Gonzalez

Before BETTY B. FLETCHER, RICHARD A. PAEZ, and N. RANDY SMITH, Circuit Judges.

Concurrence by Judge B. FLETCHER; Dissent by Judge BEA.

The panel has voted to deny the Petition for Rehearing. Judges Paez and N.R. Smith have voted to deny the Petition for Rehearing En Banc, and Judge B. Fletcher has so recommended.

The full court was advised of the petition for rehearing en banc. A judge requested a vote on whether to hear the matter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. See Fed. R.App. P. 35.

The petition for rehearing and the petition for rehearing en banc are DENIED.

B. FLETCHER, PAEZ, and N.R. SMITH, Circuit Judges, concurring in the denial of rehearing en banc:

Judge Bea's dissent presents a distorted view of what this case is all about. It requires a response that can be part of the public record. Otherwise our panel's reasoned response to the en banc call would remain hidden from public view.

At the time of our original disposition, the Supreme Court had not decided Arizona v. Gant, ___ U.S. ___, 129 S.Ct. 1710 , 173 L.Ed.2d 485 (2009). Our circuit interpreted New York v. Belton,…

with whom O’SCANNLAIN, KLEINFELD, GOULD, TALLMAN, BYBEE, and CALLAHAN, Circuit Judges, join, dissenting from denial of rehearing en banc:

I dissent from our denial of the petition for rehearing en banc, first, because the panel’s decision disregards the Supreme Court’s decisions in Herring v. United States, — U.S. -, 129 S.Ct. 695, 700 , 172 L.Ed.2d 496 (2009), and Illinois v. Krull, 480 U.S. 340 , 107 S.Ct. 1160 , 94 L.Ed.2d 364 (1987), regarding when police misconduct justifies suppression of relevant evidence in a criminal trial, and second, because the panel’s decision creates a split among the circuits. See United States v. McCane, 573 F.3d 1037 (10th Cir.2009), cert. denied, No. 09-402, — U.S. -, 130 S.Ct. 1686 , 176 L.Ed.2d 179 , 78 U.S.L.W. 3221 (Mar. 1, 2010); United States v. Jackson, 825 F.2d 853 (5th Cir.1987) (en banc).

I. Introduction

The panel has decided that evidence seized by a police officer acting in good faith reliance on the predominant interpretation of Supreme Court precedent should be suppressed, despite the fact that suppression in this case cannot conceivably result in appreciable deterrence of future police misconduct. How does it deter police…

Concurrence by Judge B. FLETCHER; Dissent by Judge BEA.

*1096 ORDER

The panel has voted to deny the Petition for Rehearing. Judges Paez and N.R. Smith have voted to deny the Petition for Rehearing En Banc, and Judge B. Fletcher has so recommended.

The full court was advised of the petition for rehearing en banc. A judge requested a vote on whether to hear the matter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. See Fed. R.App. P. 35.

The petition for rehearing and the petition for rehearing en banc are DENIED.

and N.R. SMITH, Circuit Judges, concurring in the denial of rehearing en banc:

Judge Bea’s dissent presents a distorted view of what this case is all about. It requires a response that can be part of the public record. Otherwise our panel’s reasoned response to the en banc call would remain hidden from public view.

At the time of our original disposition, the Supreme Court had not decided Arizona v. Gant, — U.S. -, 129 S.Ct. 1710 , 173 L.Ed.2d 485 (2009). Our circuit interpreted New York v. Belton, 453 U.S. 454 , 101 S.Ct. 2860 , 69 L.Ed.2d 768 (1981), to allow law enforcement to search the passenger compartment of a vehicle so long as the search was “roughly contemporaneous with’ the arrest” of the vehicle’s occupant. United States v. Weaver, 433 F.3d 1104, 1106 (9th Cir.2006) (citation and quotation marks omitted). Accordingly, our panel in its original disposition concluded that the search of Defendant Gonzalez’s vehicle did not violate the Fourth Amendment.

While Gonzalez’s petition for certiorari was pending, the Supreme Court decided Gant , holding that a number of state and federal courts, including ours, had improperly interpreted Belton . Far from announcing a new rule…