News and Insights

United States v. Garcia-Lopez (5th Circuit, 2016)

FACTS: On February 5, 2014, the Wharton County Deputy Sheriff’s Department served a felony arrest warrant on Yonari Garcia at his father’s trailer home. Yonari’s father told law enforcement that Yonari was not home, however, consented to a search of the trailer. Upon entry, Garcia-Lopez, Yonari’s brother, made a beeline for a bedroom, closing and locking the door. Law enforcement followed Garcia-Lopez and demanded that the door be unlocked. Garcia-Lopez opened the door and the police entered, continuing the search for Yonari. Garcia-Lopez asked if he could sit on his bed and eat his dinner while police searched the room. The police obliged the odd request. A minute later, law enforcement discovered two sets of bullet-proof vests in plain sight, prompting a background check. Garcia-Lopez was a convicted felon and having the body armor was a violation for being a felon in possession of body armor, U.S.C. § 922(g)(1). The police arrested Garcia-Lopez after being in the home a total of three minutes. After the arrest, police continued searching the Garcia-Lopez’s room. Concerned Yonari might be sheltered in a hollowed-out mattress, the police lifted the bed up, discovering ammunition and three handguns sandwiched between the mattress and box springs. After a total of seven minutes inside the trailer, the police left with Garcia-Lopez under arrest.

See the 5th Circuit's full opinion in United States v Garcia Lopez.

Garcia-Lopez Indicted for Federal Firearms Charges

In March 2014, Garcia-Lopez was indicted on six counts of being a felon in possession of a firearm in violation of USC §§ 922(g)(1) and 924(a)(2). During an evidentiary hearing, the district court denied Garcia-Lopez’s motion to suppress the guns found under the mattress because law enforcement was originally in the trailer for a legitimate purpose and they had a right to search the home pursuant to the valid arrest warrant for Yonari. The court added that upon the valid search of the premises, law enforcement found contraband and arrested Garcia-Lopez. Further the court stated that upon his arrest, law enforcement had the right to make a protective sweep, so long as it did not last an unreasonable amount of time. Additionally, there was testimony that indicated that suspects have been known to hide in hollowed-out mattress to evade arrest. According to the district court, the search for Yonari and seizure of the guns was proper in every way. Garcia-Lopez was sentenced to forty-six years imprisonment and two years of supervised release. Garcia-Lopez appealed to the Fifth Circuit Court of Appeals, arguing that law enforcement’s belief that Yonari might have been hiding in the bed was unreasonable, and thus, unconstitutional.

Was Lifting the Mattress an Unconstitutional Search or a Lawful Protective Sweep?

The Court of Appeals must determine whether the act of “lifting up the mattress” and seizing the guns violated Garcia-Lopez’s constitutional rights. In other words, was lifting the mattress an unconstitutional search under the Fourth Amendment’s protection against unreasonable searches and seizures?

Under the Fourth Amendment, warrantless searches are pre se unreasonable. Coolidge v. New Hampshire, 403 U.S. 443, 474-75 (1971). A protective sweep may be conducted with [a lower threshold of] reasonable suspicion, probable cause is not necessary. Maryland v. Buie, 494 U.S. 325-27 (1990). “There must be articulable facts which, taken together with the rational references from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing danger to those on the arrest scene.” Id. A protective sweep [must be] quick and…limited to the safety of the police. Id. Evidence seen in plain view during a lawful sweep can be seized and admitted into evidence during trial. United States v. Jackson, 596 F. 3d 236, 242 (5th Cir. 2010).

5th Circuit Holds that the Warrantless Search of the Mattress was Reasonable

Here, the Court of Appeals held that the district court’s finding of reasonable suspicion was correct because of the amount of evidence supporting such a claim. First, law enforcement became suspicious because of the standoff over the locked door. Second, Garcia-Lopez’s odd request to sit back down on the bed while the police conducted the search is suspicious in light of the circumstances. Third, the belief that a suspect could be hiding in a hollowed-out mattress is reasonable given police training and data supporting such a claim. Fourth, the search lasted a total of seven minutes—a reasonable amount of time to conduct a protective sweep. In sum, the Court says it was logical under the specific facts of this case to suspect that Yonari might have been hiding in the mattress. The Court affirms the district court’s judgment—the warrantless search under Garcia-Lopez’s mattress was not unconstitutional under the circumstances.

What is a Bait Car?

A Bait Car is vehicle owned by the police department and equipped with GPS devices and cameras. But, the car looks like any regular car on the street. The police typically place something valuable inside the Bait Car, such as a paint spray rig, and then they park the car (with the keys inside) on the side of the street in a low-income part of town. If someone tries to steal the bait car or the valuables inside, the GPS is triggered, the camera is activated, and the police are alerted. In most cases, the person does not get very far before a patrol car arrives to arrest them for theft.

What is Backpage?

I doubt I can fully explain what Backpage is or how it is used, but in the cases that we see, Backpage is a website (akin to Craigslist) where escorts and ladies of the night advertise their services. Potential Johns can browse the Backpage website to arrange an interlude of momentary love. The police have been using Backpage and arranging for a female officer to meet men at a local motel room posing as a prostitute. With backup officers waiting in the bathroom, the John is arrested for Solicitation of a Prostitute when they arrive to meet the woman/officer they contacted on Backpage.

Is it Entrapment for the Police to Use a Bait Car or to Advertise on Backpage?

We get this question in every Bait Car or Backpage case. To answer the question, we typically explain that fairness and equity are not the same as the legal defense of entrapment. Just because the police conduct doesn’t seem fair or because we think the police are “creating the crimes,” does not mean that it is entrapment.

Section 8.06 of the Texas Penal Code defines the affirmative defense of Entrapment:

“It is a defense to prosecution that the actor engaged in the conduct charged because he was induced to do so by a law enforcement agent using persuasion or other means likely to cause persons to commit the offense."

The Penal Code goes on to explain that: “Conduct merely affording a person an opportunity to commit an offense does not constitute entrapment.”

Therein lies the rub. By using a Bait Car and by advertising escort services on Backpage, the Fort Worth police are “merely affording a person an opportunity to commit an offense,” so under the law, entrapment would not apply to these situations. Don’t get me wrong, we hate Bait Cars and Backpage. We wish the police would use their time and resources toward real crimes, rather than “creating opportunities” for people to commit crimes. Why in the world would we want to create opportunities for people to commit crimes in the first place? That is similar to setting up a keg right outside the AA meeting with a sign for free beer.

Whether we like it or not, entrapment does not apply as an affirmative defense in these cases. Regardless, our attorneys still fight hard to get bait car and Backpage cases dismissed, reduced, or mitigated any way we can. Anecdotally, we’ve seen that a lot of prosecutors don’t like these cases any more than we do. Hopefully, we will see bait cars and Backpage go away soon, but until then, know that Entrapment won’t help you if you choose the wrong car or the wrong escort.

Prohibited Weapons in Texas | Are Brass Knuckles Illegal in Texas?

Yes, brass knuckles are illegal to possess in Texas. Under Texas’ Open Carry laws, qualified Texans can now carry a handgun in a holster on their waist just like they could in the Wild West. But there are still many other weapons that are illegal to possess or carry in Texas. Section 46.05 of the Texas Penal Code outlines the weapons that are prohibited to possess in Texas. The following is the list of weapons that are prohibited weapons in the state of Texas under Section 46.05:

• Explosive weapons*
• Machine guns*
• Short-barrel firearms*
• Firearm silencers*
• Brass knuckles
• Armor-piercing ammunition
• Chemical dispensing devises
• Zip guns; and
• Tire deflation devices

*However, explosive weapons, machine guns, short-barrel firearms, and firearm silencers will not be considered prohibited weapons if the item is registered in the National Firearms Registration and Transfer Record.  There is no such exception for brass knuckles in Texas.

What are the Consequences of Possessing Brass Knuckles or a Prohibited Weapon in Texas? | What is the Punishment for Possession of Silencers?

A person commits a criminal offense if they intentionally or knowingly possess, manufacture, transport, repair, or sell any of the prohibited weapons.

• Possession of an explosive weapon, machine gun, short-barrel firearm, firearm silencer, armor-piercing ammunition, chemical dispensing device, or a zip gun is a third degree felony, punishable from 2-10 years in prison and a fine of up to $10,000
• The possession of a tire deflation device is a state jail felony, punishable from 6 months to 2 years in a State Jail Facility and a fine of up to $10,000.
• Finally, the possession of brass knuckles is a Class A misdemeanor, punishable by 0 – 365 days in county jail and a fine up to $4,000.

Defending Against a Brass Knuckles Charge | What Defenses are Available in a Prohibited Weapons Case?

For persons charged with possession of brass knuckles and other prohibited weapons offenses, there are several defenses that are recognized under the law.

• It is a defense if the person’s conduct was in connection to the performance of official duty by the armed forces or National Guard, a governmental law enforcement agency, or a correctional facility.
• Also, it is an affirmative defense if the person was dealing with a tire deflation device or armor-piercing ammunition solely for the performance in one of those official duties.
• An affirmative defense is also provided to a person dealing with a short-barrel firearm or tire deflation device solely as an antique or curio.
• Lastly, it is a defense if the possession of a chemical dispensing device if the person is a commissioned security officer and has received training on the use of the device by a training program provided by the Texas Commission on Law Enforcement or approved by the Texas Private Security Board of the Department of Public Safety.

Prohibited Weapons and Brass Knuckles Defense Attorneys in Fort Worth, Texas

If you are under investigation for a prohibited weapons case or if you have been charged with possession of a prohibited weapon, contact our team of Fort Worth criminal defense attorneys today. We provide a free consultation on every criminal case. As avid hunters with military experience, we are familiar firearms laws and defenses in Texas. Contact us today at (817) 993-9249.

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Of the various types of criminal cases we defend in Fort Worth, Texas, Statutory Rape can be one of the more frustrating. First, a word of clarification; the term “Statutory Rape” does not actually appear in the Texas Penal Code. What I refer to as Statutory Rape is actually Sexual Assault of a person under 17 years of age (and over 14 years of age) under Section 22.011(a)(2). To understand what I mean about our frustration, consider this example (based on a true story).

The Story of Sam | A Common Statutory Rape Example

A 22 year-old attractive young man, let’s call him Sam, is filling up his car (a BMW) at a gas station when an attractive young woman (Nadia) approaches him and tells him how she admires his car. Nadia then tells Sam that she thinks he is cute and gives Sam her phone number. Nadia is younger than Sam, but he’s not exactly sure how much younger. She is fully developed and is dressed in mature clothing. Over the next few days Nadia and Sam send each other text messages. The messages are flirty at first and then Nadia turns the conversation toward sexual things. Sam is a bit surprised by how forward Nadia is, but he welcomes the banter. Sam then asks Nadia how old she is because he’s always heard the old adage “16’ll get ya 20.” Nadia tells Sam that she is 18 and says that she’ll show him an ID indicating the same when they get together. She then asks Sam to come pick her up in his BMW and take her to a park near her house. Sam agrees.

At the park, Nadia shows Sam her Texas ID, which says that she is indeed 18 years old. Sam and Nadia then engage in consensual sex, after which Sam takes Nadia home. Sometime during the next few days, Nadia’s mother gets ahold of her cell phone and notices the messages between her and Sam. When she confronts Nadia, Nadia admits that she and Sam had sex. Nadia’s mother is furious and calls the police to report Sam for child sexual assault. The police conduct a quick investigation wherein Sam admits to having sex with Nadia. After all, he thought he was doing nothing wrong since she was 18. The police then arrest Sam for statutory rape for having consensual sex with a 16 year-old. Nadia is only 16.

Statutory Rape is a Strict-Liability Offense

Statutory rape (Sexual Assault under Texas Penal Code Section 22.011(a)(2)) is a strict liability offense in Texas. What does this mean? It means that a person is guilty if:

1. The person is older than 18 years of age; and
2. The person intentionally or knowingly has sex with someone younger than 17 years of age.

*There is an exception to the law is the actors are less than 3 years apart in age, meaning that if the minor is 16 and the partner is 19 (but not more than 3 years older) then he will not be charged.

Other than the 3-year age gap exception, there are no other exceptions to statutory rape in Texas, hence strict liability. There is no Consent defense; consent is irrelevant for this offense. There is not Mistake of Fact defense when the minor lies about her age and no Mistake of Law defense for when the actors don’t know what the age of consent is in Texas. That is why we call this one of the more frustrating offenses in the Texas Penal Code.

Let’s take Sam’s case. Sam genuinely had no idea that Nadia was only 16. In fact, short of asking for her birth certificate, he showed due diligence in finding out her age before they had sex. He asked about her age and even saw her identification, which we now know was a fake ID. How can the state punish Sam when he tried to do everything right (fornication arguments aside)?

We often encounter this scenario or one like it. Our Fort Worth sexual assault defense attorneys have been able to get charges reduced under these circumstances. Many times, if we are hired before the grand jury considers the case, we will request to make a presentation to the grand jury and highlight these facts, urging the grand jury to no-bill the case and dismiss it. When we are negotiating with prosecutors on these types of cases, we do everything we can to get the charge amended to a different offense that doesn’t require sex offender registration (e.g. Injury to a Child). We have had considerable success in doing this, but it can be fact dependent (and personality dependent).

Sex Offender Registration for Consensual Sex with a Minor

Make no mistake; a conviction for statutory rape requires the offender to register as a sex offender in Texas. In fact, Statutory Rape is a lifetime registration offense. So although it may seem like a minor offense based on an age technicality, it is terribly serious. Further, even if your attorney is able to get your case reduced to a non-sex offense and you do not have to register as a sex offender, the court might still require you to undergo sex offender caseload on probation. You should fight this requirement as the sex offender caseload can be extremely difficult (and frustrating), especially when you never had the intent to commit a crime in the first place.

Free Consultation with a Fort Worth Statutory Rape Defense Attorney

If you are under investigation or have been charged with a Statutory Rape offense, contact our team of Tarrant County criminal defense attorneys. Our attorneys have the knowledge and experience to defend your future and your name with care and compassion. Contact us today at (817) 993-9249.

On February 8, 2016, President Obama signed International Megan’s Law after it unanimously passed in Congress. International Megan’s Law has been put into place to prevent child exploitation and other sexual crimes through advanced notification of traveling sex offenders. The law will implement new notification requirements for sex offenders as well as require unique identifying marks on sex offender’s passports.

Read the language of the bill here.

Who is Required to Have an Identifying Mark on Their Passport under the International Megan's Law?

The new law provides two categories of "covered" sexual offenders that will have to have this mark on their passport:

1. Sex offenders convicted of a sex offense against a minor; and
2. Any individual that is required to register in the sex offender registry of any jurisdiction in the National Sex Offender Registry because of an offense against a minor.

What Are the New Requirements for Sex Offenders Traveling Abroad?

Covered sex offenders must now provide to the appropriate official any information relating to their intended travel outside of the United States, including anticipated dates and all flight information, address or other contact information while outside of the U.S., purpose for travel, and any other travel-related information. The sex offender must update any changes to this information. If a sex offender knowingly fails to provide such information they shall be fined, imprisoned for not more than 10 years, or both.

What Will Occur When Sex Offenders Decide to Travel Abroad?

The Angel Watch Center will be established to perform activities required by the law to gain information on sex offenders traveling abroad. The Center, not later than 48 hours before scheduled departure, will use all relevant databases, systems and sources of information to:

• Determine if individuals traveling abroad are listed on the National Sex Offender Registry
• Review lists of individuals who have provided advanced notice of international travel, and
• Provide a list of those individuals to the United States Marshals Service’s National Sex Offender Targeting Center (Targeting Center) not in the system to determine compliance with sex offender registration requirements.

When Will Advanced Notice Be Given to Destination Countries?

The Center may give relevant information to an individual’s destination country if the individual was identified as having provided advanced notice of international travel, or if after completing the Center’s activities described above, the Center receives information pertaining to a sex offender from the Targeting Center.

Additionally, the Center may immediately give relevant information to the destination country if the Center becomes aware of a sex offender traveling outside of the U.S. within 24 hours of their intended travel and simultaneously completes the Center’s activities, or if within 24 hours of intended travel, the Center has not yet received the information pertaining to the sex offender from the Targeting Center.

What is the Process for Issuing Passports to Sex Offenders?

The Secretary of State cannot issue a passport to a covered sex offender unless the passport contains a unique identifier. Further, a passport previously issued without an identifier may be revoked. The unique identifier has not been determined yet.

The Secretary of State may reissue a passport without a unique identifier if an individual reapplies for a passport and the Angel Watch Center provides written determination that the individual is no longer required to register as a covered sex offender.

What About Sex Offenders Entering Into the United States?

Upon receiving notification that an individual who has committed an offense of a sexual nature is attempting to enter the United States, the Center will immediately share all of the information on the individual with the Department of Justice and other Federal, State, and local entities as appropriate.

Conclusion

Under this new law, sex offenders who have committed offenses pertaining to a minor child will now be required to give notification of any intended international travel and will likely have to have a passport with a unique identifying mark. Sex offenders who already have passports should be prepared for reissuance of one with the identifying mark. This mark will alert officials that this individual has committed an offense against a child. Further, destination countries will be notified of any relevant information on the sex offender. It is important to stay up to date on the requirements and implications set forth by International Megan’s Law to avoid any unintentional violations of the new requirements.

The law is still new and right now there are more questions than answers.  Interested parties should be diligent to stay informed as the implementation of this law is rolled out.