921 F.2d 59 (5th Cir. 1991), 90-5574, United States v. Garza

Docket Nº:90-5574
Citation:921 F.2d 59
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Jesse GARZA, Defendant-Appellant.
Case Date:January 02, 1991
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 59

921 F.2d 59 (5th Cir. 1991)

UNITED STATES of America, Plaintiff-Appellee,


Jesse GARZA, Defendant-Appellant.

No. 90-5574

United States Court of Appeals, Fifth Circuit

January 2, 1991

Alfredo Villarreal, Asst. Fed. Public Defender, Lucien B. Campbell, Fed. Public Defender, W.D.Tex., San Antonio, Tex., for defendant-appellant.

Mrs. LeRoy Morgan Jahn, Asst. U.S. Atty., San Antonio, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before POLITZ, DAVIS, and BARKSDALE, Circuit Judges.

POLITZ, Circuit Judge:

Jesse Garza appeals his conditional guilty plea, Fed.R.Crim.P. 11(a)(2), and sentence for possession of a firearm by a convicted felon in violation of 18 U.S.C. Secs. 922(g)(1), enhanced by 924(e)(1). Finding neither error of fact nor law, we affirm.


San Antonio police officer Thomas Hardeman stopped a car driven by Rene Munoz for the purpose of placing Munoz under arrest on outstanding traffic warrants. Hardeman observed Garza, seated in the front passenger seat, move as if he were trying to conceal something. While another officer took Munoz into custody Hardeman, who recognized Garza as a heroin user who had had prior difficulties with the law, directed him to exit the vehicle. Hardeman frisked Garza for weapons and found in Garza's pocket a large, locked-blade knife, the possession of which violated a city ordinance, and two bullets. Hardeman placed Garza under arrest and advised him of his rights. While Hardeman searched Munoz's car for other weapons, the assisting officer mused about finding bullets on both Munoz and Garza but no gun. Garza then told him that the gun was tucked in his waistband.

Garza was indicted for possession of a firearm by a convicted felon. The prosecutor filed enhancement-of-punishment data consisting of copies of the judgments of Garza's four prior burglary convictions and his prior robbery conviction. Garza moved to suppress the evidence found during the initial frisk. The district court rejected the

Page 60

motion, concluding that the officer acted properly. Garza then entered his conditional guilty plea. Sentenced to the mandatory 15 years imprisonment and three years supervised release, Garza appeals.


Garza invokes the fourth amendment in challenging the initial search of his person, arguing that the...

To continue reading