and Spurlock testified. The court also requested
that the State of West Virginia intervene to defend the
constitutionality of its domestic violence protection statutes. 2
Ultimately, the district court denied the motion to
suppress. United States v. Spurlock, 2014 WL 7013801 (S.D. W.Va.
Dec. 12, 2014). The court concluded that J.W. gave written
consent to enter the premises to carry out the EPO and that this
consent extended to the temporary seizure of the guns. The court
also concluded that J.W. had the right to consent to the search
of the safe given Spurlock’s testimony that she had equal access
to it. The court further found that the consent “imposed no
limits on the items or areas subject to the consent search, and
it extended implicitly to the areas of the house which the
officers would reasonably believe it necessary to enter to
enforce the terms of the EPO.” Spurlock, 2014 WL 7013801, at
*5. Given this broad consent, the court stated that “it was
objectively reasonable for the officers to believe they had
J.W.’s consent to enter the bedroom closet to enforce the
order's requirement that Defendant surrender any and all
firearms.” Id. The court also noted that, under Georgia v.
2
West Virginia intervened below and on appeal to defend the
statutes.
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Randolph, 547 U.S. 103, 120 (2006), a defendant who is
physically present may revoke third-party consent to search, but
that Spurlock did not exercise that right.
Following the denial of his suppression motion, Spurlock
entered a conditional plea to Count 2 (obliterated serial
number), and the court sentenced him to three years of
probation. Spurlock timely appealed.
II.
On appeal, Spurlock renews his contention that the firearms
should have been suppressed. 3 We review the district court’s
factual findings on a suppression motion for clear error and its
legal conclusions de novo. United States v. Stover, 808 F.3d
991, 994 (4th Cir. 2015). “When, as here, a motion to suppress
has been denied, we view the evidence presented in the light
3 Spurlock also argues—as he did below—that the seizure
violated his Fifth Amendment right against self-incrimination.
In addressing this claim, the district court concluded that the
seized firearms were not testimonial because they are “mere
physical evidence that neither explicitly nor implicitly reveal
any contents of Defendant’s mind.” Spurlock, 2014 WL 7013801, at
*8. We have reviewed this claim and find it to be without merit.
See United States v. Duncan, 331 Fed. App’x. 270, 272 (4th Cir.
2009) (finding similar surrender of firearms was not “compelled”
under Fifth Amendment because defendant “never claimed the Fifth
Amendment privilege in response to the domestic violence
protective order directing him to turn over a firearm to state
officials, and no evidence suggests the Government sought to
induce forfeiture of the privilege by threatening sanctions
through service of the protective order”).
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most favorable to the government.” United States v. Watson, 703
F.3d 684, 689 (4th Cir. 2013).
In relevant part, the Fourth Amendment provides “[t]he
right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures,
shall not be violated.” U.S. Const. amend IV. In order “to
safeguard against future violations of Fourth Amendment rights
through the rule’s general deterrent effect,” Arizona v. Evans,
514 U.S. 1, 10 (1995), the Court created the exclusionary rule.
However, “exclusion of evidence has ‘always been our last
resort, not our first impulse,’” United States v. Stephens, 764
F.3d 327, 335 (4th Cir. 2014) (quoting Hudson v. Michigan, 547
U.S. 586, 591 (2006)), because it creates “substantial social
costs,” United States v. Leon, 468 U.S. 897, 907 (1984).
Recently, the Court has made clear that the exclusionary rule’s
“sole purpose” “is to deter future Fourth Amendment violations.”
Davis v. United States, 564 U.S. 229, 131 S.Ct. 2419, 2426
(2011). Given this purpose, “[t]o trigger the exclusionary rule,
police conduct must be sufficiently deliberate that exclusion
can meaningfully deter it, and sufficiently culpable that such
deterrence is worth the price paid by the justice system.”
Herring v. United States, 555 U.S. 135, 144 (2009).
Thus, “when the police act with an objectively reasonable
good-faith belief that their conduct is lawful, or when their
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conduct involves only simple, isolated negligence, the
deterrence rationale loses much of its force, and exclusion
cannot pay its way.” Davis, 131 S.Ct. at 2427-28 (internal
citations and quotation marks omitted). Our analysis of this
good-faith exception is “objective,” and “is confined to the
objectively ascertainable question whether a reasonably well
trained officer would have known that the search was illegal in
light of all of the circumstances.” Herring, 555 U.S. at 145(internal quotation marks omitted). Importantly, “[o]ur
precedent makes it clear that application of the good-faith
inquiry is not limited to the specific circumstances addressed
by the Supreme Court.” Stephens, 764 F.3d at 336. We are
permitted to advance directly to the question of good faith
without first determining if the underlying search or seizure
was illegal. United States v. Legg, 18 F.3d 240, 243 (4th Cir.
1994)
Here, even assuming the seizure of the two guns was
illegal, their exclusion serves no deterrent effect because a
reasonably well-trained officer would not have known of the
seizure’s illegality. The EPO was a valid court order issued by
a neutral magistrate upon a showing that J.W. had “proven”
domestic abuse by clear and convincing evidence. (J.A. 51). The
EPO further provided that Spurlock “shall surrender any and all
firearms and ammunition possessed or owned . . . to the law
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enforcement officer serving” the EPO in order to “enforce the
provisions of W. Va. Code Chapter 48, Article 27.” (J.A. 52).
Foster was following the dictates of this valid court order when
he asked Spurlock if the latter had firearms at his house. See
Leon, 468 U.S. at 925-26 (good-faith exception applies when
police reasonably rely on a warrant later held invalid);
Herring, 555 U.S. at 146-48 (good-faith exception applies where
police reasonably rely on information in a database maintained
by police employees). In particular, like a search warrant, the
EPO “provides the detached scrutiny of a neutral magistrate,
which is a more reliable safeguard against improper searches
than the hurried judgment of a law enforcement officer.” Leon,
468 U.S. at 913-14 (internal quotation marks omitted). 4
To the extent Spurlock’s challenge hinges on the
constitutionality of West Virginia’s domestic violence
protection statutes, it still fails because “[u]nless a statute
is clearly unconstitutional, an officer cannot be expected to
4 Leon recognized that “[d]eference to the magistrate” “is
not boundless” and, accordingly, recognized three limitations on
the use of the good-faith exception in this context. Leon, 468
U.S. at 914. Thus, the exception does not apply if the search
warrant affidavit is supported by reckless falsity, if the
magistrate serves as a rubber stamp for the police, and if the
warrant was supported by a bare bones affidavit. Id. at 914-15.
Assuming similar restrictions would apply to the EPO, we find
that Spurlock has failed to show their applicability in his
case.
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question the judgment of the legislature that passed the law.”
Illinois v. Krull, 480 U.S. 340, 349-50 (1987). Here, given the
Supreme Court’s recent (and consistent) admonitions that
“[f]irearms and domestic strife are a potentially deadly
combination nationwide,” United States v. Hayes, 555 U.S. 415,
427 (2009) there is nothing plainly unconstitutional about a
statute authorizing the temporary seizure of firearms upon the
issuance of an EPO. See also United States v. Mahin, 668 F.3d
119, 124 (4th Cir. 2012) (“It is well-established that firearms
and domestic strife are a potentially deadly combination
nationwide”) (internal quotation marks omitted). In fact,
multiple states have prohibitions similar to West Virginia’s,
yet our research reveals no court has ever ruled such statutes
unconstitutional.
The Davis Court remarked that “in 27 years of practice
under Leon’s good-faith exception, we have never applied the
exclusionary rule to suppress evidence obtained as a result of
nonculpable, innocent police conduct.” Davis, 131 S.Ct. at 2429(internal quotation marks omitted). Here, Foster had a valid
court order requiring Spurlock to turn over any firearms in his
possession and seized the weapons after Spurlock assented to the
order. Foster’s nonculpable conduct does not warrant suppression
of the firearms.
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III.
For the foregoing reasons, we affirm the district court’s
denial of Spurlock’s motion to suppress.
AFFIRMED
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