Opinion

People v. Leal

  • 178 Cal. App. 4th 1051
  • 100 Cal. Rptr. 3d 856
  • 2009 Cal. App. LEXIS 1741
Court
California Court of Appeal
Filed
Oct 29, 2009
Status
Published
Author
Bamattre-Manoukian
On the bench
Duffy, Bamattre-Manoukian
Cited by
2 cases
Authority
More cited than 10.1%

The opinion

BAMATTRE-MANOUKIAN, Acting P. 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 |forgo] 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) 556 U.S._,_[ 173 L.Ed.2d 485 , 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” ( 556 U.S. at p. _ [ 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 *1068 is unsecured and within reaching distance of the passenger compartment at the time of the search.” ( 556 U.S. at p. __ [ 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 defendant’s motion to suppress must now be granted.

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.

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