US v. Lindsay Wilhelm

Filing 920091230

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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. court erred

Appellant Lindsay Wilhelm argues that the district in denying her motion to suppress the evidence

seized during the search of her residence. forth below, we affirm.

For the reasons set

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 The officers incorrectly believed that of McGuire's mother, Paula

warrant for armed robbery. that Appellant's home was

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 She answered The Diana

looking for McGuire, and asked if he was there.

that she did not know McGuire and that he was not there. officers then asked if they could enter the residence. Wilhelm opened the door and allowed the officers in.

2

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 There, they saw an individual

bedroom on the second floor. hiding in a closet.

The individual was ordered to come out, When he finally came out, the

which he initially refused to do.

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 Once

containing what they believed to be a silencer for a gun. 3

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. hydromorphone charge was eventually dismissed pursuant The 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. 4 On April

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 preserving to Federal right Rule to of appeal Criminal the Procedure 11(a)(2), order

her

district

court's

denying her motion to suppress. months of imprisonment.

Appellant was sentenced to 24

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 Schneckloth omitted) where established v. Bustamonte, in "is and 412 wellU.S.

delineated 218, Two 219 such

exceptions." (1973)

(citation arise

(alteration the search

original). conducted

exceptions

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

5

circumstances. 1

Appellant argues that the district court erred First, she

in denying her motion to suppress for two reasons.

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 "We for circumstances review clear justified findings legal the continuation a of the to

search. suppress

factual error and

underlying

motion de

determinations

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." Turner, 650 F.2d 526, 528 (4th Cir. 1981); United States v. 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

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).

1

6

an

officer

to

have

"objectively required harm 963 to

reasonable immediate or 678

belief entry to

that

an

emergency assistance United

existed or

that

render within." 1992). to the

prevent v. Moss,

persons 673,

property (4th of

States of to

F.2d

Cir.

Examples police or

such

emergencies persons

include inside or

"risk

danger the

other

outside

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. following reason to exigent believe circumstances: that a (1) the The court noted the officers robber had on good the

fugitive

armed

was

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

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 The factors set exclusive reliance on Turner is misplaced. 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 As may create exigent circumstances. Moses, 540 F.3d at 270. 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 at 528 (citing United States v. Rubin, 474 F.2d 262, 268 (3d Cir. 1973)) (alteration in original).

2

7

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 of for the those home say in and that the law the

immediate

vicinity

including

occupants we

enforcement

officers.

Therefore,

cannot

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

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).

3

8

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 situation. Supreme Court has recognized this very type of

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 safety a of The Court also recognized that protecting is the type Id. of at emergency 117. that would any

officers

justify

warrantless

search.

Therefore,

effort by Appellant to revoke consent was moot.

III. Accordingly, for the reasons explained above, we AFFIRM.

9