UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                      No. 17-4639


UNITED STATES OF AMERICA,

                    Plaintiff − Appellee,

             v.

KEVIN TERRELL HARVEY,

                    Defendant – Appellant.


Appeal from the United States District Court for the Middle District of North Carolina, at
Greensboro. N. Carlton Tilley, Jr., Senior District Judge. (1:16-cr-00094-NCT-1)


Submitted: June 8, 2018                                           Decided: August 15, 2018


Before WILKINSON and DIAZ, Circuit Judges, and SHEDD, Senior Circuit Judge.


Affirmed by unpublished per curiam opinion.


Craig M. Cooley, COOLEY LAW OFFICE, Cary, North Carolina, for Appellant. John P.
Cronan, Acting Assistant Attorney General, Matthew S. Minor, Deputy Assistant Attorney
General, Thomas E. Booth, Appellate Section, Criminal Division, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C.; Matthew G.T. Martin, United States
Attorney, Greensboro, North Carolina, Kimberly F. Davis, Special Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Winston-Salem, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       After a four-day jury trial, Kevin Harvey was convicted of being a felon in

possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Harvey now appeals, arguing

that the district court erred in denying his motion to suppress two firearms seized by the

police. Harvey contends that the weapons were obtained after the police violated his Fourth

Amendment rights by entering his home without a warrant or exigent circumstances and

failing to adhere to the knock-and-announce rule. For the reasons that follow, we affirm

the district court’s judgment.



                                             I.

       On July 11, 2015, Karen Harvey filed an affidavit and petition for involuntary

commitment in Forsyth County, North Carolina. The affidavit stated that her son, Kevin

Harvey (“Harvey”) was mentally ill and a substance abuser dangerous to himself and

others. It claimed that Harvey had not been taking his depression medication, had been

diagnosed with multiple personality disorder, had attacked his brother, threatened to kill

his family if they called the police, put a gun to his chest threatening to kill himself, and

was currently in possession of two guns. A state court magistrate judge issued an

involuntary commitment order that same day, directing police to take Harvey into custody

within twenty-four hours.

       Later that morning, Officers Larry Blevins and Cecelia Shaffer were dispatched to

Harvey’s apartment complex to execute the magistrate judge’s order. As they arrived on

the scene, they saw Harvey walking up the steps to his apartment. Blevins followed Harvey


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while Shaffer went to the rear of the building to prevent any escape out the back. Shaffer

soon encountered Harvey trying to exit through a rear window but directed him to return

to the front of the building. Officer Cody Robertson then arrived at the scene and warned

Shaffer that, according to Harvey’s brother, Harvey was armed and wished to kill the

police. Shaffer ran to the front of the apartment to warn her partner.

       Meanwhile, Blevins knocked on the front door and announced that he was with the

police department. Harvey briefly opened the door while keeping it chained and tried to

close it again when Blevins said the two men needed to talk. Blevins placed his foot inside

the doorway and his shoulder against the door, and when Shaffer got to the front of the

building, she assisted Blevins in forcing the door open. As the officers struggled to open

the door, Harvey pulled a gun from his pocket. Seeing the weapon, Blevins backed away

from the door shouting “gun, gun, gun,” and then fired his own weapon three times, hitting

Harvey in the arm. In response, Harvey fired one round before running to the back of his

apartment and jumping out of a second-floor window, where he was subsequently arrested

by Officer Robertson. Police recovered two pistols: one on Harvey’s person and another

on the ground outside his apartment.

       Before trial, Harvey moved to suppress evidence of the two weapons seized by

police. The district court denied the motion, finding that Officer Blevins complied with

the knock-and-announce rule and that the involuntary commitment order and its attending

exigent circumstances justified the forcible entry under the emergency-aid exception. On

appeal, Harvey disputes both of these conclusions, arguing that the district court

impermissibly considered the commitment order to be the functional equivalent of an arrest


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warrant. Harvey adds that even if this premise were true, the police would still have to

identify the specific reason for their request to speak with him, which Officer Blevins failed

to do. We do not need to decide these issues, though, because the intervening-crime

doctrine permits the admission of the evidence seized here.



                                             II.

       When considering the district court’s denial of a motion to suppress, we “review the

district court’s legal determinations de novo and its factual determinations for clear error.”

United States v. Kelly, 

, 589 (4th Cir. 2010). Where a defendant’s motion to

suppress has been denied, we “construe the evidence in the light most favorable to the

government.” 

at the time of entry can justify an otherwise unlawful

warrantless search of a home. United States v. Taylor, 

, 631 (4th Cir. 2010)

(citing Mincey v. Arizona, 

, 394 (1978)). But regardless of whether the

warrantless entry here was justified, the subsequent seizure of Harvey’s weapons was

permitted under the intervening-crime doctrine. If a suspect’s response to an illegal search

or seizure is, on its own, a new and distinct criminal act, then it is constitutionally

permissible to admit evidence seized in connection with the new crime. See United States

v. Sprinkle, 

, 619 (4th Cir. 1997).

       In North Carolina, assault by pointing a gun occurs when “any person . . . point[s]

any gun or pistol at any person, either in fun or otherwise, whether such gun or pistol be

loaded or not loaded.” N.C.G.S. § 14-34. And while assault by pointing a gun is normally


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a misdemeanor under state law, it is a felony when the victim is a “law enforcement officer,

probation officer, or parole officer while the officer is in the performance of his or her

duties.” 

Nor does one need to point a firearm directly at an officer; it is

enough that the defendant “put on a show of force . . . sufficient to put a person of

reasonable firmness in fear of immediate physical injury.”                State v. Childers,

, 212 (N.C. Ct. App. 2002).

       Once Officer Blevins placed his foot inside Harvey’s doorway, Harvey responded

by pulling his gun. Even if Harvey only intended for Officer Blevins to “get scared” and

“back off the door,” the act still constituted a felony under North Carolina law. Because

this was a new, distinct crime, it purged the taint of any illegal entry and permitted Harvey’s

subsequent arrest. See 

–20. And because the arrest for Harvey’s

new, distinct crime was lawful, evidence seized in a search incident to that lawful arrest is

admissible. 

these reasons, we affirm the district court’s judgment.

                                                                                 AFFIRMED




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