UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 15-4276

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

and

STATE OF WEST VIRGINIA,

Intervenor – Appellee,

v.

GARY DALE SPURLOCK,

Defendant – Appellant.

Appeal from the United States District Court for the Southern 

District of West Virginia, at Charleston. Thomas E. Johnston, 

District Judge. (2:14-cr-00094-1)

Argued: January 28, 2016 Decided: March 22, 2016

Before SHEDD and FLOYD, Circuit Judges, and Loretta C. BIGGS, 

United States District Judge for the Middle District of North 

Carolina, sitting by designation.

Affirmed by unpublished per curiam opinion.

ARGUED: James McCall Cagle, Charleston, West Virginia, for 

Appellant. Jennifer Rada Herrald, OFFICE OF THE UNITED STATES 

ATTORNEY, Charleston, West Virginia, for Appellee. Jonathan Zak 

Ritchie, OFFICE OF THE WEST VIRGINIA ATTORNEY GENERAL, 
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Charleston, West Virginia, for Intervenor-Appellee. ON BRIEF: 

R. Booth Goodwin II, United States Attorney, Carol Casto, Acting 

United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, 

Charleston, West Virginia, for Appellee United States of 

America. Patrick Morrisey, Attorney General, Elbert Lin, 

Solicitor General, OFFICE OF THE WEST VIRGINIA ATTORNEY GENERAL, 

Charleston, West Virginia, for Intervenor-Appellee. 

Unpublished opinions are not binding precedent in this circuit.
3

PER CURIAM:

Gary Dale Spurlock appeals the denial of his motion to 

suppress firearms seized during a search of his home, arguing 

that the district court erred in concluding that the search was 

valid under the third-party consent doctrine. Because the 

firearms are admissible under the good-faith exception, we 

affirm. 

I.

On December 5, 2013, Spurlock’s live-in girlfriend (“J.W.”) 

filed a domestic violence complaint against him in Boone County, 

West Virginia. J.W. alleged that Spurlock was “threating to kill 

me, my daughter and son-in-law,” and “trying to hold me captive 

in the bathroom.” (J.A. 43). J.W. also indicated that Spurlock 

owned guns and used them to threaten her. J.W. requested an 

emergency protective order (EPO), and she checked the following 

box on the form:

I give my consent for any law-enforcement officer to 

enter my separate residence or household that 

Respondent and I shared at the time the acts of 

domestic violence occurred for the purpose of 

enforcing a Protective Order.

(J.A. 44). 

A magistrate judge issued an EPO later that day. As 

relevant here, the EPO provides that:

According to W. Va. Codes § 48–27–403 and § 48–27–

502(b), the Respondent shall not possess any firearms 

(even those for which the Respondent has a license to 
4

possess) or ammunition while this Protective Order is 

in effect, and you are hereby informed of this 

prohibition.

(J.A. 51). Elsewhere, the EPO warns that “it may be a VIOLATION 

of State and Federal Law to possess any firearm or ammunition 

while this Order is in effect, even those for which Respondent 

has a license.” (J.A. 49). The magistrate also checked the 

following pre-printed provision: 

Pursuant to the Rules of Practice and Procedure for 

Domestic Violence Civil Proceedings, Rule 10b and to 

enforce the provisions of W. Va. Code Chapter 48, 

Article 27 regarding firearms; it is hereby ORDERED to 

protect the physical safety of the Petitioner and 

other protected individuals herein that: 

Respondent shall surrender any and all firearms and 

ammunition possessed or owned by the Respondent to the 

law enforcement officer serving this Order.

(J.A. 52) (emphasis added).

Consistent with J.W.’s complaint, the magistrate also 

checked and initialed a box stating: “Petitioner gives consent 

for any law enforcement officer to enter his or her separate 

residence or the household jointly owned by the parties and 

awarded herein to Petitioner with or without a warrant to 

enforce the Emergency Protective Order as provided by W. Va.

Code § 48–27–601.” (J.A. 52). Finally, the EPO awarded J.W. 

“temporary possession of the residence or household jointly 

resided in by the parties at the time the abuse occurred” and 

stated that Spurlock should vacate the premises once the EPO was 

filed. (J.A. 52).
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Despite the issuance of the EPO on December 5, no action 

occurred for several days. In fact, on December 9, J.W. returned 

to the Boone County Sheriff’s Office and spoke with Corporal 

Michael Foster to ask about the delay. During this period, 

Spurlock remained in the home with several of J.W.’s relatives, 

although J.W. herself had vacated the residence. 

Spurlock was finally served with the EPO on December 10 

when he voluntarily reported to the Sheriff’s Office.1 Corporal 

Foster served Spurlock with the EPO, explaining that it was a 

civil order, not criminal, and that Spurlock was not being 

arrested. Foster then asked Spurlock if he had any firearms. 

Spurlock responded affirmatively, and Foster told Spurlock that 

the EPO required him to surrender those weapons. Spurlock was 

cooperative and agreed that Foster and another officer could 

follow Spurlock to his house. Once at the house, Spurlock took 

the officers to a walk-in closet in the master bedroom and 

opened a combination safe that contained most of his firearms. 

Spurlock testified at the suppression hearing that J.W. “had the 

combination to my safe,” that “[h]er jewelry” was in the safe, 

and that she “had full access, the same as I did.” (J.A. 109). 

After Spurlock opened the safe, the officers asked him to move 

back into the bedroom while they secured the guns. Among the 

 1 Spurlock’s attorney informed him about the EPO. 
6

guns Foster retrieved was a sawed-off shotgun. Foster told 

Spurlock that the barrel looked short and the gun might be 

illegal. Spurlock responded “[m]aybe most of the guns I have are 

illegal.” (J.A. 82). Spurlock was not arrested at that time, and 

the officers left peacefully after recovering 22 guns. 

That night, Foster checked the guns on a national database 

and found that several had been stolen. In addition, one of the 

guns had an obliterated serial number. Based on these findings, 

Foster obtained a search warrant for Spurlock’s house. During 

the subsequent search of the house, officers recovered several 

additional guns. Foster also obtained a warrant for Spurlock’s 

arrest. Based on the foregoing, Spurlock was charged in a twocount indictment relating to the sawed-off shotgun and the gun 

with the obliterated serial number with: (1) possession of a 

illegal sawed-off shotgun, in violation of 26 U.S.C. §§ 5841, 

5861(d), and 5871; and (2) possession of a firearm with an 

obliterated serial number in violation of 18 U.S.C. §§ 922(k) 

and 924(a)(1)(B).

Spurlock moved to suppress the two guns, arguing that the 

search and seizure violated his constitutional rights, primarily 

his Fourth Amendment right against unreasonable seizures. 

Spurlock also apparently challenged the constitutionality of the 

West Virginia domestic violence protection statutes to the 

extent those statutes authorized the seizure of firearms as part 
7

of an EPO. The district court held an evidentiary hearing at 

which Foster and Spurlock testified. The court also requested 

that the State of West Virginia intervene to defend the 

constitutionality of its domestic violence protection statutes.2

Ultimately, the district court denied the motion to 

suppress. United States v. Spurlock, 2014 WL 7013801 (S.D. W.Va. 

Dec. 12, 2014). The court concluded that J.W. gave written 

consent to enter the premises to carry out the EPO and that this 

consent extended to the temporary seizure of the guns. The court 

also concluded that J.W. had the right to consent to the search 

of the safe given Spurlock’s testimony that she had equal access 

to it. The court further found that the consent “imposed no 

limits on the items or areas subject to the consent search, and 

it extended implicitly to the areas of the house which the 

officers would reasonably believe it necessary to enter to 

enforce the terms of the EPO.” Spurlock, 2014 WL 7013801, at 

*5. Given this broad consent, the court stated that “it was 

objectively reasonable for the officers to believe they had 

J.W.’s consent to enter the bedroom closet to enforce the 

order's requirement that Defendant surrender any and all 

firearms.” Id. The court also noted that, under Georgia v. 

 2 West Virginia intervened below and on appeal to defend the 

statutes. 
8

Randolph, 547 U.S. 103, 120 (2006), a defendant who is 

physically present may revoke third-party consent to search, but 

that Spurlock did not exercise that right. 

Following the denial of his suppression motion, Spurlock 

entered a conditional plea to Count 2 (obliterated serial 

number), and the court sentenced him to three years of 

probation. Spurlock timely appealed.

II.

On appeal, Spurlock renews his contention that the firearms 

should have been suppressed.3 We review the district court’s 

factual findings on a suppression motion for clear error and its 

legal conclusions de novo. United States v. Stover, 808 F.3d 

991, 994 (4th Cir. 2015). “When, as here, a motion to suppress 

has been denied, we view the evidence presented in the light 

 3 Spurlock also argues—as he did below—that the seizure 

violated his Fifth Amendment right against self-incrimination. 

In addressing this claim, the district court concluded that the 

seized firearms were not testimonial because they are “mere 

physical evidence that neither explicitly nor implicitly reveal 

any contents of Defendant’s mind.” Spurlock, 2014 WL 7013801, at 

*8. We have reviewed this claim and find it to be without merit. 

See United States v. Duncan, 331 Fed. App’x. 270, 272 (4th Cir. 

2009) (finding similar surrender of firearms was not “compelled” 

under Fifth Amendment because defendant “never claimed the Fifth 

Amendment privilege in response to the domestic violence 

protective order directing him to turn over a firearm to state 

officials, and no evidence suggests the Government sought to 

induce forfeiture of the privilege by threatening sanctions 

through service of the protective order”).
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most favorable to the government.” United States v. Watson, 703 

F.3d 684, 689 (4th Cir. 2013).

In relevant part, the Fourth Amendment provides “[t]he 

right of the people to be secure in their persons, houses, 

papers, and effects, against unreasonable searches and seizures, 

shall not be violated.” U.S. Const. amend IV. In order “to 

safeguard against future violations of Fourth Amendment rights 

through the rule’s general deterrent effect,” Arizona v. Evans, 

514 U.S. 1, 10 (1995), the Court created the exclusionary rule. 

However, “exclusion of evidence has ‘always been our last 

resort, not our first impulse,’” United States v. Stephens, 764 

F.3d 327, 335 (4th Cir. 2014) (quoting Hudson v. Michigan, 547 

U.S. 586, 591 (2006)), because it creates “substantial social

costs,” United States v. Leon, 468 U.S. 897, 907 (1984). 

Recently, the Court has made clear that the exclusionary rule’s 

“sole purpose” “is to deter future Fourth Amendment violations.” 

Davis v. United States, 564 U.S. 229, 131 S.Ct. 2419, 2426 

(2011). Given this purpose, “[t]o trigger the exclusionary rule, 

police conduct must be sufficiently deliberate that exclusion 

can meaningfully deter it, and sufficiently culpable that such 

deterrence is worth the price paid by the justice system.” 

Herring v. United States, 555 U.S. 135, 144 (2009).

Thus, “when the police act with an objectively reasonable 

good-faith belief that their conduct is lawful, or when their 
10

conduct involves only simple, isolated negligence, the 

deterrence rationale loses much of its force, and exclusion 

cannot pay its way.” Davis, 131 S.Ct. at 2427-28 (internal 

citations and quotation marks omitted). Our analysis of this 

good-faith exception is “objective,” and “is confined to the 

objectively ascertainable question whether a reasonably well 

trained officer would have known that the search was illegal in 

light of all of the circumstances.” Herring, 555 U.S. at 145

(internal quotation marks omitted). Importantly, “[o]ur 

precedent makes it clear that application of the good-faith 

inquiry is not limited to the specific circumstances addressed 

by the Supreme Court.” Stephens, 764 F.3d at 336. We are 

permitted to advance directly to the question of good faith 

without first determining if the underlying search or seizure 

was illegal. United States v. Legg, 18 F.3d 240, 243 (4th Cir. 

1994)

Here, even assuming the seizure of the two guns was 

illegal, their exclusion serves no deterrent effect because a 

reasonably well-trained officer would not have known of the 

seizure’s illegality. The EPO was a valid court order issued by 

a neutral magistrate upon a showing that J.W. had “proven” 

domestic abuse by clear and convincing evidence. (J.A. 51). The 

EPO further provided that Spurlock “shall surrender any and all 

firearms and ammunition possessed or owned . . . to the law 
11

enforcement officer serving” the EPO in order to “enforce the 

provisions of W. Va. Code Chapter 48, Article 27.” (J.A. 52). 

Foster was following the dictates of this valid court order when 

he asked Spurlock if the latter had firearms at his house. See

Leon, 468 U.S. at 925-26 (good-faith exception applies when 

police reasonably rely on a warrant later held invalid); 

Herring, 555 U.S. at 146-48 (good-faith exception applies where 

police reasonably rely on information in a database maintained 

by police employees). In particular, like a search warrant, the 

EPO “provides the detached scrutiny of a neutral magistrate, 

which is a more reliable safeguard against improper searches 

than the hurried judgment of a law enforcement officer.” Leon, 

468 U.S. at 913-14 (internal quotation marks omitted).4

To the extent Spurlock’s challenge hinges on the 

constitutionality of West Virginia’s domestic violence 

protection statutes, it still fails because “[u]nless a statute 

is clearly unconstitutional, an officer cannot be expected to 

 4 Leon recognized that “[d]eference to the magistrate” “is 

not boundless” and, accordingly, recognized three limitations on 

the use of the good-faith exception in this context. Leon, 468 

U.S. at 914. Thus, the exception does not apply if the search 

warrant affidavit is supported by reckless falsity, if the 

magistrate serves as a rubber stamp for the police, and if the 

warrant was supported by a bare bones affidavit. Id. at 914-15.

Assuming similar restrictions would apply to the EPO, we find 

that Spurlock has failed to show their applicability in his 

case. 
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question the judgment of the legislature that passed the law.” 

Illinois v. Krull, 480 U.S. 340, 349-50 (1987). Here, given the

Supreme Court’s recent (and consistent) admonitions that 

“[f]irearms and domestic strife are a potentially deadly 

combination nationwide,” United States v. Hayes, 555 U.S. 415, 

427 (2009) there is nothing plainly unconstitutional about a 

statute authorizing the temporary seizure of firearms upon the 

issuance of an EPO. See also United States v. Mahin, 668 F.3d 

119, 124 (4th Cir. 2012) (“It is well-established that firearms 

and domestic strife are a potentially deadly combination 

nationwide”) (internal quotation marks omitted). In fact, 

multiple states have prohibitions similar to West Virginia’s, 

yet our research reveals no court has ever ruled such statutes

unconstitutional. 

The Davis Court remarked that “in 27 years of practice 

under Leon’s good-faith exception, we have never applied the 

exclusionary rule to suppress evidence obtained as a result of 

nonculpable, innocent police conduct.” Davis, 131 S.Ct. at 2429 

(internal quotation marks omitted). Here, Foster had a valid 

court order requiring Spurlock to turn over any firearms in his 

possession and seized the weapons after Spurlock assented to the 

order. Foster’s nonculpable conduct does not warrant suppression 

of the firearms. 
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III.

For the foregoing reasons, we affirm the district court’s 

denial of Spurlock’s motion to suppress.

AFFIRMED