United States v. Black

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4669
DAVID M. BLACK,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Virginia, at Charlottesville.
James H. Michael, Jr., Senior District Judge.
(CR-94-53)
Submitted: June 9, 1998
Decided: July 22, 1998
Before HAMILTON and MOTZ, Circuit Judges, and
HALL, Senior Circuit Judge.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Edward H. Childress, Charlottesville, Virginia, for Appellant. Robert
P. Crouch, Jr., United States Attorney, Jean B. Hudson, Assistant
United States Attorney, Charlottesville, Virginia, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
David M. Black pleaded guilty to manufacturing with intent to dis-
tribute marijuana, reserving the right to appeal from the district
court's denial of his motion to suppress evidence seized from his
home. Black contends that the police lacked the requisite exigent cir-
cumstances to enter his house without a warrant and that he did not
voluntarily consent to the search of his basement. He asks this court
to set aside his conviction and to direct the district court to grant the
motion to suppress evidence and allow him to withdraw his guilty
plea. We affirm.
On February 1, 1994, Deputy Frazier and Deputy Shifflett of the
Culpeper County Sheriff's Department responded to a dispatcher's
call reporting a domestic situation involving weapons. Upon arriving,
Black met the officers in the front yard. He identified himself and
assured the officers that everything was under control and that the
officers could leave.
Frazier proceeded up to the porch, while Shifflett remained on the
lawn with Black. When Frazier got to the door, it was slightly open.
He called out the name of the person who had called the police, got
no response, and then looked through the door and saw a woman sit-
ting at a table just inside the door. Frazier announced his presence,
identified himself, and pushed the door open. The woman then
answered that she had called the police.
Frazier asked the woman where the weapons were. The woman did
not answer verbally, but rather kept indicating with her head and eyes
in the direction of the hallway. The woman gave a similar response
to questions regarding other persons in the house. Frazier proceeded
down the hallway to conduct a security search of the house. After
contacting Shifflett on the radio, Frazier learned that Black stated the
weapons were in the rear bedroom at the end of the hallway.
Frazier located a shotgun and a handgun in that bedroom, along
with a garbage bag full of marijuana. Another officer, Deputy Mack,
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arrived and assisted Frazier with the security search during which
more marijuana was located. At the conclusion of the search, Black
was informed of his rights and arrested.
The woman then told Black to tell the officers about the basement.
Black told Frazier the door was locked. Frazier said that they could
open locked doors. Black then produced a key and eventually opened
the door himself. In the basement, the officers discovered a substan-
tial marijuana growing operation.
The first dispute on appeal centers on whether the district court
properly found the presence of sufficient exigent circumstances to
justify the warrantless entry into Black's home. The district court's
finding must be sustained unless clearly erroneous. See United States
v. Reed, 935 F.2d 641, 642 (4th Cir. 1991). The general factors rele-
vant to a determination of the existence of exigent circumstances
include the degree of urgency involved, the amount of time needed
to obtain a warrant, the officers' reasonable belief that contraband is
about to be removed or destroyed, the possibility of danger to the offi-
cers, and information indicating that the possessors of the contraband
are aware that the police are on their trail. However, there is no pre-
cise formula, since emergency circumstances will vary from case to
case and the inherent necessities of each situation must be scrutinized.
See id.We find that the police reasonably believed that Black possessed
weapons in his home.* The police were thus justifiably concerned
about the presence of firearms in a residence where an altercation had
taken place, especially since the woman who had called the police
was nervous and unresponsive. In addition, the officers needed to
ascertain that the woman was unharmed and in no further danger, and
an officer may enter a residence without a warrant to render emer-
_________________________________________________________________
*On appeal, Black alludes to the lack of evidence supporting the find-
ing that the initial police call reported a domestic dispute with weapons.
However, this hearsay evidence was admitted without objection at the
hearing, and the officers also testified that they believed the call reported
weapons. Therefore, whether the original call reported weapons or not,
the officers, found credible by the district court, possessed a reasonable
belief that weapons were present.
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gency aid and assistance to a person they reasonably believe to be in
distress. See Tierney v. Davidson, 133 F.3d 189, 197 (2d Cir. 1998).
Quick action was necessary, both to protect and aid the woman and
to protect the officers themselves. Accordingly, the initial entry was
lawful. See United States v. Presler, 610 F.2d 1206, 1211 (4th Cir.
1979) (warrantless entry upheld where officers entered premises to
determine whether anyone needed immediate aid).
Black next contends that even if exigencies existed permitting the
officers' initial entry, circumstances did not support the warrantless
search of the bedroom. We disagree. Frazier reasonably believed that
the woman was indicating the presence of weapons and other persons
in the house. She was frightened and nervous. In addition, Black
admitted that there were firearms on the premises and stated that they
were in the back bedroom. Standing in Black's home, uncertain about
how many persons were present, Frazier was faced with the presence
of firearms that could have easily been removed or hidden, or possi-
bly used against him or someone else. Viewing the situation in its
totality, the district court's determination that exigent circumstances
justified the search of the bedroom was not clearly erroneous. See
United States v. James, 40 F.3d 850, 862-63 (7th Cir. 1994) (uphold-
ing warrantless search for guns where officer could not be certain that
all occupants of residence had been located), modified by, 79 F.3d 553(7th Cir. 1994).
Finally, Black asserts that he did not consent to the officers' search
of his basement. Whether consent to search was voluntarily given is
a question of fact and the district court's conclusion will not be
reversed unless clearly erroneous. Whether consent was voluntary or
coerced is determined from the totality of the circumstances surround-
ing the giving of consent. See United States v. Lattimore, 87 F.3d 647,
650 (4th Cir. 1996).
Black maintains that his consent was coerced by Frazier's state-
ment that the officers could unlock doors. The court found that, while
Frazier's statement was somewhat coercive, Black still voluntarily
consented to the search. Black opened the door himself; Frazier did
not threaten him; and we agree that the atmosphere was not so highly
coercive that Black's free will was overcome. We conclude that
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Black's consent was freely given and the search pursuant to that con-
sent was proper.
Having concluded that the warrantless entry and search were law-
ful and that Black validly consented to the search of the basement,
Black's conviction is affirmed. We dispense with oral argument
because the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the decisional
process.
AFFIRMED
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