     Case: 14-41392   Document: 00513338226        Page: 1   Date Filed: 01/11/2016




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                                    No. 14-41392
                                                               United States Court of Appeals
                                                                        Fifth Circuit

                                                                      FILED
UNITED STATES OF AMERICA,                                      January 11, 2016
                                                                 Lyle W. Cayce
             Plaintiff - Appellee                                     Clerk

v.

IVAN GARCIA-LOPEZ,

             Defendant - Appellant




                Appeal from the United States District Court
                     for the Southern District of Texas


Before OWEN, GRAVES, and HIGGINSON, Circuit Judges.
JAMES E. GRAVES, JR., Circuit Judge:
      This is an appeal by Defendant Ivan Garcia-Lopez (“Garcia-Lopez”).
Garcia-Lopez entered a conditional plea to a single firearm violation, and now
appeals the denial of his motion to suppress the firearms from which that
violation and his resulting conviction flowed. For the reasons set forth below,
we AFFIRM.
                                         I.
      On the evening of February 5, 2014, Wharton County Deputy Sheriff
Raul Adam Gomez (“Deputy Gomez”) arrived at the trailer home of Jaime
Garcia (“Mr. Garcia“) to serve a felony arrest warrant for his younger son,
Yonari Garcia (“Yonari”). While Deputy Gomez approached the front door,
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                             No. 14-41392
Wharton County Deputy Sheriff Lionel Garcia (“Deputy Garcia”) stood at the
back door to prevent a potential escape. Asked by Deputy Gomez whether
Yonari was home, Mr. Garcia responded that he was not. Mr. Garcia then
consented to Deputy Gomez’s request to search the residence for Yonari.
Prompted by his observation of a light in a distant room, Deputy Gomez asked
Mr. Garcia whether anyone else was home. Mr. Garcia replied that his older
son, Garcia-Lopez, was. At the time, Garcia-Lopez sat alone in his bedroom
eating dinner.
      Around the time Deputy Gomez entered the residence, Garcia-Lopez
closed and locked his bedroom door. Finding Garcia Lopez’s bedroom door
locked, Deputy Gomez ordered the door opened immediately. After Garcia-
Lopez unlocked the door, Deputy Gomez entered the bedroom, moved Garcia-
Lopez aside, and began his search for Yonari.
      Garcia-Lopez’s bedroom, an add-on to the single-wide trailer home, had
the following characteristics: ten feet by eleven feet in size, no closets, an
unmade bed (comprised of only a mattress and box spring sitting flush to the
floor), a dresser, and an entertainment center.
      As Deputy Gomez walked around Garcia-Lopez’s bedroom in search of
Yonari, he noticed two bulletproof vests on Garcia-Lopez’s bed. Garcia-Lopez
asked to sit back on his bed to finish his meal. Deputy Gomez allowed him to
do so. When asked, Garcia-Lopez told Deputy Gomez that the vests belonged
to Yonari. Deputy Gomez, aware that Garcia-Lopez was in violation of 18
U.S.C. § 922(g)(1) (i.e., convicted felon in possession of body armor), asked
Garcia-Lopez to stand, cuffed his hands behind his back, and moved him over
by the door of his bedroom. Deputy Gomez then radioed Deputy Garcia for
assistance and held Garcia-Lopez until Deputy Garcia entered the bedroom.
Two to three minutes had elapsed since Deputy Gomez first entered the home.



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         Deputy Gomez resumed his search of Garcia-Lopez’ bedroom as Deputy
Garcia held Garcia-Lopez’s arm and kept an eye on Mr. Garcia. Deputy Gomez
lifted Garcia-Lopez’s mattress, finding a short barrel shotgun and two rifles.
His search then progressed to a camouflaged, zipped backpack that sat on the
floor next to the bed. Feeling the backpack’s weight, Deputy Gomez unzipped
it and found that it contained ammunition and three handguns, among other
items. 1 Deputy Gomez continued his search for Yonari in Garcia-Lopez’s
bedroom, searching behind the dresser and entertainment center, but to no
avail.
         Upon completing their search of Garcia-Lopez’s bedroom, neither deputy
searched the remainder of the trailer home for Yonari. Instead, with Garcia-
Lopez having been arrested, they left the residence with him in tow. Six to
seven minutes had elapsed from the time of their arrival to their departure.
                                               II.
         On March 6, 2014, Magistrate Judge Jason B. Libby signed a criminal
complaint charging Garcia-Lopez with possession of six firearms in violation
of 18 U.S.C. § 922(g)(1). On March 26, 2014, Garcia-Lopez was charged by
indictment with six counts of being a felon in possession of a firearm in
violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The indictment contained a
notice of forfeiture pursuant to 18 U.S.C. § 924(d) and 28 U.S.C. § 2461(c) as to
the firearms and two sets of body armor.
         On June 6, 2014, Garcia-Lopez filed a motion to suppress the items
seized from his bedroom. The United States filed a motion to strike Garcia-
Lopez’s original motion claiming that it failed to specify a basis for suppression.


1The complaint alleges that three guns were found in the backpack. At the suppression hearing,
Deputy Gomez testified that he found in the backpack “a Hi-Point, 9mm; another revolver; and
ammunition.” Deputy Gomez did not mention a third firearm. The most logical reading of the
record appears to be that Gomez simply failed to mention a third firearm at the hearing. We assume
that three guns were found in the backpack, but none of our conclusions would change if only two
guns were found.

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Garcia-Lopez then filed an amended motion to suppress, alleging that the
deputies searched his backpack and under his mattress without permission
and probable cause. The district court granted the United States’ motion to
strike Garcia-Lopez’s original motion to suppress, but did not strike his
amended motion to suppress. The United States then filed a response to
Garcia-Lopez’s amended motion to suppress.
      The district court held a hearing on Garcia-Lopez’s amended motion to
suppress on August 6, 2014. At the conclusion of the hearing, the district court
orally denied Garcia-Lopez’s motion to suppress, ruling:
      Very well. I have considered the motion to suppress, the
      response; and I've heard the evidence; and I will apply the
      facts as presented by the evidence to the law that I believe
      applies in this case.

      First of all, it appears from the evidence presented that the
      law enforcement officers were in the home for a legitimate
      purpose. There's been no contradictory evidence that they
      did not have a warrant or that they were not given
      permission to come in. So, they were in the home legally for
      purposes of this motion. And the purpose -- and maybe we
      got – the evidence sort of got off track.

      The motion -- the purpose of them being there was to find
      Yonari. That was why they were there. It was an arrest
      warrant. It was not to find the Defendant in this case but
      Yonari. So, they had a right to search the home in an attempt
      to find the fugitive, Yonari. As far as the bedroom goes, as
      soon as the officer entered the bedroom, he saw contraband
      on the bed and, as a result of that, effectuated arrest of the
      Defendant in this case.

      Now, the issue then -- as we all know, when you arrest
      someone or you're in that situation, officers have a right to
      make a protective sweep. It is obvious from the law it may
      last no longer than necessary to dispel the reasonable
      suspicion of danger or it's no longer justified to remain on
      the premises. So, the issue in this case boils down to why
      we're here, and that's the lifting of the mattress. And I've
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      heard evidence from Deputy Gomez that in his experience
      people hide in between mattresses and, specifically, in
      mattresses that have been hollowed out. The defense has
      pointed out, well, there was no -- that mattress had not been
      hollowed out. Well, fine. But Deputy Gomez did not know
      that.

      Deputy Marshal Hernandez has supported that, I guess,
      reasonable suspicion by Gomez with the fact that in his
      training and experience people have often hidden in
      hollowed-out mattresses, between box springs and
      mattresses. So, it certainly was reasonable since, even
      though the Defendant had been arrested, they were still
      there to look for Yonari. And he lifted the mattress in an
      attempt to see if anyone was hiding in there. That's, I think,
      a very reasonable -- that's reasonable conduct in connection
      with trying to execute an arrest warrant.

      So, I find no unconstitutional conduct in this case, no
      constitutional violations that would support a finding that
      the evidence should be suppressed. So, the motion to
      suppress is denied.

      On September 10, 2014, Garcia-Lopez made a conditional guilty plea to
count one of his indictment, reserving his right to appeal the district court’s
denial of his motion to suppress. On December 1, 2014, the district court
sentenced Garcia-Lopez to 46 months imprisonment, to be followed by two
years of supervised release. The district court also dismissed the remaining
five counts in the indictment and ordered all six firearms forfeited to the
United States.
                                       III.
      When reviewing the denial of a motion to suppress, we review the district
court’s factual findings for clear error and its legal conclusions de novo. United
States v. Allen, 625 F.3d 830, 834 (5th Cir. 2010). Where the defendant was
arrested or subject to search without a warrant, the Government bears the
ultimate burden of proof to justify the warrantless search. United States v. De

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                                No. 14-41392
La Fuente, 548 F.2d 528, 533 (5th Cir. 1977). The district court’s ruling should
be upheld “if there is any reasonable view of the evidence to support it.” United
States v. Scroggins, 599 F.3d 433, 440 (5th Cir. 2010). We may affirm a ruling
on a motion to suppress “on any basis established by the record.” United States
v. Mata, 517 F.3d 279, 284 (5th Cir. 2008).
      Warrantless searches are per se unreasonable under the Fourth
Amendment, subject to a few specific exceptions. Coolidge v. New Hampshire,
403 U.S. 443, 474-75 (1971). The government advances two such exceptions:
first, that the initial search of Garcia-Lopez’s mattress was valid pursuant to
the protective sweep exception and, second, that the subsequent backpack
search was valid because it was incident to arrest.
                                      IV.
      We consider Deputy Gomez’s warrantless search where he discovered
three firearms lodged between Garcia-Lopez’s mattress and box spring. Garcia-
Lopez, arguing that Deputy Gomez’s belief that Yonari might lay hidden
between his mattress and box spring was unreasonable, urges us to hold that
the warrantless search violated his Fourth Amendment rights. The district
court, in denying Garcia-Lopez’s suppression motion, held that the protective
sweep exception supported the warrantless mattress search. We agree.
      The scope of a valid “protective sweep” exception to the warrant
requirement was the subject of the oft-quoted Supreme Court case, Maryland
v. Buie, 494 U.S. 325 (1990). In Buie, the Supreme Court held that officers who
are lawfully inside a residence to serve an arrest warrant may conduct a
protective sweep with only reasonable suspicion. 494 U.S. at 327. It is not
necessary that the officer have probable cause to believe that there might be
an assailant hiding on the premises. Id. at 334. The Court noted, “[T]here must
be articulable facts which, taken together with the rational inferences from
those facts, would warrant a reasonably prudent officer in believing that the

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area to be swept harbors an individual posing a danger to those on the arrest
scene.” Id.
      The Supreme Court, though, before discussing the facts in the case,
outlined the restrictive scope of the protective sweep that governed its analysis.
The Court stated:
      “[A] ‘protective sweep’ is a quick and limited search of the premises,
      incident to an arrest and conducted to protect the safety of police
      officers and others. It is narrowly confined to a cursory visual
      inspection of those places in which a person might be hiding. The
      sweep lasts no longer than is necessary to dispel the reasonable
      suspicion of danger and in any event no longer than it takes to
      complete the arrest and depart the premises.” Id. at 327.
      Thus, evidence or contraband seen in plain view during a lawful sweep
can be seized and used in evidence at trial. United States v. Jackson, 596 F.3d
236, 242 (5th Cir. 2010).
      This circuit has often re-emphasized Buie in its inquiries as to whether
evidence discovered during a protective sweep should be suppressed. See
United States v. Gould, 364 F.3d 578 (5th Cir. 2004), abrogated in other part
by Kentucky v. King, 563 U.S. 452 (2011); United States v. Mata, 517 F.3d 279
(5th Cir. 2008); United States v. Roberts, 612 F.3d 306 (5th Cir. 2010).
      Relying on Buie, Garcia-Lopez emphasizes that (1) it is not reasonable
that an attack could have been immediately launched from under his mattress;
and (2) that the facts do not support a reasonably prudent officer’s belief that
anyone lay hidden under his mattress. The government, in contrast, relies on
Buie to support its contention that Deputy Gomez had requisite reasonable
suspicion to search under the mattress for Yonari and that neither deputy
spent more time than necessary to conduct the sweep. We agree.
      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

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                               No. 14-41392
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 his bed. In that moment, Garcia-Lopez’s seemingly
innocent request triggered something else entirely for Deputy Gomez. To
Deputy Gomez, the request led to his belief that Yonari might lay hidden
beneath the mattress in a hollowed box spring. Indeed, 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.”
       Garcia-Lopez attempts to cut at Deputy Gomez’s suspicion by arguing
the sheer improbability that an adult male could hide in the hollowed-out
mattress without so much as a rise or bulge in the mattress. In support of his
proposition, Garcia-Lopez directs the court’s attention to cases like United
States v. Blue, 78 F.3d 56 (2d Cir. 1996), and United States v. Ford, 56 F.3d
265 (D.C. Cir. 1995).
       It is true that these cases held protective sweeps overbroad where
officers searched under mattresses without justification. See Ford, 56 F.3d at
270; see also Blue, 78 F.3d at 61. But, unfortunately, in citing Blue and Ford
(and similar decisions), Garcia-Lopez fails to take into account that it was
logical under the specific facts of this case to suspect that a person might be
hiding in a hollowed box spring.
       Accordingly, we hold that the district court did not err in denying Garcia-
Lopez’s motion to suppress the evidence seized from under his mattress. 2


2Having addressed the mattress search, in which three firearms—including the firearm particularized
in Garcia-Lopez’s count of conviction—were discovered, we decline to consider the constitutionality of
the backpack search. Even if the guns found in the backpack were suppressed, the three admissible
guns stemming from the justified mattress search are sufficient to support Garcia-Lopez’s conviction
and sentence. U.S.S.G. § 2K2.1(b)(1)(A). Hence, the denial of the motion to suppress the evidence
seized from the backpack is inconsequential.



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                          No. 14-41392
 AFFIRMED.




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