P. v. Leal

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Filed 10/29/09 Opinion on remand from Supreme Court CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT THE PEOPLE, Plaintiff and Respondent, H031174 (Monterey County Super.Ct.No. SS052319) v. RAUL ANTHONY LEAL, Defendant and Appellant. Following denial of his motion to suppress evidence (Pen. Code, § 1538.5),1 defendant Raul Anthony Leal pleaded no contest to obliterating the identification of a firearm (§ 12090). The trial court placed defendant on probation for three years subject to various conditions. On appeal, defendant contended that the trial court erred by denying his motion to suppress. He argued that the search conducted incident to his arrest was beyond the scope of the arm s-reach rule of Chimel v. California (1969) 395 U.S. 752. He also challenged the imposition of a probation condition that he may not be present at any court proceeding or in any courthouse building unless he is scheduled for a court hearing or has the permission of his probation officer. He contended that the condition was unreasonable and violated his constitutional rights to travel and to attend court proceedings. 1 All further statutory references are to the Penal Code. This court reversed the judgment on the basis of defendant s first claim. The California Supreme Court granted the People s petition for review and deferred action pending the United States Supreme Court s disposition of Arizona v. Gant (2009) ___ U.S. __ [129 S.Ct. 1710]. On June 10, 2009, after the United States Supreme Court handed down its decision in Gant, the California Supreme Court transferred this case to us with directions to vacate our decision and to reconsider the cause in light of Gant. We have received supplemental letter briefs from the parties addressing Gant s applicability to this case. We will rely on our prior reasoning and, for the reasons stated in our prior opinion, reverse the judgment. Essentially, we will reiterate much of our prior opinion but will discuss Gant and the parties supplemental letter briefs in a new section. In sum, because we find that the search conducted following defendant s arrest violated the Fourth Amendment to the United States Constitution, a violation of sufficient gravity to entitle him to the remedy of suppression of the evidence, we will reverse the judgment. BACKGROUND By a complaint filed August 11, 2005, defendant was charged with obliterating the identification of a firearm (§ 12090) and actively participating in a criminal street gang (§ 186.22, subd. (a)), both felonies. The complaint further alleged that the section 12090 offense was committed for the benefit of or in association with a criminal street gang. (§ 186.22, subd. (b)(1).) On December 21, 2005, defendant filed a motion to suppress evidence a handgun seized from his house on the day of his arrest. On February 9, 2006, the trial court heard the motion in conjunction with the preliminary examination. The testimony at that hearing was as follows. Salinas Police Sergeant David Shaw went to defendant s house around 4:48 p.m. on August 1, 2005, with four other officers in order to serve two outstanding misdemeanor arrest warrants on defendant. Two officers went to the back of the house while Shaw and two other officers went to the front. When Officer Schwaner knocked on 2 the front door, they heard a male utter from inside the house, words similar to who s there? Officer Schwaner identified himself as a Salinas police officer. No further response came from inside the house for quite some time, but one of the officers covering the back of the house heard a male voice coming from inside the back of the house shortly after the officers knocked on the front door. The officers continued to knock on the front door and windows and called for defendant to emerge. They were aware that defendant s grandmother had reported that defendant might be armed with a gun and using drugs. Also, the police had heard that defendant was upset with his daughter, who had told the grandmother that he was a gang member. After almost 45 minutes, defendant opened the door and stood in the threshold. Officer Schwaner told him to turn around, handcuffed him, and led him away, explaining that there were warrants for his arrest. As Officer Schwaner was securing defendant in a patrol car about 30 to 38 feet away, the other officers entered the house to make sure nobody else was inside it. After finding nobody else inside the house, Sergeant Shaw searched the area immediately adjacent to where defendant was standing when he was taken into custody. A small rocking recliner sat about a foot from where defendant had been standing at the front door. A sweatshirt was on the chair. Sergeant Shaw lifted the sweatshirt and found a semiautomatic pistol tucked between the arm and the cushion of the recliner. The pistol, which was loaded and had had its serial numbers removed, was found about two or three minutes after defendant was arrested. No weapons were found on defendant. After the trial court denied defendant s motion to suppress, he waived further hearing on the substantive charges and the court held him to answer. An information was filed February 14, 2006, alleging the same charges as had the complaint. On April 11, 2006, defendant renewed his motion to suppress and the court considered it at a hearing on April 21, 2006. 3 The trial court recognized that the search was problematic under the Fourth Amendment to the United States Constitution, but ultimately found it valid. In so doing, it relied in part on federal circuit court decisions. The court stated, as relevant here: I agree . . . that there was no actual danger for the officers at the time that this search of the chair actually took place. [¶] . . . [¶] [But the prosecutor] is exactly correct that what the federal courts are trying to do is set out a rule that the officers comprehend . . . . It has to be within the grabbing area of the arrestee and take place reasonably contemporaneous with the arrest. . . . [¶] . . . [W]as it reasonable at that point for the detective to lift up the shirt and discover the gun[?] I think, under the circumstances here, where it is a very brief period of time where it s in conjunction with a protective sweep where they had information that the defendant may well have been in possession of a weapon and/or drugs that it was unreasonable [sic] to infer [sic] the detective to pick up the shirt. [¶] Seems to me what s really happening here . . . was a second basis besides officer safety, [and] that is preservation of the evidence. Seems to me the federal courts are now moving to extend the preservation aspect of this. For instance, the gun is not only a safety issue, it is also contraband and also the drugs, if they were there, would have been contraband. I think they re giving the officers more latitude to seize contraband where it s right there where they arrest the person. [¶] . . . [¶] It sounds from the description that they did a protective sweep to make sure no one else was around, then, [lo] and behold, there is a gun which they had reason to believe might be there. An amended information was filed October 11, 2006, adding a felony charge of possession of a firearm with identification numbers removed (§ 12094, subd. (a)), with an allegation that the offense was committed for the benefit of or in association with a criminal street gang (§ 186.22, subd. (d)). On November 30, 2006, defendant pleaded no contest to the section 12090 charge on condition that the remaining counts and gang allegations be dismissed, and that he be placed on probation. 4 DISCUSSION Because it violated the Fourth Amendment to the United States Constitution to search defendant s premises without a warrant after he had been removed to a police car and the police had ascertained that the premises were secure, and because the conduct of the police in searching defendant s residence was sufficiently at odds with established Fourth Amendment principles to entitle defendant to the suppression of the evidence thereby obtained, we must reverse the judgment. I. Facts The facts relevant to our disposition of defendant s Fourth Amendment claim are these: The police officers, bearing an arrest warrant for two misdemeanors2 but no search warrant, demanded that defendant emerge from his house so they could arrest him. Defendant opened his front door and an officer handcuffed him and further secured him by leading him away from the premises and confining him in a police car in the house s driveway. The officer escorted defendant some 30 to 38 feet from his place of arrest to his place of confinement. Several police officers searched defendant s very small residence and found no one else in it. Two or three minutes later, with the scene secure, officers safety assured, and defendant unable to reach or destroy any evidence in the house, a police officer searched the area near the front door the site of defendant s arrest and found the handgun under a sweatshirt. The police still lacked a search warrant. 2 The parties do not describe the misdemeanors on which the arrest warrants were based, and we have not seen the offenses described in the record. There is no reason to believe that the misdemeanors were gun-related. 5 II. Analysis A. Standard of Review In ruling on a motion to suppress [§ 1538.5], the trial court must find the historical facts, select the rule of law, and apply it to the facts in order to determine whether the law as applied has been violated. [Citation.] We review the court s resolution of the factual inquiry under the deferential substantial-evidence standard. [Citation.] The ruling on whether the applicable law applies to the facts is a mixed question of law and fact that is subject to independent review. [Citation.] (People v. Hoyos (2007) 41 Cal.4th 872, 891.) On independent review of the ultimate question, i.e., the validity of the state s action under the Fourth Amendment to the United States Constitution, i.e., we conclude that it was invalid.3 B. Substantive Law 1. The Law Prior to Arizona v. Gant In our prior opinion, which we rendered before the United States Supreme Court s decision in Arizona v. Gant, supra, ___ U.S. __ [129 S.Ct. 1710], we analyzed the case in these terms: The Fourth Amendment provides that [t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. At the very core of the Fourth Amendment stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion. [Citation.] With few exceptions, the question whether a warrantless search of a home is reasonable and hence constitutional must be answered no. (Kyllo v. United States (2001) 533 U.S. 27, 31.) 3 California law follows Fourth Amendment standards. (People v. Robles (2000) 23 Cal.4th 789, 794.) 6 The limited scope of one of the few exceptions (Kyllo v. United States, supra, 533 U.S. at p. 31) to the warrant requirement is set forth in Chimel v. California, supra, 395 U.S. 752, which outlines the proper extent of the search incident to arrest principle. (Id. at p. 762.) First, to effect the arrest in a safe manner, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. (Id. at p. 763.) Second, the police may conduct a search for and seize any evidence on the arrestee s person in order to prevent its concealment or destruction. (Ibid.) For the foregoing purposes only, the area into which an arrestee might reach in order to grab a weapon or evidentiary items i.e., the area within his immediate control is governed by a like rule. (Ibid.) The handgun found in defendant s home was found in the area that was under his immediate control when he was arrested. The question, though, is whether it was under his immediate control when he was confined in a police car in handcuffs at some distance from the premises. The answer, plainly, is no, and thus the warrantless search was unreasonable under the Fourth Amendment. Once an accused is under arrest and in custody, then a search made at another place, without a warrant, is simply not incident to the arrest. (Chambers v. Maroney (1970) 399 U.S. 42, 47.) [T]he reasons that have been thought sufficient to justify warrantless searches carried out in connection with an arrest no longer obtain when the accused is safely in custody at the station house (ibid.) nor when the suspect is safely lodged in a police car outside the home. A different rule of reasonableness applies when the police have a degree of control over a suspect but do not have control of the entire situation. In such circumstances e.g., in which third parties known to be nearby are unaccounted for, or in which a suspect has not yet been fully secured and retains a degree of ability to overpower the police or destroy evidence the Fourth Amendment does not bar the police from searching the 7 immediate area of the suspect s arrest as a search incident to an arrest. (See Arizona v. Gant, supra, ___ U.S. at p. __ [129 S.Ct. at p. 1731], fn. 2 (dis. opn. of Alito, J.).) People v. Summers (1999) 73 Cal.App.4th 288, 289-291, illustrates the point. The suspect was only in the process of being removed (id. at p. 290), there was a female present who was not previously known to the officers, (ibid.), and there was another male roommate somewhere nearby (ibid.). This case is different. In contrast to Summers, in which the suspect was still being removed (People v. Summers, supra, 73 Cal.App.4th at p. 291), one roommate was present and free of police control (ibid.), and another was unaccounted for (ibid.), the police here had determined that defendant was the only one on the premises during his arrest and they had safely confined him outside his house and fully secured the scene. Neither he nor anyone else was in a position to jeopardize the officers safety or destroy evidence. Summers properly stated the general rule, namely that when there is no threat to the officers because the suspect has been immobilized [and] removed, and no one else is present, it makes no [constitutional] sense that the place he was removed from remains subject to search merely because he was previously there. (Id. at pp. 290-291.) Summers departed from that rule only because the circumstances the case presented were fluid, unstable, and dangerous. The People rely on U.S. v. Hudson (9th Cir. 1996) 100 F.3d 1409, 1412-1413, 1418-1419, U.S. v. Nohara (9th Cir. 1993) 3 F.3d 1239, 1243, U.S. v. Turner (9th Cir. 1991) 926 F.2d 883, 888, and People v. Rege (2005) 130 Cal.App.4th 1584. All of these cases honor Chimel in the breach, paying homage to Chimel while going beyond what the Fourth Amendment permits under Chimel. (E.g., Hudson, at p. 1419 [stating that a search may be conducted shortly after the arrestee has been removed from the area and announcing another constitutionally questionable rule, namely that a warrantless search of the entire room in which the person was arrested is valid]; Nohara, at p. 1243 [tautologically stating that events between the time of the arrest and search must not 8 render the search unreasonable and questionably holding that a search is permissible two to three minutes after the arrest with the suspect removed from the room].) Similarly, Turner, at pages 886-888, approved a warrantless search of part of a room after the suspect had been handcuffed and removed, partly on the ground that the Constitution should not be entirely at odds with safe and sensible police procedures (id. at p. 888), but showed unease, stating that [t]his holding is limited to the narrow facts of a short time span and the arrestee s close proximity (id. at fn. 2). The reasoning of U.S. v. Turner, supra, 926 F.2d 883, is flawed for reasons set forth in Justice Scalia s concurring opinion in Thornton v. United States (2004) 541 U.S. 615. If sensible police procedures require that suspects be handcuffed and put in squad cars, then police should handcuff suspects, put them in squad cars, and not conduct the search. (Id. at p. 627.) Justice Scalia s opinion also disposes of the view in People v. Rege, supra, 130 Cal.App.4th 1584, that police must be remove[d] . . . from the horns of a dilemma which would require them either to [forgo] search incident to arrest, or to keep the suspect at least figuratively within arm s reach while conducting such a search, thereby assuring the very danger it was meant to prevent. (Id. at p. 1590.) And we are not the first court to decline to rely on U.S. v. Hudson, supra, 100 F.3d 1409. (State v. LaMay (2004) 140 Idaho 835, 840 [103 P.3d 448, 453].) The fundamental flaw in the analysis contained in the cases we have criticized is that it assumes that, one way or another, the search must take place. But conducting a Chimel search is not the Government s right; it is an exception justified by necessity to a rule that would otherwise render the search unlawful. (Thornton v. United States, supra, 541 U.S. at p. 627 (conc. opn. of Scalia, J.).) Agreeing with Justice Scalia, U.S. v. Yanez (S.D. Tex. 2007) 490 F.Supp.2d 765, stated: The twin rationales of Chimel make clear that this doctrine is an exception to the warrant requirement borne of necessity for the preservation of probative evidence and officer safety. (Id. at p. 776.) 9 The People further rely on United States v. Fleming (7th Cir. 1982) 677 F.2d 602, 605-608. Like U.S. v. Turner, supra, 926 F.2d at page 888 (which relied on Fleming), Fleming held that it does not make sense to prescribe a constitutional test that is entirely at odds with safe and sensible police procedures. Thus handcuffing [one of two suspects] and having reinforcements enter [the other suspect s] house should not be determinative, unless we intend to use the Fourth Amendment to impose on police a requirement that the search be absolutely contemporaneous with the arrest, no matter what the peril to themselves or to bystanders. (Fleming, at p. 607, fn. omitted.) Fleming s reasoning must be understood in the context of the circumstances that case presented. One suspect had been handcuffed and taken out to the street but not far away from the arrest scene. (United States v. Fleming, supra, 677 F.2d at p. 605.) The arrest of both suspects had involved a pursuit and a scuffle. (Ibid.) Events had unfolded rapidly and the scene was still not entirely secure despite the handcuffing of one suspect and the arrest of the other, whose continued ability to resist Fleming does not discuss (see id. at pp. 605-607). Handcuffs are a temporary restraining device; they limit but do not eliminate a person s ability to perform various acts. They obviously do not impair a person s ability to use his legs and feet, whether to walk, run, or kick. Handcuffs do limit a person s ability to use his hands and arms, but the degree of the effectiveness of handcuffs in this role depends on a variety of factors, including the handcuffed person s size, strength, bone and joint structure, flexibility, and tolerance of pain. Albeit difficult, it is by no means impossible for a handcuffed person to obtain and use a weapon concealed on his person or within lunge reach, and in so doing to cause injury to his intended victim, to a bystander, or even to himself. (U.S. v. Yanez, supra, 490 F.Supp.2d at p. 776.) We agree with Fleming but believe the decision is limited to its facts. It has been said that the equal protection clause of the Fourteenth Amendment, lest we lose sight of the forest for the trees, does not require what it barely permits. 10 (Coalition for Economic Equity v. Wilson (9th Cir. 1997) 122 F.3d 692, 709.) Similarly, the Fourth Amendment does not force the police to do what it barely allows them to do. The police are required to arrest suspects within the limits legally permitted, and they must do all they can to ensure their safety and the preservation of potential evidence during a lawful arrest. Thereafter, if the police persuade an impartial judge to issue a search warrant, they may search the scene. Only if the situation remains unstable, i.e., police officers must arrest someone but by doing so unavoidably place themselves in personal peril or incur the risk of losing evidence, may the police conduct a warrantless search in the suspect s immediate vicinity during the arrest. (Chambers v. Maroney, supra, 399 U.S. at p. 47; Chimel v. California, supra, 395 U.S. at p. 763.) In other words, the law does not invite the police to imperil themselves or risk the loss of evidence simply to avoid the warrant requirement; rather, it tolerates, despite the Fourth Amendment s guarantee against warrantless searches, forgoing the warrant requirement when, during a lawful arrest, circumstances beyond the control of the police urgently require a protective search. Accordingly, we do not agree with the analysis found in People v. Rege, supra, 130 Cal.App.4th 1584; rather, we agree with People v. Summers, supra, 73 Cal.App.4th 288. As for the federal circuit decisions we have criticized, we need not follow them (People v. Mejia (2007) 155 Cal.App.4th 86, 99) and will not do so. The bulwark of Fourth Amendment protection, of course, is the Warrant Clause, requiring that, absent certain exceptions, police obtain a warrant from a neutral and disinterested magistrate before embarking upon a search. (Franks v. Delaware (1978) 438 U.S. 154, 164.) Because the search of defendant s house did not fall within the scope of the exception delineated in Chimel v. California, supra, 395 U.S. 752, the search violated the Fourth Amendment. 11 2. Effect of Arizona v. Gant; Remedy As noted, the California Supreme Court transferred this case to us with directions to vacate our decision and to reconsider the cause in light of Arizona v. Gant, supra, ___ U.S. __ [129 S.Ct. 1710]. Defendant argues that nothing in Gant undermines the reasoning of our prior opinion, in which we found the search unlawful. In substance, he urges that we adhere to our prior reasoning. For their part, the People acknowledge that the search in this case would have violated the Fourth Amendment if it had taken place after the decision in Gant. They argue, however, that because the search preceded Gant, it was valid under the broad authority the law conferred on police actions in these circumstances prior to Gant. They further argue that, under Herring v. United States (2009) ___ U.S. __ [129 S.Ct. 695], the exclusionary rule should not be applied to suppress the evidence of the altered firearm even if we adhere to our prior reasoning that there was a Fourth Amendment violation. Nothing in Gant derogates from our prior reasoning; rather, it reinforces it. In the main, Gant deals with an obliquely different area of Fourth Amendment law than does this case. Gant clarified the scope of the permissibility of police searches of vehicles following an arrest and the safe confining of the arrestee to a nearby police car. The case has little bearing on this one, except that Gant s reaffirmation of Chimel v. California, supra, 395 U.S. 752, is congruent with our interpretation of Chimel. In Chimel, we held that a search incident to arrest may only include the arrestee s person and the area within his immediate control construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence. [Citation.] That limitation, which continues to define the boundaries of the exception, ensures that the scope of a search incident to arrest is commensurate with its purposes of protecting arresting officers and safeguarding any evidence of the offense of arrest that an arrestee might conceal or destroy. . . . If there is no possibility that an arrestee could reach into 12 the area that law enforcement officers seek to search, both justifications for the searchincident-to-arrest exception are absent and the rule does not apply. (Arizona v. Gant, supra, ___ U.S. at p. __ [129 S.Ct. at p. 1716].) Bearing in mind that Gant, to the extent it is relevant here, only adds new weight to our conclusion that the police violated defendant s Fourth Amendment rights, we turn to the People s argument that even if that is so, defendant is not entitled to the remedy of suppression of the firearm evidence. The exclusionary rule allows [t]he criminal . . . to go free because the constable has blundered. . . . [T]he purpose of the exclusionary rule is to deter to compel respect for the constitutional guaranty in the only effectively available way by removing the incentive to disregard it. [Citation.] (Wiley v. County of San Diego (1998) 19 Cal.4th 532, 541.) Nevertheless, because the cost to society of freeing a known criminal is high, availability of the ultimate remedy, i.e., suppressing the use of the evidence obtained through a Fourth Amendment violation, is constrained. (See generally Herring v. United States, supra, ___ U.S. __ [129 S.Ct. 695].) The Fourth Amendment does not contain a right to have otherwise admissible evidence excluded from use against oneself. Instead there is a judicially created rule (Herring v. United States, supra, ___ U.S. at p. __ [129 S.Ct. at p. 699] mandating such exclusion as necessary to safeguard Fourth Amendment rights generally through its deterrent effect. (Ibid.) It is applied when the cost of doing so is justified by a sufficient likelihood that the remedy will deter future particularly undesirable conduct by the state, but only then. (See id. at p. ___ [129 S.Ct. at pp. 700-702].) In other words, whether an individual is entitled to have unlawfully seized evidence excluded in trial proceedings turns on the culpability of the police and the potential of exclusion to deter wrongful police conduct. (Id. at p. ___ [129 S.Ct. at p. 698.) To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can 13 meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system. (Id. at p. ___ [129 S.Ct. at p. 702].) Under Herring v. United States, supra, ___ U.S. __ [129 S.Ct. 695], evidence seized in violation of the Fourth Amendment is to be suppressed when, under an objective standard of deterrence and culpability involving a reasonably well-trained officer (Id. at p. ___ [129 S.Ct. at p. 703]), a court finds that the police have engaged in deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence. (Id. at p. ___ [129 S.Ct. at p. 702; see also p. 703; cf. p. 704] [concluding paragraph contrasting systemic error and recklessness with negligence but not mentioning gross negligence].) Recurring or systemic negligence are not at issue here, so whether defendant is entitled to the remedy of suppressing evidence turns on whether the action of the police in searching his residence after confining him securely in a police car was otherwise sufficiently unsupportable under the Fourth Amendment. The People state that under the current state of the law, i.e., the decision in Arizona v. Gant, supra, ___ U.S. __ [129 S.Ct. 1710], defendant would be entitled to have the firearm evidence suppressed. They argue, however, that police conduct here cannot be said to be grossly negligent or worse when the state of the law prior to Gant was, in their view, muddled. (See id. at p. ___ [129 S.Ct. at p. 1723], fn. 11 [because a mistakenly liberal reading of police authority to search automobiles following an arrest was widely accepted prior to Gant, the doctrine of qualified immunity will shield officers from liability for searches conducted in reasonable reliance on that understanding ].)4 4 In turn, defendant brings to our attention two recent decisions that have held that evidence obtained under searches and seizures unlawful under Gant must be excluded notwithstanding Herring. (United States v. Gonzalez (9th Cir. 2009) 578 F.3d 1130; United States v. Buford (M.D. Tenn. 2009) 623 F.Supp.2d 923.) However, those cases are, as defendant notes, automobile cases whose resolution is squarely governed by (continued) 14 Contrary to the People s view, however, the law was not sufficiently muddled at the time of the search for us to support their view about the police search of defendant s residence without a warrant. As we have explained, various federal Court of Appeals decisions departed from Chimel v. California, supra, 395 U.S. 752, but Chimel, which is binding on California police officers, itself was clear. The search of defendant s residence was entirely at odds with Chimel and with basic Fourth Amendment principles. It is bedrock Fourth Amendment law that the police may not rummage through a person s home without a warrant. As stated, At the very core of the Fourth Amendment stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion. (Kyllo v. United States, supra, 533 U.S. at p. 31.) The violation was serious enough to warrant giving substance to the Fourth Amendment s promise of protection from state intrusion by suppressing the firearm evidence against defendant. The need to compel respect for the constitutional guaranty in the only effectively available way (Wiley v. County of San Diego, supra, 19 Cal.4th at p. 541) is at its acme when a police search of one s home is involved. Accordingly, we will direct the trial court to enter a new order granting defendant s motion to suppress the firearm evidence. Arizona v. Gant, supra, ___ U.S. __ [129 S.Ct. 1710]. The searches and seizures in those cases were proper under pre-Gant law but were rendered invalid following Gant, and the courts had to decide, in the words of Gonzalez, whether to appl[y] the good faith exception to the scenario we face: a search [validly] conducted under a then-prevailing interpretation of a Supreme Court ruling, but rendered unconstitutional by a subsequent Supreme Court ruling announced while the defendant s conviction was on direct review. (Gonzalez, supra, at p. 1132; see Buford, supra, at pp. 925-926.) The search of defendant s residence, by contrast was never valid, either before or after Gant. We agree with defendant that his case is governed by Chimel v. California, supra, 395 U.S. 752, and reiterate that Gant only reinforced the reasoning and holding of Chimel. Accordingly, we need not further consider Gonzalez or Buford. 15 3. Validity of Probation Condition Because we reverse the judgment on the foregoing grounds, we need not address, and do not address, defendant s claim that a probation condition was invalid. DISPOSITION The judgment is reversed and the case is remanded to the trial court with directions to permit defendant to withdraw his no-contest plea, to vacate its order denying the motion to suppress, to enter a new order granting the motion to suppress, and to undertake any other necessary proceedings in accordance with applicable law. _______________________________________ Duffy, J. I CONCUR: ______________________________________ McAdams, J. 16 BAMATTRE-MANOUKIAN, J., CONCURRING: I concur in the judgment only. When this court s decision was originally filed in February 2008, I wrote a dissent in which I stated: The officers acted reasonably and out of concern for their safety when they handcuffed and moved defendant and then delayed the search for two to three minutes in order to do a protective sweep of the residence. The officers were aware that defendant was reportedly possibly armed with a firearm and using drugs, they did not take defendant far away, and they did not unreasonably delay before conducting the search. [Citations.] The loaded pistol was found in the recliner about two or three minutes after defendant was arrested and while defendant was still at the scene of the arrest. [Citations.] The officers were not required either to forego search incident to arrest, or to keep [defendant] at least figuratively within arm s reach [of the recliner] while conducting . . . a search of it. [Citations.] To keep defendant at the exact location of the arrest while conducting an absolutely contemporaneous Chimel search would assure the very danger the search was meant to prevent. In Arizona v. Gant (2009) ___ U.S. ___, ___ [129 S.Ct. 1710], the United States Supreme Court held that, although officers may search a vehicle when genuine safety or evidentiary concerns encountered during the arrest of a vehicle s recent occupant justify a search (129 S.Ct. at p. 1721), the Chimel rationale authorizes police to search a vehicle incident to a recent occupant s arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search. (129 S.Ct. at p. 1719, fn. omitted.) In light of the decision in Gant and our Supreme Court s direction to reconsider this cause in light of Gant, I conclude that the defendant s motion to suppress must now be granted. _____________________________ BAMATTRE-MANOUKIAN, Acting P. J. 17 Trial Court: Monterey County Superior Court No. SS052319 Trial Judge: Hon. Richard M. Curtis Attorneys for Defendant and Appellant: (Under appointment by the Court of Appeal) Jonathan E. Berger Law Offices of Jonathan E. Berger George L. Schraer Law Offices of George L. Schraer Attorneys for Plaintiff and Respondent: EDMUND G. BROWN, JR. Attorney General, DANE R. GILLETTE Chief Assistant Attorney General GERALD A. ENGLER Senior Assistant Attorney General STAN HELFMAN Supervising Deputy Attorney General LAURENCE K. SULLIVAN Supervising Deputy Attorney General AILEEN BUNNEY Deputy Attorney General. People v. Leal No. H031174

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