                                    UNPUBLISHED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Reversed, vacated, and remanded by unpublished opinion.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Unpublished opinions are not binding precedent in this circuit.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).



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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:


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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.




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