(Contra Costa County Super. Ct. No. 050812172). Trial Judge: Honorable Gregory Caskey and Mary Ann O'Malley.
The opinion of the court was delivered by: Sepulveda, J.
CERTIFIED FOR PUBLICATION
Pursuant to a negotiated disposition, defendant entered a no contest plea to one count of felon in possession of a firearm (Penal Code § 12021, subd. (a)(1)),*fn1 and was sentenced to two years in state prison. On appeal, defendant challenges the trial court's denial of his motion to suppress pursuant to section 1538.5, as authorized by section 1538.5, subdivision (m) and California Rules of Court, rule 8.304, subdivision (b)(4)(A) and (B). At the heart of the issues raised in this appeal is the retroactivity of the recent United States Supreme Court decision in Arizona v. Gant (2009) 556 U.S. __ [129 S.Ct. 1710] (Gant) [refining the permissible scope of a search incident to the arrest of a recent occupant of an automobile under New York v. Belton (1981) 453 U.S. 454 (Belton)] and, assuming its retroactive application to defendant's case, whether the evidence seized from defendant's automobile is nevertheless admissible under the good faith exception as set forth in United States v. Leon (1984) 468 U.S. 897 (Leon) and subsequent authority. We conclude that the evidence seized from defendant's car was admissible, despite the application of Gant, as the officers relied in good faith upon what the Supreme Court itself referred to in that decision as "a broad reading of Belton [that] has been widely accepted." (Gant, supra, 129 S.Ct. at p. 1723, fn. 11.) We therefore affirm the decision of the trial court denying defendant's motion to suppress.
Defendant originally raised his motion to suppress at the preliminary hearing.*fn2 Evidence adduced there showed that on May 25, 2007, Deputy Scott Wooden of the Contra Costa County Sheriff's Department stopped the vehicle defendant was driving due to defendant's failure to stop at a red light. Defendant was unable to produce a driver's license and indicated that it had been suspended. Deputy Wooden ordered defendant out of the vehicle; defendant complied but when Wooden asked if defendant had anything illegal in his possession, he fled. Defendant was pursued by Deputy Wooden and several other officers, but they were unable to apprehend him immediately. One assisting officer, Sergeant Matt Malone, returned to defendant's vehicle, which was unoccupied and locked. He called for a tow truck. Once the tow truck arrived some 15 or 20 minutes later, the vehicle was opened and searched. Other officers had arrested defendant in the meantime. A .45 caliber semiautomatic pistol was found in the center console of defendant's car.
The magistrate denied defendant's motion to suppress, finding that although the evidence was not perfectly clear with regard to the timing of the arrest and the search, "the evidence shows that the search was done within a few minutes of [the arrest], I think it was five to ten minutes was the testimony, so I think that's contemporaneous with the arrest. The arrest itself, it's not clear exactly the moment in time when the defendant was arrested, but apparently it was when he was actually physically apprehended, occurred sometime within a few moments of that stop. It's not real clear." The magistrate also determined that the search of the vehicle was permissible as an inventory or impound search, despite the evidence being "a little sloppy," taking judicial notice of California Vehicle Code statutes permitting an officer to impound a vehicle when the driver's license is suspended. Defendant renewed his motion to suppress after his arraignment on the information and it was again denied, the court concluding that the magistrate had "the right handle" on the motion. Defendant now challenges the propriety of the denial of his motion to suppress on appeal.
A. Search Incident to Arrest
Defendant contends that the search of his vehicle was not valid under the search-incident-to-arrest exception to the search warrant requirement, as it exceeded the scope of such a search under the recent United States Supreme Court decision in Gant, supra, 129 S.Ct. 1710, and the evidence seized from his car should therefore be suppressed.
In Gant, the court revisited the application of the search-incident-to-arrest exception to the requirement for a search warrant to the situation where a vehicle is searched pursuant to the arrest of one of its recent occupants. The court responded to what it described as a "chorus that has called for us to revisit Belton[, supra, 453 U.S. 454]" (Gant, supra, at p. 1716), its previous leading case defining the application of this search warrant exception in the context of automobile searches. The court itself acknowledged that Belton "has been widely understood to allow a vehicle search incident to the arrest of a recent ocA HREF="#D*fn18cupant even if there is not a possibility the arrestee could gain access to the vehicle at the time of the search."*fn3 (Gant at p. 1718.) The rationale for this search warrant exception was, as noted in Belton, to permit the police to search the area from which the arrestee might obtain a weapon or destructible evidence (pursuant to Chimel v. California (1969) 395 U.S. 752 [defining general scope of area that may be searched incident to arrest as the area within the arrestee's immediate control-that area into which the arrestee might reach to grab a weapon or contraband]). The Gant court concluded that the broad interpretation of Belton subscribed to by many, if not most, courts in the intervening decades since Belton was incompatible with this underpinning rationale.
As summarized by the court, Belton, supra, 453 U.S. 454 "has been widely understood to allow a vehicle search incident to the arrest of a recent occupant even if there is no possibility the arrestee could gain access to the vehicle at the time of the search. This reading may be attributable to Justice Brennan's dissent in Belton, in which he characterized the Court's holding as resting on 'the fiction . . . that the interior of a car is always within the immediate control of an arrestee who has recently been in the car' [Citation.]" (Gant, supra, 129 S.Ct. at p. 1718.) Justice Brennan opined that such a result would presumably attach " 'even if [the officer] had handcuffed Belton and his companions in the patrol car' before conducting the search. [Citation.]" Justice Brennan's interpretation of the majority's opinion in Belton, the Gant court recognized, "has predominated" in courts of appeal decisions applying Belton. (Gant, supra, at p. 1718.) Thus, it commonly had been held that an officer could search the entire passenger compartment and its containers after the custodial arrest of one of its occupants, even for a simple traffic offense, without regard to whether or not the arrestee could reach into that area in order to obtain a weapon or contraband. As Justice O'Connor had observed some five years earlier, "lower court decisions seem . . . to treat the ability to search a vehicle incident to the arrest of a recent occupant as a police entitlement rather than as an exception justified by the twin rationales of Chimel [supra, 395 U.S. 752] [officer safety and preservation of evidence]." (Thornton v. United States (2004) 541 U.S. 615, 624 (conc. opn. of O'Connor, J.).)
The Gant court eliminated the legal fiction that the passenger compartment was actually accessible to an arrestee secured in an area away from the vehicle, and limited the scope of the search-incident-to-arrest exception. As defined in Gant, the police may search the passenger compartment of a vehicle incident to the recent arrest of one of its occupants "only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest." (Gant, supra, 129 S.Ct. at p. 1723.)*fn4 As to the first prong of the Gant rule, the court further opined that "[b]ecause officers have many means of ensuring the safe arrest of vehicle occupants, it will be the rare case in which an officer is unable to fully effectuate an arrest so that a real possibility of access to the arrestee's vehicle remains. [Citation.]" (Id. at p. 1719, fn. 4.) As to the second prong, the court noted that "In many cases, as when a recent occupant is arrested for a ...