US v. Gary Dale Spurlock

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 2:14-cr-00094-1 Copies to all parties and the district court/agency. [999779308].. [15-4276]

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UNPUBLISHED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Affirmed by unpublished per curiam opinion.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,

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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Unpublished opinions are not binding precedent in this circuit.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

firearms

are

the

third-party

admissible

consent

under

the

doctrine.

good-faith

Because

the

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.

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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As

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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
awarded

or

the

herein

household

to

jointly

Petitioner

with

owned
or

by

the

without

a

parties

and

warrant

to

enforce the Emergency Protective Order as provided by W. Va.
Code

§

48–27–601.”

“temporary

(J.A.

possession

of

52).
the

Finally,

the

residence

or

EPO

awarded

household

J.W.

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

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Foster

Spurlock

retrieved

that

the

was

barrel

a

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sawed-off

looked

short

shotgun.
and

the

Foster
gun

told

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 twocount 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

officers

implicitly

would

to

reasonably

the

areas

believe

enforce the terms of the EPO.”

it

of

the

house

necessary

which

to

enter

the
to

Spurlock, 2014 WL 7013801, at

*5. Given this broad consent, the court stated that “it was
objectively
J.W.’s
order's

reasonable

consent

to

requirement

firearms.”

Id.

The

for

enter
that
court

the
the

officers
bedroom

Defendant
also

2

noted

to

believe

closet
surrender
that,

had

enforce

to

they

the

any

under

and

Georgia

all
v.

West Virginia intervened below and on appeal to defend the
statutes.

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Randolph,

547

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U.S.

103,

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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
number),

a

conditional
and

the

plea

court

to

Count

sentenced

2

him

(obliterated
to

three

serial

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
right

relevant

of

the

part,

people

the

Amendment

be

to

Fourth
secure

in

provides

their

persons,

“[t]he
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

deterrence
cannot

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only

rationale

pay

its

simple,

loses

way.”

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much

Davis,

isolated
of

131

its

S.Ct.

negligence,

force,

the

exclusion

2427-28

at

and

(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
precedent

quotation
makes

it

marks
clear

omitted).

that

Importantly,

application

of

the

“[o]ur

good-faith

inquiry is not limited to the specific circumstances addressed
by

the

Supreme

permitted

to

Court.”

advance

Stephens,

directly

to

764
the

F.3d

at

question

336.
of

We

good

are

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

police

U.S.

at

reasonably

925-26
rely

(good-faith

on

a

exception

warrant

later

applies

held

when

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

constitutionality

of

Spurlock’s
West

challenge

Virginia’s

hinges

domestic

on

the

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

“[f]irearms

and

recent

(and

domestic

consistent)

strife

are

a

admonitions
potentially

that
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

nationwide”)

strife

are

(internal

a

potentially

quotation

marks

deadly

combination

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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