CA4: Exigency didn’t justify search of a car for a weapon where there was no threat and no gun crime

Defendant was stopped and arrested on a police call, but it wasn’t for a gun crime. Therefore, because defendant was cooperative and the scene was completely under control and there were no confederates involved, a search of the car for a weapon couldn’t be justified by exigency or emergency. United States v. Graham, 2017 U.S. App. LEXIS 7260 (4th Cir. April 25, 2017) (2-1 yet unpublished)

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.

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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.

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 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.