                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 07-4187



UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.


LARRY LEE SCHAFFER,

                Defendant - Appellant.



Appeal from the United States District Court for the Northern
District of West Virginia, at Elkins. Robert E. Maxwell, Senior
District Judge. (2:02-cr-00030-REM-1)


Argued:   May 14, 2008                     Decided:   July 3, 2008


Before MICHAEL and DUNCAN, Circuit Judges, and Henry F. FLOYD,
United States District Judge for the District of South Carolina,
sitting by designation.


Affirmed by unpublished opinion. Judge Floyd wrote the opinion, in
which Judge Michael and Judge Duncan concurred.


ARGUED: Stephen Godfrey Jory, JORY & SMITH, Elkins, West Virginia,
for Appellant. Stephen Donald Warner, OFFICE OF THE UNITED STATES
ATTORNEY, Elkins, 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Unpublished opinions are not binding precedent in this circuit.
FLOYD, District Judge:

     Larry Lee Schaffer (Schaffer) was charged on December 17,

2002, with various drug and firearm violations.     He subsequently

filed a motion to suppress items seized during three warrantless

searches of his residence.   On March 1, 2004, the district court

ruled that the first search of Schaffer’s home was valid, but

granted the motion to suppress as to the other searches.

     Schaffer ultimately entered into a plea agreement with the

Government, but he reserved the right to appeal the district

court’s March 1, 2004, decision. Schaffer, a felon, pled guilty to

unlawful possession of a firearm in violation of 18 U.S.C. §§

922(g)(1) and 924(a)(2).   The district court sentenced Schaffer to

a term of probation for a period of five years with the first six

months to be served on home confinement.     This appeal followed.

     For the reasons explained below, we affirm the decision of the

district court.



                                 I.

     The relevant facts, as set forth in the magistrate judge’s

Report and Recommendation, are as follows:

               At approximately 6:53 PM on May 29, 2002,
          David Carr, a Tucker County, West Virginia 911
          communications center operator and dispatcher,
          received a telephone call from Nancy Schaffer.
          Nancy Schaffer stated that her husband had
          “threatened her with a gun earlier” and that
          she had run to a neighbor’s (Mason) house
          located in Sponagle Bottom, Tucker County,

                                 2
West Virginia.     Directions to the Mason
residence were provided. As a result of the
911 call, Carr notified West Virginia State
Police Trooper Robert Hogan and Deputy Surguy
of the nature and location of the call at 6:55
PM.

     Hogan was working in the Canaan Valley
Area when he received the dispatcher’s call.
He knew the Schaffers because he had responded
to a domestic dispute call at their residence
within the preceding two years.      While en
route to “Hambone” Mason’s house, he requested
that the dispatcher get more information. At
approximately 7:11 PM someone at the Mason
residence advised Carr that Mr. Schaffer was
last seen walking toward Parsons, West
Virginia in a black T-shirt and jeans, without
any weapon, which information Carr relayed to
the police.

     Upon Hogan’s arrival, he observed Nancy
Schaffer come out of the Mason house onto the
porch.    She was hysterical and trembling.
Hogan noted that her eyes were glassy and that
she smelled of alcohol. Hogan did not recall
whether she had slurred speech or whether he
had asked her any questions about her having
consumed any alcohol. Hogan questioned her to
find out if she knew where her husband was and
whether he was armed or not.     Mrs. Schaffer
told Hogan that her husband had held her at
gunpoint with a Tech-9 firearm and had left
the   residence   in   a   Brown   Lincoln  at
approximately 5:00 PM.    She also told Hogan
that she had been living at her son’s house.
According to the written statement signed by
Nancy Schaffer at approximately 7:31 PM, she
stated: “He (Larry S[c]haffer) came up to
where I was staying with my son, at the top of
Fork Mountain, and said if you don’t come down
here, we are through. I came down to Sponagle
[B]ottom at the house.”

                    . . .

     Hogan observed that the Schaffer house,
to which he had been within the last two years

                      3
in response to a domestic complaint, was
located approximately 75 yards away from and
within sight of the Mason house where he and
Mrs. Schaffer were conversing.     Considering
this to be an unsafe situation, Hogan escorted
Mrs. Schaffer to his police cruiser and
proceeded to take her statement.         Hogan
considered Mrs. Schaffer to be “intoxicated.”
Hogan explained, however, that he considered
anyone who had consumed any part of an
alcoholic beverage to be “intoxicated,” even
if they [had only] one drink during dinner.
He further explained that, while he considered
Mrs. Schaffer to be intoxicated, he did not
consider her to be impaired.       He did not
observe any slurred speech or unsteady motor
skills.    During the statement process, at
approximately 7:31 PM, Mrs. Schaffer signed a
consent to search form giving Hogan permission
to enter and search the Schaffer residence.
Hogan’s reasoning for wanting to search the
Schaffer residence was to determine whether
Mr. Schaffer was hiding in the residence and
whether there were weapons located within the
residence which Schaffer could obtain.

     Hogan, accompanied by Sgt. Stump, the
detachment commander, and Mrs. Schaffer,
entered the Schaffer yard through the gate in
a chain link fence and went to the door of the
house.   Mrs. Schaffer secured several large
dogs at the residence before the officers went
in. Stump knew the Schaffers prior to May 29,
2002[,] as a result of having been to their
residence one time before to answer a domestic
disturbance call and as a result of his son
and the Schaffer[s’] son being friends and
having previously spent time together. As a
result Stump knew that the Schaffers were
husband and wife and [assumed that they] lived
in the house the officers were about to enter.
The officers made no inquiry of Mrs. Schaffer
relative to facts which would justify her
authority to consent to a warrantless search
of the house.     Hogan knocked on the door
several times and received no answer.     With
guns drawn, the [o]fficers entered the
residence. Although Hogan has no recollection

                      4
          of who entered first or whether the door was
          locked or unlocked, be testified that he knew
          the officers “didn’t knock the door down.”
          According to the later testimonies of Leonard
          Nestor, Vickie Bodkins and Nancy Schaffer,
          however, entry into the Schaffer house was
          gained by breaking the door from its hinges.
          Hogan and Stump then conducted a protective
          sweep search of the rooms of the house seizing
          several guns which were inventoried and
          removed.   The parties did not develop where
          within the Schaffer house the guns were found.
          Mrs. Schaffer tended to some dogs and parrots
          within the house. She said she wanted to make
          sure nothing happened to “her animals.” She
          gathered and removed some personal clothing
          and effects.     She removed some “women’s
          trinkets” from the top of a dresser in the
          bedroom.    Other than that, neither party
          developed where within the house Mrs. Schaffer
          gathered and removed personal clothing and
          effects and where the clothing and personal
          effects were located in relation to the guns
          seized.   Sgt. Stump recalled Mrs. Schaffer
          requesting permission to take beer from the
          refrigerator but does not recall seeing her
          drink any beer. He also recalls telling her
          to slow up as they progressed through the
          house, in order to be sure it was safe. In
          addition to the guns, Sgt. Stump noticed
          photographs   of   Mr.   and   Mrs.   Schaffer
          throughout the house.

               During   or  shortly   following  the
          protective sweep search, word came through
          dispatch that the Brown Lincoln had been
          located.

(J.A. 194-98) (citations and footnotes omitted).

     The magistrate judge suggested that Schaffer’s motion to

suppress be denied on the basis of Nancy Schaffer’s consent to

search Schaffer’s house.   The district court, however, disagreed

that Nancy Schaffer had any authority to consent to the search.


                                5
Nevertheless, the district court denied the motion to suppress as

to the first search of Schaffer’s home on the basis of exigent

circumstances, but granted the motion as to the other searches.



                                II.

     Schaffer contends that the district court made erroneous

findings of fact in determining that the first warrantless entry

into his residence was justified by exigent circumstances.      We

review findings of fact made by a district court ruling on a motion

to suppress for clear error but review the ultimate suppression

decision de novo.   United States v. Rusher, 966 F.2d 868, 873 (4th

Cir. 1992).   We decide not whether we would have made the finding

the district court did, but whether “on the entire evidence [we

are] left with the definite and firm conviction that a mistake has

been committed.”    United States v. Gypsum Co., 333 U.S. 364, 395

(1948).   When a suppression motion has been denied, we review the

evidence in the light most favorable to the Government.     United

States v. Grossman, 400 F.3d 212, 216 (4th Cir. 2005).

     The Fourth Amendment upholds “[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.

Therefore, “[a]bsent exigent circumstances, [the] threshold [of

one’s house] may not reasonably be crossed without a warrant.”

Payton v. New York, 445 U.S. 573, 590 (1980).     It follows then,


                                 6
that   warrantless     entries   into       a   residence   are     presumptively

unreasonable. United States v. Turner, 650 F.2d 526, 528 (4th Cir.

1981) (citing Payton v. New York, 445 U.S. 573, 586 (1980)).

       Nevertheless, a warrantless search may be conducted when the

“exigencies of the situation make the needs of law enforcement so

compelling that the warrantless search is objectively reasonable

under the Fourth Amendment.”      Mincey v. Arizona, 437 U.S. 385, 394

(1978) (citation and quotation marks omitted).                      “The need to

protect or preserve life or avoid serious injury is justification

for    what   would   be   otherwise    illegal      absent    an    exigency   or

emergency.”     Id. at 392 (citation and quotation marks omitted).

       “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.”                 Warden v. Hayden,

387 U.S. 294, 298-99 (1967).       A warrantless search, however, must

be “strictly circumscribed” by the exigency that justifies the

exception to the warrant requirement.              Mincey, 437 U.S. at 393.

       To successfully sustain the exigent circumstances doctrine,

police officers need possess only a “reasonable suspicion” that

such circumstances exist at the time of the search or seizure in

question.     United States v. Grogins, 163 F.3d 795, 797 (4th Cir.

1998).    “[A] plausible claim of specially pressing or urgent law

enforcement need” can justify a warrantless search or seizure.

Illinois v. McArthur, 531 U.S. 326, 331 (2001).                     It is not the


                                        7
province of this Court to engage in “unrealistic second-guessing”

of the officers’ assessment of the circumstances that they faced.

United States v. Montoya de Hernandez, 473 U.S. 531, 542 (1985).

     This Court has set forth five factors that district courts are

to consider when deciding whether an exigency existed at the time

a search commenced:

           (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 police are on their trail; and
           (5)   the   ready   destructibility   of  the
           contraband.
United   States v. Mowatt, 513 F.3d 395, 399 (2008) (citation

omitted).   We have previously held that “arguably, these factors

must be supplemented by the gravity of the underlying offense, a

factor   employed   by   the    Supreme      Court   in   the    context   of   a

warrantless arrest.” United States v. Owens, 848 F.2d 462, 470 n.4

(4th Cir. 1988).

     It bears noting here that this list is inexhaustive and no

single factor is controlling.         See United States v. Reed, 935 F.2d

641, 642 (4th Cir. 1991).        (“[T]here is no precise formula since

emergency   circumstances      will   vary    from   case   to   case   and   the

inherent necessities of each situation must be scrutinized.”)

Instead, exigencies must be judged in light of all of the relevant



                                       8
factors and from the totality of the circumstances known to the

officer at the time of the warrantless intrusion.



                                    III.

     The district court made the following findings of fact:

           In the case at bar, the officers had
           information that [Mr. Schaffer] had threatened
           the victim with a gun, had abandoned his car
           near his residence, and had last been seen
           walking toward Parsons, but within close
           proximity to his residence. The officers did
           not know for certain where [Mr. Schaffer] was,
           but the Court finds that, based on these
           facts,    the   officers   were    objectively
           reasonable in their rational inference that
           [Mr. Schaffer] may have been in his house.
           Further, based on the facts, there can be no
           question that the officers were reasonable in
           rationally inferring that [Mr. Schaffer] posed
           a danger.     The Court finds that it was
           critical, given what the officers knew at the
           time, for them to secure the premises and
           ensure their own safety as well as the safety
           of Mrs. Schaffer, an individual in their
           protection. Therefore, the Court finds, upon
           consideration of the exigencies of the
           situation, that the needs of law enforcement
           were so compelling, in that there was a need
           to protect or preserve life or prevent serious
           injury, that the first warrantless entry and
           protective sweep was objectively reasonable
           under the Fourth Amendment and thus lawful.

(J.A. 249.)

     Schaffer specifically objects to the district court’s finding

that “the officers had information that [Schaffer] . . . ‘had

abandoned his car near the residence[,]’ and ‘had last been seen

walking   toward   Parsons,   but    within   close   proximity   to   his


                                     9
residence.’” (Appellant’s Br. 7) (citing J.A. 249). Inexplicably,

the Government counters Schaffer’s argument with nothing more than

a statement that “[t]he United States takes the position that these

findings are well supported by the testimony presented at the two

days of suppression hearings.      The District Court was not clearly

erroneous    in   making   these   findings.”   (Appellee’s   Br.   10)

(citations omitted). Therefore, inasmuch as the Government’s brief

is bereft of citations to the record supporting its position, we

have carefully combed the record ourselves to determine whether the

district court’s decision to deny the motion is supported by the

record.   In our review, “[w]e are not limited to evaluation of the

grounds offered by the district court to support its decision, but

may affirm on any grounds apparent from the record.” United States

v. Smith, 395 F.3d 516, 519 (4th Cir. 2005) (citation omitted).

     There is no dispute that the officers had information that Mr.

Schaffer had threatened the victim with a gun. (Appellant’s Br. 2)

(“[O]n May 29, 2002, Mrs. Schaffer called the 911 center at 6:53

p.m. to report that her husband had held a gun to her head and

threatened to kill her.” (citing J.A. 36, 37)).     In addition, the

record supports the district court’s determination that

            [t]he officers did not know for certain where
            [Mr. Schaffer] was, . . . the officers were
            objectively reasonable in their rational
            inference that [Mr. Schaffer] may have been in
            his house. . . . the officers were reasonable
            in rationally inferring that [Mr. Schaffer]
            posed a danger. . . . [and the officers were
            reasonable in their decision to] secure the

                                    10
             premises and ensure their own safety as well
             as the safety of Ms. Schaffer, an individual
             in their protection.

(J.A. 249.)

     For instance, regarding Schaffer’s location, Hogan attested:

             We   weren’t    aware   of    Mr.   Schaffer’s
             whereabouts, and he did have a weapon. He may
             have been -- she couldn’t tell us whether, yes
             or no, he was in the house, so that’s why we
             went in with guns drawn and secured the house,
             to make sure Mr. Schaffer wasn’t in there with
             a weapon.

(J.A. 67.)    Moreover, when Stump was asked if he had “any reason to

believe   [Schaffer]    could   have     been   in   the   house[,]”   Stump

responded, “I was unsure where he was, we were both unsure where he

was at the time.”     (J.A. 117.)

     On the issue of safety, Stump testified to the following:

             Q:   You were concerned for your safety?
             A:   Yes.
                                 . . .

             Q:   So the three of you go into the house,
                  and what happened -- were your guns
                  drawn?
             A:   Yes.
             Q:   Why were your guns drawn?
             A:   The report and through the statement,
                  apparently, Mr. Schaffer had held her at
                  gunpoint inside the residence. We didn’t
                  know if he was still in there. It was
                  kind of a scary situation at that point,
                  sir.

(J.A. 117, 120-21.)

     On the related question as to who entered the residence first,

the magistrate judge stated in the “Recommended Findings of Fact”


                                    11
section of the Report and Recommendation, which we adopted, that

“Mrs. Schaffer secured several large dogs at the residence before

the officers went in.”   (J.A. 197) (emphasis added).   We note that

this refers to the officers entering the yard, not the house.

     When queried about this issue at the suppression hearing,

Stump attested as follows:

          Q:   Who was with you when you first went
               through the door?
          A:   Mrs. Schaffer -- or Trooper Hogan and
               Mrs. Schaffer.
          Q:   So the three of you go through?
          A:   Yes. She was behind us two.
          Q:   Why was Mrs. Schaffer with you?
          A:   Basically, they had several dogs there,
               rather large dogs.     She took care of
               them, made sure that they didn’t cause us
               any harm as we went in the -- in the
               home.

                               . . .

          Q:   Okay. Who went into the residence   first?
          A:   I don’t recall who went first.      It was
               kind of both of us went very         close
               together. I’m not sure -- it was    either
               me or Hogan, Trooper Hogan.
          Q:   And the dogs were in the yard or    in the
               house?

                               . . .

          A:   I believe there might have been a couple
               dogs in the yard and a dog in the house
               at that point, as far as I can recall.
               I’m not totally clear, sir.

(J.A. 119, 127-128) (emphasis added).

     On this issue, Hogan similarly testified:

          Q:   [Mrs. Schaffer] secured the dogs?


                                12
           A.   -- pretty big dogs, they’re -- Mr.
                Schaffer may know the types of dogs, I’m
                not sure of the name of the dogs.
           Q:   So she went in the house with you?
           A:   Yes, sir. Behind us, but, yes, she did
                enter the house with us.

(J.A. 67) (emphasis added).

     Still, Schaffer argues that

           the officers did not enter Mr. Schaffer’s
           residence with any belief that an armed and
           dangerous person was hiding therein. If they
           truly believed that to be the situation, the
           officers would not have knowingly exposed
           Nancy Schaffer to danger, and would certainly
           have not permitted her to walk freely from
           room-to-room within the house.

(Appellant’s Br. 9.)

     Although the record does establish that Nancy Schaffer went

into the residence with the officers, it is nothing more than

conjecture to state that she walked freely inside the house before

it had been secured.    In fact, according to Hogan, “she was going

around just -- she was, basically, with Sergeant Stump, behind

Sergeant Stump, going around, picking through things, looking at

things.”   (J.A. 68.)   Moreover, although “she started collecting

clothing before [the officers] even cleared the whole house,” (J.A.

122), Stump testified that she was not ahead of the officers when

collecting her items.   (J.A. 129.)

           Q:   Okay, and Mrs. Schaffer -- Mrs. Schaffer
                goes in with you, and, as you indicated,
                as you’re searching the house and
                concerned about everybody’s safety, Mrs.
                Schaffer is ahead of you or in different


                                 13
                 rooms collecting some of her items, is
                 that correct?
           A:    Not ahead of us. I did my best to keep
                 her behind us, because we didn’t need her
                 in the house at that time, we didn’t want
                 her in the house at that time, she wanted
                 to be there; plus, if we left her out in
                 the car, did we know that Mr. Schaffer
                 wouldn’t return and do harm to her out in
                 the yard?     It was a totally unsafe
                 situation, in my opinion.

(J.A. 129.)

     Hogan’s testimony corroborated this testimony of Stump:

           Q:    So she went in the house with you?
           A:    Yes, sir. Behind us, but, yes, she did
                 enter the house with us.
           Q:    You, Sergeant Stump, and Nancy Schaffer,
                 then, entered the residence, correct?
           A:    Yes, sir.
           Q:    And, when you got inside, what did you do
                 as soon as you entered the front door?
                 Were your weapons pulled?
           A:    We had our weapons drawn.
           Q:    Why?
           A:    We also had our flashlights.
           Q:    Why?
           A:    For the simple fact -- I’m going back to
                 it again, but officer safety.

(J.A. 67.)

     Certainly, Nancy Schaffer’s evident lack of fear for her

safety in no way diminishes the officer’s testimony that they

thought   the   circumstances   to   be   unsafe.   Simply   stated,   the

officers had limited options and even more limited time to consider

them.

     Turning to the factors enumerated in Mowatt, inasmuch as it

was reasonable for the officers to believe that an armed man was


                                     14
lurking around and may have already returned to his home, the first

factor,    the     urgency   factor,   favors       the     Government’s     argument

concerning exigent circumstances.                The second factor, concerning

the officers’ reasonable belief that the contraband was about to be

removed or destroyed, favors the Government to the extent that this

factor is construed to refer to the officers’ reasonable belief

that Schaffer might be in the house and he might flee.                      The third

factor regarding the possibility of danger to police guarding the

site also favors the Government.                 It was reasonable for them to

enter the house based on the circumstances that they faced to

determine if Schaffer was present and armed.                    Further, the fact

that they entered the house with their guns drawn demonstrates

their    concern    for   not   only   their       safety    but    also   for    Nancy

Schaffer.

     As to the fourth factor, there is no evidence in the record as

to whether Mr. Schaffer was aware that the police were on his

trail.     There is also no evidence in the record as to the fifth

factor,     that    the   officers     were       concerned     about      the    ready

destructibility of the contraband.               Thus, these two factors favor

neither party.       Concerning the gravity of the offense, here, the

officers    were     confronted    with      a    situation        in   which    it   is

unchallenged that the officers had information that Mrs. Schaffer

had reported that Mr. Schaffer “had held a gun to her head and




                                        15
threatened to kill her.”   (Appellant’s Br. 2) (J.A. 36, 37).   Thus,

this factor favors the Government.

     In sum, viewing the situation from the perspective of the

officers at the scene of the first warrantless search of Schaffer’s

house, we are of the firm belief that the circumstances that the

officers faced here would cause a reasonable person to believe that

entry into Schaffer’s home was necessary to preserve life or avoid

serious injury to the officers and to Mrs. Schaffer and to prevent

the possible escape of Mr. Schaffer.    Accordingly, the officers’

first warrantless entry into Mr. Schaffer’s house was appropriate.



                                IV.

     Inasmuch as “we may affirm on any grounds apparent from the

record[,]” Smith, 395 F.3d at 519, we have made a de novo review of

the district court’s ultimate suppression decision as to the first

warrantless entry.   Consequently, we hold that the record, when

considered in its entirety, supports the district court’s denial of

the motion as to that issue.      Therefore, we conclude that the

district court did not err in denying Schaffer’s motion to suppress

as to the initial search of his residence.        Accordingly, the

decision of the district court is

                                                          AFFIRMED.




                                 16
