PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                     No. 99-4462

DENNIS BLANE GWINN,
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of West Virginia, at Beckley.
Robert C. Chambers, District Judge.
(CR-98-164-5)

Argued: April 7, 2000

Decided: July 13, 2000

Before WILKINSON, Chief Judge, NIEMEYER, Circuit Judge,
and HAMILTON, Senior Circuit Judge.

_________________________________________________________________

Affirmed by published opinion. Judge Niemeyer wrote the opinion,
in which Chief Judge Wilkinson and Senior Judge Hamilton joined.

_________________________________________________________________

COUNSEL

ARGUED: Hunt Lee Charach, Federal Public Defender, Charleston,
West Virginia, for Appellant. Miller Allison Bushong, III, Assistant
United States Attorney, Charleston, West Virginia, for Appellee. ON
BRIEF: Mary Lou Newberger, Assistant Federal Public Defender,
Michael W. Strong, Assistant Federal Public Defender, Charleston,
West Virginia, for Appellant. Rebecca A. Betts, United States Attor-
ney, Charleston, West Virginia, for Appellee.
OPINION

NIEMEYER, Circuit Judge:

In this case, we must decide whether Dennis Gwinn's partially
clothed condition when arrested -- without shoes and shirt -- pre-
sented an exigency that justified police officers' reentry into Gwinn's
trailer without a warrant to retrieve his boots and a shirt. The officers
had just completed a lawful entry and protective sweep of the trailer
and were preparing to transport Gwinn to the regional jail.

The district court denied Gwinn's motion made under the Fourth
Amendment to suppress a gun found in his boots, applying a general
standard of reasonableness. While we affirm the district court's rul-
ing, we reject its rationale and affirm on the basis that Gwinn's par-
tially clothed condition in the particular circumstances of this case
presented the police officers with an exigency justifying their reentry
into the trailer and their temporary seizure of Gwinn's boots without
a warrant.

I

West Virginia State Police in Rainelle, West Virginia, responded
to a 911 dispatch during the early evening hours of May 10, 1998,
which indicated that "a domestic altercation[was] in progress on
Backus Mountain Road [in Meadow Bridge, West Virginia] with
weapons involved." The 911 dispatcher had received a call from Anna
Terry who stated:

          [M]y daughter is living up there with a guy named Dennis
          Gwinn, and she just called me real fast and told me to call
          the police. . . . And she told me that he's got a gun in there
          by the door and he told her he was going to kill her.

Terry also told the 911 dispatcher that her daughter had her baby with
her.

State Trooper Ron Thomas was dispatched to respond to the call
and was later joined by State Police Sergeant Scott Moore and

                     2
another trooper. When Trooper Thomas arrived at 485 Backus Road,
a remote location in Fayette County, he pulled his cruiser to within
25 yards of a small, "single-wide" trailer with a front porch. He drew
his weapon from its holster and yelled for Dennis Gwinn to come out.
Gwinn exited the trailer, wearing only a pair of blue jeans. Trooper
Thomas conducted a pat-down search of Gwinn, handcuffed him, and
placed him in the back seat of his cruiser. Trooper Thomas then asked
Gwinn "where his wife was at so [Thomas] could speak to her."
Gwinn responded that the woman was his girlfriend, not his wife, and
that she was inside the trailer.

Trooper Thomas then entered the trailer -- the door was open and
the screen door shut -- where he found Diane Harrah, crying and
holding her baby. Sergeant Moore, who had just joined Trooper
Thomas, conducted a protective sweep of the trailer while Thomas
questioned Harrah. Harrah reported that Gwinn was drunk and had
prevented her from leaving the trailer. She related that Gwinn had
gone to the bedroom, obtained a pistol, and brandished it, telling her
that "if you try to leave, I'll kill you." She described the handgun as
a blue-colored pistol but did not know where Gwinn had put it. She
had last seen him with it in the living room. Trooper Thomas and Ser-
geant Moore searched for the handgun, but discovered instead a
loaded shotgun under the couch. They failed to find the handgun.

The officers left the trailer, placed the shotgun in the trunk of
Trooper Thomas' cruiser, and prepared to transport Gwinn to the "re-
gional jail." Because Gwinn was wearing no shirt or shoes, Trooper
Thomas went back into the trailer and said to Harrah, "Where's his
shoes? And we need to get a shirt for him." Harrah directed Thomas
to Gwinn's boots in the living room, and she then went back to the
bedroom to retrieve a shirt. While Harrah was getting the shirt,
Trooper Thomas picked up Gwinn's mid-calf work boots, which
"seemed awful[ly] heavy," and heard something "flop inside." When
he opened the boot and looked inside, he discovered a pistol. He
showed it to Harrah, and Harrah identified it as the weapon with
which Gwinn had threatened her earlier that evening.

Gwinn was charged as a felon in possession of a Smith & Wesson
.38 caliber revolver and a Winchester 12-gauge shotgun, in violation
of 18 U.S.C. § 922. Gwinn moved to suppress the evidence of the two

                    3
guns because they were obtained pursuant to a warrantless search.
The district court granted the motion with respect to the shotgun and
denied the motion with respect to the handgun. In denying Gwinn's
motion to suppress the .38 caliber handgun, the court concluded that
"the second search and seizure indeed were proper based on the plain
view doctrine." The court, relying on United States v. Jackson, 131
F.3d 1105 (4th Cir. 1997), found that Trooper Thomas was lawfully
in a place from which the handgun could be plainly viewed; that he
had a lawful right of access to the handgun; and that its incriminating
character was immediately apparent. The court found Trooper
Thomas' return to the trailer to be justified on a standard of "reason-
ableness," balancing his justification for entering Gwinn's trailer
against Gwinn's privacy interest. The court stated:

          The Court finds two factors critical in concluding that
          Trooper Thomas acted reasonably in invading Mr. Gwinn's
          privacy interest in his home. First, Trooper Thomas had
          lawfully entered Mr. Gwinn's home earlier. As a result, Mr.
          Gwinn had a reduced expectation of privacy in the areas of
          his home where Officer Thomas lawfully had been. Second,
          Officer Thomas' reentry was carefully circumscribed to
          minimize the intrusion. Officer Thomas asked Ms. Harrah to
          obtain a shirt for Mr. Gwinn, and he did not travel beyond
          the entryway to obtain shoes for Mr. Gwinn. Arguably, Offi-
          cer Thomas could have asked Ms. Harrah to get shoes for
          Mr. Gwinn, as well, but the Court is not prepared to say that
          his decision to select the shoes and pick them up himself
          was unreasonable.

Gwinn pled guilty to the single-count indictment, reserving his
right to appeal the district court's ruling on his motion to suppress
under Federal Rule of Criminal Procedure 11(a)(2). The district court
sentenced Gwinn to 37 months imprisonment. Gwinn filed this
appeal, contending that Trooper Thomas' seizure of the .38 caliber
handgun violated his Fourth Amendment right to be free from unrea-
sonable searches and seizures.

II

Gwinn contends that the district court erred in two respects in
denying his motion to suppress the evidence of the .38 caliber hand-

                    4
gun: (1) the district court applied an incorrect legal standard to justify
Trooper Thomas' reentry into Gwinn's trailer to retrieve his boots and
shirt, and the reentry was not justified by any recognized exception
to the warrant requirement; and (2) the plain view doctrine cannot jus-
tify Trooper Thomas' seizure of the handgun because its incriminat-
ing character was not "immediately apparent," since "only after the
trooper opened the boot and visually examined its contents did it
become apparent that a revolver was present therein." At oral argu-
ment, Gwinn's able counsel clarified and refined Gwinn's position
with respect to the seizure, arguing that Trooper Thomas' seizure of
the boots containing the handgun was illegal; he conceded that if the
boots were properly seized, the trooper was entitled to assure that they
did not contain weapons or contraband before giving them to Gwinn
while he was in lawful custody.

The government maintains that Trooper Thomas' reentry into the
trailer was justified by the exigent circumstances created by a need
"to protect defendant by providing appropriate basic clothing" and
that Trooper Thomas' reentry and seizure of the boots was justified
by the apparent consent of Diane Harrah, who originally called for
police help and who directed Trooper Thomas to the boots.

We review the district court's findings of historical facts for clear
error. See Ornelas v. United States, 517 U.S. 690, 699 (1996). But we
review the determination of whether the historical facts satisfy a con-
stitutional standard de novo. See id. at 696-99. De novo review is pre-
ferred for determinations of whether a search or seizure violates the
Fourth Amendment in order to minimize the variations of conclusions
drawn by different trial judges applying facts to law, because "[s]uch
varied results would be inconsistent with the idea of a unitary system
of law." Id. at 697. In this case, the parties do not challenge the dis-
trict court's findings of historical facts. Accordingly, on the issue of
whether Trooper Thomas' reentry into the trailer and his seizure of
the boots and handgun violate the Fourth Amendment, we review the
district court's ruling de novo.

We begin by noting that Trooper Thomas and Sergeant Moore's
initial entry into the trailer following Gwinn's arrest and their protec-
tive sweep of the trailer comported with established principles of
Fourth Amendment jurisprudence. See Maryland v. Buie, 494 U.S.

                     5
325, 334-36 (1990); Mincey v. Arizona, 437 U.S. 385, 392 (1978).
The immediate safety of Diane Harrah and her baby had become
legitimate concerns because of the initial information received by the
State Police about Gwinn. Based on the 911 dispatch, Gwinn was
reported to be drunk, brandishing a gun, and threatening to kill Har-
rah. The dispatch advised the troopers, "We've had problems with
this guy before," and Trooper Thomas knew that Gwinn had previ-
ously been arrested for a felony. On appeal, Gwinn does not challenge
the troopers' initial entry into the trailer. While Gwinn did challenge
the subsequent investigatory search that produced the shotgun, the
district court granted his motion to suppress the evidence of the shot-
gun, and accordingly that issue is not before us. Gwinn maintains,
rather, that after the troopers completed the investigatory search and
left the trailer in preparation for transporting him to jail, their immedi-
ate safety concerns should have been allayed and therefore they were
not entitled to reenter the trailer to retrieve Gwinn's clothes without
either his permission or a warrant. He contends that the record evi-
dence is insufficient to support a conclusion that the retrieval of his
clothes was necessary. All that is revealed is that the date was May
10, the time was sometime shortly after 8:30 p.m., and the weather
was cloudy.

There is no claim by Gwinn, nor is there any suggestion from the
record, that Trooper Thomas' reentry into the trailer was a pretext or
was for any purpose other than securing clothing for Gwinn. This pur-
pose is borne out by the fact that Trooper Thomas did not proceed
past the living-room area, where he announced to Harrah the need to
retrieve Gwinn's shoes and a shirt. And when Harrah directed
Trooper Thomas to Gwinn's boots in the corner, Thomas immediately
proceeded to their location and picked them up. It was only after
Trooper Thomas picked up the boots that he discovered the pistol,
which, after confirming that it was the one brandished by Gwinn, he
seized.

The Fourth Amendment protects "[t]he right of the people to be
secure in their persons, houses, papers, and effects, against unreason-
able searches and seizures." U.S. Const. amend. IV. It has been con-
strued to mean that "[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). The protection

                     6
afforded by the Fourth Amendment allows the people to rest in com-
fort knowing that they can "retreat into [their] own home[s] and there
be free from unreasonable governmental intrusion." Silverman v.
United States, 365 U.S. 505, 511 (1961). While a warrant is generally
required to conduct a search of a person's home, 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, 437
U.S. at 393-94; see also id. at 392 (noting that "[t]he need to protect
or preserve life or avoid serious injury" may justify a warrantless
search of a house). But any warrantless search must be "strictly cir-
cumscribed" by the exigency that justifies the exception to the war-
rant requirement. See id. at 393. In accordance with these principles,
the Supreme Court has held it reasonable for an officer to enter a dor-
mitory room without a warrant to accompany a student in his custody
who went to the room for the purpose of obtaining identification. See
Washington v. Chrisman, 455 U.S. 1 (1982).

In applying these principles, therefore, we must determine whether
Trooper Thomas' reentry into Gwinn's trailer to retrieve shoes and a
shirt for Gwinn falls within an exception to the Fourth Amendment's
warrant requirement.

First, the district court appropriately concluded that Trooper
Thomas' reentry into Gwinn's trailer was not justified by consent.
Gwinn did not request that Trooper Thomas retrieve his clothes, and
Thomas did not ask Harrah, who was in the trailer, for permission to
reenter. But the court also concluded that exigent circumstances to
justify Gwinn's reentry did not exist. The court explained that Gwinn
was "wearing enough clothing to satisfy standards of public decency,
and the defendant was arrested on May 10, 1998, when it certainly is
possible to go outside without a shirt or shoes." After rejecting the
generally accepted exceptions to the warrant requirement, the court
upheld the warrantless entry, applying a general reasonableness stan-
dard and concluding that Trooper Thomas' "justification for entering
Mr. Gwinn's home" outweighed "Mr. Gwinn's privacy interests."

We agree with Gwinn's assertion that the district court erred by
applying a general reasonableness test to justify a warrantless search
of a home. While the Fourth Amendment proscribes only "unreason-

                    7
able searches and seizures," the search of a home "without a warrant
is per se unreasonable, unless the police can show . . . the presence
of `exigent circumstances.'" Coolidge v. New Hampshire, 403 U.S.
443, 474-75 (1971) (citations omitted). The core protection of the
Fourth Amendment would be eroded if, in order to enter a home, an
officer were required only to have a reasonable law-enforcement pur-
pose that a court could later find outweighed a person's privacy inter-
est. Nevertheless, for different reasons, we agree with the district
court's conclusion that Trooper Thomas' warrantless reentry was jus-
tified in the particular circumstances of this case. We rely on the exi-
gencies created by the substantial risk of injury to Gwinn were he to
be transported and processed following arrest without shoes and a
shirt and the limited degree of intrusion represented by the reentry
and seizure of the boots.

Gwinn was arrested in a remote area in Fayette County, West Vir-
ginia, during the evening hours in early May. At the time of his arrest,
he was wearing only blue jeans. The interest served by requiring him
to put on shoes and a shirt was more than "the desire of law enforce-
ment officers to complete the arrestee's wardrobe." United States v.
Butler, 980 F.2d 619, 621-22 (10th Cir. 1992) (characterizing that
court's earlier holding in United States v. Anthon, 648 F.2d 669 (10th
Cir. 1981), which held that a warrantless entry of a hotel room, while
allowing the occupant who had been arrested in the hallway, to
change out of his swimming suit, violated the arrestee's Fourth
Amendment rights). It was the troopers' duty to look after the reason-
able safety requirements of persons in their custody. See United States
v. Di Stefano, 555 F.2d 1094, 1101 (2d Cir. 1977) (holding that offi-
cers have a duty to find clothing for arrestee or permit arrestee to do
so). Wherever Gwinn might walk while in these troopers' custody, he
would face the substantial hazards of sustaining cuts or other injuries
to his feet, as well as the increasing chill during the evening hours of
an early May day. We do not believe that the government is required
to present specific evidence of every nail, piece of glass, stone or
other hazard or to present specific weather forecasts to justify its con-
cern for Gwinn's safety and well-being.

We join the Second and Tenth Circuits in concluding that under
circumstances similar to those in this case, an officer is authorized to
take reasonable steps to address the safety of the arrestee and that the

                     8
arrestee's partially clothed status may constitute an exigency justify-
ing the officer's temporary reentry into the arrestee's home to retrieve
clothes reasonably calculated to lessen the risk of injury to the defen-
dant. In Di Stefano, the Second Circuit concluded that police officers
had "a duty to find clothing for [an arrestee in their custody] to wear
or to permit [the arrestee] to do so." 555 F.2d at 1101. And when, in
fulfilling that duty, officers discovered incriminating evidence in
plain view, they were entitled to use that evidence against the defen-
dant. Similarly, in United States v. Titus, 445 F.2d 577 (2d Cir. 1971),
the court refused to suppress evidence that was found in plain view
while officers were searching for clothing for a defendant who was
nude when they arrested him. The court observed that the search for
clothing was proper because the agents "were bound to find some
clothing for Titus rather than take him nude to FBI headquarters on
a December night." Id. at 579.

In circumstances very similar to those presented here, the Tenth
Circuit in Butler held that police officers' entry into a trailer to
retrieve shoes for the defendant fit the exigency exception for a war-
rantless search. Because the officers there noticed broken glass on the
ground in the area where the arrest had been made, requiring Butler
to walk in his bare feet "would have posed a serious risk to his
health." Butler, 980 F.2d at 622; see also State v. Griffin, 336 N.W.2d
519, 524 & n.2 (Minn. 1983) (authorizing warrantless entry into home
to retrieve shoes and coat for barefoot arrestee where there was snow
on the ground).

In applying a clothing exigency exception to the warrant require-
ment in this case, we rely on numerous factors that were present.
First, Trooper Thomas was presented with an objective need to pro-
tect Gwinn against the substantial risk of injury to his feet and of chill
in the absence of a shirt. Second, there was no evidence or even a
claim that Trooper Thomas' reasons for reentering the trailer were
pretextual. Third, the intrusion into Gwinn's trailer was slight and
temporary, particularly in light of the fact that the officers had only
moments before lawfully been in the trailer to ensure the safety of
Harrah and her baby and had neither completed their business at the
site nor left it. Fourth, the intrusion was strictly limited to the purpose
of retrieving shoes and clothing. Fifth, the purpose of the reentry and
seizure of the boots was not to serve a governmental interest, but to

                     9
ensure Gwinn's reasonable safety while he was in the government's
custody. Indeed, for that reason it is doubtful whether Trooper
Thomas' actions in retrieving the boots to hand them to Gwinn would
have constituted a "meaningful interference" with Gwinn's possessory
interests in the boots so as to even constitute a seizure. United States
v. Jacobsen, 466 U.S. 109, 113 (1984) ("A`seizure' of property
occurs when there is some meaningful interference with an individu-
al's possessory interests in that property").

In applying the "clothing exception" to this case, we derive some
support from the Supreme Court's holding in Cady v. Dombrowski,
413 U.S. 433 (1973). In Cady, an off-duty police officer was arrested
for drunken driving following a one-car accident, and the arresting
officers arranged to have the damaged vehicle towed to a private
garage. Over two-and-one-half hours later, the arresting officers
returned to the wrecked vehicle to find and retrieve the off-duty
police officer's service revolver. During their effort to find the
revolver, the arresting officers found evidence that linked the off-duty
officer to a murder. In upholding the warrantless search of the vehi-
cle, the Supreme Court held that the search was not unreasonable
because (1) the police had "exercised a form of custody or control"
over the damaged automobile because they had made arrangements
for its removal to the garage, and (2) retrieval of the revolver was
"`standard procedure' . . . to protect the public from the possibility
that a revolver would fall into untrained or perhaps malicious hands."
Id. at 443.

In the case before us, Trooper Thomas had legally entered Gwinn's
trailer and was in the process of completing his tasks incident to
Gwinn's arrest before leaving the site. He thus had legally exercised
custody and control over the trailer, and his temporary departure from
the trailer to place the discovered shotgun in the trunk surely left him
with "a form of custody or control" of the trailer, not unlike that
described in Cady. 413 U.S. at 443. Moreover, as in Cady, Trooper
Thomas did not reenter the trailer to search for or to seize any item
for law-enforcement purposes. He reentered to protect Gwinn from
potential hazards, not unlike the motive in Cady where the officers
returned to and searched the damaged vehicle for public safety rea-
sons. See id. at 447.

                    10
While we recognize this case presents circumstances distinct from
Cady, Cady's "community caretaking" rationale nevertheless provides
some support for the clothing exception that we apply. 413 U.S. at
441. The justification for the warrantless search of the disabled vehi-
cle was found "constitutionally reasonable" because of the arresting
officer's "concern for the safety of the general public who might be
endangered if an intruder removed a revolver from the trunk of the
vehicle." Id. at 447.

Although it is difficult to suppose that the circumstances of this
case would require Trooper Thomas to seek out a magistrate to obtain
a warrant authorizing his temporary reentry into the trailer to retrieve
Gwinn's clothes, we nevertheless caution against using a clothing
exception as a cover for entries made for other purposes. We must
reiterate that an essential premise for our application of the exception
here is the fact that nothing in the record suggests that Trooper
Thomas' reason for the reentry was pretextual or that he acted in bad
faith. We also note that, in invoking the clothing exception to the war-
rant requirement, the government bears the burden of demonstrating
particularly that the arrestee had a substantial need for the clothing
and that the government's response was limited strictly to meeting
that need. Cf. Welsh v. Wisconsin, 466 U.S. 740, 750 (1984) ("[T]he
burden is on the government to demonstrate exigent circumstances
that overcome the presumption of unreasonableness that attaches to
all warrantless home entries"); Vale v. Louisiana, 399 U.S. 30, 34
(1970)(same).

Having found that, in the exigent circumstances presented by this
case, Trooper Thomas was justified in reentering Gwinn's trailer and
retrieving his boots without a warrant, it follows that the search of the
boots themselves did not violate the Fourth Amendment. Police offi-
cers are clearly justified in searching any item before they give it to
a person in their custody to protect their safety and deny the person
contraband. See United States v. Ricks, 817 F.2d 692, 696 (11th Cir.
1987) (holding that a jacket, which defendant requested, was "subject
to a legitimate search" before being handed to the defendant); cf. Chi-
mel v. California, 395 U.S. 752, 763 (1969) (search incident to arrest
may extend to the arrestee's person and his grab area, i.e., "the area
from within which he might gain possession of a weapon or destructi-
ble evidence"); United States v. Han, 74 F.3d 537, 541-43 (4th Cir.

                     11
1996) (holding search of bag near suspect's feet legitimate because it
was in defendant's grab area). At oral argument, Gwinn's counsel did
not quarrel with this proposition.

For the foregoing reasons, we affirm the district court's ruling that
denied Gwinn's motion to suppress the evidence of the .38 caliber
Smith & Wesson pistol that formed the basis for his conviction.

AFFIRMED

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