P. v. Henry 6/18/10 CA1/4

State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: A125270M

Case Date: 08/12/2010

Preview:Filed 6/18/10

CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FOUR

THE PEOPLE, Plaintiff and Respondent, v. MICHAEL ANTHONY HENRY, JR., Defendant and Appellant.

A125270 (Contra Costa County Super. Ct. No. 050812172) ORDER DENYING PETITION FOR REHEARING AND MODIFYING OPINION [NO CHANGE IN JUDGMENT]

THE COURT: Appellant's petition for rehearing is denied. The opinion filed May 25, 2010, is modified by inserting a new footnote number 18 in the last paragraph of part II.A.3. after the citation "(Gant, supra, at pp. 1718, 1723, fn. 11.)" as follows: In his reply brief, defendant contends that the search of his vehicle was not valid even under the state of the law before the Gant decision, as the record of the motion to suppress does not support a finding that the search was contemporaneous in time and place with the arrest, nor that he was a "recent occupant" of the vehicle. While the record is sketchy in this regard, the search apparently occurred within some 15 to 20 minutes after Sergeant Malone returned to defendant's vehicle with the intent of conducting a search (about five or ten minutes after the officers began chasing defendant). Defendant was arrested by other officers in the meantime. This temporal relationship was sufficient to justify the police in believing that defendant was a recent occupant of the vehicle, and to support their reasonable belief that under then-existing case law a search of the car incident to his arrest was permissible. As Justice O'Connor summarized the pre-Gant state of the law in her concurring opinion in Thornton v. United States, supra, 541 U.S. at page 624, "lower court decisions seem now to treat the ability to search a vehicle incident to the arrest of a recent

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occupant as a police entitlement rather than as an exception justified by the twin rationales of Chimel v. California, supra, 395 U.S. 752." The footnote numbers following number 18 are to be renumbered accordingly. The above modification doe not effect any change in the judgment.

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