Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. SS080835
RUSHING, P.J.
I. Statement of the Case
Defendant Tony Lee Matthews pleaded guilty to possession of cocaine base on condition that he receive drug treatment. (Health & Saf. Code, § 11350, subd. (a); Pen. Code, § 1201.1.) The court suspended imposition of sentence and placed him on probation for three years.
On appeal from the judgment, defendant claims the court erred in denying his motion to suppress evidence and in denying him custody credit. (See Pen. Code, § 1538.5, subd. (m) [appeal after plea to challenge denial of motion to suppress].)
Here, police officers arrested defendant and his girlfriend in a motel room for being under the influence. Defendant was placed in a patrol car, and his girl friend was handcuffed in the room. While she was in the custody of one officer, the other seized a man’s hat that was on the floor and then searched inside it, finding contraband. The trial court denied a motion to suppress finding that the search came within the exception to the warrant requirement established in Chimel v. California (1969) 395 U.S. 752 (Chimel) for a search incident to an arrest. We reverse. As the United States Supreme Court recently made clear in Arizona v. Gant (2009) 556 U.S. ___ [192 S.Ct. 1710; 173 L.Ed.2d 485] (Gant), the exception for a search incident to an arrest is based on actual need to prevent an arrestee from obtaining a weapon or destroying evidence. Where, as here, there is no reasonable possibility that the arrestee can do so at the time an object or area is searched, the exception is simply inapplicable.
Our factual summary is based on the evidence presented at the combined preliminary hearing and motion to suppress. (E.g., People v. Glaser (1995) 11 Cal.4th 354, 360.)
At 9:35 p.m. on February 1, 2008, defendant called the police and reported that he was being followed. Officer Jason Newby of the Monterey Police Department responded and went to the Linda Motel, where defendant was staying. Defendant met him at the door and said that he was being followed by people he knew but could not name. Defendant appeared hyperactive, nervous, and a little sweaty, and Officer Newby suspected that he was under the influence.
Within a short time, Officer Michael Bruno arrived and continued talking to defendant. Officer Newby knocked on the partially opened door, and defendant’s girlfriend Debbie Chesshire allowed him inside. There, Officer Newby saw what could have been a “push rod,” which is drug paraphernalia used to clean glass pipes for smoking cocaine base; and a washcloth, something commonly used to hold hot glass pipes to protect the user from burns. The cloth had burn marks on it and so did Ms. Chesshire’s fingers.
Meanwhile, Officer Bruno performed a drug evaluation on defendant, arrested him for being under the influence, and placed him inside his patrol car. He then rejoined Officer Newby inside the motel room. He noticed two crack pipes on the floor, and, with Ms. Chesshire’s consent, searched her backpack, which contained some marijuana. Officer Newby arrested her for being under the influence and handcuffed her. She remained seated on the bed. As this was happening, Officer Bruno started looking around. He noticed what appeared to be a man’s beanie or knit cap a few feet away from where Ms. Chesshire was sitting. He picked it up, opened it up, and inside found another crack pipe and a brillo pad, which is often used as a pipe filter. He also found tobacco packaging wrapped around something. He unwrapped it and found a nylon tool or knife case. Inside the case was a small bag containing crack cocaine.
III. Motion to Suppress
A. Standard of Review
“In ruling on a motion to suppress, 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.)
B. Denial of Defendant’s Motions
After the preliminary hearing, the court denied defendant’s motion to suppress. The court found that the need to search for weapons justified seizing and searching the beanie, in which neither defendant nor Ms. Chesshire, having been lawfully arrested, had a reasonable expectation of privacy.
Thereafter, defendant filed a motion to dismiss (Pen. Code, § 995) based on the illegality of the search. In denying that motion, the court found that the search of the area immediately around Ms. Chesshire incident to her arrest was reasonable because the beanie was located on the floor “within the lunge area.”
Later, defendant renewed his motion to suppress. (Pen. Code, § 1538.5, subd. (i).) Based on its previous findings, the court again denied the motion.
C. Warrantless Search
The Fourth Amendment to the United States Constitution protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures....” (U.S. Const., 4th Amend.) “It is a ‘basic principle of Fourth Amendment law’ that searches and seizures inside a home without a warrant are presumptively unreasonable.” (Payton v. New York (1980) 445 U.S. 573, 586, fn. omitted; Welsh v. Wisconsin (1984) 466 U.S. 740, 748-749.)
“[P]rivate residences are places in which the individual normally expects privacy free of governmental intrusion not authorized by a warrant, and that expectation is plainly one that society is prepared to recognize as justifiable.” (United States v. Karo (1984) 468 U.S. 705, 714, see Steagald v. United States (1981) 451 U.S. 204, 211-212; Payton v. New York, supra, 445 U.S. at pp. 589-590.)
The warrant requirement is not absolute. “A search conducted without a warrant is unreasonable per se under the Fourth Amendment unless it falls within one of the ‘specifically established and well-delineated exceptions.’ ” (People v. Woods (1999) 21 Cal.4th 668, 674, quoting Katz v. United States (1967) 389 U.S. 347, 357; People v. Thompson (2006) 38 Cal.4th 811, 817-818; Brigham City v. Stuart (2006) 547 U.S. 398, 403; Kyllo v. United States (2001) 533 U.S. 27, 31.) One such exception is that a police officer may, incident to a lawful custodial arrest, conduct a contemporaneous warrantless search of the arrestee’s person. (Chimel, supra, 395 U.S. 752, 763; United States v. Chadwick (1977) 433 U.S. 1, 14; People v. Ingham (1992) 5 Cal.App.4th 326, 331.)
In Chimel, supra, 395 U.S. 752, the United States Supreme Court reviewed some prior cases concerning the scope of a search incident to a lawful arrest and acknowledged that they were far from consistent. (Id. at pp. 755-762.) In addressing that issue anew, the court observed that in a recent case, it had emphasized that “ ‘the police must, whenever practicable, obtain advance judicial approval of searches and seizures through the warrant procedure,’ [citation] and that ‘[t]he scope of [a] search must be “strictly tied to and justified by” the circumstances which rendered its initiation permissible.’ [Citation.]” (Id. at p. 762, fn. omitted, quoting Terry v. Ohio (1968) 392 U.S. 1, 19-20.) The court explained, “The search undertaken by the officer in that ‘stop and frisk’ case was sustained under that test, because it was no more than a ‘protective... search for weapons.’ [Citation.]” (Chimel, supra, 395 U.S. at p. 762.) In contrast, the court noted that in a companion case, it had applied the same standard to another set of facts and reached a different conclusion, holding “that a policeman’s action in thrusting his hand into a suspect’s pocket had been neither motivated by nor limited to the objective of protection. Rather, the search had been made in order to find narcotics, which were in fact found.” (Ibid., fn. omitted; see Sibron v. New York (1968) 392 U.S. 40.)
The Chimel court explained that “[a] similar analysis underlies the ‘search incident to arrest’ principle, and marks its proper extent. When an arrest is made, 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. Otherwise, the officer’s safety might well be endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee’s person in order to prevent its concealment or destruction. And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course, be governed by a like rule. A gun on a table or in a drawer in front of one who is arrested can be as dangerous to the arresting officer as one concealed in the clothing of the person arrested. There is ample justification, therefore, for a search of 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.” (Chimel, supra, 395 U.S. at pp. 762-763.)
The court emphasized that a valid arrest was only one of the circumstances that justified a warrantless search. The surrounding circumstances must also reasonably necessitate an immediate search, that is, a warrantless search is “ ‘ “strictly tied to and justified by” the circumstances which rendered its initiation permissible.’ [Citation.]” (Chimel, supra, 395 U.S. at p. 762, italics added; see Sibron v. New York, supra, 392 U.S. at p. 59 [“The constitutional validity of a warrantless search is pre-eminently the sort of question which can only be decided in the concrete factual context of the individual case.”].) To illustrate this point, the court noted a recent case in which the police had searched a car after the arrest of its occupants and the removal of the car to a secure garage. “We held that search to have been unlawful under the Fourth Amendment, despite the contention that it had been incidental to a valid arrest. Our reasoning was straightforward: [¶] ‘The rule allowing contemporaneous searches is justified, for example, by the need to seize weapons and other things which might be used to assault an officer or effect an escape, as well as by the need to prevent the destruction of evidence of the crime—things which might easily happen where the weapon or evidence is on the accused’s person or under his immediate control. But these justifications are absent where a search is remote in time or place from the arrest.’ [Citation.]” (Chimel, supra, 395 U.S. at pp. 763-764, fn. omitted, quoting Preston v. United States (1964) 376 U.S. 364, 367; e.g., Coolidge v. New Hampshire (1971) 403 U.S. 443, 456-457, and fn. 11 [search of car in driveway not incident to arrest in house].)
Recently, in Gant, supra, 556 U.S. ____ [129 S.Ct. 1710], the court succinctly reaffirmed its analysis in 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.” (Id. at p. ___ [129 S.Ct. at p. 1716].)
In short, the exception recognized in Chimel (hereafter “the Chimel exception”) was not created to facilitate police investigation of suspected criminal activity; rather it was born of practical necessity. It authorizes a warrantless search of an area or object within an arrestee’s reach only when the circumstances at the time of the search establish a reasonable possibility that the arrestee could pose a threat or destroy evidence.
With this understanding in mind, we turn to the search in this case.
It is undisputed that when Officer Bruno searched inside the beanie, defendant was handcuffed and inside a patrol car outside the motel room. Since it was no longer possible for defendant to get anything from the beanie, the search could not be justified as incident to his arrest. As the court in Chambers v. Maroney (1970) 399 U.S. 42 explained, “ ‘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.’ ” (Id. at p. 47; e.g., People v. Leal (2009) 178 Cal.App.4th 1051 (Leal) [search of room after defendant removed and placed in patrol car not incident to arrest].)
The search also cannot be justified as incident to Ms. Chesshire’s arrest. The uncontradicted evidence reveals that after Ms. Chesshire was arrested and handcuffed, Officer Bruno noticed what looked like a man’s beanie on the floor a few feet from where Ms. Chesshire was seated on the bed. He picked it up off the floor and immediately searched inside. Certainly the beanie was within Ms. Chessire’s reach, and, therefore, before and at the time of her arrest, she could possibly have lunged for it and grabbed a weapon or evidence from it. However, having handcuffed Ms. Chesshire, had her sit on the bed, removed the beanie from the floor, and exercised custody and control over it, the police officers effectively prevented her from retrieving a weapon or destroying evidence that might have been inside of the beanie, let alone that might have been inside the paper package that was inside the beanie or the nylon case that was inside of the paper package. In other words, once Ms. Chesshire was handcuffed and Officer Bruno obtained exclusive custody over the beanie, there was no realistic possibility that she could gain access to its contents. This is especially so because she was outnumbered in the room by two armed officers. Thus, the circumstances do not, in our view, reasonably support a finding that Officer Bruno’s search inside the beanie, then inside the wrapped package, and then inside the nylon case was justified by an actual and reasonable need for self protection and/or the preservation of evidence. (See, e.g., United States v. Blue (2d Cir.1996) 78 F.3d 56 [search under mattress not lawful where two suspects in one-room apartment handcuffed prone on the floor two feet from the bed].) Rather, the circumstances indicate that the search was simply a continued investigative effort to find additional evidence of drug use.
The Attorney General asserts that at the time of the search, “the officers did not yet have complete control of the crime scene. [Citation.] The record indicates that Ms. Chesshire was not yet restrained at the time Officer Bruno searched the beanie. [Citation.]”
We disagree with the Attorney General’s view that the two officers did not have control of the crime scene in general or suggestion that they did not have exclusive custody and control over the beanie at the time of the search.
The record establishes that before the search, defendant had been arrested and taken outside and placed in a patrol car. Ms. Chesshire was at all times cooperative and consented to a search of her backpack, and Officer Bruno searched it and found marijuana. After that, Officer Newby arrested Ms. Chesshire, who did not resist, and he immediately started to handcuff her. As he did that, Officer Bruno started to look around the area where she had just been. While doing so, he noticed the beanie on the floor. He then picked it up and searched it.
The Attorney General does not explain how, realistically, the two police officers did not have complete control of the crime scene, especially after the removal of defendant, and exclusive custody and control over the beanie at the time of the search. Nor does the Attorney General attempt to explain how, except through some Lara Croft superhero-type maneuver, it was reasonably possible for Ms. Chesshire to quickly turn the tables on the two armed officers, avoid Officer Newby’s custody, and, despite the limitations of being handcuffed, make it over to Officer Bruno and snatch the beanie out of his hands.
That said, we do not intend to suggest an invariable general rule that once an officer picks up an object that is within the reach of a suspect at the time of the arrest, a further search requires a warrant. The circumstances of every arrest are different and unique, and, therefore, determining whether a warrantless search was justified under the Chimel exception depends on the facts of each case, including the location and environment where the search takes place, potential unknown dangers there, the characteristics and conduct of the arrestee, the presence of others at the scene, and the number of officers present. Accordingly, we emphasize that our analysis and holding here are uniquely tied to the particular circumstances of this case.
We acknowledge that in a footnote in New York v. Belton (1981) 453 U.S. 454 (Belton), the court rejected a claim that because the police had control over a jacket taken from a car, the Chimel exception did not justify searching it after its owner had been removed and arrested and could no longer possibly get anything from it. (Id. at p. 462, fn. 5.) The court reasoned that “under this fallacious theory no search or seizure incident to a lawful custodial arrest would ever be valid; by seizing an article even on the arrestee’s person, an officer may be said to have reduced that article to his ‘exclusive control.’ ” (Ibid.)
In Belton, the court dealt with the scope of a warrantless search of a vehicle incident to the arrest of its occupants, and the court’s comments must be understood in that context. The court held that “when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.” (Belton, supra, 453 U.S. at p. 460, fns. omitted.)
Subsequent courts read Belton broadly to allow the search of a car incident to the removal and arrest of its occupants even if at the time of the searchthere was no reasonable possibility they could get anything from it. (See Gant, supra, 556 U.S. ___ [129 S.Ct. at pp. 1722-1723].) However, Gant observed that under this broad reading, police could search carsincident to every arrest of a recent occupant even though in most cases the arrestee could not get anything from inside of it at the time of the search. (Id. at p. ___ [129 S.Ct. at p. 1719].) The court rejected this reading because it would “untether” the Chimel exception from its underlying practical justification—protecting the police and preventing the destruction of evidence—and alter the fundamental principles established in Chimel regarding the basic scope of searches incident to lawful custodial arrests. (Id. at p. ___ [129 S.Ct. at p. 1719.) Consequently, the court held that the Chimel exception “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.” (Ibid., fn. omitted, italics added.) Conversely, “[i]f there is no possibility that an arrestee could reach into the area that law enforcement officers seek to search, both justifications for the search-incident-to-arrest exception are absent and the rule does not apply.” (Id. at p. ___ [129 S.Ct. at p. 1716].)
In our view, Gant implicitly repudiated the Belton footnote quoted above insofar as it suggests that police may search a closed container incident to an arrest even after the police have obtained exclusive custody and control over it and eliminated the possibility that an arrestee could gain access to it. Simply put, if, as Gant holds, police may not search an area within an suspect’s reach after the police have effectively prevented him or her from gaining access to it, then police may not search a moveable object or container seized from that area after police have obtained exclusive custody and control over it and thereby eliminated the possibility of access to it by the arrestee. In both situations, the practical justifications underlying the Chimel exception are absent.
In sum, therefore, although the record supports the trial court finding that the beanie had been within Ms. Chesshire “lunge area” at the time of her arrest, the record does not support the finding of exigent circumstances at the time of the search. By that time, the officers had removed defendant, secured the room, secured Ms. Chesshire, removed the beanie from the floor, and exercised exclusive custody and control over it such that there was no reasonable possibility that either defendant or Ms. Chesshire could get a weapon or evidence from it. Under the circumstances, a search of the beanie was permissible only with a warrant. (United States v. Chadwick, supra, 433 U.S. 1, 15, overruled in part in California v. Acevedo (1991) 500 U.S. 565, 576, 579 [“In our view, when no exigency is shown to support the need for an immediate search, the Warrant Clause places the line at the point where the property to be searched comes under the exclusive dominion of police authority”].) Accordingly, we conclude that warrantless searches of the beanie, the wrapped package inside it, and the nylon case inside the wrapped package were unreasonable.
We note that in Leal, supra, 178 Cal.App.4th 1051, this court acknowledged the possibility that even when a suspect is arrested and handcuffed, the exception may still apply if police have not gained complete control at the scene of the arrest and the circumstances remain dangerous. (Id. at pp 1060-1061.) As an example, we cited People v. Summers (1999) 73 Cal.App.4th 288 (Summers).
In Summers, the police went to the defendant’s trailer to serve an arrest warrant. Just outside, they encountered a woman, who was leaving. She said she lived there with the defendant and a third man. The woman accompanied them back inside. The defendant was sleeping, and the officers woke, arrested, and handcuffed him. The police patted down the bed and observed a shotgun. At that time, defendant was about 10 feet away. The officers immediately took him and the woman outside and waited for backup. They also searched for the third roommate. After finding him, they returned to the trailer and seized the shotgun. (Summers, supra, 73 Cal.App.4th at p. 290.) In upholding the warrantless pat search of the bed as incident to the defendant’s arrest, the court noted that the gun was located inside cramped premises and within the immediate area of the still-being-removed arrestee; there was a female also in the immediate area who was not previously known to the officers; and there was another male roommate somewhere nearby whose presence away from the immediate premises had not yet been confirmed. (Id. at pp. 290-291.)
The circumstances in Summers had not reflected a fluid, unstable, and dangerous situation involving other potentially dangerous persons, including one on the scene with potential access to the area. In our view, if the circumstances instead involved only the arrest, handcuffing, and removal of the defendant from his trailer, we doubt that the search of an area 10 feet away from the him could be considered within the defendant’s reach, reasonably necessary to prevent him from obtaining a weapon or destroying evidence, and thus properly incident to his arrest.
In his separate concurring opinion, Justice Bedsworth expressed his pleasure that his colleagues had expanded the “ ‘grabbing area’ of Chimel... as far as 10 feet from a handcuffed arrestee.” (Summers, supra, 73 Cal.App.4th at p. 390 (conc. opn. of Bedsworth, J.), italics added.) In doing so, Justice Bedsworth suggests that his colleagues’ view of the area within a suspect’s reach was a legal stretch.
In any event, the circumstances before us contrast sharply with those in Summers. Here, defendant was handcuffed and sitting in a patrol car outside the motel room before the beanie was searched. Ms. Chesshire was the only other occupant of the room, and she too had been arrested and was handcuffed. There were two officers inside the room, they had secured it, and, more importantly, they had custody and control of the beanie. Thus, at the time of the search, there was no reasonable possibility that either defendant or Ms. Chesshire could retrieve a weapon or evidence from the beanie, the wrapped package, or nylon case.
The Attorney General claims that even if the search was not justified by the Chimel exception itself, it was nevertheless legal under Gant. According to the Attorney General, Gant authorizes a warrantless search after an arrest whenever there is reason to believe that evidence relevant to the arrest crime might be found at the crime scene. The Attorney General argues that, “[a]pplying this recalibrated view of the search incident to arrest exception, the officers’ search of the motel room and the beanie was valid[]” because the officers had arrested defendant and Ms. Chesshire for being under the influence; before searching the beanie, they had found drug related evidence; and, therefore, they had reason to believe that they might find additional evidence inside the beanie. We disagree with the Attorney General’s application of Gant.
Gant involved a vehicle search. There, police stopped the defendant for driving with a suspended license, handcuffed him, locked him in the back of a patrol car, and then searched his car and found cocaine in the pocket of a jacket on the backseat. (Gant, supra, 556 U.S. ____ [129 S.Ct. 1714].) Under the broad reading of Belton, discussed above, the search was legal. However, the court rejected that reading and held, in essence, that the Chimel exception applied only when it was possible for an arrestee to gain access to the area searched at the time of the search. (Id. at pp. ___ [129 S.Ct. at pp. 1716, 1719].)
Pertinent here are the court’s next statements. “Although it does not follow from Chimel, we also conclude that circumstances unique to the vehicle context justify a search incident to a lawful arrest when it is ‘reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.’ [Citation.] In many cases, as when a recent occupant is arrested for a traffic violation, there will be no reasonable basis to believe the vehicle contains relevant evidence. [Citations.] But in others..., the offense of arrest will supply a basis for searching the passenger compartment of an arrestee’s vehicle and any containers therein.” (Gant, supra, 556 U.S. ____ [129 S.Ct. 1719], italics added.)
Had defendant and Ms. Chesshire been arrested in a car for being under the influence of drugs, Gant would have authorized the warrantless search of the car, even after they had been removed, arrested, handcuffed, and locked in a patrol car because it would be reasonable to believe their car might contain drugs or drug paraphernalia. (E.g., People v. Osborne (2009) 175 Cal.App.4th 1052, 1062-1065 [upholding a vehicle search under Gant].) However, this case involved the search of an object inside a motel room. As the passage from Gant quoted above makes clear, the expanded authority to conduct warrantless searches for evidence related to the crime of arrest is unique to vehicle searches.
For that reason, we not only reject the Attorney General’s view that Gant authorized the search in this case but also decline his implicit invitation to extend this part of the holding in Gant beyond its intended context. (U.S. v. Taylor (2009) ___ F.Supp.___ [2009 WL 2884765] [Gant court expressly limited holding to vehicle searches].)
The Attorney General asserts, “If this court finds Gant dictates that the officers’ conduct was contrary to the Fourth Amendment, the exclusionary rule should still not apply” because “Gant departed from staredecisis and the accepted interpretation of Chimel and Belton relied upon for decades by police departments. At the time of the search here, the officers’ conduct would have undoubtedly been proper.... Application of the exclusionary rule would, thus, clash with the principle that the reasonableness of police conduct must be judged at the time of the search. (See People v. Sanders (2003) 31 Cal.4th 318, 334 [‘The requirement that the reasonableness of a search must be determined from the circumstances known to the officer when the search was conducted is consistent with the primary purpose of the exclusionary rule—to deter police misconduct.’].)”
The claim that the search was “undoubtedly” legal under pre-Gant precedent implies that under settled pre-Gant authority, the scope of a search incident to an arrest in a home or motel room under the Chimel exception was broader than it was after Gant. In support of this claim, the Attorney General relies primarily on People v. Rege (2005) 130 Cal.App.4th 1584 (Rege).
In Rege, supra, 130 Cal.App.4th 1584, police went to a motel room, arrested the defendant on an outstanding warrant, ordered her to the floor, and then handcuffed her. The officers observed drugs and paraphernalia under a window in the bathroom. After securing the room, the officers searched underneath the mattress and found a pouch, which they opened and inside found drugs and paraphernalia. (Id. at pp. 1586-1587.) The trial court denied the defendant’s motion to suppress. (Id. at p. 1587.)
In upholding the denial, the Rege court relied on the broad reading of Belton, supra, 453 U.S. 454, discussed above, which, in effect, expanded the Chimel exception in vehicle searches and allowed the police to search a car even if there was no possibility the recently arrested occupants could gain access to it at the time of the search. (Rege, supra, 130 Cal.App.4th at pp. 1589-1590.) The Rege court also relied on Justice Bedworth’s concurring opinion in Summers, supra, 73 Cal.App.4th 288, in which he too cited the broad reading of Belton and opined that, in any context, the Chimel exception authorized the search of the area into which the suspect could have grabbed at the time of arrest regardless of whether he or she could still do so later at the time of the search. (Rege, supra, 130 Cal.App.4th at p. 1590; see Summers, surpa, 73 Cal.App.4th at pp. 293-298 (conc. opn. of Bedsworth, J.).)
In addition to Belton, Justice Bedsworth cited U.S. v. Hudson (9th Cir.1996) 100 F.3d 1409, U.S. v. Nohara (9th Cir.1993) 3 F.3d 1239, U.S. v. Turner (9th Cir.1991) 926 F.2d 883, and United States v. Fleming (7th Cir.1982) 677 F.2d 602.
First, although the broad reading of Belton may have been widespread before it was rejected in Gant, the Rege court’s application of it outside the vehicle-search context to justify the search of a motel room was not so widespread and did not reflect clear and settled precedent. This may be because in Belton, the court stated that its holding was specifically intended to provide a workable rule in a specific category of cases: those involving vehicle searches. (Belton, supra, 453 U.S. at pp. 459-460.)
Second, although Justice Bedsworth advocated applying the broad reading of Belton, his colleagues rejected his analysis, finding it contrary to “the logic of Chimel.” (Summers, supra, 73 Cal.App.4th at p. 290.) As they explained, “The justification for Chimel searches is officer safety, not officer opportunism, i.e., a postarrest license to embark on a general search. [Citation.] That is to say, where there is no threat to the officers because the suspect has been immobilized, removed, and no one else is present, it makes no sense that the place he was removed from remains subject to search merely because he was previously there.” (Id. at pp. 290-291.) This rejection confirms our view that applying Belton outside the vehicle-search context not clearly established or settled precedent. Moreover, in light of Gant, we now know that that it is error to apply the broad reading of Belton in any context.
The Attorney General also cites People v. Belvin (1969) 275 Cal.App.2d 955 and People v. Ingham, supra, 5 Cal.4th 326 for the proposition that the search here was “undoubtedly” legal. However, those cases involved the warrantless searches of women’s purses incident to their arrests. The searches were upheld on the theory that a purse was simply an extension of the woman. These cases hardly demonstrate that the search here was proper because the record does not establish that the beanie was an equivalent extension of Ms. Chesshire’s person. Indeed, as defendant points out, Officer Bruno thought it was a man’s beanie.
In short, before Gant, the search of the beanie would have been governed by the Chimel exception, which Gant simply reaffirmed. As discussed above, the search was not justified under that exception as it applies to searches inside homes or motel rooms. And although the pre-Gant authorities cited by the Attorney General could have supported an argument that the search was legal, they do not persuade us that the search “undoubtedly” would have been upheld before Gant was filed. Thus, we reject the central premise of the Attorney General’s effort to avoid the exclusionary rule.
The Attorney General’s effort is flawed for additional reasons. Concerning Gant’s impact on “stare decisis,” we reiterate that Gant did not depart from the principles underlying the Chimel exception or otherwise narrow it. The court reaffirmed it. Moreover, Gant’s rejection of the broad reading of Belton is irrelevant here because Belton and its erroneous progeny related to vehicle searches, not searches conducted in homes or motel rooms.
Finally, the Attorney General’s reliance on People v. Sanders, supra, 31 Cal.4th 318 is misplaced. Sanders did not discuss when it is and is not appropriate to apply the exclusionary rule. Rather, in Sanders, the court held that “an otherwise unlawful search of the residence of an adult parolee may not be justified by the circumstance that the suspect was subject to a search condition of which the law enforcement officers were unaware when the search was conducted.” (Id. at p. 335, fn. omitted.)
On the other hand, the Attorney General does not urge us to apply the good-faith exception to the exclusionary rule under United States v. Leon (1984) 468 U.S. 897. Indeed, he does not use the phrase “good faith belief” or even cite Leon. (Cf. People v. Branner (2009) 180 Cal.App.4th308, 319-322.) Accordingly, we deem any such claim forfeited. (Tisher v. California Horse Racing Bd. (1991) 231 Cal.App.3d 349, 361 [parties’ failure to raise claim in appellate briefing waives claim]; 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 723, p. 790 [point not raised in opening brief will not be considered]; 2 Eisenberg, et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2009) ¶ 9:21, p. 9-6 (rev. # 1, 2009) [“appellate court has discretion to disregard issues not properly addressed in the briefs, effectively treating them as having been abandoned”].)
Given our discussion, we conclude that the court erred in denying defendant’s motion to suppress. Consequently, the matter must be remanded and defendant given an opportunity to withdraw his guilty plea.
Our conclusion renders it unnecessary to address defendant’s claim that he was entitled to custody credit for the time he spent in a residential treatment program.
IV. Disposition
The judgment is reversed and the case is remanded to the trial court with directions to (1) vacate its order denying the motion to suppress and enter a new order granting the motion; and (2) permit defendant to withdraw his guilty plea. If defendant does not do so within 30 days after issuance of the remittitur, the court shall reinstate the judgment.
WE CONCUR: ELIA, J., DUFFY, J.
A hotel or motel room where a defendant is staying is treated as a residence or home for purposes of analysis. (Stoner v. California (1964) 376 U.S. 483, 490; People v. Williams (1988) 45 Cal.3d 1268, 1297 abrogated on other grounds as stated in People v. Guinan (1998) 18 Cal.4th 558, 569; Hoffa v. United States (1966) 385 U.S. 293, 301; People v. Middleton (2005) 131 Cal.App.4th 732, 738.)