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
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!