Petition for Writ of Certiorari — Raul Mejia, Petitioner v. United States

Supreme Court briefJan 24, 2020

Ask Donna

What actually matters in this document.

Text

No.

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 2020

RAUL MEJIA,

Petitioner

THE UNITED STATES OF AMERICA,

Respondent.

On Petition For a Writ of Certiorari to the Ninth Circuit Court of

Appeal

PETITION FOR WRIT OF CERTIORARI

Erica Gambale

Counsel for Petitioner

P.O. Box 2896

Mission Viejo, CA 92690

(949) 293-3486

Question Presented For Review

Was petitioner’s truck illegally searched due to an invalid

warrant? Was petitioner improperly denied a Franks hearing?

Did Officer Carbajal testify as an unnoticed expert

rendering petitioner’s trial unfair?

Parties to the Proceeding

The parties to the proceedings in the Ninth Circuit Court of

Appeal were the United States of America and petitioner Raul Mejia.

There were no parties to the proceeding other than those named in the

caption of the case.

iii

Table of Contents

Page(s)

Question Presented for Review ............................................................ ii

Parties to the Proceeding ..................................................................... iii

Table of Contents ................................................................................. iv

Index of Appendices ............................................................................ vi

Table of Cited Authorities .................................................................. vii

Petition for Writ of Certiorari ............................................................... 1

Opinions and Orders Below ................................................................. 1

Jurisdiction ............................................................................................ 1

Constitutional and Statutory Provisions Involved ................................ 2

A. Federal Constitutional Provisions............................................... 2

B. Statutory Provisions……………………………………………2

Statement of the Case ........................................................................... 3

Reasons for Granting the Writ .............................................................. 3

Appendix A ..................................................................... attached hereto

Appendix B ..................................................................... attached hereto

Certificate of Service ......................................................filed separately

Index of Appendices

Original Opinion of the Ninth Circuit Court of Appeal

California Court of Appeal.

18 U.S.C. § 922(g)(1)

Table of Cited Authorities

Page(s)

CASES

California v. Acevedo,

500 U.S. 565 (1991)…………………………………………..11

Carroll v. United States,

267 U.S. 132 (1925)…………………………………………..11

Cassady v. Goering,

567 F.3d 628…………………..……………………………….5

Colorado v. Bertine,

479 U.S. 367 (1987)…………………….……………………15

Florida v. Wells,

495 U.S. 1 (1990)….…………………………………………16

Groh v. Ramirez,

540 U.S. 551. (2004)……...…………………………..……..5, 6

Maryland v. Garrison,

480 U.S. 79 (1987)…………..………………...……………….4

McDonald v. United States,

335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153 (1948)……………...5

Pennsylvania v. Labron,

518 U.S. 938 (1996)…..………………………….…………..11

South Dakota v. Opperman,

428 U.S. 364 (1976)………….……………………….14

vii

United States v. Brooks,

610 F.3d 1186 (9th Cir. 2010)………………...……………..12

United States v. Cardwell,

680 F.2d 75 (9th Cir. 1982)………….……………………..5, 20

United States v. Clark,

31 F.3d 831 (9th Cir.1994)………………..………………….17

United States v. Ewing,

638 F.3d 1226 (9th Cir. 2011)……..…………………………12

United States v. George,

975 F.2d 72 (2d Cir. 1992)…..……………...…………………6

United States v. Kleinman,

880 F.3d 1020 (9th Cir. 2017)……..…………………………23

United States v. Kow,

58 F.3d 423 (9th Cir. 1995)……….………………….4, 5, 6, 20

United States. v. Krupa,

658 F.3d 1174 (9th Cir. 2011)……..……..…………………..17

United States v. Leary,

846 F.2d 592 (10th Cir. 1988)…..………..…………………..4

United States v. Luong,

470 F.3d 898 (9th Cir.2006)…….……………………………18

United States v. Reeves,

210 F.3d 1041 (9th Cir. 2000)……..…………………………23

viii

United States v. Ross,

456 U.S. 798 (1982)…………………………………………..11

United States v. Scott,

705 F.3d 410 (9th Cir. 2012)…………………………………12

United States v. SDI Future Health, Inc.,

568 F.3d 684 (9th Cir. 2009)……..…………………..18, 19, 20

United States v. Sells,

463 F.3d 1148 (10th Cir. 2006)………………………………20

United State v. Spilotro,

800 F.2d 959 (9th Cir. 1986)……….…………………………20

United States v. Stubbs,

873 F.2d 210 (9th Cir. 1989.)……….…………………………8

United States v. Washington,

797 F.2d 1461 (9th Cir. 1986)………...……….………………5

United States v. Weber,

923 F.2d 1338 (9th Cir. 1990)…….…………….…………8

FEDERAL CONSTITUTIONAL PROVISIONS

IV Amendment…………………………………..2, 4, 8, 11, 14, 19, 29

FEDERAL STATUTES

18 U.S.C. § 922(g)(1)…………………………………………………3

28 U.S.C. section 1257(a)…………………………………………….1

FEDERAL RULES

Fed. R. Crim. Pro. 16(a)(1)(G)………………..…………………...2,26

RULES OF THE UNITED STATES SUPREME COURT

Rule 131.1 ............................................................................................. 1

PETITION FOR WRIT OF CERTIORARI

The petitioner, Raul Mejia, respectfully petitions this Court for

a Writ of Certiorari to review the judgment and opinion of the Ninth

Circuit Court of Appeal filed on October 29, 2019.

Opinions and Orders Below

The original opinion of the Ninth Circuit Court of Appeal

affirming petitioner’s conviction is attached hereto as Appendix A.

Jurisdiction

The decision of the Ninth Circuit Court of Appeal sought to be

reviewed was filed on October 29, 2019. This petition is filed within

90 days of that date pursuant to the Rules of the United States

Supreme Court, Rule 131.1. This Court has jurisdiction to review

under 28 U.S.C. section 1257(a).

Constitutional and Statutory Provisions Involved

Federal Constitutional Provisions

The Fourth Amendment of the United States Constitution

provides, in pertinent part: “The right of the people to be secure in

their persons, houses, papers and effects, against unreasonable

searches and seizures, shall not be violated, and no Warrants shall

issue, but upon probable cause, supported by Oath or affirmation, and

particularly describing the place to be searched, and the persons or

things to be seized….”

B. Federal Statutory Provisions

Federal Rules of Criminal Procedure, rule 16, states in pertinent

part that, upon request, a criminal defendant is entitled to receive

“written summaries of expert testimony that the government intends

to use during its case-in-chief at trial.”

Statement of the Case

Petitioner was convicted of being a felon in possession of a

firearm, a violation of Title 18 U.S.C. § 922(g)(1). (see Appendix A.)

On appeal, petitioner contended that the district court erred in

failing to suppress evidence based on an invalid warrant and in failing

to hold a Franks hearing based on the misleading statements of Officer

Carbajal. He further contended that the district court erred in allowing

Officer Carbajal to testify as an unnoticed expert offering the only

purported evidence of Mr. Mejia’s knowledge of the firearm concealed

in his truck. (Appendix A.)

The Ninth Circuit Court of Appeal disagreed and affirmed the

conviction, contradicting this Court’s precedent and decision from most

other circuits. (Appendix A.)

Reasons for Granting the Writ

This Court Should Allow The Writ In Order To Decide An

Important Question Of Law And To Resolve The Conflict In The

Federal Circuit Courts of Appeals On This Issue.

A. The warrant used to search petitioner’s truck was

invalid, thus the evidence obtained as a result of the

search should have been suppressed.

1. The warrant lacks specificity.

“In the context of the Fourth Amendment, particularity is the

requirement that the warrant must clearly state what is sought.”-United

States v. Kow, 58 F.3d 423, 426-28 (9th Cir. 1995). Particularity helps

to ensure that a search or seizure “will not take on the character of the

wide-ranging exploratory searches [or seizures] the Framers intended

to prohibit.” Maryland v. Garrison, 480 U.S. 79, 84 (1987). “[T]fourth

amendment requires that the government describe the items to be seized

with as much specificity as the government's knowledge and

circumstances allow, and warrants are conclusively invalidated by their

substantial failure to specify, as nearly as possible the distinguishing

characteristics of the goods to be seized.” United States v. Leary, 846

F.2d 592, 600 (10th Cir. 1988) (internal quotation marks omitted).

“Thus, the ‘particularity requirement’ prevents general searches and

strictly limits the discretion of the officer executing the warrant.” See

United States v. Kow, 58 F.3d 423; see also Cassady v. Goering, 567

F.3d 628.

This Court held that a “particular warrant … assures the

individual whose property is searched or seized of the lawful authority

of the executing officer, his need to search, and the limits of his power

to search.” Groh v. Ramirez, 540 U.S. 551, 561 (2004) (internal citation

and quotation marks omitted); see also McDonald v. United States, 335

U.S. 451, 455, 69 S.Ct. 191, 93 L.Ed. 153 (1948) (“We are not dealing

with formalities. The presence of a search warrant serves a high

function.”). Again, there were no such limits here: this warrant

permitted officers to search for all evidence of any crime. See United

States v. Kow, 58 F.3d 423; Cassady v. Goering, 567 F.3d 628, 637

(10th Cir. 2009) It is clearly established that a warrant that authorizes

searches for or seizure of “evidence” of a crime violates the

particularity requirement. United States v. Washington, 797 F.2d 1461,

1472-73 (9th Cir. 1986) (noting that warrant authorizing search for

“instrumentality or evidence of violation of the general tax evasion

statute” is invalid) (quoting United States v. Cardwell, 680 F.2d 75, 77

(9th Cir. 1982). A warrant that authorizes a search for specified items

and “all other evidence of criminal activity” suffers from this same fatal

flaw, because it fails to “confine the scope of the search to any

particular crime.” 567 F.3d at 637 ; see United States v. George, 975

F.2d 72, 76 (2d Cir. 1992) (“authorization to search for ‘evidence of a

crime,’ that is to say, any crime, is so broad as to constitute a general

warrant.”). See also Groh, 540 U.S. at 557, 564-65 (warrant that

provides no description of what was to be seized is “plainly invalid”)

First and foremost, petitioner notes the Court of Appeal never

addressed this issue, finding the search legal under the automobile

exception. (see appendix A.) As discussed below, that was in error.

Thus, the legality of the warrant must be reviewed by this Court. Here,

the warrant’s particularity problem is obvious. First, it describes

authorization to search “any other property that appears to be stolen.”

ER 122. There is nothing in the actual warrant specifying what the

agents may search for “that appears to be stolen.” This lack of

particularity is similar to the warrant this Court found problematic in

Groh found problematic in United States v. Kow. 58 F.3d 423. There

the Ninth Circuit confronted a warrant that authorized agents to seize

“virtually every document and computer file.” Id. ay 427. There, as

here, to “the extent that [the warrant] provided any guidance to the

officers executing the warrant, the warrant apparently sought to

describe every document on the premises and direct that everything be

seized.” Ibid.

A second problem with the warrant’s particularity is the

complete absence of a time-frame within which agents must confine

their search for all documentary evidence including records, checks,

receipts, travel records, financial instruments, and stocks/bonds. ER

122-123. That is, even if the warrant’s broad authorization may be

viewed as a legitimate request to search for “dominion and control”

type documents, the warrant does not specify the time-periods to which

such “dominion and control” items must relate. Without a limiting timeperiod within which officers may search any of these documents, the

warrant authorizes a search untethered to any particular scope of

materials. The warrant here failed to impose a meaningful restriction

upon the items to be seized, therefore lacked the particularity required

by the Fourth Amendment.-See United States v. Stubbs, 873 F.2d 210,

212-13 (9th Cir. 1989.)

2. The warrant is overbroad.

Moreover, the warrant was overbroad as well. The Fourth

Amendment’s breadth requirement narrows the scope of the warrant by

the probable cause on which the warrant is based, thereby tying the

probable cause in the affidavit to the items seized.” 926 F.2d at 85657. Here there is little to no tie between the two.

The warrant here allowed for the wholesale seizure of nearly any

possible items which could be seized outside the actual items thought

to have been stolen: large flat screen televisions, musical instruments,

and a bag of clothing ER 127. The situation is akin to an example cited

with approval by the Weber Court probable cause to search a house for

two items of stolen property “does not establish the suspect’s ongoing

activities as a fence so as to justify” a warrant to search “for other stolen

property as well.” United States v. Weber, 923 F.2d 1338, 1344 (9th

Cir. 1990) (citation omitted).

The warrant’s lack of any limiting time-frame on all dominion

and control documents also underscores its overbreadth. As the Ninth

Circuit has noted, an important principle of [its precedent] is that

probable cause to believe that some incriminating evidence will be

present at a particular place does not necessarily mean there is probable

cause to believe that there will be more of the same.” 923 F.2d at 1344

The affidavit here detailed a single officer’s belief that Mr. Mejia was

involved in concert with others to have committed thefts from storage

lockers on a particular date, November 12, 2016. To the extent this

establishes probable cause to search the laundry list of items to which

the warrant allows seizure, it does nothing to establish probable cause

to search and seize aged documents or items not related to this one

event.

The warrant’s overbreadth is also underscored by its almost

inexplicable allowance for agents to search and seize evidence of

“purchase and distribution of controlled substances,” “travel logs,”

“ledgers,” “undeveloped film,” “stocks and bonds,” “incoming calls for

the duration of the search,” and “any firearms, ammunition, and other

types of weapons.” ER 122-123. The affidavit does not even attempt

to provide probable cause that such a search will uncover evidence of a

crime. As far as the incoming calls, Officer Carbajal asserts as a bare

assertion in his affidavit that persons engaged in theft use phones to

further their criminal activity. ER 125. Other than this one general brief

statement, there is nothing to indicate that any of the above items

correlate to the crime alleged which are tied to the search warrant.

3. Carbajal lacked probable cause to search the area

of the vehicle that contained the firearm rendering

the search a violation of petitioner’s constitutional

rights.

In this case, Carbajal believed appellant was one of several

suspects in the burglary of a storage units. However, Carbajal lacked

probable cause to believe that the truck searched was used to commit

and contained evidence of the burglaries. Because of the lack of

probable case, the automobile exception to warrantless searches does

not apply. The Court of Appeal erred in finding the search legal under

this exception, requiring review by this Court.

This Court long ago established the automobile exception to the

warrant requirement. Under that exception, an officer’s search of an

automobile can be reasonable without first securing a warrant. Carroll

v. United States, 267 U.S. 132, 153 (1925). More specifically, “[i]f a

car is readily mobile and probable cause exists to believe it contains

contraband, the Fourth Amendment . . . permits police to search the

vehicle without more.” Pennsylvania v. Labron, 518 U.S. 938, 940

(1996). Nevertheless, the scope of the ensuing warrantless search is

limited. That search may extend only to “the places in which there is

probable cause to believe that [the object of the search] may be found.”

United States v. Ross, 456 U.S. 798, 824 (1982); see also California v.

Acevedo, 500 U.S. 565, 580 (1991) (“The police may search an

automobile and the containers within it where they have probable cause

to believe contraband or evidence is contained.”). Put another way,

where probable cause is limited to one sole compartment or container

within the car, the Fourth Amendment forbids the officers from

conducting a warrantless search of the remainder. See Acevedo, 500

U.S. at 580. The government bears the burden of proving that this

exception applies. United States v. Scott, 705 F.3d 410, 416 (9th Cir.

2012). It failed to do so here.

In this case, Carbajal lacked probable cause to search in the area

behind the glove box. If a law enforcement officer has probable cause

to search a vehicle, that probable cause extends to all contents in the

vehicle that could be connected to the suspected criminal activity.

United States v. Ewing, 638 F.3d 1226, 1231 (9th Cir. 2011) (italics

added). A determination of probable cause is based on the “totality of

the circumstances” known to the officers at the time of the search.

United States v. Brooks, 610 F.3d 1186, 1193 (9th Cir. 2010). Here,

contrary to the government’s claim, the totality of the circumstances do

not support a finding that Carbajal had probable cause to search the area

behind the glove box. Carbajal attested he believed the searched Titan

“was used to remove stolen property” from the storage units. ER 127.

The stolen property in this case consisted of large flat screen

televisions, musical instruments, and bags of clothing.

ER: 127.

Secondly, the Titan is a pickup truck. Large items like flat screen

televisions, musical instruments, and bags of clothing would be open

and obvious to anyone looking into the truck if the truck contained

those items. Carbajal knew the items stolen could not fit in that area

behind the glove box. It is disingenuous for the Government to now

claim that was in fact Carbajal’s intent when he searched that area. Nor

is it reasonable to believe that Carbajal searched behind that glove box

looking for additional burglary tools. He located the cutters when he

located appellant. There is no evidence to suggest Carbajal believed

additional burglary tools would be behind the glove box. As such, this

claim fails.

In this case, Carbajal believed the Titan was used in the

commission of the aforementioned burglaries. Indeed, he observed the

Titan, with bags similar to those stolen in its flat bed, parked behind the

motel where he subsequently located appellant. The evidence suggests

Carbajal believed the Titan was used to transport the items stolen from

the storage facility.

None of these items would or could be located

behind the glove box, an area of the vehicle manipulated by Carbajal to

be searched. Thus, Carbajal’s search of this specific area of the Titan

exceeded the scope of that legally permitted by the warrantless search.

More importantly, when petitioner was arrested in that van,

Carbajal observed bolt cutters, in plain view, inside that van. Thus,

Carbajal now had reason to believe that van contained evidence of these

burglaries. He lacked probable cause to believe additional burglary

tools would be located in the Titan pick-up truck, such that he could

legally search that Titan without a warrant under any exception.

4. The firearm was not legally discovered through the

inevitable discovery doctrine.

This Court has recognized that automobiles are frequently

impounded as part of a local police agency’s community caretaking

function, and police agencies will routinely secure and inventory a

vehicle’s contents in that process. South Dakota v. Opperman, 428 U.S.

364, 368–369 (1976). In fact, this Court has deemed such warrantless

inventory searches reasonable under the Fourth Amendment where the

process is aimed at securing or protecting a car and its contents. Id . at

p. 373. “Inventory searches are not subject to the warrant requirement

because they are conducted by the government as part of a ‘community

caretaking’ function, ‘totally divorced from the detection, investigation,

or acquisition of evidence relating to the violation of a criminal statute.’

” Colorado v. Bertine, 479 U.S. 367, 381, (1987). An inventory “using

a standard inventory form pursuant to standard police procedures,”

which included the contents of an unlocked glove compartment, was

deemed reasonable in Opperman. The Opperman court explained that

standard automobile inventories will include a search of the glove

compartment because it is “a customary place” for ownership and

registration documents and for “the temporary storage of valuables.”

Id. at p. 372.

In Bertine, this Court upheld as reasonable a vehicle inventory

search that extended into canisters located in a closed backpack behind

the driver’s seat. 479 U.S. at p. 369. The officer was following

standardized procedures searching a van that was being impounded

after arresting the driver for driving under the influence of alcohol. Id.

at pp. 368. The inventory was not performed in bad faith or for the sole

purpose of investigation, and the standardized procedures mandated the

opening of closed containers and the listing of their contents. Id. at p.

374, fn. 6. Bertine rejected the state court’s view that police should

weigh the individual's privacy interest in a container against the

possibility it may contain valuable or dangerous items, in part to allow

for the prompt and efficient completion of a legitimate, precisely

defined search. Id. at p. 375.

Significant to this case, this Court recognized the limits of

inventory searches. In Florida v. Wells, 495 U.S. 1 (1990), the search

of a locked suitcase in the trunk of an impounded car was unreasonable

as an inventory search because the police agency had no policy with

regard to the opening of closed containers. Id. at pp. 4–5. This Court

stressed that “standardized criteria or ... established routine [citation]

must regulate the opening of containers found during inventory

searches” to assure that an inventory search does not turn into “ ‘a

purposeful and general means’ ” of discovering incriminating evidence.

Id. at p. 4. Here, Carbajal used this standard inventory search as a

purpose and general means of discovering incriminating evidence

against appellant.

More importantly, here the prosecution failed to present evidence

that this alleged inventory search was conducted pursuant the Calexico

Police Department policy and procedures. First and foremost, the

record lacks evidence to support this search was conducted properly

within the guidelines of the Calexico Police Department. This record

is devoid of evidence explaining those guidelines. Instead, the record

states that the department’s policy permits an inventory search. It

provides no details of the scope of the searches permitted, the

guidelines or rules governing such searches.

In fact, Carbajal’s

declaration fails to state he followed the department’s policy and

procedure when conducting this search.

5. The search was not conducted in “good faith”

because the officers did not rely on the search

warrant in an objectively reasonable manner.

Here, Carbajal did not rely on “good faith” when searching the

truck. For the good faith reliance exception to apply, the officers must

have relied on the search warrant in an objectively reasonable manner.

United States v. Clark, 31 F.3d 831, 835 (9th Cir.1994). The affidavit

“must establish at least a colorable argument for probable cause” for

the exception to apply. U.S. v. Krupa, 658 F.3d 1174, 1179 (9th Cir.

2011); United States v. Luong, 470 F.3d 898, 903 (9th Cir.2006).

Significant to this claim, “the government bears the burden of proving

that officers relied on the search warrant ‘in an objectively reasonable

manner.’ ” United States v. SDI Future Health, Inc., 568 F.3d 684, 706

(9th Cir. 2009) (quoting Crews, 502 F.3d at 1136).

Since the

Government raises this claim for the first time on appeal, the record not

only lacks evidence to support it, but petitioner lacked the opportunity

to rebut this claim in the district court. Nor did the district court find

Carbajal’s good faith reliance as a reason to deny petitioner’s

suppression motion.

Nevertheless, should this Court find the claim ripe, it must fail.

Here, at best Carbajal had probable cause to believe the Titan was

involved in removing large flat screen televisions, musical instruments,

and bags of clothing from the storage center. Assuming, arguendo,

Carbajal had the requisite probable cause to believe this pickup truck

facilitated that burglary, then Carbajal could look for the stolen items

in the truck.

Nothing offered by Carbajal supports he had an

“objectively reasonable” belief that these stolen items would be behind

the glove box in that Titan. Carbajal’s search of that area of the Titan

was nothing more than a fishing expedition, not based on good faith,

lacked probable cause, and violated petitioner’s Fourth Amendment

rights.

6. Severance is not an option.

In this case, severance was not an option for the many items

seized absent any probable cause. Severance is proper when only

portions of a warrant are insufficiently specific. This Ninth Circuit has

“endorsed a doctrine of severance, which allows a court to strike from

a warrant those portions that are invalid and preserve those portions that

satisfy the [f]ourth [a]mendment.” United States v. SDI Future Health,

Inc., 568 F.3d at 707 (quotation marks omitted). Severance is not

appropriate, however, “when the valid portion of the warrant is a

relatively insignificant part of an otherwise invalid search.” Id. at 707

(quotation marks omitted). Such is the case here.

In this case, the invalid portions of the warrant were of such

substance, that the alleged valid portions of the warrant were

insignificant. The manner in which this warrant was drafted permitted

Carbajal to obtain a general warrant that the district court erroneously

found constitutional that in turn resulted in permission for Carbajal to

search for items minor to the scope of the warrant. The valid portions

of this warrant fell far short of contributing “qualitatively” more than

the invalid portions. See United States v. Sells, 463 F.3d 1148 (10th

Cir. 2006). In fact, the Courts have recognized similar, egregious

violations and refused ot sever search warrants. See United States v.

SDI Future Health, Inc., 568 F.3d at 707; See also United States v.

Cardwell, 680 F.2d 75, 76, 78-79 (9th Cir. 1982) (“In this case even the

most specific descriptions . . . are fairly general.”); United State v.

Spilotro, 800 F.2d 959, 964-65 (9th Cir. 1986)

(noting that “the

government could have narrowed most of the descriptions in the

warrant[]” and expressly relying on the conclusion that “the

descriptions found deficient in Cardwell were at least as precise as the

descriptions at issue here”); Kow, 58 F.3d at 427 (“By failing to

describe with any particularity the items to be seized, the warrant is

indistinguishable from the general warrants repeatedly held by this

court to be unconstitutional”). Here, the descriptions in the warrant

were general, should have been narrowed, and failed to include with

any particularity the exact items to be seized. In fact, this warrant was

so poorly drafted that the district court made a point of stating it was

“obviously not the best written warrant.” ER: 91. Here, as discussed,

severance was not an option.

7. Petitioner was erroneously denied the Franks

hearing.

Petitioner was entitled to a Franks hearing because in his

affidavit, Carbajal deliberately or recklessly misrepresented the facts of

what the surveillance video showed or omitted facts which more

accurately explained the state of the evidence and these misrepresented

and missing facts were material to a probable cause determination. The

Court of Appeal did not address this issue after erroneously finding the

search of the truck valid under the automobile exception. (see appendix

A.) Hence, review is necessary.

First, petitioner established that the district court’s finding was

clearly erroneous because the record showed Carbajal’s affidavit was

recklessly or intentionally false. See AB: 43. Carbajal asserted that the

“subject in the Titan and subjects on foot worked together to break into

different storage lockers.” ER: 126.

Yet, the surveillance video

indicated this is not so. Carbajal then swears “the Titan was then used

to remove stolen property from the premise.” ER: 127. Again, the very

surveillance video relied upon by Carbajal fails to support this

assertion.

Third, Carbajal swears that he noticed “several items of

property inside the vehicle and in the bed of the truck.” ER: 127. Again,

this is not supported by the evidence. Carbajal’s assertion implies that

the “property” seen inside the truck is that stolen from the storage units;

namely large flat screen televisions, musical instruments, and bags of

clothing. This is not the case.

Rather, what the surveillance video shows are multiple vehicles

inside the storage units during this five-hour time frame. People are

seen on foot, in a car, in a truck, and in vans. There is no recording

which shows petitioner working in concert with anyone nor is there

video which depicts petitioner or others loading or unloading items into

the Titan.

The district court misguidedly found that Carbajal sincerely

believed these statements to be true. ER: 82-83, 85-86, 92. Yet, the

district court made this finding absent hearing from Carbajal. Rather

than question Carbajal as to the veracity of his statements, the district

court found them to be sincere and honest seemingly because they were

contained in an affidavit drafted by an experienced officer who

observed a crime scene. ER: 85-86. However, the law provides for a

hearing in situations such as this because officers, even the most

experienced, sometimes recklessly misrepresent facts in order to obtain

warrants.

More importantly, Carbajal’s sincerity is not relevant to a

claim that he was reckless.

In order to secure a Franks hearing, the

defendant must show the author of the warrant was either intentionally

false or recklessly false. United States v. Kleinman, 880 F.3d 1020,

1038 (9th Cir. 2017); see also United States v. Reeves , 210 F.3d 1041,

1044 (9th Cir. 2000). Thus, a defendant may be entitled to a hearing

despite the intent and sincerity of an officer if the evidence supports

that’s officer was reckless in the manner in which he drafted a warrant.

Such is the case here.

Further, contrary to the decision on appeal, petitioner established

Carbajal omitted material facts from his affidavit. First, Carbajal failed

to explain that multiple people are seen over surveillance both in

vehicles and on foot. Carbajal failed to include the fact the manager

states regular customers are appearing during this time. Carbajal failed

to explain that petitioner is shown on surveillance video entering the

facility at the gate, by entering his access code, indicating he had

permission to enter the storage facility. Carbajal does not explain that

at the time of the pickup’s entry, video shows what is in the bed of the

pickup or that the video depicts different angles of the pickup truck bed

while driving inside the facility. There is not a showing, through

multiple video angles and cameras that petitioner acted in concert with

anyone to steal materials from any storage locker or to transport stolen

goods outside of Portico Storage.

Whether reckless or intentional, Carbajal failed to include any of

this information in his affidavit. These facts were material to a finding

of probable cause. Officer Carbajal “report[ed] less than the total story”

to “manipulate the inferences a magistrate will draw. To allow a

magistrate to be misled in such a manner could denude the probable

cause requirement of all real meaning.” Franks, 438 U.S. at 168. Here,

the spirit and intent of the law is to permit a hearing to question the

veracity of Carbajal’s affidavit; the accuracy of which has been

sufficiently questioned. The district court erred in failing to hold a

hearing.

B. The District Court prejudicially erred by admitting

the unnoticed expert testimony of Carbajal without

foundation.

Here, over defense objection, after testifying to where he found

the firearm, Carbajal opined the gun appeared to have been handled

recently and cleaned as there was lubricant on the outside of its slide.

ER: 25. Then, Carbajal discussed whether hollow point bullets are

practice or defensive rounds.1 ER: 25. This again calls for him to rely

on his specialized training or experience to answer. Lastly, Carbajal

then testified that in his experience it was not unusual for recently

cleaned gun to not have fingerprints. ER: 26. All three of these

Indeed, the Government conceded this specific testimony was

admitted in error. AB: 59.

objectionable statements require specialized training, knowledge,

and/or experience. Thus, in overruling the defense objections, the

district court erroneously allowed Carbajal to provide his expert

opinion regarding this firearm.

Significantly, Carbajal’s comments on recent handling and

cleaning of a weapon, the use of hollow point bullets, and the lack of

fingerprints on a recently cleaned gun, all are based on specialized

knowledge as a veteran police officer, this testimony was expert

testimony. Because of this, the notice requirements of Rule 16 2 were

triggered and were not followed.

During the trial, the prosecution elicited testimony from Carbajal

regarding his training and experience as a police officer. Indeed, the

prosecution used this testimony to bolster its case. Carbajal, this

experienced officer, located a firearm in the natural void behind the

glove box in the Titan. Carbajal was asked to explain this void and

how one could access this void seemingly because it is not general

Fed. R. Crim. Pro. 16(a)(1)(G).

knowledge that such a void exists. ER: 22-24. It was Carbajal’s

training and experience as a police officer that afforded him the

knowledge to look in such a void. Carbajal, this experienced officer,

inspected that firearm. It was Carbajal’s training and experience, his

standing as a 12-year veteran of the police department (see ER: 14) that

legitimized the prosecution’s case and discredited petitioner’s defense.

More importantly, it is unreasonable to claim that a lay person would

have knowledge of and understand how DNA evidence was collected

from evidence or how firearms were cleaned.

Carbajal’s expert testimony that, while based on his personal

observation and recollection, was founded upon a conclusion based on

his training, experience, and specialized knowledge as a police officer.

Nothing in the record suggests that a person without Carbajal’s training

and experience would recognize the lubricant found on the firearm and

conclude it had been recently cleaned. Rather, this is the opinion of a

person well versed in firearms, the cleaning of firearms, and the storage

and care of firearms.

Carbajal did not simply state that the firearm

“looked clean,” as the Government suggest. AB: 54. Instead, Carbajal

stated that this firearm looked like it had been recently handled and

there was still lubricant on the slide. ER: 25. This was the expert

opinion of someone knowledgeable enough to inspect the firearm. This

is the expert opinion of someone investigating that firearm.

Finally, contrary to the decision on appeal, petitioner suffered

prejudice as a result of this erroneously admitted expert testimony.

Indeed, the Government agreed this testimony was “helpful in

determining a fact in issue- namely whether Mejia knew the firearm

was inside the Titan- by undermining his argument that one of the

Titan’s prior owner’s might have placed it there.” AB: 55.

This is

because the evidence established that the Titan had only recently been

registered to petitioner.

This testimony was essential to the jury’s

determination of an element of the alleged crime; knowledge. If the

jury had a reasonable doubt as to whether petitioner knew of the

firearm’s location, they would have had to find him not guilty. Hence,

absent this erroneously admitted testimony, it is likely the outcome

would have been decidedly different.

In light of the above, petitioner urges that this writ should be

allowed so that this Court can decide the very important question of

law regarding the Fourth Amendment protections against searches and

seizure and admission of improper expert opinions.

For all of the above reasons, petitioner respectfully requests the

writ be allowed.

Dated:

l----- ffel,

2:V

Respectfully submitted,

Appendix A

(1 of 9)

Case: 18-50132, 10/29/2019, ID: 11481138, DktEntry: 58-1, Page 1 of 5

FILED

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

OCT 29 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

No.

18-50132

D.C. No.

3:17-cr-00809-CAB-1

MEMORANDUM*

RAUL MEJIA,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of California

Cathy Ann Bencivengo, District Judge, Presiding

Submitted October 21, 2019**

Pasadena, California

Before: KLEINFELD, PAEZ, and CALLAHAN, Circuit Judges.

Raul Mejia, a federal prisoner, appeals his conviction as a felon in

possession of a firearm in violation of 18 U.S.C. § 922(g)(1). During an

This disposition is not appropriate for publication and is not precedent

except as provided by Ninth Circuit Rule 36-3.

The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2).

(2 of 9)

Case: 18-50132, 10/29/2019, ID: 11481138, DktEntry: 58-1, Page 2 of 5

investigation into a burglary at a storage center, police searched Mejia’s truck and

found a firearm hidden behind the glove compartment. The district court declined

to suppress the firearm and denied Mejia’s motion for a Franks hearing. We

review these rulings de novo. United States v. Adjani, 452 F.3d 1140, 1143 (9th

Cir. 2006) (discussing the standard of review for suppression motions); United

States v. Kleinman, 880 F.3d 1020, 1038 (9th Cir. 2017) (discussing the standard

of review for Franks hearing motions), cert. denied, 139 S. Ct. 113 (2018). The

district court also overruled his objections to what he characterizes as “expert

testimony” on the part of a police officer. This we review under “a clear abuse of

discretion” standard. United States v. Gadson, 763 F.3d 1189, 1209 (9th Cir.

2014). Upon our review, we affirm Mejia’s conviction.

While Mejia argues on appeal that the search warrant for his truck was

invalid, we find it unnecessary to address this claim. The automobile exception to

the Fourth Amendment’s warrant requirement, as articulated by Carroll v. United

States, 267 U.S. 132 (1925), precludes most of Mejia’s arguments. This exception

generally permits law enforcement, assuming they have probable cause, to search a

vehicle without a warrant. Collins v. Virginia, 138 S. Ct. 1663, 1669 (2018).

Further, Mejia does not dispute that law enforcement had probable cause to search

(3 of 9)

Case: 18-50132, 10/29/2019, ID: 11481138, DktEntry: 58-1, Page 3 of 5

his truck, arguing instead that there was not probable cause to search behind the

glove compartment. But this is a meritless claim. At minimum, the officer had

probable cause to believe that the proceeds of the burglary or relevant financial

records might be hidden in the truck, and such items could clearly be hidden

behind a glove compartment.

Additionally, Mejia’s claim that the Government forfeited the automobile

exception is meritless. It “is claims that are deemed waived or forfeited, not

arguments.” United States v. Pallares-Galan, 359 F.3d 1088, 1095 (9th Cir. 2004).

Moreover, we have expressly declined to find forfeiture in this context. United

States v. Williams, 846 F.3d 303, 311–12 (9th Cir. 2016); see also United Sates v.

Guzman–Padilla, 573 F.3d 865, 877 n.1 (9th Cir. 2009).

Because we hold that the search of the truck was justified by the automobile

exception, it is unnecessary for us to address Mejia’s motion for a Franks hearing.

We do note, however, that even if we were to reach this issue, we would affirm

based on the district court’s reasoning: Mejia has failed to articulate any material

statement or omission that is misleading.

(4 of 9)

Case: 18-50132, 10/29/2019, ID: 11481138, DktEntry: 58-1, Page 4 of 5

Under Federal Rule of Evidence 701, a lay witness’s testimony must be

rationally based on his or her perception, helpful to determining a fact in issue, and

“not based on scientific, technical, or other specialized knowledge within the scope

of Rule 702.” To the extent that the officer’s testimony went beyond the bounds of

Rule 701, we find that Mejia has failed to show that he was prejudiced by such

statements.

(A) The officer’s testimony about the condition of the gun was acceptable,

and was based on his own recollection during the search of the truck. That he

referred to lubricant on the gun’s slide did not transform him into an expert

witness.

(B) The officer’s testimony about the normal use of hollow point rounds as

compared to full metal jacket rounds was as an expert. Because it was based,

however lightly, on the officer’s abstract and specialized knowledge, it was beyond

the scope of a lay witness. However, this error did not prejudice Mejia. His crime

was committed when he possessed a firearm while being a felon, it does not matter

whether he was using it for practice or self-defense.

(5 of 9)

Case: 18-50132, 10/29/2019, ID: 11481138, DktEntry: 58-1, Page 5 of 5

recently-cleaned firearms, a statement to which Mejia did not object, was as an

expert. Even so, Mejia cannot show prejudice from this statement. The statement

is largely intuitive (i.e., a recently-cleaned firearm is not likely to have

fingerprints), and moreover, the total lack of fingerprints would do little to help

Mejia’s argument at trial that the gun did not belong to him.

Mejia’s conviction is therefore AFFIRMED.

(6 of 9)

Case: 18-50132, 10/29/2019, ID: 11481138, DktEntry: 58-2, Page 1 of 4

United States Court of Appeals for the Ninth Circuit

Office of the Clerk

95 Seventh Street

San Francisco, CA 94103

Information Regarding Judgment and Post-Judgment Proceedings

Judgment

•

This Court has filed and entered the attached judgment in your case.

Fed. R. App. P. 36. Please note the filed date on the attached

decision because all of the dates described below run from that date,

not from the date you receive this notice.

Mandate (Fed. R. App. P. 41; 9th Cir. R. 41-1 & -2)

•

The mandate will issue 7 days after the expiration of the time for

filing a petition for rehearing or 7 days from the denial of a petition

for rehearing, unless the Court directs otherwise. To file a motion to

stay the mandate, file it electronically via the appellate ECF system

or, if you are a pro se litigant or an attorney with an exemption from

using appellate ECF, file one original motion on paper.

Petition for Panel Rehearing (Fed. R. App. P. 40; 9th Cir. R. 40-1)

Petition for Rehearing En Banc (Fed. R. App. P. 35; 9th Cir. R. 35-1 to -3)

(1)

•

Purpose (Panel Rehearing):

A party should seek panel rehearing only if one or more of the following

grounds exist:

►

A material point of fact or law was overlooked in the decision;

►

A change in the law occurred after the case was submitted which

appears to have been overlooked by the panel; or

►

An apparent conflict with another decision of the Court was not

addressed in the opinion.

Do not file a petition for panel rehearing merely to reargue the case.

Purpose (Rehearing En Banc)

A party should seek en banc rehearing only if one or more of the following

grounds exist:

Post Judgment Form - Rev. 12/2018

(7 of 9)

Case: 18-50132, 10/29/2019, ID: 11481138, DktEntry: 58-2, Page 2 of 4

►

Consideration by the full Court is necessary to secure or maintain

uniformity of the Court’s decisions; or

The proceeding involves a question of exceptional importance; or

The opinion directly conflicts with an existing opinion by another

court of appeals or the Supreme Court and substantially affects a

rule of national application in which there is an overriding need for

national uniformity.

(2)

Deadlines for Filing:

•

A petition for rehearing may be filed within 14 days after entry of

judgment. Fed. R. App. P. 40(a)(1).

•

If the United States or an agency or officer thereof is a party in a civil case,

the time for filing a petition for rehearing is 45 days after entry of judgment.

Fed. R. App. P. 40(a)(1).

•

If the mandate has issued, the petition for rehearing should be

accompanied by a motion to recall the mandate.

•

See Advisory Note to 9th Cir. R. 40-1 (petitions must be received on the

due date).

•

An order to publish a previously unpublished memorandum disposition

extends the time to file a petition for rehearing to 14 days after the date of

the order of publication or, in all civil cases in which the United States or an

agency or officer thereof is a party, 45 days after the date of the order of

publication. 9th Cir. R. 40-2.

(3)

Statement of Counsel

•

A petition should contain an introduction stating that, in counsel’s

judgment, one or more of the situations described in the “purpose” section

above exist. The points to be raised must be stated clearly.

(4)

Form & Number of Copies (9th Cir. R. 40-1; Fed. R. App. P. 32(c)(2))

•

The petition shall not exceed 15 pages unless it complies with the

alternative length limitations of 4,200 words or 390 lines of text.

•

The petition must be accompanied by a copy of the panel’s decision being

challenged.

•

An answer, when ordered by the Court, shall comply with the same length

limitations as the petition.

•

If a pro se litigant elects to file a form brief pursuant to Circuit Rule 28-1, a

petition for panel rehearing or for rehearing en banc need not comply with

Fed. R. App. P. 32.

Post Judgment Form - Rev. 12/2018

(8 of 9)

Case: 18-50132, 10/29/2019, ID: 11481138, DktEntry: 58-2, Page 3 of 4

•

The petition or answer must be accompanied by a Certificate of Compliance

found at Form 11, available on our website at www.ca9.uscourts.gov under

Forms.

You may file a petition electronically via the appellate ECF system. No paper copies are

required unless the Court orders otherwise. If you are a pro se litigant or an attorney

exempted from using the appellate ECF system, file one original petition on paper. No

additional paper copies are required unless the Court orders otherwise.

Bill of Costs (Fed. R. App. P. 39, 9th Cir. R. 39-1)

•

The Bill of Costs must be filed within 14 days after entry of judgment.

•

See Form 10 for additional information, available on our website at

www.ca9.uscourts.gov under Forms.

Attorneys Fees

•

Ninth Circuit Rule 39-1 describes the content and due dates for attorneys fees

applications.

•

All relevant forms are available on our website at www.ca9.uscourts.gov under Forms

or by telephoning (415) 355-7806.

Petition for a Writ of Certiorari

•

Please refer to the Rules of the United States Supreme Court at

www.supremecourt.gov

Counsel Listing in Published Opinions

•

Please check counsel listing on the attached decision.

•

If there are any errors in a published opinion, please send a letter in writing

within 10 days to:

►

Thomson Reuters; 610 Opperman Drive; PO Box 64526; Eagan, MN 55123

(Attn: Jean Green, Senior Publications Coordinator);

►

and electronically file a copy of the letter via the appellate ECF system by using

“File Correspondence to Court,” or if you are an attorney exempted from using

the appellate ECF system, mail the Court one copy of the letter.

Post Judgment Form - Rev. 12/2018

(9 of 9)

Case: 18-50132, 10/29/2019, ID: 11481138, DktEntry: 58-2, Page 4 of 4

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Form 10. Bill of Costs

Instructions for this form: http://www.ca9.uscourts.gov/forms/form10instructions.pdf

9th Cir. Case Number(s)

Case Name

The Clerk is requested to award costs to (party name(s)):

I swear under penalty of perjury that the copies for which costs are requested were

actually and necessarily produced, and that the requested costs were actually

expended.

Signature

Date

(use “s/[typed name]” to sign electronically-filed documents)

REQUESTED

(each column must be completed)

COST TAXABLE

No. of

Copies

DOCUMENTS / FEE PAID

Excerpts of Record*

Pages per

Cost per Page

Copy

1 1

Brief; 1st, 2nd , and/or 3rd Brief on Cross-Appeal;

Intervenor Brief)

1 1

Reply Brief / Cross-Appeal Reply Brief

Principal Brief(s) (Opening Brief; Answering

Supplemental Brief(s)

Petition for Review Docket Fee / Petition for Writ of Mandamus Docket Fee

TOTAL: $

1 1

TOTAL

COST

*Example: Calculate 4 copies of 3 volumes of excerpts of record that total 500 pages [Vol. 1 (10 pgs.) +

Vol. 2 (250 pgs.) + Vol. 3 (240 pgs.)] as:

No. of Copies: 4; Pages per Copy: 500; Cost per Page: $.10 (or actual cost IF less than $.10);

TOTAL: 4 x 500 x $.10 = $200.

Feedback or questions about this form? Email us at forms@ca9.uscourts.gov

Form 10

Rev. 12/01/2018

Appendix B

Case

Case:

3:17-cr-00809-CAB

18-50132, 10/12/2018,

Document

ID: 11045478,

1 Filed 03/31/17

DktEntry: PageID.2

10, Page 142

Page

of 153

1 of 2

1HA83 I ah 3:20

V ■

■V.-

V\J^>

AHi»'

UNSEALED: PER ORDER OF COURT

mmi'1

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

September 2016 Grand Jury-

UNITED STATES OF AMERICA,

Plaintiff,

Case No.

INDICTMENT

Title 18, U.S.C.,

Secs. 922(g)(1) - Felon in

Possession of a Firearm; Title 18,

U.S.C., Sec. 924(d)(1), and

Title 28, U.S.C., Sec. 2461(c) Criminal Forfeiture

RAUL MEJIA,

’17C80B09CAB

Defendant.

The grand jury charges:

Count 1

On or about November 12,

2016,

within the Southern District of

California,

convicted of a crime punishable by imprisonment for a term exceeding one

year,

interstate commerce, to wit: a Stoeger Cougar .40 caliber handgun bearing

serial number T6429-09D001357; in violation of Title 18, United States

Code, Section 922(g)(1).

defendant

RAUL

MEJIA,

person

having

been previously

did knowingly possess a firearm that traveled in and affected

BJK:es:San Diego:3/30/17

140

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.