Page 25 - Texas Police Journal May June 2016

arrived at the trailer home of Jaime Garcia (“Mr. Garcia“) and two rifles. His search then progressed to a
to serve a felony arrest warrant for his younger son, camouflaged, zipped backpack that sat on the floor next
Yonari Garcia (“Yonari”). While Deputy Gomez to the bed. Feeling the backpack’s weight, Deputy
approached the front door, Wharton County Deputy Gomez unzipped it and found that it contained
Sheriff Lionel Garcia (“Deputy Garcia”) stood at the ammunition and three handguns, among other items.1
back door to prevent a potential escape. Asked by Deputy Gomez continued his search for Yonari in
Deputy Gomez whether Yonari was home, Mr. Garcia Garcia-Lopez’s bedroom, searching behind the dresser
responded that he was not. Mr. Garcia then consented and entertainment center, but to no avail.
to Deputy Gomez’s request to search the residence for
Yonari. Prompted by his observation of a light in a Upon completing their search of Garcia-Lopez’s
distant room, Deputy Gomez asked Mr. Garcia whether bedroom, neither deputy searched the remainder of the
anyone else was home. Mr. Garcia replied that his older trailer home for Yonari. Instead, with Garcia-Lopez
son, Garcia-Lopez, was. At the time, Garcia-Lopez sat having been arrested, they left the residence with him
alone in his bedroom eating dinner. in tow. Six to seven minutes had elapsed from the time
of their arrival to their departure.
Around the time Deputy Gomez entered the residence,
Garcia-Lopez closed and locked his bedroom door. Garcia-Lopez was charged by indictment with six
Finding Garcia Lopez’s bedroom door locked, Deputy counts of being a felon in possession of a firearm in
Gomez ordered the door opened immediately. After violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).
Garcia-Lopez unlocked the door, Deputy Gomez Garcia-Lopez filed a motion to suppress the items
entered the bedroom, moved Garcia-Lopez aside, and seized from his bedroom. On September 10, 2014,
began his search for Yonari. Garcia-Lopez made a conditional guilty plea to count
one of his indictment, reserving his right to appeal the
Garcia-Lopez’s bedroom, an add-on to the single-wide district court’s denial of his motion to suppress.
trailer home, had the following characteristics: ten feet
by eleven feet in size, no closets, an unmade bed Where the defendant was arrested or subject to search
(comprised of only a mattress and box spring sitting without a warrant, the Government bears the ultimate
flush to the floor), a dresser, and an entertainment burden of proof to justify the warrantless search.
center.
Warrantless searches are per se unreasonable under the
As Deputy Gomez walked around Garcia-Lopez’s Fourth Amendment, subject to a few specific
bedroom in search of Yonari, he noticed two bulletproof exceptions. The government advances two such
vests on Garcia-Lopez’s bed. Garcia-Lopez asked to sit exceptions: first, that the initial search of Garcia-Lopez’s
back on his bed to finish his meal. Deputy Gomez mattress was valid pursuant to the protective sweep
allowed him to do so. When asked, Garcia-Lopez told exception and, second, that the subsequent backpack
Deputy Gomez that the vests belonged to Yonari. search was valid because it was incident to arrest.
Deputy Gomez, aware that Garcia-Lopez was in
violation of 18 U.S.C. § 922(g)(1) (i.e., convicted felon We consider Deputy Gomez’s warrantless search where
in possession of body armor), asked Garcia-Lopez to he discovered three firearms lodged between Garcia-
stand, cuffed his hands behind his back, and moved him Lopez’s mattress and box spring. Garcia-Lopez, arguing
over by the door of his bedroom. Deputy Gomez then that Deputy Gomez’s belief that Yonari might lay hidden
radioed Deputy Garcia for assistance and held Garcia- between his mattress and box spring was unreasonable,
Lopez until Deputy Garcia entered the bedroom. Two to urges us to hold that the warrantless search violated his
three minutes had elapsed since Deputy Gomez first Fourth Amendment rights. The district court, in denying
entered the home. Garcia-Lopez’s suppression motion, held that the
protective sweep exception supported the warrantless
Deputy Gomez resumed his search of Garcia-Lopez’ mattress search. We agree.
bedroom as Deputy Garcia held Garcia-Lopez’s arm
and kept an eye on Mr. Garcia. Deputy Gomez lifted The scope of a valid “protective sweep” exception to
Garcia-Lopez’s mattress, finding a short barrel shotgun the warrant requirement was the subject of the oft-

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