A Judge With Balls!

Posted By Bill Nimmo & Raymond Gomez, Attorneys at Law || 6-Oct-2015

I suppose it is politically incorrect in this modern world to talk about a Judge with balls! But I don’t work for the government, a big company, or anybody else so I really don’t have to be as politically correct as the bureaucrats. When I say “balls,” I’m sure anybody that has lived knows I am talking about courage and not some piece of human anatomy. It is in this context that I would like to share a story about one instance where the Fourth Amendment right to be free of unlawful governmental search and seizure lived for that moment in time.

I represented a young man who had quite the history of drug sales involvement. He was a bit notorious in his small suburban community. He also was trying to make a go of legitimate work and he leased a small burger short order restaurant in a business park. In the day he would serve up burgers to customers and at night he and his family would fry up and package wheat snacks made to imitate fried pork rinds or “chicharrones.” One night his mom, his dad, his friend and he were working late packing up the chicharrones when sheriff deputies came knocking on the door. The deputies had been called to the area because of a hang up 911 call at a pay phone down at the very end of the building (100 yards away from where the family was working.)

The deputies didn’t even go to the pay phone. They saw a vehicle parked outside the building occupied by my client, who for this article we will call Gomez. They saw a window down in the car and saw a holster with a handgun out in the open and obvious between the seats. The senior deputy went up to the door and knocked. His partner went around to the back of the little burger shop and stood looking into the business through an open screen door (one of those rigid metal heavy duty screen doors). He could see several people inside with aprons on working around a table.

It took a while for Gomez to get the front door open for the detective. He told the deputy he needed to get the keys and suggested the deputy come around to the back. He got the keys from the back area and opened the door. One of the deputies said he saw a man walk up the stairs and walk back down. There is a small loft upstairs at the back. This would have been clearly visible to the deputy watching the rear.

All of the four people were taken outside and detained. Gomez told them that they made their chicharrones at night and they were sold to his mom and dad’s business, which was as a wholesaler to ice cream and snack vendors that drove the streets selling their wares. They were all in their aprons and the deputy at the rear door would have been able to clearly see this food packaging effort and materials. Gomez admitted that the gun in the car was his.

While there were no significant facts to indicate anything was amiss, the deputies went into the building and conducted a security sweep. One of the deputies went up into the loft and found a cardboard box that contained a pound and a half of methamphetamines.

Gomez and his friend were arrested and Gomez was charged with being an ex-felon in possession of a firearm and possession for sales of meth. As a criminal defense lawyer I examined the case and felt that the deputies violated the Fourth Amendment by conducting an illegal search. Law enforcement is allowed to sweep a premises without a warrant for their own protection or for the protection of others but here there were no facts that would justify that. Their theory was that maybe this was a robbery and that hostages or other suspects were up those stairs.

In my opinion there was absolutely no hint of any robbery. The gun was outside in a car and thus irrelevant to anything going on inside. Why would a robber leave their gun outside to commit a robbery inside. The people that came out included two obvious older people (the mom and dad) and they all had on work aprons. Why would they be standing around in the back working(which the rear deputy could see easily) if they were either being robbed or robbing someone else.

In my opinion it was just an excuse to thoroughly check out to see if Gomez was hiding something.The senior deputy knew Gomez well for his drug activities. He had a gut feeling that if Gomez was there, drugs were nearby. A good gut feeling maybe, but no excuse to violate the right against unreasonable search and seizures. The reason they didn’t wait to get a warrant is they had absolutely no probable cause to believe that drugs were in that building.

We held a day-long hearing with several witnesses including the mom and dad and several deputies, as well as evidence such as photographs and radio transmissions. The deputy district attorney fought very hard. In the end, the judge, a very conservative individual, felt that he could find no conceivable way that the deputies could have reasoned that there was activity inside that would justify a warrantless security sweep search. He suppressed the meth.

The reason I applaud the judge is that suppression against law enforcement is rare in our courts. Judges need to protect these constitutional rights. You see plenty of people vocal about our Second Amendment Right to Bear Arms, but you don’t find as many as vocal about our right against our Fouth Amendment right to be free from unreasonable warrantless search and seizures. Criminal defense lawyers everyday fight these out in the courts and a win is rare.

I can assure you society doesn’t have to worry about runaway judges protecting criminals. It is almost the opposite. Law enforcement and prosecutors have all the advantages. The public seems to think, or at least used to think, that fancy criminal defense lawyers with contacts got their way in court. It is not true, criminal defense lawyers fight for every inch uphill and it is now working very much against the accused. You would be surprised to know that criminal defense lawyers don’t work hard to get the guilty off, but work hard to protect the innocent, the overcharged, and the misunderstood. They just don’t like government abusing their power as protectors of all of the people!