                             UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.




                                2
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    the   third-party      consent     doctrine.     Because       the

firearms     are    admissible    under       the   good-faith    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.    As

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

                                          3
       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     or   the      household    jointly      owned    by    the       parties    and

awarded     herein     to    Petitioner      with     or    without       a    warrant     to

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

Code   §   48–27–601.”       (J.A.    52).       Finally,   the     EPO       awarded    J.W.

“temporary     possession        of   the    residence      or      household      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).
                                             4
      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.



                                           5
guns   Foster     retrieved      was    a    sawed-off    shotgun.      Foster      told

Spurlock   that    the    barrel       looked    short   and    the   gun     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 two-

count 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

                                             6
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        implicitly      to     the       areas    of   the    house      which    the

officers         would     reasonably       believe      it     necessary        to    enter    to

enforce the terms of the EPO.”                         Spurlock, 2014 WL 7013801, at

*5. Given this broad consent, the court stated that “it was

objectively         reasonable       for    the       officers      to    believe       they   had

J.W.’s       consent       to    enter     the    bedroom       closet     to     enforce      the

order's          requirement       that     Defendant          surrender        any     and    all

firearms.”         Id.    The     court    also       noted    that,      under    Georgia      v.



       2
       West Virginia intervened below and on appeal to defend the
statutes.



                                                  7
Randolph,       547    U.S.     103,   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    a    conditional       plea    to     Count     2       (obliterated    serial

number),       and    the     court    sentenced     him       to     three     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”).



                                             8
most favorable to the government.” United States v. Watson, 703

F.3d 684, 689 (4th Cir. 2013).

     In      relevant    part,       the    Fourth       Amendment       provides          “[t]he

right   of    the     people   to    be     secure       in    their    persons,       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

                                              9
conduct        involves       only       simple,          isolated          negligence,         the

deterrence        rationale      loses    much       of    its    force,         and    exclusion

cannot      pay    its   way.”    Davis,       131    S.Ct.       at     2427-28        (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         quotation       marks        omitted).              Importantly,            “[o]ur

precedent      makes     it   clear      that       application         of    the      good-faith

inquiry is not limited to the specific circumstances addressed

by    the    Supreme     Court.”      Stephens,           764    F.3d       at    336.    We    are

permitted      to    advance     directly       to    the       question         of    good    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

                                               10
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    U.S.   at   925-26      (good-faith          exception   applies     when

police       reasonably     rely   on     a        warrant    later    held    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       Spurlock’s           challenge       hinges    on    the

constitutionality           of     West        Virginia’s        domestic       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.



                                              11
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      recent      (and        consistent)       admonitions          that

“[f]irearms      and     domestic     strife        are     a    potentially          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      strife     are    a     potentially          deadly     combination

nationwide”)      (internal       quotation         marks       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.



                                            12
                              III.

     For the foregoing reasons, we affirm the district court’s

denial of Spurlock’s motion to suppress.

                                                      AFFIRMED




                               13
