United States v. Jamesthy Graham , 686 F. App'x 166 ( 2017 )


Menu:
  •                                     UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 16-4105
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    v.
    JAMESTHY WARDELL GRAHAM,
    Defendant - Appellant.
    Appeal from the United States District Court for the District of South Carolina, at
    Florence. R. Bryan Harwell, District Judge. (4:15-cr-00097-RBH-1)
    Argued: January 26, 2017                                          Decided: April 25, 2017
    Before GREGORY, Chief Judge, and DUNCAN and FLOYD, Circuit Judges.
    Reversed, vacated, and remanded by unpublished opinion. Chief Judge Gregory wrote
    the opinion, in which Judge Floyd joined. Judge Duncan wrote a dissenting opinion.
    ARGUED:        Kimberly Harvey Albro, OFFICE OF THE FEDERAL PUBLIC
    DEFENDER, Columbia, South Carolina, for Appellant. Benjamin Neale Garner,
    OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for
    Appellee. ON BRIEF: Beth Drake, Acting United States Attorney, Columbia, South
    Carolina, Alfred W. Bethea, Jr., Assistant United States Attorney, Jason Heggelke, Law
    Student, OFFICE OF THE UNITED STATES ATTORNEY, Florence, South Carolina,
    for Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    GREGORY, Chief Judge:
    Jamesthy Wardell Graham entered a conditional guilty plea to one count of being
    a felon in possession of a firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1).
    Graham now appeals the district court’s denial of his motion to suppress the firearm and
    ammunition. He argues that the district court erred in finding that exigent circumstances
    justified the warrantless search and subsequent seizure of the loaded firearm. We agree,
    and for the reasons that follow, the district court’s judgment is reversed.
    I.
    On the night of May 29, 2014, Deputy Chad Reid of the Florence County Sheriff’s
    Office responded to a 911 hang-up call from a residence in Pamplico, South Carolina.
    The 911 dispatcher described “hear[ing] people” who “were disorderly in the
    background” in both the initial hang-up call and when the dispatcher called back. J.A.
    44. When Deputy Reid arrived at the residence at 10:27 p.m., he saw two groups of
    people, one in the yard near the road and one near the residence. He also saw a Chevrolet
    Tahoe parked illegally in the road, in the traffic lane, with its headlights off. J.A. 44, 52.
    As Deputy Reid was getting out of his patrol car, the driver of the Tahoe started its
    engine and “was fixing to leave.” J.A. 53. Deputy Reid approached the Tahoe and
    through its open passenger window told the driver, Defendant-Petitioner Graham, to stop.
    Deputy Reid shined a flashlight and saw in plain view two open containers of beers in the
    center console. Deputy Reid told Graham to turn off the Tahoe, hand over his driver’s
    2
    license, and wait while Deputy Reid investigated the source of the 911 call. J.A. 45–46,
    53. Graham complied with Deputy Reid’s instructions.
    Deputy Reid then asked the dispatcher to check for any warrants on Graham and
    send backup given the number of people on the scene. He began asking people in the
    yard whether anyone had dialed 911. A woman near the residence eventually responded
    that she had called because of an argument but that “everything was fine and they didn’t
    need . . . assistance.” J.A. 47. There were no problems with any of the people in the
    yard, J.A. 57, and so Deputy Reid “went back out to deal with Mr. Graham,” J.A. 47.
    Deputy Reid waited near the Tahoe for backup to arrive.          Meanwhile, the
    dispatcher radioed that there was an outstanding warrant for Graham in Myrtle Beach,
    South Carolina, with an attachment that said to “use caution, consider armed and
    dangerous.” J.A. 55. The dispatcher did not yet know whether Myrtle Beach would
    extradite Graham.   Deputy Clay Lowder arrived shortly thereafter, and the officers
    approached the Tahoe and asked Graham to get out. Deputy Reid advised Graham that
    “he was being detained pending the response from Myrtle Beach.” J.A. 59. Deputy
    Lowder “backed up [Graham] away from the vehicle in the grassy area in the yard” and
    arrested and handcuffed him. J.A. 70.
    After arresting Graham, Deputy Lowder patted him down. Deputy Lowder told
    Graham that the patdown was for officer safety, and without giving Graham Miranda
    warnings, asked Graham whether he had “any weapons on him or anything that may hurt
    me or him.” J.A. 66. Graham responded that there was a firearm under the driver’s seat
    of the Tahoe. With Deputy Reid securing Graham, who was handcuffed and detained in
    3
    the residence’s yard, Deputy Lowder retrieved the loaded gun from Graham’s truck. J.A.
    67.
    The officers then put Graham in the backseat of Deputy Reid’s patrol car. A few
    minutes later, the officers learned from the dispatcher that Myrtle Beach would extradite
    Graham.    While still on the scene, Deputy Reid ran Graham’s information on his
    computer and discovered that Graham was a convicted felon who could not legally
    possess a firearm. J.A. 64. Deputy Reid then left the scene to transport Graham to jail.
    During the drive, Graham asked what his charges would be. Deputy Reid said he told
    Graham, “[W]ith the gun you leave me no choice.” J.A. 51. Graham then explained that
    “he had the gun for protection because people around Pamplico didn’t like him.” J.A. 51.
    On February 26, 2015, nearly nine months after Graham’s arrest, a grand jury
    indicted Graham for being a felon in possession of a firearm and ammunition, in violation
    of 18 U.S.C. §§ 922(g)(1), 924(a)(2), and 924(e). Graham initially pleaded not guilty and
    moved to suppress his statements and the gun. The district court denied the motion. It
    held that Graham’s statement about the location of the gun, though the product of
    custodial interrogation absent Miranda warnings, was admissible under Miranda’s public
    safety exception. It further held that Graham’s second statement about needing the gun
    for protection was made voluntarily and not as a result of custodial interrogation, and that
    it therefore was also admissible. Finally, the court held that the exigent circumstances
    created by the large group of people in close proximity to the truck, coupled with the 911
    disturbance call that was the reason for the officers’ presence, justified the warrantless
    search of Graham’s vehicle and subsequent seizure of the gun.
    4
    On October 26, 2015, Graham entered a conditional guilty plea to one count of
    being a felon in possession of a firearm and ammunition. He reserved the right to appeal
    the denial of his motion to suppress his statements and the firearm. The court sentenced
    Graham to fifty-four months of imprisonment and three years of supervised release.
    Graham timely appealed to this Court the district court’s denial of his motion to suppress
    the gun. 1
    II.
    When we consider the denial of a motion to suppress, we review the district
    court’s legal conclusions de novo and its factual findings for clear error. United States v.
    Jones, 
    356 F.3d 529
    , 533 (4th Cir. 2004). We view the evidence in the light most
    favorable to the prevailing party below. United States v. Foster, 
    634 F.3d 243
    , 246 (4th
    Cir. 2011).
    The Fourth Amendment provides, in pertinent part, “[t]he right of the people to be
    secure in their persons, houses, papers, and effects, against unreasonable searches and
    seizures.” U.S. Const. amend. IV. And as the Supreme Court has held, “searches
    conducted outside the judicial process, without prior approval by judge or magistrate, are
    per se unreasonable under the Fourth Amendment.” Katz v. United States, 
    389 U.S. 347
    ,
    357 (1967). In other words, to comply with the Fourth Amendment, police generally
    must obtain a warrant before conducting a search or seizing personal property. United
    1
    Graham does not challenge on appeal the district court’s denial of his motion to
    suppress his statements to Deputies Reid and Lowder.
    5
    States v. Kelly, 
    592 F.3d 586
    , 589 (4th Cir. 2010). The warrant requirement is “subject
    only to a few specifically established and well-delineated exceptions.” 
    Katz, 389 U.S. at 357
    . Because the officer who searched Graham’s truck and seized the gun did not have a
    warrant, one of these “jealously and carefully drawn” exceptions must apply for the
    search and seizure to be constitutional. Jones v. United States, 
    357 U.S. 493
    , 499 (1958).
    Graham argues that none of the exceptions to the warrant requirement apply. The
    government counters that the warrantless search and seizure were legal under three
    exceptions to the warrant requirement:        the exigent circumstances exception, the
    automobile exception, and the search-incident-to-arrest exception. The district court
    upheld the warrantless search and seizure under the exigent circumstances exception. It
    found that the automobile exception does not apply, and it did not decide whether the
    search-incident-to-arrest exception applies. We consider these exceptions in turn.
    A.
    Graham first argues that the exigent circumstances exception to the warrant
    requirement does not apply, and that the district court therefore erred in denying,
    pursuant to this exception, his motion to suppress the gun that Deputy Lowder seized
    during his warrantless search.
    Courts have long recognized that exigent circumstances may justify warrantless
    searches and seizures. See, e.g., Michigan v. Tyler, 
    436 U.S. 499
    , 509 (1978) (“A
    burning building clearly presents an exigency of sufficient proportions to render a
    warrantless entry ‘reasonable.’”); United States v. Santana, 
    427 U.S. 38
    , 42 (1976)
    (finding a warrantless entry into a suspect’s home reasonable to prevent the destruction of
    6
    evidence).   And “[i]t is a hallmark of Fourth Amendment jurisprudence that the
    possibility of a threat to the safety of law enforcement officers may constitute exigent
    circumstances justifying a warrantless search or seizure.” United States v. Legg, 
    18 F.3d 240
    , 244 (4th Cir. 1994); see also Warden v. Hayden, 
    387 U.S. 294
    , 298–99 (1967) (“The
    Fourth Amendment does not require police officers to delay in the course of an
    investigation if to do so would gravely endanger their lives or the lives of others.”);
    United States v. Yengel, 
    711 F.3d 392
    , 396 (4th Cir. 2013) (“The rationale underpinning
    the exigent circumstances doctrine is that when faced with an immediate and credible
    threat or danger, it is inherently reasonable to permit police to act without a warrant.”).
    For police officers to successfully assert the exigent circumstances exception to
    the warrant requirement, “they need only possess a ‘reasonable suspicion’ that such
    circumstances exist at the time of the search or seizure in question.” Figg v. Schroeder,
    
    312 F.3d 625
    , 639 (4th Cir. 2002) (quoting United States v. Grogins, 
    163 F.3d 795
    , 797
    (4th Cir. 1998)). To support this reasonable suspicion, the officers “must be able to point
    to specific and articulable facts which, taken together with rational inferences from those
    facts, reasonably warrant th[e] intrusion.” Terry v. Ohio, 
    392 U.S. 1
    , 21 (1968).
    In determining whether the exigent circumstances exception applies, courts must
    balance “the societal costs of obtaining a warrant, such as danger to law officers or the
    risk of loss or destruction of evidence,” against “the reasons for prior recourse to a neutral
    magistrate.” Arkansas v. Sanders, 
    442 U.S. 753
    , 759 (1979), abrogated on other grounds
    by California v. Acevedo, 
    500 U.S. 565
    (1991).          We strike this balance “with due
    deference for the difference in perspective between an officer who must make snap
    7
    judgments in minutes or seconds, and a judge who has ‘the 20/20 vision of hindsight.’”
    Mora v. City of Gaithersburg, 
    519 F.3d 216
    , 225 (4th Cir. 2008) (quoting Graham v.
    Connor, 
    490 U.S. 386
    , 396 (1989)). And to uphold an officer’s actions, we must find that
    the officer acted with objective reasonableness—that “the facts available to the officer at
    the moment of the seizure or the search [would] ‘warrant a man of reasonable caution in
    the belief’ that the action taken was appropriate.” 
    Terry, 392 U.S. at 21
    –22 (quoting
    Carroll v. United States, 
    267 U.S. 132
    , 162 (1925)).
    This Court has developed a nonexhaustive list of factors that courts should
    consider in determining whether exigent circumstances justified a warrantless search or
    seizure:
    (1) the degree of urgency involved and the amount of time necessary
    to obtain a warrant; (2) the officers’ reasonable belief that the
    contraband is about to be removed or destroyed; (3) the possibility of
    danger to police guarding the site; (4) information indicating the
    possessors of the contraband are aware that the police are on their
    trail; and (5) the ready destructibility of the contraband.
    United States v. Turner, 
    650 F.2d 526
    , 528 (4th Cir. 1981). And recognizing that guns
    present particular dangers that more readily justify warrantless searches of automobiles,
    we have stated,
    Though there be no probable cause to believe that any crime has
    been committed, in some circumstances an automobile reasonably
    thought to contain a legal handgun may be searched without a
    warrant by state officers in keeping with the state’s broad regulatory
    role in aid of public safety and security in light of problems
    confronting a small law enforcement office.
    United States v. Newbourn, 
    600 F.2d 452
    , 454 (4th Cir. 1979).
    8
    In Newbourn, the defendants were arrested after offering to sell an undercover
    officer a cache of stolen weapons. 
    Id. at 453.
    At the time of the arrest, the defendants’
    vehicle was parked on a public road, and the defendants were close to the car and in
    possession of the keys. This Court found that “[a]fter the appearance of the officers,
    there is no doubt that the defendants would have fled in the vehicle had they not been
    arrested and the vehicle seized.” 
    Id. at 458.
    These circumstances, we said, were of the
    sort that justified the warrantless search of the vehicle’s trunk for the stolen weapons. 
    Id. at 454.
    Here, the district court found that there were exigent circumstances because of
    Graham’s surroundings at the time of his arrest. The court stated that although Graham
    had been secured, “a crowd of people remained within walking distance of the Tahoe,
    and any one of the bystanders could have known the location of the gun.” United States
    v. Graham, No. 4:15-CR-00097-RBH-1, 
    2015 WL 5437147
    , at *5 (D.S.C. Sept. 15,
    2015). The court also pointed to the officers’ reason for being there in the first place—a
    911 call about a disturbance, the cause of which was unknown to the officers. And the
    court credited Deputy Lowder’s testimony that he believed the circumstances required an
    immediate search and seizure without a warrant. The court found that this evidence
    supported the conclusion that “[s]wift recovery of the gun was necessary to preserve the
    peaceful status quo of the scene,” 
    id., and that
    therefore the exigent circumstances
    exception to the warrant requirement “permitted Deputy Lowder to immediately locate
    and secure the pistol to ensure the safety of both the officers and the public,” 
    id. at *6.
    9
    We must disagree. Viewed through the lens of the nonexhaustive list of factors
    we described in United States v. Turner, first, there was no apparent urgency since
    Graham was detained and the scene was peaceful. Second, there is no evidence that the
    gun was about to be removed or destroyed. Deputy Lowder only testified as to his
    general belief that he has “a duty to act” to ensure “that [a firearm is] in our possession
    and safely somewhere so that it doesn’t cause any future problems or risk anything
    escalating in the situation.” J.A. 67. Other than this statement, there is no evidence that
    anyone other than Graham and the officers even knew about the gun, much less that
    anyone was about to remove or destroy it. Third, there is no evidence indicating there
    was a possibility of danger to the officers guarding the truck. Deputies Reid and Lowder
    both testified that everyone in the area, including Graham, was peaceful and cooperative,
    and the source of the 911 call said that there was no longer any problem. And finally,
    there was little to no risk of the destruction of evidence, since a gun is not easily
    destroyed and there was no one in or near Graham’s truck.
    In a similar case, albeit not in the automobile context, the Ninth Circuit found that
    the warrantless search of a defendant’s tent was unconstitutional. United States v. Gooch,
    
    6 F.3d 673
    (9th Cir. 1993). There, the officers responded to a report of shots fired by the
    defendant. When they arrived several hours later, the scene was quiet and the defendant
    was asleep in his tent. They arrested and secured the defendant and talked to witnesses
    on the scene, none of whom were “obstructive or threatening.” 
    Id. at 676.
    Without a
    warrant, the officers then searched the defendant’s tent and recovered a loaded handgun.
    The court found that despite the nature of the 911 call, because the defendant was locked
    10
    in the back of the patrol car, there was no one in his tent, and “it would not have been
    difficult to prevent children or anyone else from entering the tent until a warrant was
    obtained,” the warrantless search was unconstitutional. 
    Id. at 680
    (stating also that to
    find otherwise “would authorize any warrantless search where officers had reason to
    believe a firearm was involved”).
    Likewise here, the scene was peaceful, the defendant and others in the area were
    cooperating, the truck was unoccupied, and the defendant was detained. And what is
    more, a firearm was not involved in the crime of arrest and was not the reason for the
    officers’ presence on the scene. There is no evidence that anyone other than Graham and
    the officers even knew about the gun. We agree with the Ninth Circuit that the presence
    of a firearm does not alone create an exigency; there must be something more to justify a
    warrantless search and seizure based on exigent circumstances. 2
    The only evidence of an exigency that we can glean from this record are the
    officers’ conclusory assertions that they acted out of a concern for safety. But the
    2
    The government argues that in this Circuit, “once an officer has knowledge of a
    firearm, he or she may search the vehicle to secure the weapon.” Appellee’s Br. 15. But
    the cases the government cites in support of this point involved situations where the
    defendant was unsecured and could still access the weapon. See United States v. Carico,
    311 F. App’x 572, 574 (4th Cir. 2008) (holding that where vehicle was stopped because
    an unauthorized weapon was visible in the vehicle and defendant was unsecured and
    admitted to having a gun in the car, the officer’s protective search of the vehicle to secure
    the weapon was constitutional); United States v. Forney, No. 3:12-CR-00381-FDW, 
    2013 WL 2317700
    , at *9 (W.D.N.C. May 28, 2013) (finding warrantless recovery of firearm
    constitutional where defendant was standing next to vehicle unsecured and told officers
    he had a firearm in the car). These cases therefore do not support such an absolute rule;
    they instead provide useful examples of circumstances where the presence of a firearm
    does create an exigency.
    11
    officers’ stated interest in public safety is not a trump card; there must be some evidence
    that the interest was at least implicated, if not compromised, before an officer can
    contravene the warrant requirement. The presence of some number of people in the
    vicinity of the arrest—without any evidence that those people were aware of the
    defendant, his interaction with the police, or that he had a gun under the front seat of his
    truck—coupled with a 911 hang-up call, is not enough to constitute an exigency. The
    record does not support the conclusion that an objectively reasonable officer in these
    circumstances would so fear for his own or the public’s safety that he could not seek a
    warrant before conducting a search and seizure. The warrant requirement is meant to
    yield only in exceptional and narrow circumstances, and here, the exception’s demanding
    requirements are not satisfied.      We therefore find that the exigent circumstances
    exception to the warrant requirement does not apply.
    B.
    The government argues that even if there were no exigent circumstances, the
    warrantless search and seizure were nevertheless proper under the search-incident-to-
    arrest exception to the warrant requirement. Though the district court did not squarely
    rule on whether this exception applies, the court stated that “Graham ma[de] a plausible
    argument that the search incident to arrest exception is inapplicable in this case.”
    Graham, 
    2015 WL 5437147
    , at *5.
    The search-incident-to-arrest exception to the warrant requirement “derives from
    interests in officer safety and evidence preservation that are typically implicated in arrest
    situations.” Arizona v. Gant, 
    556 U.S. 332
    , 338 (2009). In Gant, the Supreme Court
    12
    outlined the contours of this exception as it applies when an officer lawfully arrests the
    occupant of an automobile. The “circumstances unique to the vehicle context justify a
    search incident to a lawful arrest” in two situations: (1) “when the arrestee is unsecured
    and within reaching distance of the passenger compartment at the time of the search,” and
    (2) “when it is ‘reasonable to believe evidence relevant to the crime of arrest might be
    found in the vehicle.’” 
    Id. at 343
    (quoting Thornton v. United States, 
    541 U.S. 615
    , 632
    (2004) (Scalia, J., concurring in the judgment)).
    This exception plainly does not apply here. The officers had handcuffed Graham
    and detained him in the yard, away from the Tahoe, at the time of the search and seizure.
    And the crime that was the basis for his arrest was a two-year-old outstanding warrant for
    an offense that was unknown to the officers. Graham was therefore not unsecured and
    within reaching distance of the vehicle’s passenger compartment at the time of the search
    and seizure, and it was not reasonable to believe that evidence of the crime of arrest
    might be found in the vehicle. Because neither of the situations outlined in Gant were
    present here, we find that the search-incident-to-arrest exception to the warrant
    requirement does not apply.
    C.
    Finally, the government contends that the warrantless search and seizure were
    justified pursuant to the automobile exception to the warrant requirement. Under the
    automobile exception, officers may search a vehicle without a warrant if the vehicle “‘is
    readily mobile and probable cause exists to believe it contains contraband’ or evidence of
    criminal activity.” United States v. Baker, 
    719 F.3d 313
    , 319 (4th Cir. 2013) (quoting
    13
    Pennsylvania v. Labron, 
    518 U.S. 938
    , 940 (1996) (per curiam)). Probable cause is
    present when “there is a fair probability that contraband or evidence of a crime will be
    found in a particular place.” Illinois v. Gates, 
    462 U.S. 213
    , 238 (1983). It is to be
    determined by “an analysis of the totality of the circumstances,” United States v. Dickey-
    Bey, 
    393 F.3d 449
    , 453 (4th Cir. 2004), as “viewed from the standpoint of an objectively
    reasonable police officer,” Ornelas v. United States, 
    517 U.S. 690
    , 696 (1996). When
    conducting a warrantless search of a vehicle, law enforcement officers with probable
    cause are permitted to search “every part of the vehicle and its contents that may conceal
    the object of the search.” United States v. Ross, 
    456 U.S. 798
    , 825 (1982). And “this
    exception permits police officers to search a vehicle for evidence of any crime, not just
    the crime of arrest.” 
    Baker, 719 F.3d at 319
    .
    The district court found that the automobile exception did not apply. Although
    Deputy Reid was initially unclear about when he first learned that Graham had a felony
    conviction and could not legally possess a gun, he ultimately clarified that he learned this
    information only after Deputy Lowder retrieved the gun. According to the district court,
    It is unclear whether the officers had probable cause—at the time
    Deputy Lowder found the firearm—to search the Tahoe for evidence
    of other criminal activity independent of that for which Graham was
    being detained. There was no testimony by the officers about a state
    law criminal offense relating to the unlawful possession of a firearm
    in the vehicle, nor reliable evidence that the officers had been
    advised before the search that Graham was a felon and therefore
    could not have a firearm. Rather, the only state law criminal
    violations discussed in the officers’ testimony were alleged open
    container and parking violations.
    14
    Graham, 
    2015 WL 5437147
    , at *6 n.11 (citation omitted). The court therefore found that
    “the record from the suppression hearing does not contain a reliable factual basis to
    justify application of the automobile exception.” 
    Id. We agree
    with the district court’s determination that there is no factual basis to
    support the conclusion that the officers had probable cause to search Graham’s truck
    based on his prior felony conviction. In fact, we find it clear that Deputy Reid admitted
    he learned of Graham’s felony conviction only after Deputy Lowder’s warrantless search
    and seizure. See J.A. 64. We therefore hold that at the time of the warrantless search and
    seizure, an objectively reasonable officer would not believe that he had probable cause to
    search the truck for contraband, because at that point, there was no evidence that
    Graham’s possession of a firearm was illegal.
    The government separately contends that the officers had probable cause to search
    Graham’s truck based on the open containers in plain view.            It argues that this
    independent source of probable cause rendered the warrantless retrieval of the firearm
    constitutional. We reject this argument for two reasons. First, there is no evidence in the
    record that Deputy Lowder, who executed the warrantless search and seizure, was even
    aware of the alleged open containers. We therefore cannot find that he had probable
    cause to search for evidence of an open container violation. And second, even if Deputy
    Lowder did have probable cause to search for evidence of an open container violation, he
    was unequivocal that he retrieved the firearm not as part of such a search, but rather
    because he felt he had “a duty to act” for safety reasons. J.A. 67. Indeed, until Graham
    told the officers there was a gun in the truck, the officers did not attempt to search the
    15
    vehicle at all. J.A. 71-72. Though it is true that when officers have probable cause, they
    may search for evidence of a crime other than the crime of arrest, 
    Baker, 719 F.3d at 319
    ,
    we decline to read this rule to say that any source of probable cause cures a warrantless
    search and seizure—and especially not when that source of probable cause is determined
    after the fact and where the officers readily admit that their search and seizure was not
    based on that source of probable cause.
    For all of these reasons, we find that the automobile exception to the warrant
    requirement does not apply. And because the government has not raised any other
    possible exceptions to the warrant requirement that might justify Deputy Lowder’s
    warrantless search and seizure, we end our analysis here.
    III.
    There was no exigency to justify Deputy Lowder’s warrantless search and seizure,
    nor were the search and seizure justified by the search-incident-to-arrest or automobile
    exceptions to the warrant requirement. Deputy Lowder should have sought a warrant as
    the Fourth Amendment demands. We therefore find that the district court erred when it
    denied Graham’s motion to suppress the gun, and we reverse the district court’s
    judgment, vacate Graham’s conviction, and remand for further proceedings.
    REVERSED, VACATED, AND REMANDED
    16
    DUNCAN, Circuit Judge, dissenting:
    To find a Fourth Amendment violation here, the majority must characterize as
    “peaceful” a situation to which officers were summoned by a dispatcher overhearing
    disorderly activity, must disregard the officers’ notification that Graham had an
    outstanding warrant and was considered armed and dangerous, must refuse to view the
    facts in the light most favorable to the government, and must discount the district court’s
    express credibility determination. Because on these facts Deputy Lowder’s actions were
    clearly justified by exigent circumstances, I must respectfully dissent.
    I.
    At approximately 10:30 at night, Deputy Reid responded to the 911 hangup call on
    which the dispatcher heard disorderly activity. When Deputy Reid arrived, he observed
    “a large group of people in the yard, two separate groups, one standing outside the
    roadway, another group standing up around the house.”           J.A. 44.   He also saw a
    Chevrolet Tahoe parked illegally in the roadway.         After viewing the open alcohol
    containers next to Graham in the vehicle, Deputy Reid called in a warrant check as he
    sought to ascertain who called 911 and why. Though unhelpful at first, someone in the
    crowd eventually admitted to calling the police, but said she no longer needed assistance.
    At this point, Deputy Lowder had not yet arrived on the scene, but because of “the size of
    the group,” Deputy Reid called him and “told him to go ahead and step it up and get there
    as quick as he could.” J.A. 48; see also J.A. 58–59 (“I told him to hurry up and get there
    because of the size of the crowd.”). Deputy Reid then received a notification from
    17
    dispatch that Graham had an outstanding warrant and was to be considered “armed and
    dangerous.” J.A. 48. Before doing anything else, Deputy Reid “waited for Deputy
    Lowder for safety reasons.” J.A. 49. As Deputy Reid testified, “I was not going to get
    [Graham] out of the vehicle and have a one-on-one confrontation with a large crowd.”
    J.A. 63.
    When Deputy Lowder arrived on the scene, he and Deputy Reid asked Graham to
    exit the vehicle and told him that they were detaining him to wait on Myrtle Beach’s
    response to the outstanding warrant. After removing Graham to the yard away from the
    vehicle, Deputy Lowder conducted a pat-down to search for weapons. He asked if
    Graham had any weapons on him or anything that could hurt himself or Deputy Lowder.
    In response, Graham “volunteered the information that there was a firearm located under
    the driver’s seat of the vehicle.” J.A. 66. Deputy Lowder then retrieved the firearm. He
    testified that he did so “because I have a duty to act and make sure that that’s in our
    possession and safely somewhere so that it doesn’t cause any future problems or risk
    anything escalating in the situation.” J.A. 67. Before Graham alerted them to the
    weapon, neither Deputy Reid nor Deputy Lowder made any attempts to search the
    vehicle. J.A. 71–72.
    II.
    When evaluating whether exigent circumstances justify a warrantless search, we
    look to the totality of the circumstances. Missouri v. McNeely, 
    133 S. Ct. 1552
    , 1559
    (2013). In performing this task, the majority relies on a set of factors that this court
    18
    articulated to determine whether concerns over evidence destruction created exigent
    circumstances. Maj. Op. at 8 (citing United States v. Turner, 
    650 F.2d 526
    , 528 (4th Cir.
    1981)). But an exigency created by concerns that evidence may be destroyed is far
    different from an exigency arising from law enforcement’s fear that officers or bystanders
    may be in danger. ∗ The nature of our inquiry “demands that we evaluate each case of
    alleged exigency based ‘on its own facts and circumstances.’” 
    McNeely, 133 S. Ct. at 1559
    (quoting Go–Bart Imp. Co. v. United States, 
    282 U.S. 344
    , 357 (1931)).
    The facts and circumstances here require attention to the claimed exigency in this
    case--concerns over officer and public safety. In conducting this task, we view the
    evidence in the light most favorable to the government, United States v. Foster, 
    634 F.3d 243
    , 246 (4th Cir. 2011), giving “particular deference to the district court’s credibility
    findings,” United States v. Moses, 
    540 F.3d 263
    , 268 (4th Cir. 2008). As the majority
    recognizes, “[i]t is a hallmark of Fourth Amendment jurisprudence that the possibility of
    a threat to the safety of law enforcement officers may constitute exigent circumstances
    justifying a warrantless search or seizure.” United States v. Legg, 
    18 F.3d 240
    , 244 (4th
    ∗
    We have noted that we cannot rely exclusively on the Turner factors in the
    context of a public-safety rationale because “[t]he factors set forth in Turner
    contemplated exigent circumstances arising from the potential destruction of contraband
    evidence.” United States v. Wilhelm, 358 F. App’x 452, 455 n.2 (4th Cir. 2009) (per
    curiam) (unpublished). Wilhelm highlighted that Turner itself acknowledged that “[t]he
    emergency circumstances will vary from case to case, and the inherent necessities of the
    situation at the time must be scrutinized.” 
    Id. (alteration in
    original) (quoting 
    Turner, 650 F.2d at 528
    ). Even though we have referenced the Turner factors when dealing with
    other exigencies, “[w]e have expanded upon this analytical framework” where, as here,
    the context warrants. United States v. Yengel, 
    711 F.3d 392
    , 397 (4th Cir. 2013).
    19
    Cir. 1994); see also Figg v. Schroeder, 
    312 F.3d 625
    , 639 (4th Cir. 2002). The Supreme
    Court, and many of our sister circuits, have recognized that an unsecured firearm poses a
    threat to officer and public safety that justifies quick police action. See, e.g., New York v.
    Quarles, 
    467 U.S. 649
    , 655 (1984) (creating public-safety exception to Fifth
    Amendment’s Miranda requirement); United States v. Newsome, 
    475 F.3d 1221
    , 1227
    (11th Cir. 2007).
    The circumstances here reflect that the deputies had a legitimate concern for their
    safety and those of the bystanders at the scene. The deputies arrived at the scene late at
    night, in response to a 911 hangup call with disorderly activity overheard in the
    background. Two groups of individuals--a member of which had placed the 911 call--
    were still present near the vehicle. Because of this crowd, Deputy Reid implored Deputy
    Lowder to hurry up and get to the scene faster. Then, when they conducted the search
    with the crowd still present, the deputies were aware that Graham was considered “armed
    and dangerous.” And the district court expressly stated that it found Deputy Lowder
    credible when he testified that he retrieved the gun for safety reasons. Under the totality
    of the circumstances, the deputies’ actions were reasonable.
    In its myopic focus on the exact moment of the search, the majority loses sight of
    the nature of the scene at which the deputies arrived. Its description of the scene as
    “peaceful” is belied by the deputies’ testimony and the district court’s credibility
    determinations. Armed with the benefit of hindsight, the majority second guesses the
    judgment calls the deputies on the scene made. More important, the majority loses sight
    of the “touchstone” by which we judge actions under the Fourth Amendment:
    20
    reasonableness. Brigham City v. Stuart, 
    547 U.S. 398
    , 403 (2006). Because I believe the
    deputies acted reasonably under the circumstances, I would hold that Deputy Lowder’s
    targeted search to retrieve the weapon from the vehicle does not violate the Fourth
    Amendment. I respectfully dissent.
    21