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Pretense Protective Sweep between Mattress and Box Spring Leads to Firearms Conviction

Jan 17 2016
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Ivan Garcia-Lopez probably wishes he had taken his meal somewhere else on the evening February 5, 2014. He was living in a single-wide trailer home in Wharton County, Texas, with Jaime Garcia and his brother, Yonari.

Felony Arrest Warrant

Two Wharton County Sheriff’s deputies, Raul Adam Gomez and Lionel Garcia, went to the Garcia trailer home to serve a felony arrest warrant on Yonari Garcia. Deputy Gomez went to the front door while Deputy Garcia went to the backdoor of the residence. Deputy Gomez asked Jaime if his son (Yonari) was at the residence. Jaime said he was not. The deputy then asked Jaime if the officers could search the residence for Yonari. The home owner gave his consent to search.

While standing at the doorway, Deputy Gomez noticed a light coming from a distant room. He asked Jaime if anyone else was in the residence. He replied that his older son Garcia-Lopez was in the residence. Just as Deputy Gomez initiated this conversation with Jaime, Garcia-Lopez closed and locked door of his room. That immediately aroused the deputy’s suspicion who walked down the hall to the door and ordered Garcia-Lopez to unlock the door.

Garcia-Lopez did as instructed.

Officer Enters Room and Searches for Suspect

Deputy Gomez entered the room, and after pushing Garcia-Lopez aside, began a search for Yonari.

The room, which was a 10 by 11 room without a closet, was an add-on room to the trailer home. An unmade bed with only a mattress and box spring sat flush to the door. The only other items in the room were a dresser and an entertainment system.

There was no visual evidence that Yonari was in the room.

Finds Bulletproof Vest

Deputy Gomez saw two bulletproof vests on the bed. At that moment Garcia-Lopez asked the deputy if he could sit on the bed and finish his meal. The deputy said he could.

Asked to whom the bulletproof vests belonged, Garcia-Lopez responded they belonged to Yonari. Deputy Gomez did not believe him. He knew Garcia-Lopez was a convicted felon and that the vests placed him in violation of 18 U.S.C. § 822(g) (1).

Deputy Gomez instructed Garcia-Lopez to stand, handcuffed his hands behind his back, and moved him to the door of the room.  He then radioed Deputy Garcia for his assistance.

Further Search Reveals Guns

With Deputy Garcia watching Garcia-Lopez, Deputy Gomez continued his search of the room. He found a short barrel shotgun and two rifles under the mattress, and then discovered three handguns with ammunition in a nearby backpack.

With the search of Garcia-Lopez’s room complete, the two deputies left the trailer home with Garcia-Lopez in custody. They did not search the remainder of the residence for Yonari.

Indicted: Felon in Possession

In March 2014, Garcia-Lopez was indicted on six counts of being a felon in possession of a firearm. The indictment also contained a forfeiture notice of the firearms and the bulletproof vests.

Motion to Suppress

Garcia-Lopez’s attorney filed a motion to suppress, alleging that the search of the backpack and under the mattress was conducted without probable cause. The government responded, and the district court agreed, that the search was permissible under the “protective sweep” exception to the Fourth Amendment warrant requirement.

Protective Sweep Exception to Warrant Requirement

In 1990, the U.S. Supreme Court in Maryland v. Buie defined a protective sweep as those occasions when officers are lawfully inside a residence to serve an arrest warrant and who may conduct a protective sweep with only “reasonable suspicion,” a lesser standard than probable cause. The Supreme Court said the reasonable suspicion standard requires only “articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene.”

Deputy Gomez had consent to search the residence for Yonari. That consent did not extend to a search of Garcia-Lopez’s personal belongings in his room. Everything was out in the open in the room as there was no closet: the mattress-box spring that sat flush to the door, the dresser and entertainment system were all in the open.

No Yonari was in sight.

Motion to Suppress Denied

In reaching its decision to deny Garcia-Lopez’s motion to suppress, the district court at the outset determined that the two deputies were lawfully at Jaime Garcia’s residence in search of Yonari.

The question then was whether Officer Gomez had what the district court called a “reasonable suspicion of danger” that someone was concealed between the mattress and the box spring. Deputy Gomez testified that it was his experience that people sometimes conceal themselves under a mattress to avoid arrest.

And here is where the situation gets flaky. The district court pointed out that even though Garcia-Lopez had been arrested as a felon in possession of body armor (the two bulletproof vests), Deputy Gomez had a right to search for Yonari between the mattress and box spring.

We h6ly believe this was an erroneous conclusion.

We believe Deputy Gomez continued the search of Garcia-Lopez’s personal belongings in the room because he wanted to find more incriminating evidence; namely, weapons. Yonari certainly could not have hidden in the backpack, or even under the mattress.

Our belief is reinforced by the fact that once the deputies completed the search of Garcia-Lopez’s room, they left with the suspect in custody and did not search the rest of the trailer home for Yonari.

The chronology of facts of this case, as articulated in a January 11, 2016 decision by the Fifth Circuit Court of Appeals, support the argument that the so-called “reasonable suspicion” Deputy Gomez had that Yonari was under the mattress or in the backpack was an unlawful pretext to conduct a search without a warrant.

Fifth Circuit Upholds Denial of Motion to Suppress

In upholding the district court’s ruling on the suppression motion, the Fifth Circuit explained why it could not accept the pretext position:

“There is ample evidence to support the district court’s finding of reasonable suspicion. Under the facts, Deputy Gomez first noticed a light on before hearing a door shut. Prior to these events, Deputy Gomez had been given no concrete proof as to who might actually lie on the other side of the closed door. Upon entry, Deputy Gomez became suspicious that Garcia-Lopez’s first order of business after their ‘standoff’ over the locked door was to calmly request to sit back on the bed. In that moment, Garcia-Lopez seemingly innocent request triggered something else entirely for Deputy Gomez. To Deputy Gomez, the request led to his belief that Yonari might be hidden beneath the mattress in a hollowed box spring. Deputy Gomez testified as much before the district court, stating ‘… when I was looking for Yonari because he could possibly be hiding between the mattresses.’”

Fifth Circuit Finds Reasons to Affirm

There was no bulge or rise in the mattress, and without these indications, at least two circuit courts of appeals have held that searches under mattresses are not justified in a protective sweep. The Fifth Circuit’s reliance on Deputy Gomez’s intuition, without more, that Yonari might be under the mattress is, at best, incongruous to us.

Deputy Gomez saw bulletproof vests on the bed. He knew Garcia-Lopez was a convicted felon so the deputy placed him under arrest. He called Deputy Garcia to assist. He gave no indication that he believed Yonari was anywhere in Garcia-Lopez’s room. He did not instruct Deputy Garcia to do a wider protective sweep of the trailer home. He kept his attention focused squarely on Garcia-Lopez’s personal belongings in the room—the backpack and the mattress.

There is simply no reasonable evidence to support Deputy Gomez’s stated suspicion that he believed Yonari was between the mattress and box spring.  In order to affirm the lower court’s denial of the motion to suppress, the appeals court had to stretch and supply reasoning for search between mattress and box spring, namely that “it was logical under the facts that the suspect might have been hiding in a hollowed out box spring.”

No Harm, No Foul Reasoning

The Fifth Circuit’s upheld Garcia-Lopez’s conviction and 46-month prison sentence, we suspect, because Garcia-Lopez entered a conditional guilty plea to one count of the indictment. Any other finding would have resulted in the release of a felon who had served less than half of his 46-month prison term. The appeals court was not about to go there.

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    Spoke with John Floyd about a 45 year old criminal case I was involved in. I had very little information about the case and John helped me search what records were available and gave … More me guidance to find more information. He was very professional and took his time helping me. I may need to hire a lawyer on this case and Mr. Floyd will be the man.Thanks John.
  • Avatar CMCustom Cycles ★★★★★ 4 years ago
    Very professional and straight forward. He's not going to waste your time or money. Very knowledgeable in a large range of possible matters one could face living in these days … More and times. If ever you need legal assistance, this is who I would suggest. Awesome!Positive
    Responsiveness, Quality, Professionalism, Value …More
  • Avatar Greg Page ★★★★★ 4 years ago
    I called about some legal questions I needed to get clarified and John was able to give me clarification and sound advice. I will definitely contact John for all future legal questions … More and issues.Thank you John!Positive
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  • Avatar Kristen Rankin ★★★★★ 4 years ago
    Knows his stuff and well respected with DA and judges. I have referred him a couple times and every client has been satisfied
  • Avatar Kedar Puranik ★★★★★ 4 years ago
    John is beyond knowledgeable! If I decide to pursue my case any further I would only have him represent me.
  • Avatar Joseph Sivadon ★★★★★ 4 years ago
    What a great attorney, this guy really took time out of his day to answer my questions and explain my case to me. Very grateful, thank you so muchPositive
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  • Avatar Lex Strider ★★★★★ 4 years ago
    Absolutely a very professional lawyer. Very well read in the current law and more than willing to help if needed.
  • Avatar karim khalifa ★★★★★ 4 years ago
    Mr. John he’s a professional he knows what he’s doing and he’s patient they recommend Him stronglyPositive
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  • Avatar James Haggard ★★★★★ 4 years ago
    Great service, very knowledgable and happy to help with any questions I had
  • Avatar David Sustaita ★★★★★ 4 years ago
    Quick to action and helpful and knowledgeable with entertainment industry based issues!
  • Avatar Chad Groves ★★★★★ 4 years ago
    Responded on a holiday week. Very knowledgeable and reassuring.
  • Avatar Mark Fein ★★★★★ 4 years ago
    Very professional
  • Avatar Bthomason903 Bthomason903 ★★★★★ 4 years ago
  • Avatar Anton Jasser ★★★★★ 4 years ago
  • Avatar Alma Garza ★★★★★ 4 years ago
  • Avatar Victory 2020 ★★★★★ 6 years ago
    I want to thank John T. Floyd and all of his team. He is the best lawyer who cares aboutHis clients and fights really hard to get the best outcome. He is a fighter and he is awesome!!!I … More recommend if any one needs criminal defense , he is the BEST. We had a really serious caseAnd we are very thankful for the outcome. Thank you John!!!!! God bless you!!!!!!
  • Avatar Alma Garcia Cunningham ★★★★★ 6 years ago
    The attorneys at John T. Floyd Law Firm work diligently to achieve the best possible results for their clients. They are caring and knowledgeable professionals. Their expertise in the … More law and their experience as trial attorneys makes them the right choice as a defense attorney. I recommend this law firm highly.
  • Avatar Rajiv Patel ★★★★★ 6 years ago
    From beginning to end this firm handled my case like the top tier professionals they are. I would not trust ANYONE else with my legal needs after having less than stellar experiences … More with other teams. Thank you Floyd!!!
  • Avatar Jose Tapia ★★★★★ 6 years ago
    I really felt like the team cared about my case and am super satisfied with the outcome. Would not recommend anyone else!
  • Avatar Sagar Patel ★★★★★ 6 years ago
    These guys do amazing work and have phenomenal service! Hands down best in the Houston area!!
  • Avatar RAYNINN ★★★★★ 6 years ago
    John and Chris are true professionals! Love those guys like family!
  • Avatar Virginia Martin ★★★★★ 6 years ago
    Mr. Floyd and his team are very knowledgeable, informative, and helpful.
  • Avatar Darla Latham ★★★★★ 6 years ago
    A team you can depend on to stand up and fight for you to prove the truth the whole truth!
  • Avatar Veronica Elorza ★★★★★ 6 years ago
  • Avatar Karetta Lux ★★★★★ 7 years ago
    Mr. John T. Floyd represented me.I couldn't be happier with the outcome he managed to achieve on an VERY Important case that was dismissed the day of Trial. He is patient & … More very knowledgeable of the legal system. I HIGHLY recommend him to anyone in need of a lawyer!John, I am forever grateful & satisfied with the effort you put forth & all you did for me. Thank you isn't enough!God bless you & your family!
  • Avatar GM ★★★★★ 8 years ago
    The John T. Floyd Law Firm assisted me, and I can tell you that the attorney took the time to answer my questions, and I didn't feel rushed or dismissed as I have experienced in … More the past with attorneys. The attorney was very nice and extremely knowledgeable. Initial impressions and continued excellent customer service are big factors for me and as such I would highly recommend this firm.
  • Avatar Sandra Bivens ★★★★★ 8 years ago
    I thank you for your efforts to help Felons regain their Civil rights, and for the information on possession , I am A convicted Felon, no violent history. I am an expert shot, I am … More 76 yoa, and very concerned about the present lake of Security in our State and Country. God Bless and Prosper you in your efforts, Your friend, Sonny Bivens
  • Avatar Mike Kittelson ★★★★★ 8 years ago
    I really appreciated both Chris and John helping with my legal questions and concerns. Both are good guys and I would not hesitate to recommend them.
  • Avatar Robert Hair ★★★★★ 8 years ago
    Extremely helpful!!! Helping me understand the law.

John T. Floyd is Board Certified in Criminal Law By the Texas Board of Legal Specialization

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