People v. Colley CA1/5

Filed 3/10/16 P. v. Colley CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, Plaintiff and Respondent, A142090

v. Order Modifying Opinion [No BRIAN DOMINIC COLLEY, Change in Judgment] Defendant and Appellant. (San Mateo County Super. Ct. No. SC076122A)

THE COURT:

It is ordered that the opinion filed February 16, 2016 be modified as follows: (1) On page 4, replace the last sentence of the last full paragraph with the following: Under the totality of the circumstances—the late hour, appellant’s nervous and evasive behavior, and the officers’ experience with lightweight guns—the search of the gun case was not unreasonable.1 1 United States v. Leo (7th Cir. 2015) 792 F.3d 742, in which the Seventh Circuit found the search of a backpack unreasonable, is distinguishable. In contrast to the facts of Leo, this case involves a traffic stop; appellant was not handcuffed; before exiting the car appellant appeared to rummage around in his backpack while shielding his actions from the officers’ view; the officers interviewed appellant and verified the case was marketed as a gun case before conducting the search; and the officers suspected appellant was under the influence of controlled substances.

1

(2) On page 5, renumber footnote 6 as footnote 7. There is no change in the judgment. Appellant’s petition for rehearing is denied.

Dated: , P. J.

2

Filed 2/16/16 P. v. Colley CA1/5 (unmodified version) NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.