The federal appeals court based in Denver has agreed police were lawfully inside an Adams County home at the explicit invitation of the defendant’s mother when they spotted the defendant’s handgun in a drawer, leading to federal charges for firearms possession.

Mario Raymond Sanchez is serving a three-year sentence for possessing a weapon despite a prior felony conviction prohibiting him from doing so. An officer happened to see the gun in a drawer while inside the home of Sanchez’s mother, where police were awaiting a search warrant.

At the time, Sanchez was a person of interest for a yet-unresolved murder from December 2019. But once the gun was spotted, law enforcement added the new information to their warrant application.

A trial judge found the search of the home was legal under the Fourth Amendment because, even if the discovery of the gun was excluded, police had other evidence establishing probable cause Sanchez had committed a crime.

Last week, the U.S. Court of Appeals for the 10th Circuit simplified the issue even further. Sanchez’s mother consented to police being in her home, they were lawfully inside when they spotted the gun, and probable cause was, therefore, unnecessary.

The mother’s “unbounded permission overrode any such requirement,” wrote Senior Judge Paul J. Kelly Jr. in the court’s Jan. 5 order.

On Jan. 23, 2020, law enforcement was searching for Sanchez – hoping to talk to him about the murder of 21-year-old Alicia Marie Tverberg the previous month. A man recently released from jail had returned to his apartment near Brighton in December, only to find the door open and Tverberg inside, dead from a gunshot wound. While in jail, the man allegedly agreed to let a friend of Sanchez’s, Lindsay Jenson, stay at his apartment.

A confidential informant claimed Sanchez, Jenson and a third party placed Tverberg’s body inside the apartment. Although the informant did not believe Sanchez shot Tverberg, Sanchez had asked Jenson over Facebook to bring him 9mm bullets before the crime. Police felt, at least at the time, Jenson was heavily involved with the murder and Sanchez could be with her.

Officers arrived at the Commerce City home of Serapia Gutierrez, Sanchez’s mother, and she said they were “more than welcome” to come inside. Gutierrez roused Sanchez from his son’s bedroom, where Sanchez was sleeping, and Sanchez met with the officers. He agreed to come with them to the police station.

Gutierrez invited the officers to look through her house, saying she had “nothing to hide.” Police declined to do so, opting to wait for a warrant. Eventually, officers asked Gutierrez to come to the police station for an interview. She agreed to go, along with Sanchez’s son. 

Before leaving, however, Gutierrez made arrangements for the other occupants of the house. A family member picked up two elderly relatives who lived with Gutierrez and, after Gutierrez left, Sanchez’s ex-wife came to retrieve a dog who was locked in the bathroom. 

Officers remained in the home to await the warrant, and sheriff’s Deputy Sean Allegar accompanied the woman while she looked for the dog’s leash. The woman opened a drawer in the bedroom where Sanchez had been sleeping, only to find a handgun inside. Allegar reported his observation, which made its way into the application for a search warrant.

Police were able to later link the gun to Tverberg’s slaying, although they did not charge Sanchez for murder and the case remains unsolved.

In response to the charge of unlawful firearm possession, Sanchez sought to exclude evidence of the gun from his trial. After a hearing, U.S. District Court Senior Judge R. Brooke Jackson rejected Sanchez’s request, finding Allegar “properly” followed Sanchez’s ex-wife in the home and “purely by chance” saw the gun.

Alternatively, “there was probable cause to believe that Mr. Sanchez was a person of interest, that he might be with Jenson, that he might be with Jenson in that house, that he was in that house, and that he might have a 9mm handgun with him,” Jackson elaborated.

Sanchez appealed, arguing even if police suspected him of possessing a prohibited firearm, there was nothing suggesting Gutierrez’s home was where they could find it.

“You’ve got a Facebook message from a month before,” Judge Nancy L. Moritz observed during oral arguments at the 10th Circuit, “saying he had the gun and he possessed it essentially a month before. Not that he had the gun in the mom’s house, that he lived in the mom’s house – nothing.”

But the government countered there was a “fair probability” of finding the gun wherever Sanchez was.

“The search that happened here was a plain-view search,” added attorney Marissa R. Miller. “When we have a plain-view search, the main question – perhaps the only question – is whether the officer who saw that evidence in plain sight had a legal right to be standing there.”

The 10th Circuit panel hearing the appeal ultimately decided Gutierrez’s consent meant the officers were lawfully inside her home and Allegar’s observation of the gun was fair game.

“They had permission to be in the house. This woman shows up looking for a dog leash. They want to make sure nothing would be taken. So there’s nothing wrong with them following her around,” Kelly explained during oral arguments. “She opens the drawer to get the leash and lo and behold, there’s the gun. What more is needed?”

The case is United States v. Sanchez.