Opinion
E050836 Super.Ct.No. INF067406
08-03-2011
THE PEOPLE, Plaintiff and Appellant, v. SOCORRO NIEVE RODRIGUEZ, Defendant and Respondent.
Rod Pacheco, District Attorney, and Rebecca Marie Madrid, Deputy District Attorney, for Plaintiff and Appellant. Ava R. Stralla, under appointment by the Court of Appeal, for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from the Superior Court of Riverside County. Jorge C. Hernandez, Judge. Affirmed.
Rod Pacheco, District Attorney, and Rebecca Marie Madrid, Deputy District Attorney, for Plaintiff and Appellant.
Ava R. Stralla, under appointment by the Court of Appeal, for Defendant and Respondent.
INTRODUCTION
On November 12, 2009, a felony complaint charged defendant and respondent Socorro Nieve Rodriguez (defendant) with the following: (1) possession of a controlled substance, cocaine, under Health and Safety Code section 11350, subdivision (a) (count 1); and driving a motor vehicle with a license that had been suspended for driving under the influence of alcohol, a misdemeanor under Vehicle Code section 14601.2 (count 2). The complaint also alleged that defendant was in violation of the terms of her probation in case No. INM193695. Defendant pled not guilty to all counts.
On December 18, 2009, defendant filed a motion to suppress evidence under Penal Code section 1538.5, subdivision (f)(2). The prosecution did not file a written opposition.
All statutory references are to the Penal Code unless otherwise specified.
On December 29, 2009, the court held a joint proceeding on the motion to suppress and a preliminary hearing. The court denied the motion and held defendant to answer on all counts and on the violation of probation.
On January 11, 2010, the prosecution filed an information alleging the same counts as the felony complaint—violation of Health and Safety Code section 11350, subdivision (a) (count 1), and a violation of Vehicle Code section 14601.2, subdivision (a) (count 2). The information also alleged a violation of probation in case No. INM193695.
On January 12, 2010, defendant was arraigned on the information and pled not guilty to all counts.
On February 22, 2010, defendant filed a motion to suppress evidence under section 1538.5, subdivision (i). The prosecution filed a written opposition on March 2, 2010. On March 9, 2010, the trial court granted defendant's motion to suppress.
On March 15, 2010, the People informed the trial court that the prosecution could not proceed with count 1. Therefore, defense counsel moved to dismiss count 1. The trial court dismissed count 1 under section 1385 "for lack of or insufficiency of the evidence." Defendant then entered a plea of guilty to the misdemeanor in count 2, and admitted that she violated the terms of her probation.
On May 7, 2010, the People filed a notice of appeal "from the order . . . entered in the minutes of the court on March 9, 2010."
On October 7, 2010, defendant filed a motion to dismiss the People's appeal and requested to augment the record on appeal. On October 22, 2010, the People filed an opposition. On December 15, 2010, we granted defendant's motion to augment, and reserved ruling on the motion to dismiss for consideration with this appeal.
For the reasons set forth below, we shall affirm the trial court's ruling to grant defendant's motion to suppress evidence.
FACTUAL AND PROCEDURAL BACKGROUND
1.
DECEMBER 29, 2009 PRELIMINARY HEARING AND MOTION TO SUPPRESS
At the preliminary hearing and hearing on defendant's first motion to suppress, the following testimony was presented.
On September 16, 2009, at 9:37 p.m., City of Indio Police Officer Christopher Piscatella was on patrol in the downtown area of Indio. At that time, the officer's attention was drawn to a gold Ford Taurus, which made a left turn from Monroe Street onto Avenida Del Mar, turning directly in front of a southbound pickup truck. The truck had to apply its brakes to allow the Taurus to turn.
Officer Piscatella ordered the driver of the Taurus, defendant, to pull over for making an unsafe turning movement in violation of Vehicle Code section 22107. Defendant pulled into the Avenida Del Mar Apartments where she lived, and parked her car underneath a carport. The officer approached the vehicle and asked defendant to show him her driver's license, registration, and proof of insurance. Defendant stated that she did not have a driver's license—it had been suspended for driving under the influence of alcohol. She took her California ID card out of her wallet, placed her wallet on the passenger seat, and handed the officer her ID card.
Officer Piscatella ran defendant's ID card through the police dispatch, which confirmed the suspension of defendant's license. The officer placed defendant under arrest for driving on a suspended license and ordered her to step out of the car. The officer placed defendant in handcuffs and told her to stand at the rear of the car. The officer did not search the car but retrieved defendant's wallet and purse because of police policy that "all personal property belonging to the defendant" is taken with them at the time of arrest. The officer testified that once an officer takes the personal property, the property is searched at the location or at the police department. If the arrestee is released or receives a citation at the station, the property is released to the arrestee "if it is not considered evidence." If the arrestee is transported to jail, the personal property goes with the person to the jail location.
The record is silent as to whether defendant requested the officer to retrieve her wallet and purse or expressed any concern about them.
The record was poorly developed. While the officer testified regarding general procedures, he never testified as to whether, before finding the cocaine, he would arrest defendant and transport her to the police department for a booking/inventory search before jailing her or just issue a citation at the scene or police station and release defendant. When an officer makes an arrest for a misdemeanor Vehicle Code violation, the officer may prepare a notice to appear and release the arrestee. (Veh. Code, §§ 40500, 40504.) This has a big bearing on the People's inevitable discovery argument, infra, since if he planned to cite and release, whether at the scene or at the police station, the evidence would not have been inevitably discovered. The officer testified that the defendant could possibly be cite released in his discussion of general procedures or policies. The officer never got beyond what generally could happen and state whether she would be arrested and booked into jail or cite released without a booking search.
When Officer Piscatella searched defendant's wallet, he found a straw and small baggie containing white powder which he believed to be cocaine. The inside of the straw also contained the white powder. With a drug kit called the NarcoPouch, the officer tested the white power. It tested positive for cocaine and had a total package weight, which included the plastic baggie, of 0.5 grams.
Officer Piscatella transported defendant to the police station, but did not question her. She spontaneously asked him to "just throw it out."
At the close of the officer's testimony, defense counsel argued that a United States Supreme Court case, Arizona v. Gant (2009) ___ U.S. ___ [129 S.Ct. 1710; 173 L.Ed.2d 485] (Gant), was squarely on point. According to defense counsel, a search of a vehicle incident to arrest is not authorized where the arrestee had been secured and cannot access the interior of the vehicle, as in this case. Counsel also argued that Gant held that a search incident to arrest may be justified where it is reasonable to believe that the evidence of the offense might be found in the vehicle. In this case, however, the reason for the arrest was driving on a suspended license. Hence, since the officer had defendant's identification card, her admission, and the confirmation that defendant's license had been suspended by the DMV, there was no justification or reason to search defendant's vehicle—the search was not justified as a search incident to arrest under Gant.
In response, the People argued that this was not a search incident to arrest. The officer testified that he did not search the vehicle as the officer did in Gant. Here, the officer placed defendant under arrest and took her personal property that he had seen her retrieve her identification from earlier. The officer did not search any part of the car. The officer testified that it is department policy to take personal property to the police department. The prosecutor stated, "If [the officer] hadn't searched the purse and wallet, it would have been searched at the police department. So these narcotics would have been found, even if he had just transported them to the department itself." The officer was merely taking defendant's property "as if taking it from his person." The prosecutor argued that this case did not fall under Gant.
The trial court then took a recess and reviewed Gant, supra, 129 S.Ct. 1710. After resuming the hearing, the court stated that the facts were close but there was a difference between the facts in this case and in Gant. Here, there was no testimony that the officer searched the car. When defendant was placed under arrest, her purse and wallet were on the front seat of her car. The court indicated that it would have been highly unlikely that the officer would have left the wallet and purse on the front seat. The items would have been taken to the station with defendant where they would have been inventoried, and the drugs inevitably would have been discovered. Therefore, the court denied the suppression motion and held defendant to answer on both counts and the probation violation.
2.
MARCH 9, 2010 MOTION TO SUPPRESS
On February 22, 2010, defendant filed a second motion to suppress evidence under section 1538.5, subdivision (i). The People filed an opposition on March 2, 2010.
At the hearing on March 9, 2010, the court noted that when it read the transcript from the preliminary hearing, it "was on board" with the ruling until it read Gant, supra, 129 S.Ct. 1710, in its entirety.
The court summarized the facts. Defendant was lawfully arrested and her identification was confirmed. She was out of her vehicle, secured in handcuffs and not within reach of the interior of her car. The officer had already obtained all evidence of the crime, and her car was legally parked in the carport of defendant's apartment building and easily could have been secured. The court went on to state that the prosecution presented the argument regarding the police department's standing policy to remove any personal items from a vehicle to jail where the narcotics would have been discovered. The court noted that case law indicates that inventory searches and impounding of vehicles should be done within established guidelines—and there was no evidence of these police procedures or guidelines in this case—only a statement by an officer about what the officers do. As to the theory of inevitable discovery, the court stated that "if the officer did not have a right to take the purse [and wallet], then he would not have inevitably discovered [the cocaine] at a later date." The court noted that there had to be a distinction between a car parked at the side of a road and a car parked in a carport where defendant resided. Here, defendant's car was secure in the carport; all the officer had to do was to lock the car to secure it further. Had the car been parked on the side of the road, however, the scenario would have been different. The court quoted from Justice Scalia's concurring opinion in Gant wherein he characterized "unconstitutional searches [as] the greater evil." The trial court then invited argument from counsel.
We disagree with this portion of the court's analysis. The burglary and vandalism of cars in order to steal valuables is a common occurrence. Locking a car with a purse plainly visible is an open invitation to burglarize in an open common area such as an apartment carport. It would not be secure. Our disagreement does not affect our analysis or the outcome, infra, since we find the inevitable discovery doctrine does not apply for a different reason.
The prosecutor's position was twofold. First, the prosecutor argued that she understood the distinction between a car parked on the side of the road and a car parked in a secure location. However, with the prevalence of car burglaries in today's society, there is great justification for a police officer to secure personal property. Second, the prosecutor argued that a person taken into custody and later released from jail would need his or her personal property, such as keys, cell phone, and money so that the person could call a taxi or a friend for a ride home. She stated that she was unaware of police officers giving people rides home when they are released from jail. The prosecutor further argued that women need personal items in their purses and equated a woman's purse to a man's wallet, which is closely associated with and usually carried on his person. The prosecutor concluded that the officer was justified in taking defendant's wallet and purse, and that it was reasonable for him to conduct an inventory search at the scene so that the officer would not have been liable for any missing or damaged items.
This argument again presupposes that defendant would have been arrested and transported to the police department and that a lawful booking/inventory search would be conducted there. Again, the officer never testified that, before finding the cocaine, he would arrest, transport and jail defendant or just issue a citation and release defendant on this misdemeanor offense. The officer never testified to his basis for searching the purse and wallet. He never said he was conducting an inventory search rather than one just incident to defendant's arrest. Even if the officer had testified he would have arrested, booked and jailed defendant before discovery of the cocaine, case law forbids an accelerated booking search in the field. (People v. Laiwa (1983) 34 Cal.3d 711, 724-727.)
As mentioned previously, the People do not claim that the search was valid as one incident to arrest.
The prosecutor noted that she interpreted Gant, supra, 129 S.Ct. 1710, as focusing on police engaging in entire vehicle searches, and "not specifically to get into the jacket that's on the passenger's seat, that is what the defendant or an individual was wearing so that they wouldn't be cold." She noted that there was a difference between "items that are closely associated with an individual" and items in the car or trunk.
Defense counsel initially noted that the issue is not one of public safety, such as when an officer confiscates a purse for public safety, nor is it an inventory search situation where an officer searched the wallet at the scene and not at the jail during the booking process. In response to the prosecutor's argument that the purse and wallet were closely associated with defendant, defense counsel stated that defendant had been taken out of the car, placed in the back of her car and handcuffed, away from her purse and wallet. Moreover, defendant never asked for her property. Therefore, the officer was not justified in searching the purse, wallet, or anything else in the car.
This, as previously noted, is inaccurate. Neither the prosecutor nor defense counsel asked the officer whether defendant asked for her purse or if she expressed any concern about it. The record is silent.
Defense counsel went on to argue that the facts in this case fell squarely with Gant, where the defendant was pulled over and arrested because he was driving on a suspended license. The officer searched a jacket in the back seat and found cocaine. The Untied States Supreme Court stated:
"For several reasons we reject the State's argument. First, the State seriously undervalues the privacy interests at stake. Although we have recognized that a motorist's privacy interest in his vehicle is less substantial than in his home [citation], the former interest is nevertheless important and deserving of constitutional protection [citation]. It is particularly significant that Belton[] searches authorize police officers to search, not just the passenger compartment, but every purse, briefcase, or other container within that space. A rule that gives the police the power to conduct such a search whenever an individual is caught committing a traffic offense, when there is no basis for believing evidence of the offense might be found in the vehicle, creates a serious and recurring threat to the privacy of countless individuals. . . ." (Gant, supra, 129 S.Ct. at p. 1720.)
New York v. Belton (1981) 453 U.S. 454.
Thereafter, the trial court stated that it agreed with Justice Scalia's concurring opinion in Gant, supra, 129 S.Ct. 1710, that there is no clear line of direction for police officers to follow in this situation, so we must protect against the greater evil here which is unconstitutional searches. The court reasoned that if defendant had not identified herself, then the officer could have gone into her wallet to search for identification. The search would be appropriate even under the circumstances of this case where defendant was handcuffed and outside the car. The court went on to state that the deciding factor in this case "is that the vehicle is in a carport and the property could in fact be secured." The court added that it would have been different had the officer asked defendant if she wanted her purse and wallet and defendant replied "yes."
The court disagreed with the prosecutor's "comfort" argument that defendant might need her personal property because the court did not believe that officers "are interested in anybody's comfort that they are arresting." The court stated that under Gant, supra, 129 S.Ct. 1710, it had no choice but to grant the motion to suppress.
ANALYSIS
On appeal, the People argue that the trial court erred in granting defendant's motion to suppress evidence under section 1538.5.
In a motion to dismiss the appeal, defendant argues that the People's appeal should be dismissed because it is not authorized under section 1238, subdivision (a)(7). We reserved ruling on the motion to dismiss for consideration with this appeal. We, however, need not address defendant's argument because the People's appeal fails on the merits. Accordingly, the motion to dismiss the appeal is denied as moot.
In reviewing the trial court's ruling on a motion to suppress evidence, we defer to the trial court's express or implied factual findings where supported by the evidence and exercise our independent judgment in determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment. (People v. Weaver (2001) 26 Cal.4th 876, 924.) "The trial court also has the duty to decide whether, on the facts found, the search was unreasonable within the meaning of the Constitution. . . . [I]t becomes the ultimate responsibility of the appellate court to measure the facts, as found by the trier, against the constitutional standard of reasonableness." (People v. Lawler (1973) 9 Cal.3d 156, 160.)
The Fourth Amendment to the United States Constitution guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures . . . ." However, "[t]he Fourth Amendment does not proscribe all state-initiated searches and seizures; it merely proscribes those which are unreasonable." (Florida v. Jimeno (1991) 500 U.S. 248, 250.)
Warrantless searches, although usually per se unreasonable, are considered reasonable in various contexts. (Katz v. United States (1967) 389 U.S. 347, 357.) The warrantless search of an automobile, for instance, can be justified on a variety of grounds, among them: (1) probable cause to believe the car contains contraband (Carroll v. United States (1925) 267 U.S. 132, 149); (2) the search is incident to the arrest of an occupant of the vehicle (New York v. Belton, supra, 453 U.S. at p. 460); or (3) the search is part of the inventory of a lawfully impounded vehicle (South Dakota v. Opperman (1976) 428 U.S. 364, 375-376). A search incident to arrest is among the exceptions to a warrant requirement because of the need for safety of the officer and preservation of evidence. (See Weeks v. United States (1914) 232 U.S. 383, 392; Chimel v. California (1969) 395 U.S. 752.) However, if there is no way a person under arrest could access the area a police officer intends to search, both the officer safety and preservation of evidence exceptions are inapplicable. (Preston v. United States (1964) 376 U.S. 364, 367-368.)
In a recent decision, the United States Supreme Court in Gant, supra, 129 S.Ct. at page 1719, held that: (1) "the Chimel [v. California, supra, 395 U.S. 752] 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[;]" and (2) "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.]" The court stated that to allow police to search vehicles incident to any arrest under any circumstances creates a "police entitlement, and it is anathema to the Fourth Amendment[.]" (Id. at p. 1721.) The court then went on to state:
"Police may search a vehicle incident to a recent occupant's arrest 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. When these justifications are absent, a search of an arrestee's vehicle will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies. . . ." (Gant, supra, 129 S.Ct. at pp. 1723-1724.)
In this case, the People argue that "the trial court erroneously rejected the prosecutor's argument that the search of [defendant's] wallet was a valid inventory search." The People argue that Officer Piscatella was simply following his department's established routine of taking an arrestee's personal property with the arrestee when he or she is taken into custody, and taking an inventory of the property either at the location of the arrest or at the station. In support, the People cite Illinois v. Lafayette (1983) 462 U.S. 640, 648 (Lafayette). Lafayette, however, does not apply as it dealt with a routine administrative procedure at the police station only, and not a search at the scene of an arrest. (Id. at pp. 642, 646.) "[T]he factors justifying a search of the person and personal effects of an arrestee upon reaching a police station but prior to being placed in confinement are somewhat different from the factors justifying an immediate search at the time and place of arrest." (Id. at p. 645.)
When the prosecutor uses the term "inventory search," she seems to refer to a search at the police station, apparently as part of the booking and jailing process. An inventory search can also be made during the course of impounding a vehicle. Vehicle Code section 14602.6 permits an officer to impound a car that is driven by a person whose license has been suspended. The officer was never asked if he was going to impound the car and conduct an inventory search. Therefore, in this case, the inevitable discovery argument would not apply to an impound inventory search.
Moreover, the People contend that it was necessary for the officer to take defendant's purse and wallet to (1) protect them from being stolen; (2) protect the car from being vandalized; and (3) protect the officer and the police department from liability. In support, the People rely on Colorado v. Bertine (1987) 479 U.S. 367, 372 (Bertine). The facts in this case and in Bertine, however, are distinguishable. In Bertine, an inventory search occurred prior to the arrestee's van being towed away to an impoundment lot. (Id. at pp. 368-369.) In this case, the court noted that defendant's car was securely parked where she lived in her spot under a carport, and not on the side of the road. The court stated that "[l]ocking the vehicle would have been all it -- it would have been all that the officer would have needed to do in order to further secure that vehicle."
Furthermore, the People contend that Officer Piscatella was operating under the familiar standard and established routine of his department and was not required to use less intrusive means of securing defendant's wallet and purse. The evidence presented, however, did not indicate that the search of defendant's wallet was an inventory search. Here, the trial court stated that there was no evidence presented regarding the police department's established guidelines regarding inventory searches. The only evidence presented was the officer's statement about what officers do. The court went on to state that "case law says that [an inventory search] has to be within established guidelines and there must be some evidence of those guidelines or procedures set forth, and I didn't see that here. It just said there is a policy by the officers to do that."
In fact, the Supreme Court has stated "[a] rule that gives the police the power to conduct such a search whenever an individual is caught committing a traffic offense, when there is no basis for believing evidence of the offense might be found in the vehicle, creates a serious and recurring threat to the privacy of countless individuals. . . ." (Gant, supra, 129 S.Ct. at p. 1720.)
Notwithstanding, the People contend that the Gant decision "failed to speak to the legality of impound or inventory searches under similar circumstances." The People's argument is unavailing because this case does not deal with impounding a vehicle or inventory searches. Here, as stated in detail above, the search was a search incident to arrest—as the search in Gant, supra, 120 S.Ct. 1710. Under Gant, the search and seizure was in violation of the Fourth Amendment and the trial court properly granted defendant's motion to suppress. A person's privacy interests in her personal possessions that have absolutely no connection to the offense committed are certainly "deserving of constitutional protection." (Id. at p. 1720.)
In a related argument, the People argue that defendant's "wallet was lawfully searched because it was a normal extension of her person subject to an inventory search during the booking process." In support of its argument, the People rely on People v. Decker (1986) 176 Cal.App.3d 1247 (Decker). Decker, however, is not applicable.
Decker also antedates Gant, obviously.
In Decker, supra, 176 Cal.App.3d 1247, the police stopped the defendant's van on the street after observing erratic driving. After the defendant was stopped and asked for her driver's license, she took a long time to produce it, flipping past it a few times. After the defendant got out of her van, she looked pale, had trouble keeping her balance, walked very slowly, and slurred her words. As the officer smelled no alcohol on her breath, he assumed she was under the influence of some type of drug. The officer arrested the defendant and placed her in the back of his police car. The defendant asked the officer to lock and park her car. The officer took her purse from the car "for safekeeping" because he believed the defendant was concerned about her purse. During an inventory search at the police station, police discovered narcotics and a hypodermic needle in the defendant's purse. (Id. at p. 1249.) The appellate court held that the police lawfully searched the defendant's purse during the booking process in that it was considered a normal extension of the defendant's person. (Id. at p. 1253.)
Here, the record is silent as to whether defendant expressed concern for her purse and wallet or whether she asked for them to be brought to her. Instead of being parked on a street, defendant's car was parked in her spot in the carport of her apartment. The trial court addressed this issue during the hearing. The court stated that there had to be a distinction between a car parked on the side of the road and a car parked in the carport where defendant lived. At that point, the court felt the car was secure, and all that the officer had to do was to lock the car. We have previously noted our disagreement with the court's analysis. This record does not establish inevitable discovery based on either an impound inventory search or a booking search at the police department, preparatory to jailing her. The record shows that defendant might have just been released at the scene or police station with a citation to appear. On appeal we do not review the correctness of the trial court's reasoning. We uphold the ruling if it is correct upon any theory of law. (People v. Marquez (1992) 1 Cal.4th 553, 578; D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 19.) The People have not established inevitable discovery.
The People also assert that "even assuming a violation of [defendant's] Fourth Amendment rights, there was no basis to utilize the exclusionary rule to exclude the evidence." In support of its argument, the People rely on a recent United States Supreme Court decision, Herring v. United States (2009) 555 U.S. 135 [120 S.Ct. 695, 172 L.Ed.2d 496] (Herring).
Even if a Fourth Amendment violation occurs, the evidence will not be excluded "if the police acted 'in objectively reasonable reliance.'" (Herring, supra, 555 U.S. at p. ___ [search incident to arrest subject to good-faith exception even though arrest warrant from neighboring county had been recalled months earlier, where physical records were updated but database was not].) Prior to Herring, the good-faith exception would not have applied to preclude suppression based upon negligent conduct by law enforcement officials, such as conducting a search when the officials in question should have known, including on the basis of the collective knowledge of law enforcement, that a search was unconstitutional. (See, e.g., People v. Willis (2002) 28 Cal.4th 22, 48.) Under Herring, the good-faith exception applies "when police mistakes are the result of negligence . . . rather than systemic error or reckless disregard of constitutional requirements." (Herring, supra, 129 S.Ct. at p. 704.) "If the error made by the officer was merely negligent, the 'extreme sanction of suppression' is not appropriate." (Caskey, Cal. Search and Seizure (2009) Forward, p. vii.) This is because "the exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence." (Herring, supra, 129 S.Ct. at p. 702.)
The issue—whether the good-faith exception to the application of the exclusionary rule should be applied where unconstitutional searches occurred prior to the United States Supreme Court decision in Gant—is currently pending before the California Supreme Court in People v. Branner (2009) 180 Cal.App.4th 308, review granted March 10, 2010, S179730, and People v. Henry (2010) 184 Cal.App.4th 1313, review granted August 11, 2010, S183964, and the United States Supreme Court in United States v. Davis (11th Cir. 2010) 598 F.3d 1259, certiorari granted November 1, 2010, ___ U.S. ___ [131 S.Ct. 502, 178 L.Ed.2d 368]. We, however, need not decide whether this rule applies because the search in this case occurred after the decision in Gant: The unconstitutional search at issue in this case occurred on September 16, 2009, five months after the court rendered its decision in Gant on April 21, 2009.
Based on the above, we find that Herring, supra, 555 U.S. 135, is not applicable to this case. Therefore, the exclusionary rule applies and the trial court properly granted defendant's motion to suppress.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKinster
Acting P.J.
We concur: King
J.
Miller
J.