Filed 1/17/18 P. v. Evans CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sierra)

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After the trial court denied his motion to suppress evidence, a jury found defendant Paul Lynn Evans guilty of possession of methamphetamine. (Health & Saf. Code, § 11377, subd. (a).) The trial court suspended imposition of sentence, placed defendant on three years of informal probation, and ordered him to serve 90 days in county jail.

Defendant now contends the trial court erred in denying his suppression motion by applying the automobile exception to the warrant requirement, because the officers lacked probable cause to believe defendant’s vehicle contained contraband. We will affirm the judgment.

BACKGROUND

Detective Michael Fisher and Deputy Graham Beatie executed a search warrant on an apartment in March 2014. The apartment was not defendant’s residence, but defendant was sitting on a couch in the living room when the officers entered the apartment.

After about 15 to 20 minutes, Deputy Beatie searched the couch. Under the couch cushion upon which defendant had been sitting, Deputy Beatie found a clear plastic baggie with a ziplock tab containing a white crystal substance he recognized as methamphetamine based on his training and experience. The officers then searched defendant and found 16 smaller, empty ziplock baggies on his person. Based on Detective Fisher’s training and experience, he identified the baggies as the type used for storing smaller quantities of a controlled substance.

Defendant told Detective Fisher that his vehicle was parked on the street and Detective Fisher searched defendant’s vehicle. Detective Fisher said that, based on his training and experience, a person in possession of drugs and drug paraphernalia will often have more drugs or paraphernalia in their vehicle. Inside defendant’s vehicle, Detective Fisher found two syringes, a pill bottle with its label removed containing a single pill, and a plastic baggy similar to the baggies found on defendant’s person. He described the baggy as “coin-size” with a bull dog print. The baggy he found in the vehicle contained a substance he suspected was methamphetamine.

Defendant made a pretrial motion under Penal Code section 1538.5 to suppress the fruits of the search of his vehicle. He argued the officers lacked probable cause to conduct a warrantless search of his vehicle.

At the hearing on defendant’s motion to suppress, the parties stipulated to incorporate testimony from the preliminary hearing. The parties also stipulated that Detective Fisher was an expert in narcotics, drugs and marijuana, had testified in the trial court in that regard, and executed countless search warrants setting forth his qualifications as an expert.

The trial court denied the motion to suppress. Noting that to conduct a warrantless search of an automobile the officers must have probable cause to believe the vehicle contains contraband or evidence of a crime, the trial court determined defendant was a visitor in the home being searched and a search underneath the couch cushion where defendant was sitting yielded a plastic bag containing methamphetamine. According to the trial court, “t was reasonable for law enforcement to believe that further evidence of a crime existed in the vehicle that defendant drove to get to the house” and the officers had probable cause to search the vehicle.

The automobile exception to the warrant requirement requires that the police have probable cause before they enter and search a vehicle. (See [i]Pennsylvania v. Labron (1996) 518 U.S. 938, 940 [135 L.Ed.2d 1031, 1035-1036]; California v. Carney (1985) 471 U.S. 386, 390-392 [85 L.Ed.2d 406, 412-414]; People v. Superior Court (Overland) (1988) 203 Cal.App.3d 1114, 1119.) Probable cause for a search requires a “fair probability that contraband or evidence of a crime will be found in a particular place.” (Illinois v. Gates (1983) 462 U.S. 213, 238 [76 L.Ed.2d 527, 548].)

In reviewing a trial court’s ruling on a motion to suppress, we must defer to the trial court’s express or implied factual findings if supported by substantial evidence. We independently determine whether the facts found amount to a reasonable search or seizure under the Fourth Amendment. (People v. Woods (1999) 21 Cal.4th 668, 673-674.)

Here, the totality of the circumstances gave rise to probable cause to believe defendant’s vehicle contained contraband. The officers found a baggy containing methamphetamine within defendant’s reach inside the apartment. Several smaller baggies, which Detective Fisher identified as the kind of baggies used to carry smaller quantities of methamphetamine, were found on defendant’s person. Defendant did not live in the apartment but drove there in his vehicle, and he told Detective Fisher his vehicle was parked on the street. Detective Fisher, a 14-year veteran who the parties stipulated was an expert in the field of narcotics, testified that under those circumstances, it was reasonable to believe there would be more contraband in defendant’s vehicle.

The totality of the circumstances gave rise to probable cause and the trial court properly denied the suppression motion.

In his reply brief, defendant argues for the first time that the judgment should be reversed because the trial court failed to give the jury a unanimity instruction. “Points raised in the reply brief for the first time will not be considered, unless good reason is shown for failure to present them before.” (Campos v. Anderson (1997) 57 Cal.App.4th 784, 794, fn. 3.) Defendant does not explain why he could not have raised the argument earlier and thus it is forfeited.

DISPOSITION

The judgment is affirmed.

MAURO , J.

We concur:

BLEASE , Acting P. J.

HOCH , J.