PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v. No. 12-4317
JOSEPH ROBERT YENGEL, JR.,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Virginia, at Newport News.
Henry Coke Morgan, Jr., Senior District Judge.
(4:12-cr-00011-HCM-FBS-1)
Argued: October 23, 2012
Decided: February 15, 2013
Before TRAXLER, Chief Judge, and WYNN and
THACKER, Circuit Judges.
Affirmed by published opinion. Judge Thacker wrote the
opinion, in which Chief Judge Traxler and Judge Wynn
joined.
COUNSEL
ARGUED: Richard Daniel Cooke, OFFICE OF THE
UNITED STATES ATTORNEY, Richmond, Virginia, for
Appellant. Caroline Swift Platt, OFFICE OF THE FEDERAL
2 UNITED STATES v. YENGEL
PUBLIC DEFENDER, Alexandria, Virginia, for Appellee.
ON BRIEF: Neil H. MacBride, United States Attorney,
Alexandria, Virginia, for Appellant. Michael S. Nachmanoff,
Federal Public Defender, Alexandria, Virginia, Rodolfo
Cejas, II, Assistant Federal Public Defender, Patrick L. Bry-
ant, Appellate Attorney, OFFICE OF THE FEDERAL PUB-
LIC DEFENDER, Norfolk, Virginia, for Appellee.
OPINION
THACKER, Circuit Judge:
The instant case requires this court to consider whether the
district court properly excluded evidence gained from a war-
rantless search. In so doing, we must address whether it was
reasonable for an officer to enter a locked closet without a
search warrant after responding to an armed domestic dispute,
arresting the suspect and removing him from the residence,
and gaining information that indicated a grenade may have
been present in the closet. Based on the objective facts avail-
able to the officer at the time of the search, we agree with the
district court and conclude exigent circumstances did not exist
to justify the warrantless search in this case. Thus, the evi-
dence obtained from such search was properly excluded.
I.
The relevant facts are undisputed by the parties. In the late
afternoon of December 31, 2011, Sergeant Brian Staton
responded to a call regarding a domestic assault at the home
of Joseph Robert Yengel, Jr. ("Yengel"). The 911 dispatcher
informed Sergeant Staton that a domestic dispute had erupted
between Yengel and his wife. Sergeant Staton also learned
that Mrs. Yengel had vacated the residence, and Yengel was
potentially armed and threatening to shoot law enforcement
personnel.
UNITED STATES v. YENGEL 3
At around 4:00 p.m., Officer J.M. Slodysko was the first to
arrive on the scene. The Yengels’ two-story home featured a
walk-up front porch and was located in a dense residential
neighborhood, with very little space separating adjacent
homes. Upon his arrival, Officer Slodysko observed that Yen-
gel was "extremely upset." J.A. 118.1 Officer Slodysko was,
however, able to calm Yengel, and to persuade him to come
out of the residence onto the front porch, unarmed. Shortly
thereafter, when Sergeant Staton arrived on the scene, Yengel
was seated on the top step of the front porch, "agitated and
emotional," but unarmed.2 J.A. 57–58, 124. The officers then
further calmed Yengel, arrested him, and removed him from
the scene.
While still at the scene, Sergeant Staton then interviewed
Mrs. Yengel and Yengel’s mother, Karol Yengel. During the
interviews, Sergeant Staton learned Yengel kept a large num-
ber of firearms and a "grenade" inside the house. Sergeant
Staton also learned that Mrs. Yengel’s young son was sleep-
ing in one of the upstairs bedrooms. Upon learning of the pos-
sible existence of a "grenade," Sergeant Staton did not
immediately call for the assistance of explosive experts, nor
did he evacuate the area. Rather, Sergeant Staton asked Mrs.
Yengel to show him where the alleged grenade was kept.
Mrs. Yengel directed Sergeant Staton into the upstairs mas-
ter bedroom. There, she collected a variety of firearms which
were strewn about the bedroom, placed the firearms on the
bed, and requested that Sergeant Staton remove them. She
1
Citations to the "J.A." refer to the Joint Appendix filed by the parties
in this appeal.
2
The parties dispute Yengel’s positioning upon Sergeant Staton’s
arrival. Sergeant Staton indicated that when he arrived, Yengel was sitting
on the top stair leading up to the front porch. J.A. 57. Yengel contends that
he was sitting in a chair on the front porch. Appellee’s Br. 4. We do not
find the district court’s factual finding that Yengel was sitting on the top
step to be clearly erroneous, nor do we find this factual dispute material
to our analysis.
4 UNITED STATES v. YENGEL
said nothing further at that point about the existence or
removal of the alleged grenade. Therefore, Sergeant Staton
reiterated his request to locate the "grenade," and Mrs. Yengel
directed him to a nearby guest bedroom located at the end of
the upstairs hallway, directly next to the bedroom in which
her young son was sleeping.3 Mrs. Yengel led Sergeant Staton
to a closet inside the guest bedroom that was locked with a
combination keypad and thumbprint scanner. Mrs. Yengel
informed Sergeant Staton that she did not know the combina-
tion to the lock and did not have access to the closet, but told
him the "grenade" was kept inside. She then gave Sergeant
Staton permission to "kick the door open" and told him to "do
whatever you need to do to get in there." J.A. 64.
At this point, Sergeant Staton still did not notify explosive
experts, did not evacuate the house or nearby homes, did not
remove the sleeping child from the room located directly next
to the room where the "grenade" was allegedly stored, and did
not secure a search warrant. Instead, he simply pried open the
closet with a screwdriver.
Once inside the closet, Sergeant Staton identified a variety
of military equipment, including two gun safes, camouflage,
and other weapons. Sergeant Staton also identified what he
thought to be a military ammunition canister that he believed
might contain the possible grenade.
After the warrantless entry into the closet, Sergeant Staton
ordered an evacuation of the house, which at the time still
included Mrs. Yengel’s young son, as well as an evacuation
of the surrounding residences. At approximately 6:25 p.m., he
also notified the James City County Fire Marshal’s office, and
3
While there is some ambiguity in the record as to whether the bedroom
in which the child was sleeping was adjacent to, or opposite from, the
guest bedroom containing the locked closet, it is undisputed — and salient
to our analysis here — that his room was in very close proximity to the
guest bedroom, and we will refer to the layout of the house in such terms.
UNITED STATES v. YENGEL 5
the Naval Weapons Station, requesting the assistance of its
Explosive Ordnance Disposal ("EOD") team. At around 7:00
p.m., Investigator Kendall Driscoll of the James City County
Fire Marshal’s office arrived on the scene, and began gather-
ing further information from Mrs. Yengel by telephone, as she
had by then been removed from the scene. Mrs. Yengel
informed Investigator Driscoll that she had seen her husband
place a "grenade" — four inches by two inches, dark green in
color, with a pin in the top — into the closet two years prior.
Shortly thereafter, around 7:30 p.m., the EOD team arrived
and searched the open closet. Once inside the closet, the EOD
team found a backpack containing not a grenade, but a one
pound container of smokeless shotgun powder and a partially
assembled explosive device attached to a kitchen timer. Law
enforcement had been on the scene approximately three and
a half hours at this point.
On February 14, 2012, Yengel was charged with possession
of an unregistered firearm, in violation of 26 U.S.C. §§ 5861
and 5845, that is, "a combination of parts designed and
intended for use in converting a device into a destructive
device, not registered to him in the National Firearms Regis-
tration and Transfer Record." J.A. 8. On March 8, 2012, Yen-
gel filed a motion to suppress evidence gained from the
warrantless search of the locked closet.
On March 27, 2012, the district court conducted a hearing
to consider Yengel’s motion. The district court heard testi-
mony from Yengel, Sergeant Staton, and Investigator Dris-
coll. The district court also admitted as exhibits a picture of
a door lock similar to the one used by Yengel, Officer Slo-
dysko’s report, and pictures of the explosive device and shot-
gun powder recovered from the closet.
The district court granted Yengel’s motion to suppress from
the bench and stated its reasoning by order dated April 3,
2012. The district court concluded the warrantless search did
not fall into one of the narrow and well-delineated exceptions
6 UNITED STATES v. YENGEL
to the warrant requirement, and, therefore, violated the Fourth
Amendment. Specifically, the district court determined that
neither Mrs. Yengel’s consent to the search, nor exigent cir-
cumstances justified the warrantless search. The Government
filed a motion for reconsideration on April 13, 2012, which
the district court subsequently denied. On April 25, 2012, the
Government filed a timely notice of appeal with this court.
II.
On appeal, the Government argues only that the district
court erred in concluding the warrantless search of the closet
was not justified by exigent circumstances. When considering
an appeal of a motion to suppress, we review the district
court’s factual findings for clear error, and its legal determina-
tions de novo. United States v. Hill, 649 F.3d 258, 262 (4th
Cir. 2011).
III.
The most basic principle of Fourth Amendment jurispru-
dence — and the genesis of our analysis here — is that war-
rantless searches and seizures inside a home are
presumptively unconstitutional. Brigham City v. Stuart, 547
U.S. 398, 403 (2006). "Nevertheless, because the ultimate
touchstone of the Fourth Amendment is ‘reasonableness,’ the
warrant requirement is subject to certain exceptions." Id. (cit-
ing Flippo v. West Virginia, 528 U.S. 11, 13 (1999) (per
curiam)). Such reasonableness exceptions, however, must be
narrow and well-delineated in order to retain their constitu-
tional character. Flippo, 528 U.S. at 13 (citing Katz v. United
States, 389 U.S. 347, 357 (1967)). One such exception is
when exigent circumstances justify the warrantless entry of a
home. See Mincey v. Arizona, 437 U.S. 385, 392–94 (1978).
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 with-
out a warrant.
UNITED STATES v. YENGEL 7
A.
The Supreme Court has recognized a variety of specific cir-
cumstances that may constitute an exigency sufficient to jus-
tify the warrantless entry and search of private property.
These circumstances have included when officers must enter
to fight an on-going fire, prevent the destruction of evidence,
or continue in "hot pursuit" of a fleeing suspect. Brigham
City, 547 U.S. at 403 (citing Michigan v. Tyler, 436 U.S. 499,
509 (1978); Ker v. California, 374 U.S. 23, 40 (1963) (plural-
ity opinion); and United States v. Santana, 427 U.S. 38, 42,
43 (1976)). In addition to these well-established exigencies,
the Supreme Court and this Circuit have held that more gen-
eral "emergencies," if enveloped by a sufficient level of
urgency, may also constitute an exigency and justify a war-
rantless entry and search. See generally, Brigham City, 547
U.S. at 403; United States v. Hill, 649 F.3d 258, 265 (4th Cir.
2011).
Under this more general emergency-as-exigency approach,
in order for a warrantless search to pass constitutional muster,
"the person making entry must have had an objectively rea-
sonable belief that an emergency existed that required imme-
diate entry to render assistance or prevent harm to persons or
property within." United States v. Moss, 963 F.2d 673, 678
(4th Cir. 1992). An objectively reasonable belief must be
based on specific articulable facts and reasonable inferences
that could have been drawn therefrom. See Mora v. City of
Gaithersburg, 519 F.3d 216, 224 (4th Cir. 2008) (citing Terry
v. Ohio, 392 U.S. 1, 21 (1968)).
Regardless of the particular exigency being invoked, we
have repeatedly found the non-exhaustive list of factors first
provided in United States v. Turner, 650 F.2d 526, 528 (4th
Cir. 1981), to be helpful in determining whether an exigency
reasonably justified a warrantless search. Hill, 649 F.3d at
265. The Turner factors include:
8 UNITED STATES v. YENGEL
(1) the degree of urgency involved and the amount
of time necessary to obtain a warrant; (2) the offi-
cers’ 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.
650 F.2d at 528.
We have expanded upon this analytical framework in cer-
tain circumstances. In Mora, we noted that the same Fourth
Amendment principles which give rise to the exigent circum-
stances justification for a warrantless search — namely the
balancing of the governmental interest in a protective search
with the individual interests at stake in the intrusion, viewed
through the lens of objective reasonableness — also give rise
to constitutionally permissible warrantless searches in what
we referred to as the "preventive action" context. 19 F.3d at
222. In Mora, we determined a warrantless search of a sus-
pect’s luggage, van, and apartment was constitutional, based
on the overwhelming need to prevent harm to the public
where police had received a hotline tip that the suspect was
intent on committing mass murder. Id. at 225–26. In so doing,
we relied on the same Fourth Amendment principles we do
here, and emphasized, "[a]s the likelihood, urgency, and mag-
nitude of a threat increase, so does the justification for and
scope of police preventive action." Id. at 224.
With these principles in mind, we turn to their application
in the present case.
B.
The Government argues that the possible threat of a gre-
nade created exigent circumstances that, as in Mora, justified
the search of Yengel’s closet as "preventive action." The dis-
UNITED STATES v. YENGEL 9
trict court, however, found the objective facts of this case suf-
ficiently distinct from Mora, and concluded that no
emergency existed, and thus, no exigent circumstances
existed, to justify a warrantless search under the guise of pre-
ventive action. We agree.
We conclude the objective circumstances discernible at the
time Sergeant Staton entered the closet did not constitute an
emergency such that a reasonable officer would have believed
a preventive entry was warranted. In fact, Sergeant Staton’s
own actions belie the Government’s argument. We find a
number of facts highly persuasive.
First, the information available to Sergeant Staton regard-
ing the stable nature of the threat prior to the search indicated
that the scope of any danger was quite limited.
Mrs. Yengel informed Sergeant Staton only that there was
a "grenade" inside the house, and provided no indication that
there might be other, more unstable explosives, inside as well.
Mrs. Yengel also provided no indication to Sergeant Staton as
to when she had last seen the grenade that could support a
conclusion the grenade was somehow "live" or could detonate
at any moment.4 Indeed, even the presence of explosive mate-
rials alone, while heightening the danger, would not automati-
cally provide an exigent basis for a search. See United States
v. Bonitz, 826 F.2d 954, 957 (10th Cir. 1987) (concluding no
4
In fact, as it turned out, Mrs. Yengel had not seen the purported gre-
nade for two years prior to the warrantless entry into the closet. We note
that Mrs. Yengel’s statement, that she had not seen the grenade in two
years, would only further justify our determination that there was no exi-
gency. This statement, however, only appears in Investigator Driscoll’s
testimony. Investigator Driscoll did not have contact with Mrs. Yengel
until after Sergeant Staton’s entry and search occurred. There is no indica-
tion in the record that Mrs. Yengel informed Sergeant Staton, at the time
he entered the closet, that she had not seen the grenade in two years, nor
is there any indication that he asked her when she had last seen it. There-
fore, we do not rely on this information in reaching our conclusion.
10 UNITED STATES v. YENGEL
exigency existed where officers found cans of gun powder
because "[s]tanding undisturbed, cans of gun powder are
inert"). The presence of explosive materials must be tied to
objective facts that sufficiently increase the likelihood,
urgency, and magnitude of the threat to the level of an emer-
gency. We find no clear error in the district court’s factual
finding that a grenade is a stable, inert explosive device that
typically requires human intervention to detonate and cause
harm.
In Bonitz, police officers viewed a can of black powder and
a grenade-shaped paperweight atop a workbench. Id. The
Tenth Circuit determined that the presence of these materials,
alone, did not create an exigency allowing police officers to
conduct a warrantless search of the surrounding room. Id. In
this case, the Government argues that because the explosive
device was not in plain view but rather hidden from view
inside a closet, this created a level of uncertainty that was not
present in Bonitz, and therefore required Sergeant Staton to
confirm that there was, in fact, only a grenade present. This
speculative rationale is too detached from the objective facts
available to Sergeant Staton at the time of the search — spe-
cifically that Mrs. Yengel had only told him that a "grenade"
was present. Like the Tenth Circuit in Bonitz, we conclude
that the possible existence of a stable, inert explosive device,
without objective facts that increase the threat of danger, does
not create an exigency to justify a warrantless search. Id.
("Thus, the only immediate danger that existed was created by
the officers themselves when they entered the secure area and
began to handle these materials.").
Second, the immobile and inaccessible location of the
threat further diminished the scope of any possible danger.
Mrs. Yengel informed Sergeant Staton that the "grenade" was
inside a locked closet — a closet to which neither she, nor
anyone else other than Yengel, had ready access. Once Yen-
gel was arrested and removed from the scene, the threat that
someone might access the closet and disturb a stable grenade
UNITED STATES v. YENGEL 11
contained therein dissipated even further. Accordingly, these
facts weigh against concluding under the first, second, third,
and fifth Turner factors that exigent circumstances were pres-
ent: the facts did not establish a sufficient degree of urgency
and an inability to secure a warrant, a reasonable belief that
contraband could be removed or destroyed, danger to police
guarding the site, or the ready destructibility of contraband.
650 F.2d at 528.
Finally, the fact that no officers on the scene sought to
evacuate the nearby residences, or, in particular, to evacuate
Mrs. Yengel’s young son who was sleeping in the room
directly next to the alleged grenade provides stark evidence
that a reasonable police officer would not — and did not —
believe an emergency was on-going, such as would justify a
warrantless entry.
In United States v. Whitehorn, 813 F.2d 646 (4th Cir.
1987), we agreed with the district court’s determination that
exigent circumstances did not justify FBI agents’ protective
bomb sweep where there was "no evidence that anyone was
evacuated from the building or warned of the potential dan-
ger, or that the agents had otherwise prepared for the risk of
an exploding bomb." 813 F.2d at 649 (internal quotation
marks omitted). Similarly, the Tenth Circuit in Bonitz found
the police’s failure to evacuate the arrestee’s parents before
conducting their search equally indicative of the fact that no
exigency existed. 826 F.2d at 957 ("[T]he officers made no
attempt to remove defendant’s parents from the home even
though they now have the audacity to claim that the danger
was such to threaten a restaurant some distance away."). In
noting that Mrs. Yengel’s son was not immediately evacuated
from the scene, we are cognizant of the principle that "judges
should be cautious about second-guessing a police officer’s
assessment, made on the scene, of the danger presented by a
particular situation." Ryburn v. Huff, 132 S. Ct. 987, 991–92
(2012). Here, however, as in Whitehorn, the objective actions
of the officers speak for themselves.
12 UNITED STATES v. YENGEL
The stable nature of the threat, the immobile and inaccessi-
ble location of the threat, and the failure by police officers on
site to view the threat as serious enough to warrant evacuation
of a nearby child, alone, support our conclusion under the
Turner factors that no exigency existed in this case.
The Government’s argument to the contrary relies heavily
on attempting to draw similarities between this case and
Mora. In Mora, we permitted a warrantless search by police
of locked containers after the suspect, who had threatened
mass murder, had been detained and police officers were
faced with the threat of a possible explosive device, hostage,
or confederate. We find, however, several important distinc-
tions between this case and Mora more compelling.
Key to our holding in Mora was that the police officers’
arrival at the scene was predicated upon precise, articulable
information that the suspect was about to commit mass mur-
der — a crime of extraordinary consequence. Here, police
officers were responding to a report of an armed domestic
assault, which, although certainly no less deplorable, is not
accompanied by the same gravity of harm as a mass killing.
The heightened potential in Mora for deliberate and massive
public harm increased the exigency and distinguishes it from
the present case.
Further, in determining the search in Mora constitutional,
we emphasized:
[w]hen police arrived at Mora’s apartment and hand-
cuffed him, they did not and could not fully know
the dimensions of the threat they faced. . . . Mora
might have had a bomb—not an unprecedented thing
for men in his state of mind. . . . Mora might have
taken hostage the girlfriend who, police knew, had
recently broken up with him. Or Mora might have
had a confederate.
UNITED STATES v. YENGEL 13
519 F.3d at 226. Thus, in Mora, police officers were con-
cerned about unknown variables that could reasonably accom-
pany a threat of mass murder — bombs, accomplices, and
hostages — based on the information they had at the time. In
particular, police had been unable to locate Mora’s ex-
girlfriend, and feared that any attempt at mass murder could
reasonably involve accomplices or explosives. There is no
similar indication here that the domestic assault, in the context
of the facts as they unfolded, would carry with it these same
dangers. In fact, once Yengel was arrested and Sergeant Sta-
ton was informed of the type of explosive thought to be pres-
ent, and that it was contained in a secure location, the
possibility of such unknown threats diminished.
The Government argues other facts available to Sergeant
Staton — including the possible existence of a "grenade," the
layperson’s understanding of explosives, the presence of a
high number of firearms, and Yengel’s earlier threats to harm
police personnel — when coupled with the uncertainty of
what lay behind the closet door, supported preventive police
action to fully determine the scope of the risk he faced. While
we recognize preventive action may well be justified in the
face of an exigency, we conclude the factual circumstances of
this case simply do not rise to that level. Inevitably, every
police interaction with the public will carry with it an appre-
hension of the unknown; but not every interaction presents an
emergency requiring preventive action. Rather, when uncer-
tainty is tethered to objective facts that increase the likeli-
hood, urgency, and magnitude of a threat, an emergency may
be present and preventive action may be warranted. Where, as
here, however, the objective facts decrease the likelihood,
urgency, and magnitude of a threat, any uncertainty is like-
wise tempered, and the exigency dissipates.
In the end, the Fourth Amendment’s ultimate touchstone of
objective reasonableness must be our guide. In this case, we
conclude the objective facts at the time of the forcible war-
14 UNITED STATES v. YENGEL
rantless entry into the locked closet were insufficient to justify
a reasonable belief that an exigency existed.
IV.
Accordingly, we agree with the district court’s well-
reasoned opinion that the degree of urgency, and the other
factors established in United States v. Turner, 650 F.2d 526,
528 (4th Cir. 1981), did not rise to a level sufficient to create
an exigency and warrant the kind of preventive police action
we approved in Mora v. City of Gaithersburg, 519 F.3d 216
(4th Cir. 2008). We therefore conclude that the warrantless
search in this case was unconstitutional, and the evidence
gained therefrom rightfully suppressed.
For the aforementioned reasons, the district court’s order is
AFFIRMED.