                             UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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.



                                            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

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

                                               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.                           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

                                           4
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



                                              5
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).



                                               6
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 at
528 (citing United States v. Rubin, 474 F.2d 262, 268 (3d Cir.
1973)) (alteration in original).



                                                  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    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).



                                               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       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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