FILED

NOT FOR PUBLICATION

OCT 29 2019

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 18-50132

Plaintiff-Appellee, D.C. No. 3:17-cr-00809-CAB-1 v.

RAUL MEJIA, MEMORANDUM*

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). 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.

1. 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

2 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).

2. 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.

3 3. 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.

4 (C) The officer’s testimony about the about the prevalence of fingerprints on

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.

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