United States v. Wilhelm , 358 F. App'x 452 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-5068
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LINDSAY DIANE WILHELM, a/k/a Diamond,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. John Preston Bailey,
Chief District Judge. (3:07-cr-00094-JPB-DJJ-2)
Argued: December 4, 2009 Decided: December 30, 2009
Before SHEDD and DUNCAN, Circuit Judges, and T. S. ELLIS, III,
Senior United States District Judge for the Eastern District of
Virginia, sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: Brendan S. Leary, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Wheeling, West Virginia, for Appellant. Paul Thomas Camilletti,
OFFICE OF THE UNITED STATES ATTORNEY, Martinsburg, West
Virginia, for Appellee. ON BRIEF: Sharon L. Potter, United
States Attorney, Wheeling, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
This is an appeal from a conviction and sentence for aiding
and abetting possession with intent to distribute cocaine base
in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B) and 18
U.S.C. § 2. Appellant Lindsay Wilhelm argues that the district
court erred in denying her motion to suppress the evidence
seized during the search of her residence. For the reasons set
forth below, we affirm.
I.
On February 21, 2007, West Virginia State Troopers Douglas
See and Joe Flanagan and United States Marshal Deputies Michael
Ulrich and Ronald Stump went to Appellant’s residence to search
for Gabriel McGuire. McGuire was the subject of a felony arrest
warrant for armed robbery. The officers incorrectly believed
that Appellant’s home was that of McGuire’s mother, Paula
McDonald. Upon arrival, the officers knocked on the front door
and were greeted by Diana Wilhelm, Appellant’s mother, who also
resided there. The officers told Diana Wilhelm that they were
looking for McGuire, and asked if he was there. She answered
that she did not know McGuire and that he was not there. The
officers then asked if they could enter the residence. Diana
Wilhelm opened the door and allowed the officers in.
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Once inside, while Trooper See searched the first floor,
Deputy Stump remained in the living room speaking with Diana
Wilhelm and Christina Wilhelm, Appellant’s sister. Deputy Stump
described McGuire to them as having a tattoo under his left eye.
Christina Wilhelm told Deputy Stump that Appellant’s boyfriend,
who had a tattoo under his left eye, was upstairs. Upon
learning this information, Deputy Stump alerted Trooper See that
McGuire was upstairs and the two officers ascended the stairs to
the second floor.
Before they could reach the second floor, however, the
officers encountered Appellant. Appellant began screaming at
them and told them to get out of her house, that they did not
have consent to search her residence, and that they needed a
search warrant. The officers nevertheless pushed past her to a
bedroom on the second floor. There, they saw an individual
hiding in a closet. The individual was ordered to come out,
which he initially refused to do. When he finally came out, the
officers arrested him for obstructing justice by refusing to
come out of the closet. To the officers’ surprise, the
individual inside the closet was not McGuire but rather Joshua
Berkley, who coincidently also has a tattoo under his left eye.
After arresting Berkley, the officers searched the closet
in which Berkley had been hiding. In it, they found a backpack
containing what they believed to be a silencer for a gun. Once
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Berkley was in custody, Deputy Ulrich lifted up a nearby
mattress and found three firearms lying between the mattress and
the box springs.
The officers then contacted a West Virginia State Trooper
who, based on the items seized in the bedroom, procured a state
search warrant for the residence. Pursuant to the warrant, the
officers searched the residence and found additional firearms,
ammunition, currency, crack cocaine, and other drugs.
On November 14, 2007, Appellant was charged with aiding and
abetting possession with intent to distribute cocaine base in
violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B) and 18 U.S.C.
§ 2, and aiding and abetting possession with intent to
distribute hydromorphone in violation of 21 U.S.C. § 841(a)(1),
841(b)(1)(C), and 18 U.S.C. § 2. The charges were based upon
the fact that the drugs seized pursuant to the search warrant
had been found inside both Appellant’s purse and bedroom. The
hydromorphone charge was eventually dismissed pursuant to a
motion by the government.
On February 11, 2008, Appellant filed a motion to suppress
the evidence obtained at her home. The district court referred
the matter to a Magistrate Judge who then issued a Report and
Recommendation concluding that the motion should be denied.
Appellant filed objections to the Report and Recommendation and
the government filed a response to those objections. On April
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4, 2008, the district court adopted the Report and
Recommendation and denied the motion to suppress.
That same day, Appellant entered a conditional guilty plea
pursuant to Federal Rule of Criminal Procedure 11(a)(2),
preserving her right to appeal the district court’s order
denying her motion to suppress. Appellant was sentenced to 24
months of imprisonment. This appeal followed.
II.
Appellant asserts that the search of her home violated the
Fourth Amendment’s warrant requirement. Under the Fourth
Amendment, warrantless searches are “per se unreasonable . . .
subject only to a few specifically established and well-
delineated exceptions.” Schneckloth v. Bustamonte, 412 U.S.
218, 219 (1973) (citation omitted) (alteration in original).
Two such exceptions arise where the search “is conducted
pursuant to consent”, id., and where exigent circumstances “make
the needs of law enforcement so compelling that the warrantless
search is objectively reasonable,” Hunsberger v. Wood, 570 F.3d
546, 553 (4th Cir. 2009)(internal quotations omitted).
In denying Appellant’s motion to suppress, the district
court found that Diana Wilhelm initially consented to the search
and that the continuation of the search was justified by exigent
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circumstances. 1 Appellant argues that the district court erred
in denying her motion to suppress for two reasons. First, she
asserts that the there were no exigent circumstances justifying
the search. Secondly, she asserts that the search was not
justified by Diana Wilhelm’s consent because Appellant herself
validly revoked that consent. We address each argument in turn.
A.
We first consider whether the district court properly found
that exigent circumstances justified the continuation of the
search. “We review factual findings underlying a motion to
suppress for clear error and legal determinations de novo.”
United States v. Gray, 491 F.3d 138, 143-44 (4th Cir. 2007).
“The district court’s finding of exigent circumstances must be
sustained unless it is clearly erroneous.” United States v.
Turner, 650 F.2d 526, 528 (4th Cir. 1981); see also United
States v. Moses, 540 F.3d 263, 270 (4th Cir. 2008).
In analyzing whether exigent circumstances justified a
warrantless search, we ask whether the circumstances would cause
1
It is undisputed that Diana Wilhelm, a co-occupant of the
home, gave valid consent for the officers’ initial entry. See
Georgia v. Randolph, 547 U.S. 103, 109 (2006) (recognizing “the
validity of searches with the voluntary consent of . . . a
fellow occupant who shares common authority over property”)
(internal citations omitted).
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an officer to have “objectively reasonable belief that an
emergency existed that required immediate entry to render
assistance or prevent harm to persons or property within.”
United States v. Moss, 963 F.2d 673, 678 (4th Cir. 1992).
Examples of such emergencies include “risk of danger to the
police or to other persons inside or outside the dwelling.”
Moses, 540 F.3d at 270 (internal citations omitted). 2
Here, the district court found that exigent circumstances
arose based on the information provided by Christina Wilhelm and
on the commotion created by Appellant. The court noted the
following exigent circumstances: (1) the officers had good
reason to believe that a fugitive armed robber was on the
premises; (2) they had reason to believe the fugitive was aware
that they were there; and (3) withdrawal from the search could
have resulted in a hostage situation or posed danger to the
2
Appellant relies exclusively on the five factors listed in
United States v. Turner, 650 F.2d 526, 528 (4th Cir. 1980) to
analyze whether exigent circumstances existed. Appellant’s
exclusive reliance on Turner is misplaced. The factors set
forth in Turner contemplated exigent circumstances arising from
the potential destruction of contraband evidence. However, the
destruction of contraband is only one of several situations that
may create exigent circumstances. Moses, 540 F.3d at 270. As
the Turner court recognized, “(t)he emergency circumstances will
vary from case to case, and the inherent necessities of the
situation at the time must be scrutinized.” Turner, 650 F.2d at528 (citing United States v. Rubin, 474 F.2d 262, 268 (3d Cir.
1973)) (alteration in original).
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officers. 3 These findings are supported by the record. First,
given that the man described by Christina Wilhelm matched the
fugitive’s unique characteristic of having a tattoo under his
left eye, the officers certainly had reason to believe the
fugitive was on the premises. Secondly, given the commotion
created by Appellant, the officers had reason to believe that
the fugitive was aware of their presence. Finally, it is
objectively reasonable to conclude that a fugitive armed robber
who has just become aware that he has been discovered by police
may react in a way that poses a danger for those in the
immediate vicinity including occupants of the home and law
enforcement officers. Therefore, we cannot say that the
district court clearly erred in finding that there were exigent
circumstances sufficient to justify the warrantless search.
B.
Because we find that the district court did not err in
holding that exigent circumstances justified the warrantless
3
Appellant asserts that some of the officers did not
actually perceive any danger. However, that subjective inquiry
is not relevant here. As the Supreme Court has explained, “[a]n
action is ‘reasonable’ under the Fourth Amendment, regardless of
the individual officer’s state of mind, ‘as long as the
circumstances, viewed objectively, support the action.’”
Brigham City v. Stuart, 547 U.S. 398, 404 (2006) (internal
quotations omitted).
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search, we need not determine whether Appellant effectively
revoked Diana Wilhelm’s consent. Once the officers had reason
to believe that the armed robber was upstairs and aware of their
presence, exigency replaced consent as the independent legal
justification for the search.
The Supreme Court has recognized this very type of
situation. In Randolph the Court explained:
Sometimes, of course, the very exchange of information
. . . in front of [an] objecting inhabitant may render
consent irrelevant by creating an exigency that
justifies immediate action on the police’s part . . .
. [A] fairly perceived need to act on the spot to
preserve evidence may justify entry and search under
the exigent circumstances exception to the warrant
requirement. . . . Additional exigent circumstances
might justify warrantless searches.
547 U.S. at 117 n.6. The Court also recognized that protecting
the safety of officers is the type of emergency that would
justify a warrantless search. Id. at 117. Therefore, any
effort by Appellant to revoke consent was moot.
III.
Accordingly, for the reasons explained above, we
AFFIRM.
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