                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 16-4519
                        ___________________________

                              United States of America

                        lllllllllllllllllllll Plaintiff - Appellant

                                            v.

                            Curlie Marque Quarterman

                       lllllllllllllllllllll Defendant - Appellee
                                      ____________

                     Appeal from United States District Court
                   for the Southern District of Iowa - Davenport
                                  ____________

                            Submitted: October 20, 2017
                             Filed: December 12, 2017
                                  ____________

Before LOKEN, GRUENDER, and BENTON, Circuit Judges.
                          ____________

BENTON, Circuit Judge.

       Without a warrant, police officers entered Curlie M. Quarterman’s apartment
and seized a gun from a holster on his waist. The government charged him as a felon
in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The district court
granted Quarterman’s motion to suppress the gun and derivative evidence. Having
jurisdiction under 18 U.S.C. § 3731, this court reverses and remands.
                                          I.

       At 7:16 a.m. on a Saturday, Carol Bak called 911. She said she was helping her
daughter, Christina Bak, move out of Quarterman’s apartment. He was Christina’s
boyfriend. Carol Bak reported having been in a “heated” verbal altercation with
Quarterman. Quarterman “got in [her] face” and “had a gun on his waist.” After the
altercation, she left, leaving Christina Bak inside the apartment.

      Dispatch radioed a “domestic with a weapon involved” to Sergeant Robert
Jackson. He, with Deputy Peter Bawden and a third officer, arrived outside the
apartment building at 7:36 a.m. Carol Bak repeated what she said on the 911 call.
She also said Quarterman was “making [Christina] get out” of his apartment.

        Around 7:38 a.m., concerned for the safety of Christina Bak, Sergeant Jackson
and Deputy Bawden went to the apartment. Approaching, they heard voices in normal
tones. They knocked; Christina Bak answered. She said “Hello,” then “Yeah,” and
stepped back. Through the open door, the officers saw packed bags and boxes, and
a man (later identified as Quarterman) sitting on the sofa. Sergeant Jackson asked,
“Can we step in?” Deputy Bawden then saw Quarterman moving on the couch. He
testified Quarterman was “moving his hands quickly and kind of scooting over or
trying to stand up from the couch in a hurry . . . .” He also testified it looked like
Quarterman was reaching toward the couch. Considering this “an indicator of fight
or flight,” he said, “No, no don’t you move fast.” Christina Bak said, “What’s wrong?
What’s wrong?” The officers asked about the gun. Christina Bak did not respond.
Asked if he had a gun, Quarterman said, “No.” Sergeant Jackson announced, “We are
going to come in for a few minutes.” He entered the apartment, placing himself
between Christina Bak and Quarterman. Deputy Bawden moved just inside the
doorway.




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      Sergeant Jackson told Quarterman to keep his hands up, stand up, and turn
around. Quarterman stood up, beginning to turn his body. Deputy Bawden testified
he was “blading” his body, standing as a boxer does, flat-footed with a shoulder
pointed toward an individual. The officers saw the handgun holstered on his right
side. Deputy Bawden testified he noticed the gun when he saw Quarterman’s right
hand lowering toward his waist. The officers ordered him against the wall, seizing the
gun. All of this, from the knock to seeing the gun, occurred in about 35 seconds.

       Sergeant Jackson told Quarterman he would return the gun once they were
finished talking. Another deputy discovered it was stolen. The officers arrested
Quarterman.

      Quarterman moved to suppress the gun and derivative evidence. He argued that
the warrantless entry violated the Fourth Amendment. The Government invoked
exigent circumstances. The district court granted the motion, concluding that the
entry and search were unconstitutional. The court found neither exigent
circumstances nor probable cause.

      This court reviews de novo the question whether exigent circumstances justified
warrantless entry or search. United States v. Roberts, 824 F.3d 1145, 1146 (8th Cir.
2016).

                                          II.

      “The ultimate touchstone of the Fourth Amendment . . . is reasonableness.”
Michigan v. Fisher, 558 U.S. 45, 47 (2009) (per curiam) (internal quotation marks
omitted), quoting Brigham City v. Stuart, 547 U.S. 398, 403 (2006). This court must
determine whether the officers’ actions, “[v]iewed in their totality,” were reasonable.
United States v. Uscanga-Ramirez, 475 F.3d 1024, 1029 (8th Cir. 2007).



                                         -3-
       Warrantless searches inside a home are “presumptively unreasonable,” but not
if “the exigencies of the situation make the needs of law enforcement so compelling
that the warrantless search is objectively reasonable under the Fourth Amendment.”
Stuart, 547 U.S. at 403 (internal quotation marks omitted), quoting Payton v. New
York, 445 U.S. 573, 586 (1980) and Mincey v. Arizona, 437 U.S. 385, 394 (1978).

        “One exigency obviating the requirement of a warrant is the need to assist
persons who are seriously injured or threatened with such injury.” Id. This exigency
justifies warrantless entry or search if officers have an “objectively reasonable basis
for believing . . . that a person within the house is in need of immediate aid . . . .”
Fisher, 558 U.S. at 47 (internal quotation marks and citations omitted), quoting
Stuart, 547 U.S. at 406 and Mincey, 437 U.S. at 392. Also justifying warrantless
entry or search is an objectively reasonable belief of a threat to officer safety. See
United States v. Kuenstler, 325 F.3d 1015, 1021 (8th Cir. 2003) (“Exigent
circumstances exist where law enforcement officers have a legitimate concern for
themselves or others. . . . The analysis of whether this exception to the warrant
requirement has been made out is an objective one focusing on what a reasonable,
experienced police officer would believe.” (internal quotation marks and citations
omitted)).

                                         III.

       The warrantless entry was justified by a legitimate and objectively reasonable
concern for the safety of Christina Bak and the officers. They had information that
Quarterman was making Christina Bak move out, he was armed, and he had been in
a heated verbal altercation with her mother that morning. After Christina Bak opened
the door, Quarterman made quick movements as if reaching toward the couch or
getting up. Unable to see the gun from the doorway and aware that domestic disputes
can turn violent, the officers decided to enter and control the situation.



                                         -4-
       This court’s decision in Roberts is instructive. See 824 F.3d at 1146-47. There,
officers believed that a suspect in a deadly shooting was inside the apartment. Id. at
1146. When they knocked on the apartment door, it swung open and they saw a man
sitting on the couch. Id. He looked “high,” “scared,” “nervous,” and “almost as if
he’s going to flee.” Id. Afraid for their safety, the officers entered and told the
suspect to raise his hands. Id. This court held that the officers were justified in
entering without a warrant:

      Experienced officers confronted by such an event would have readily
      realized the risk of staying where they were and reasonably could have
      decided to reduce the danger by moving into the room to control the
      situation. . . . In short, on the facts of this case, when the apartment door
      unexpectedly opened, the officers reasonably felt in danger and faced a
      split-second choice between entry and retreat. We refuse to hold the
      officers’ only reasonable response was to retreat.

Id. at 1147 (internal citations omitted).

      Here, the officers were responding to a potentially dangerous situation. Once
the door opened, Quarterman’s response to the officers’ presence heightened and
accelerated their concerns, both for themselves and also for Christina Bak.

       Quarterman argues that the threat of danger here was not as great as in Roberts.
But this court has consistently found exigent circumstances where officers reasonably
believe a gun or an armed individual presents a danger to others or themselves. See
United States v. Henderson, 553 F.3d 1163, 1164-65 (8th Cir. 2009) (exigent
circumstances justified entering a bedroom, where an armed man was with his wife
and had earlier threatened to kill a man he believed was with her); Uscanga-Ramirez,
475 F.3d at 1029 (exigent circumstances justified entering a home “to make sure that
[a man] would not seriously injure or kill himself,” where officers “had reliable
information that [the man] had locked himself in a bedroom with a gun and was very


                                            -5-
upset over the disintegration of his marriage”); United States v. Hill, 430 F.3d 939,
940-41 (8th Cir. 2005) (exigent circumstances justified entering a home, where
officers arrested a man for aggravated robbery outside the home and then observed
another man run inside the home, because “[i]n light of the aggravated robbery
charges,” there may have been weapons inside the home, and the man may have been
running inside to get one); United States v. Vance, 53 F.3d 220, 222 (8th Cir. 1995)
(reaching the same conclusion as Hill on similar facts).

        The presence of a weapon in a home does not necessarily constitute exigent
circumstances. See United States v. Murphy, 69 F.3d 237, 243 (8th Cir. 1995) (“[A]
reasonable belief that firearms may have been within the residence, standing alone,
is clearly insufficient to justify excusing the knock and announce requirement.”
(internal quotation marks omitted)). But in this case, the officers were objectively
reasonable in believing that the gun presented a danger. Although Quarterman had
not used, or explicitly threatened to use, the gun, he was carrying it while evicting his
girlfriend and “getting in [her mother’s] face” just after 7:00 a.m. Reasonable,
experienced officers would not ignore the gun. That Carol Bak considered it relevant
further indicated a potential danger.

       This court has recognized that “domestic disturbances are highly volatile and
involve large risks . . . .” Henderson, 553 F.3d at 1165. Quarterman argues that this
was not a domestic disturbance, because he argued only with Carol Bak, who did not
live with him and was outside when the officers arrived. But the key is what the
officers reasonably believed. Here, they reasonably believed that there was an
ongoing dispute between Quarterman and his live-in girlfriend, as evidenced by his
carrying a gun while making her move out and his earlier behavior toward her mother.

      As with guns, the fact of a domestic dispute is not necessarily enough. See
Smith v. Kansas City Police Dept., 586 F.3d 576, 580 (8th Cir. 2009) (rejecting the
argument that “the fact that a domestic violence suspect was inside the home—with

                                          -6-
a child—was an exigent circumstance”). But this court in Smith reasoned that no facts
indicated “the suspect was a threat to the child or others” or that guns were in the
home. Id. Those elements are present here, where officers had an objectively
reasonable basis to believe that Quarterman was armed and a threat to Christina Bak
or others.

        Once lawfully inside the apartment, the exigencies of the situation justified
ordering Quarterman to stand up and turn around. If officers legally enter based on
a potential threat posed by a gun, they may do a limited search for it in order to
prevent harm. See Henderson, 553 F.3d at 1165 (after entering, exigent
circumstances justified the officers’ searching the bedroom in order to secure the gun,
even after handcuffing the husband); Uscanga-Ramirez, 475 F.3d at 1029 (after
entering, exigent circumstances justified the officer’s limited search under a pillow for
the gun, because “[t]he pillow was within [the man]’s reach . . . and [the officer]
reasonably perceived a risk of danger to everyone in the room”). That the search here
involved temporarily seizing and searching Quarterman’s person does not change the
outcome. See Stuart, 547 U.S. at 403 (stating that exigencies can justify warrantless
searches of a person); Burke v. Sullivan, 677 F.3d 367, 372 (8th Cir. 2012) (“[I]f the
officers’ entry into Burke’s home was lawful [under either an emergency aid
justification or a community caretaking justification], the officers’ brief detention of
Burke—less than two minutes—was lawful.”). Although Quarterman denied having
a gun, the officers were reasonable in disbelieving him. See Uscanga-Ramirez, 475
F.3d at 1029. Carol Bak told them the gun was on Quarterman’s hip, and the officers
could reasonably believe that the man on the couch was Quarterman. His reactions
to the presence of the officers also indicated that he may have been armed.

      Finally, when the officers saw the gun on Quarterman’s waist, they were
reasonable in temporarily seizing it. See United States v. Lewis, 864 F.3d 937, 946
(8th Cir. 2017) (“[A] police officer who discovers a weapon in plain view may at least
temporarily seize that weapon if a reasonable officer would believe, based on specific

                                          -7-
and articulable facts, that the weapon poses an immediate threat to officer or public
safety.”).

                                          IV.

      The district court relied on cases suggesting that probable cause is also required.
See Kleinholz v. United States, 339 F.3d 674, 676 (8th Cir. 2003) (“[E]xigency may
be substituted for a warrant, but probable cause must be present before either a
warrant or exigency will allow a search.”), citing United States v. Walsh, 299 F.3d
729, 733 (8th Cir. 2002) (“A warrantless search is reasonable when justified by both
probable cause and exigent circumstances.”).

        Kleinholz and Walsh do not control here. They address warrantless entry and
search justified by the “volatile nature” of illegal methamphetamine labs. Kleinholz,
339 F.3d at 677, citing Walsh, 299 F.3d at 734. The probable cause required there is
that a lab is inside. Kleinholz, 339 F.3d at 676-77. Likewise, there must be probable
cause of evidence in cases involving entry and search justified by a risk of removal
or destruction of evidence, e.g., United States v. Cisneros-Gutierrez, 598 F.3d 997,
1004 (8th Cir. 2010), and probable cause that a crime has been committed in cases
involving entry and search justified by “hot pursuit of a fleeing suspect,” e.g., United
States v. Schmidt, 403 F.3d 1009, 1013 (8th Cir. 2005). But this is not a blanket rule
for all cases of “exigency” or “exigent circumstances.” These terms encompass a
broad range of scenarios. See, e.g., Birchfield v. North Dakota, 136 S. Ct. 2160, 2173
(2016) (“[The exigent circumstances exception] permits, for instance, the warrantless
entry of private property when there is a need to provide urgent aid to those inside,
when police are in hot pursuit of a fleeing suspect, and when police fear the imminent
destruction of evidence.” (citing Kentucky v. King, 563 U.S. 452, 460 (2011)));
Michigan v. Tyler, 436 U.S. 499, 509 (1978) (“A burning building clearly presents
an exigency . . . . [I]t would defy reason to suppose that firemen must secure a
warrant or consent before entering a burning structure to put out the blaze.”).


                                          -8-
       If officers have an objectively reasonable basis that some immediate act is
required to preserve the safety of others or themselves, they do not also need probable
cause. See Fisher, 558 U.S. at 47 (stating that the “emergency aid exception,” from
Stuart, “requires only an objectively reasonable basis for believing that a person
within the house is in need of immediate aid” (emphasis added) (internal quotation
marks and citations omitted) (quoting Stuart, 547 U.S. at 406 and Mincey, 437 U.S.
at 392)); Stuart, 547 U.S. at 403 (“The need to protect or preserve life or avoid serious
injury is justification for what would be otherwise illegal absent an exigency or
emergency.” (quoting Mincey, 437 U.S. at 392)); Nat’l Treasury Employees Union
v. Von Raab, 489 U.S. 656, 665 (1989) (recognizing the “longstanding principle that
neither a warrant nor probable cause, nor, indeed, any measure of individualized
suspicion, is an indispensable component of reasonableness in every circumstance”).
See generally, e.g., Roberts, 824 F.3d 1145 (not assessing probable cause in finding
that a legitimate and immediate concern for safety justified warrantless entry or
search); Uscanga-Ramirez, 475 F.3d 1024 (same); Kuenstler, 325 F.3d 1015 (same).
Requiring probable cause for all exigency cases would frustrate the role of “peace
officer,” which “includes preventing violence and restoring order . . . .” Stuart, 547
U.S. at 406.

      The district court erred in suppressing the gun and derivative evidence.

                                     *******

       The judgment is reversed, and the case remanded for proceedings consistent
with this opinion.
                       ______________________________




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