United States v. Jackson, Tarry

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United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 4, 2005 Decided July 22, 2005

No. 04-3021

UNITED STATES OF AMERICA,

APPELLEE

v.

TARRY M. JACKSON,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 02cr00328-01)

Sandra G. Roland, Assistant Federal Public Defender,

argued the cause for appellant. With her on the briefs was A. J.

Kramer, Federal Public Defender. Neil H. Jaffee, Assistant

Federal Public Defender, entered an appearance.

Thomas S. Rees, Assistant U.S. Attorney, argued the cause

for appellee. With him on the brief were Kenneth L. Wainstein,

U.S. Attorney, and John R. Fisher and Thomas J. Tourish, Jr.,

Assistant U.S. Attorneys.

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Before: EDWARDS, ROGERS and ROBERTS, Circuit Judges.

Opinion for the Court filed by Circuit Judge ROGERS.

Concurring opinion filed by Circuit Judge EDWARDS.

Dissenting opinion filed by Circuit Judge ROBERTS.

ROGERS, Circuit Judge: This appeal challenges the district

court’s denial of a motion to suppress evidence on the ground

that the police lacked probable cause to search the trunk of a car

stopped for a traffic violation. The question before the court is

whether the evidence would have led a “‘prudent, reasonable,

cautious police officer’ to believe that there was a reasonable

likelihood the trunk contained contraband” or evidence of a

crime. United States v. (Monte) Brown, 374 F.3d 1326, 1328

(D.C. Cir. 2004) (quoting United States v. Davis, 458 F.2d 819,

821 (D.C. Cir. 1972)); see also Illinois v. Gates, 462 U.S. 213,

238 (1983). Upon de novo review, see Ornelas v. United States,

517 U.S. 690, 699 (1996), we hold that the police lacked

probable cause to search the trunk, and accordingly, we reverse

the judgment of conviction.

I.

At approximately 1:00 a.m. on May 4, 2002, United States

Park Police Officers Jeffrey Garboe and Wayne Johnson

observed a 1988 Mercury Marquis without a functioning tag

light. The officers initiated a traffic stop based on the absence

of the tag light. Prior to approaching the car, they conducted a

records check that indicated the car’s temporary license tags had

been reported stolen from Fairfax County, Virginia. The

officers arrested the driver for the stolen tag offense. When the

driver was unable to produce a registration or a driver’s license,

the officers conducted a further records check that indicated that

his driving privileges had been suspended in Virginia. The

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officers also checked the vehicle identification number in a

computer database, and it yielded an “old listing” from Virginia,

meaning that the car had once been registered there but that it

was not currently registered. There was no report that the car

had been stolen.

After handcuffing the driver and securing him inside their

cruiser, the officers searched the passenger compartment of the

car, including the glove compartment, for documentation of

ownership. They did not find any documentation, contraband,

or evidence of criminal activity. Nevertheless, the officers

searched the trunk, based on their prior experience of finding

“real tags” and “other identifying information about the vehicle”

there. Although the officers again did not find the “real tags” or

any identifying information, they did find a loaded .25 caliber

pistol and ammunition inside a child-sized backpack within the

trunk. The officers then transported the driver for booking,

leaving the car parked on the public street. According to Officer

Johnson, while being transported for booking the driver

indicated that the car belonged to his girlfriend. Officer Garboe

also remembered the driver making such a statement, including

that his girlfriend had purchased the car at an auction a month

before, but he somewhat inconsistently could not recall at what

point the driver made the statement. The district court did not

make a finding on when the officers received this information.

The driver of the car, Tarry M. Jackson, was indicted for

one count of unlawful possession of a firearm and ammunition

in violation of 18 U.S.C. § 922(g) (2000). The district court

denied his motion to suppress the evidence seized from the car

trunk. While noting that this case was “a pretty close call” and

that the officers’ testimony about why they searched the trunk

was “confused,” the district court concluded that “there was a

fair probability that a search of the trunk and the backpack

would produce evidence related to Jackson’s use of a stolen tag

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– perhaps the ‘real’ tags – or information indicating that Jackson

was not the owner or authorized user of the vehicle.” The

district court acknowledged that “[t]he vehicle had not been

reported stolen,” but observed that “the information available to

the officers [did not] establish that it was not stolen.” Jackson

then conditionally pled guilty to the unlawful possession charge,

preserving his right to appeal the denial of the suppression

motion. He was sentenced to twenty-one months of

incarceration, three years of supervised release, and a special

assessment, and he now appeals.

II.

The Fourth Amendment provides, “The right of the people

to be secure in their . . . effects, against unreasonable searches

and seizures, shall not be violated.” In most instances, searches

must be supported by a warrant obtainable upon a showing of

probable cause. See, e.g., California v. Carney, 471 U.S. 386,

390-91 (1985); Mincey v. Arizona, 437 U.S. 385, 390 (1978).

“It remains a cardinal principle that searches conducted outside

the judicial process, without prior approval by judge or

magistrate, are per se unreasonable under the Fourth

Amendment – subject only to a few specifically established and

well-delineated exceptions.” California v. Acevedo, 500 U.S.

565, 580 (1991) (internal quotation marks omitted).

One exception allows the police to search a vehicle’s

passenger compartment, including the glove compartment,

incident to the lawful arrest of the vehicle’s occupant. New York

v. Belton, 453 U.S. 454, 460 (1981); see also Thornton v. United

States, 541 U.S. 615 (2004). The rationale behind the exception

is that “articles inside the relatively narrow compass of the

passenger compartment of an automobile are in fact generally,

even if not inevitably, within ‘the area into which an arrestee

might reach in order to grab a weapon or evidentiary ite[m].’”

Belton, 453 U.S. at 460 (quoting Chimel v. California, 395 U.S.

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752, 763 (1969)) (alteration in original). The officers conducted

a search of the passenger compartment, and Jackson raises no

objection to that search. Jackson’s arrest for traffic violations

and stolen tags, however, did not automatically permit the

officers to search the car’s trunk. See id. at 461 n.4; see also

Pennsylvania v. Labron, 518 U.S. 938, 940 (1996). Rather,

although a search warrant was not required, the officers could

constitutionally search the trunk (and the containers therein)

only if they had probable cause to believe that the trunk

contained contraband or evidence of a crime. See Acevedo, 500

U.S. at 579-80.

Probable cause is synonymous with “fair probability,”

Gates, 462 U.S. at 238, and it is an objective standard requiring

an analysis of the totality of the circumstances and the facts

known to the officers at the time of the search, Ornelas, 517

U.S. at 695-96; Gates, 462 U.S. at 230-31; cf. United States v.

Arvizu, 534 U.S. 266, 274 (2002). “Subjective intentions play

no role in ordinary, probable-cause Fourth Amendment

analysis,” Whren v. United States, 517 U.S. 806, 813 (1996), and

the officers’ “actual motives for conducting the search [are] not

relevant as long as [their] actions were objectively reasonable.”

United States v. (Rocky Lee) Brown, 334 F.3d 1161, 1172 n.8

(D.C. Cir. 2003) (quoting United States v. Christian, 187 F.3d

663, 670 (D.C. Cir. 1999)) (internal quotation marks omitted);

see also Devenpeck v. Alford, 125 S. Ct. 588, 593-94 (2004);

United States v. Holmes, 385 F.3d 786, 790 (D.C. Cir. 2004).

The court has recognized that “the discovery of contraband in

the passenger compartment of a car is a factor that strongly

supports the lawfulness of a trunk search.” (Rocky Lee) Brown,

334 F.3d at 1173. And so long as probable cause exists to

search the trunk, police officers may also search any of the

trunk’s contents “that may conceal the object of the search.”

United States v. Ross, 456 U.S. 798, 825 (1982); see also

Wyoming v. Houghton, 526 U.S. 295, 300-02 (1999).

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Both in the district court and in this court upon de novo

review, “the burden is on those seeking the exemption [from the

warrant requirement] to show the need for it.” United States v.

Jeffers, 342 U.S. 48, 51 (1951); see also Chimel, 395 U.S. at

762; In Re Sealed Case, 153 F.3d 759, 764 (D.C. Cir. 1998). In

this instance, it is the government’s burden to demonstrate that

there was a fair probability that the car trunk would contain

contraband or evidence of a crime. Because the totality of the

circumstances known to the officers at the time of the search of

the car trunk, including that the driver likely had committed

several traffic violations and had received stolen property, do

not support a determination of probable cause, the government

has not carried its burden.

According to the government, at the time of the search of

the car trunk, the officers had probable cause to believe that the

driver had committed several offenses: three traffic violations

for which he received citations - driving with a suspended

license, D.C. CODE ANN. § 50-1403.01 (2001), operating an

unregistered motor vehicle, id. § 50-1501.04(a)(1)(A), driving

without required vehicle identification tags, id. § 50-

1501.04(a)(1)(B) - and two criminal offenses – receiving stolen

property (the stolen tags), id. § 22-3232, and unauthorized use

of a motor vehicle, id. § 22-3215. Therefore, the government

maintains, the search of the trunk was objectively reasonable

because the officers had probable cause to believe that they

would find “additional contraband, such as one or more

additional stolen tags” in the trunk, Br. of Appellee at 14, or that

“further evidence concerning this range of probable criminal

activity might well have been concealed in the trunk of the car,”

id. at 13. The government does not rely expressly on the district

court’s determination that the search was permissible based on

the fair probability of finding the car’s “real tags,” but,

consistent with the district court’s ruling, it does maintain that

the officers had probable cause to search for documentation of

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ownership, assuming, as it does, there was probable cause to

believe that the driver was an unauthorized user of the car.

The government’s first justification – that the officers had

probable cause to search for contraband – is readily dismissed.

There can be no serious argument that the existence of stolen

tags affixed to a car gives rise to probable cause to believe that

additional contraband, particularly additional stolen tags, would

be in the car trunk. Contrary to the government’s contention,

this case is not similar to (Monte) Brown, 374 F.3d 1326, where

a fraudulent credit card, personal check, and driver’s licenses

found in a vehicle’s passenger compartment gave rise to

probable cause to believe that items fraudulently obtained would

be found in the trunk. In so holding, the court determined that

the evidence in the passenger compartment led a “‘prudent,

reasonable, cautious police officer’ to believe that there was a

reasonable likelihood the trunk contained contraband.” Id. at

1328 (quoting Davis, 458 F.2d at 821). This was so, the court

explained, because of the significant correlation between what

was found in the passenger compartment indicating a desire to

engage in fraudulent transactions and the likely fruits of acting

on that desire that could be in the trunk. Here, on the other

hand, finding stolen tags affixed to the car provides no similar

correlation that items related to the use of the stolen tags would

be located in the trunk. In fact, it is difficult to conceive of what

contraband would be associated with stolen tags, wherever

found, that is of a nature similar to fraudulent documents and the

resulting fraudulent purchases. Stolen tags affixed to a car are

an end in and of themselves, and they do not point to related

contraband that may be present in the trunk.

This search is also easily distinguishable from the searches

found to be permissible in (Rocky Lee) Brown, 334 F.3d 1161,

and United States v. Turner, 119 F.3d 18 (D.C. Cir. 1997). In

(Rocky Lee) Brown, the court relied on, among other things, the

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empirical connection between guns discovered in a car’s

passenger compartment and the presence of other contraband in

the trunk. 334 F.3d at 1171 (citing cases). Similarly, in Turner,

the court relied on the established connection between drugs in

the passenger compartment and the presence of additional drugs

in the trunk. 119 F.3d at 20-21 (citing cases). In the instant

case, there is no similar established connection between stolen

tags displayed on a vehicle and additional contraband. Nor does

the presence of displayed stolen tags suggest a fair probability

that there is an additional stolen tag(s) in the trunk, especially

where, as here, Officer Garboe testified at the suppression

hearing that the car contained both front and back tags and

therefore was not missing any tags.

As to the second justification for searching the trunk, the

government is unable to explain what further evidence

pertaining to the driver’s probable criminal activity, viewed

cumulatively, would be located there. It is entirely implausible

that the trunk would contain additional evidence to support the

charges of driving on a suspended license, operating an

unregistered vehicle, and driving without required vehicle

identification tags. Similarly, the charge of receiving stolen

property for the stolen tags did not necessitate a search of the

trunk because evidence of the offense was displayed on the car

and, as noted, there was not probable cause to believe that the

trunk contained additional, related contraband. In fact, at the

suppression hearing, Officer Garboe acknowledged that prior to

the search of the trunk he had all of the evidence that he needed

to arrest the driver for the above offenses and to impound the car

based on the records check and the visual inspection of the car.

Our analysis thus is consistent with Knowles v. Iowa, 525 U.S.

113, 118 (1998), where the Supreme Court declined to extend

the “bright-line rule” for the search-incident-to-arrest exception

and reversed the denial of a motion to suppress evidence found

in a car’s passenger compartment, where the police, having

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“stopped [a car] for speeding and issued a citation [to the driver,

had] all the evidence necessary to prosecute that offense.”

Turning to the officers’ professed need to search the trunk

for evidence of ownership, the district court justified the search

on the grounds that “the information available to the officers

[did not] establish that [the car] was not stolen.” The lack of

evidence indicating that the car was stolen cuts against, rather

than supports, a finding of probable cause to search the trunk

because the result would authorize officers to search a vehicle

anytime it is unregistered, a proposition the government does not

advance. The officers must have probable cause to believe that

documentation demonstrating that the driver was not authorized

to drive the car would be in the trunk; searching the trunk for

documentation establishing or confirming that the driver

properly possessed the car would not constitute contraband or

evidence of a crime as is required under the probable cause

standard. See Acevedo, 500 U.S. at 579-80. But that is exactly

what the officers did here.

The officers’ computer records checks did not indicate that

the car was stolen, nor did the records checks indicate to whom

the car was formerly registered. Although our dissenting

colleague characterizes the result of the records checks as

“unusual,” Dissenting Op. at 2, the result was simply an “old

listing” that, for whatever reason, did not include the former

registrant’s name; the record does not suggest that such a result

was suspicious. Similarly, the search of the passenger

compartment did not reveal any evidence that the driver was an

unauthorized user of the car. For reasons already discussed,

considered commutatively, other circumstances that the officers

encountered – a driver with a suspended license driving late at

night with a broken tag light and without a registration – do not

affect the probability that the driver was an unauthorized user.

Otherwise, borrowing a friend’s car becomes a very risky

10

undertaking. This leaves the stolen tags as the critical feature of

this traffic stop.

Under the circumstances, we can conceive of only three

reasons of varying likelihood why stolen tags would be on the

car, and the government has not suggested any others. First,

stolen tags may be placed on an otherwise lawfully used car

without tags to give the appearance of legitimate tags and

therefore to reduce the risk that the police will initiate a traffic

stop for lack of tags. Second, stolen tags may be used to replace

expired tags on an otherwise lawfully used vehicle, again in the

hope of avoiding immediate detection. The lack of registration

and the absence of a report that the car was stolen are consistent

with these first two rationales, which suggest that the driver was

an authorized user of the car. Third, stolen tags may be used to

conceal the fact that a vehicle is stolen by replacing the stolen

vehicle’s “real tags.” However, as Jackson’s counsel pointed

out during oral argument, the government has not demonstrated

a significant correlation between the presence of stolen tags and

the vehicle itself being stolen, and a case that our dissenting

colleague cites, United States v. Barlow, 41 F.3d 935, 939 (5th

Cir. 1994), illustrates the government’s problem: using stolen

tags to obscure the fact that a vehicle is stolen at best may

momentarily delay police discovery that the car is stolen while

a records check is made of the car’s tags, for in Barlow, the

officer determined through a records check that the vehicle

possessed stolen tags before determining that the vehicle itself

was stolen. Because the officers here were confronted with

three possible explanations for the presence of the stolen tags on

the car, two of which suggested authorized use and were

consistent with the lack of registration and the absence of a

report that the car was stolen, and only one of which supported

an inference of unauthorized use, the officers lacked probable

cause to search the trunk for documentation that the driver was

an unauthorized user of the car.

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While the existence of probable cause does not depend on

the elimination of all innocent explanations for a situation,

Gates, 462 U.S. at 243 n.13, our dissenting colleague, although

acknowledging the values underlying the Fourth Amendment,

see Dissenting Op. at 9, posits the most incriminating

interpretation of the circumstances, as though the existence of

countervailing probabilities was irrelevant. Were that the law,

then the government’s burden would be considerably eased, for

the particular circumstances causing the police to make a traffic

stop could often be viewed most negatively without regard to a

citizen’s Fourth Amendment protections. The Fourth

Amendment requires a different analysis, as the concurring

opinion of Judge Edwards makes clear. See Concurring Op. at

1, 5. That the Fourth Amendment places a heavy burden on the

government is apparent from our car-trunk search cases, which

carefully articulated the substantiality of the connection between

information known to the officers and the likelihood of

contraband in the car trunk. See, e.g., (Monte) Brown, 374 F.3d

at 1328-29; (Rocky Lee) Brown, 334 F.3d at 1171. Here the

government attempts to elide that burden by ignoring the

explanations indicating authorized use and instead hastily

asserting that there was a fair probability that Jackson was an

unauthorized user of the car.

Our dissenting colleague emphasizes that Officer Garboe

also testified that on six or seven occasions he had encountered

vehicles with stolen tags that had “real tags” or other identifying

information in the trunk, see Dissenting Op. at 2, but the

government on appeal does not embrace the aspect of the district

court’s ruling that justified the search of the trunk on the

possibility of finding “real tags.” There are multiple sensible

reasons for the government’s approach that, consequently,

undercut the dissent’s position. Even if there was probable

cause to believe that the trunk would contain the car’s expired

“real tags,” these tags, like a tool kit, are neither contraband nor

12

evidence of a crime because there is nothing illegal about having

such tags in the trunk of an unregistered car. In overlooking this

point, our dissenting colleague, see Dissenting Op. at 3, posits

an evidentiary inference based on finding “real tags” in the trunk

that is irrelevant in the absence of probable cause to believe that

the trunk contained contraband or evidence of a crime. Further,

the record does not indicate that the car’s expired “real tags”

would provide the officers with any additional information

regarding the ownership of the car because a records check

based on the vehicle identification number indicated only an

“old listing.” In any event, even if “real tags” or identifying

information could in some instances constitute contraband or

evidence of a crime, the officer’s prior experience of finding

such information in a vehicle trunk, while relevant, see (Monte)

Brown, 374 F.3d at 1328, is unhelpful here because his

testimony is devoid of the critical circumstances of those

searches, including whether the identifying information revealed

that the vehicle was stolen. Without this essential detail, it

cannot be said that Officer Garboe’s past experience revealed

that trunks of vehicles with stolen tags often contain contraband

or evidence of a crime in the form of identifying information, as

opposed merely to containing ownership information confirming

that the driver is an authorized user.

The government’s difficulty in demonstrating why the

officers’ experience is pertinent here, and in explaining why the

presence of expired “real tags” in the trunk is at all relevant to

the probable-cause inquiry, may be due in part to what the

district court characterized as the officers’ confusion about why

they searched the trunk and to the changing testimony of Officer

Garboe. Officer Garboe had testified before the grand jury that

only one stolen tag was on the car, and the government

accordingly argued in opposing Jackson’s motion to suppress

that the officers had probable cause to believe the other stolen

tag or the “real tags” might be in the car trunk. Indeed, the

13

district court, in denying the motion to suppress, continued to

refer to Jackson’s use of “a stolen tag.” By the time Officer

Garboe testified at the suppression hearing, however, he

acknowledged there were stolen tags on both the front and back

of the car, thus eliminating a strong strain of the government’s

argument.

In searching the trunk, the Fourth Amendment makes clear

that the officers stopped their investigation too soon. While the

fact that a car has stolen tags may, in some instances, suggest

that the car itself is stolen and therefore may provide probable

cause to search for documentation of ownership, no such

inference could be drawn here. Instead of establishing probable

cause and justifying a search of the trunk, the lack of

information about the driver’s authority to use the car and the

ownership of the car should have served to prompt further

inquiry. See Bigford v. Taylor, 834 F.2d 1213, 1218-19 (5th

Cir. 1988); cf. United States v. Mayo, 394 F.3d 1271, 1276 (9th

Cir. 2005). Our dissenting colleague conveniently ignores that

nothing in the record indicates that, at the time the officers

searched the car, the driver, who was secured inside the cruiser

in handcuffs, had reason to believe that he was suspected of

being an unauthorized user of the car; thus he had no reason to

volunteer an explanation for his use of the car. The cases cited

by the government illustrate that a prudent, cautious, and

experienced officer would seek information from the driver

precisely because the driver’s responses to police inquiries can

clarify the situation and may provide probable cause for a

further search of a vehicle. See, e.g., United States v. Maher,

919 F.2d 1482 (10th Cir. 1990); United States v. Owens, 346

F.2d 329 (7th Cir. 1965). Had the officers, for example,

inquired of the driver about the ownership of the car and how he

came to be driving it, then based on his answers and demeanor

they may have been able to establish probable cause to believe

contraband or evidence of a crime was in the trunk, or the

14

driver’s response could have confirmed the lack of probable

cause. And, contrary to the view of our dissenting colleague,

see Dissenting Op. at 7-8, the officers’ questions would not

have been futile, as they had “ready means” of verifying

ownership of the car: they could have called the purported

owner and had her come to the scene with proof, much like

Officer Garboe testified he does upon finding verified proof of

ownership in a vehicle.

This is not a case where the officers inquired of the driver

about who owned the car, and the driver was unable to provide

a reasonable or consistent explanation. Officer Johnson

testified that Jackson did identify the owner, but only while he

was being driven to the police station after the car trunk had

been searched; Officer Garboe confirmed that fact and while he

was uncertain about when Jackson identified the owner, he

never suggested the identification Jackson provided was

unverifiable. Nor is this a case where ownership documents in

the passenger compartment were inconsistent with the driver’s

explanation for being in possession of the car. Rather, the

ambiguity of the circumstances presented the officers, like the

officers in the cases on which the government relies, with the

need to continue their investigation. While courts are not to

dictate proper investigative techniques for law enforcement

officers, see United States v. Montoya de Hernandez, 473 U.S.

531, 542 (1985), and we do not presume to identify “preferred

investigative procedures” here, Dissenting Op. at 9, those cases

suggest that the officers could have continued their investigation

here by asking the driver a few questions to determine whether

it would be reasonable to conclude that documentation of the

driver’s unauthorized use of the car would be in the trunk.

Instead, lacking any such indication that the driver was an

unauthorized user of the car and lacking any documentation in

the passenger compartment suggesting that he did not have

authorization, the officers nonetheless proceeded to search the

15

trunk.

This also is not a case where the officers were faced with

an uncooperative or non-communicative person and therefore

were unable to obtain even basic information regarding

ownership or identity. Cf. Hiibel v. Sixth Judicial Dist. Court,

542 U.S. 177 (2004). Rather, the officers testified that the

driver did not resist in any way, that he was cooperative, and

that he provided his name and date of birth upon request. His

interactions with the officers indicate that he was lucid. Nor

was this a fast-moving, quickly evolving situation where the

officers were forced to process the facts before them rapidly and

to make a hasty decision regarding the search of the trunk. Cf.

Graham v. Connor, 490 U.S. 386, 396-97 (1989). To the

contrary, at the time the officers opted to search the trunk, they

had secured the driver and spent additional minutes searching

the passenger compartment. The circumstances did not indicate

that the officers were concerned about their personal safety at

the time they searched the trunk, cf. Belton, 453 U.S. at 460, nor

that they had reason to search the trunk in order to preserve

evidence of a crime, cf. Schmerber v. California, 384 U.S. 757,

770-71 (1966), much less to remove dangerous contraband, see

Cady v. Dombrowski, 413 U.S. 433, 447-48 (1973). Finally,

there were no circumstances from which the officers could

imply that the driver had consented to the search of the trunk,

and the officers did not testify that he had, much less that they

ever had asked for his consent.

Instead, the conduct of the officers demonstrated a lack of

appreciation for the distinction between a permissible search of

the passenger compartment incident to a lawful arrest, see

Belton, 453 U.S. at 460, and an unconstitutional search of a car

trunk in the absence of probable cause, see id. at 460 n.4;

Acevedo, 500 U.S. at 579-80. The exception to the warrant

requirement imposes a duty on law enforcement officers to

16

gather sufficient evidence for a determination of probable cause.

Id. Otherwise, the exception for searches of passenger

compartments incident to arrest would become an exception for

car trunks as well, a proposition the Supreme Court has not

endorsed, cf. Knowles, 525 U.S. at 118, and that is inconsistent

with the Court’s rationale for the passenger-compartment

exception, see Belton, 453 U.S. at 460. Although Officer

Garboe testified that he and his partner desired to find

documentation of ownership so as to not have to leave the car

parked on the public street, in the absence of probable cause to

search the car trunk for documentation that the driver is an

unauthorized user, the constitutional route is to impound the car,

cf. South Dakota v. Opperman, 428 U.S. 364 (1976), or, as the

officers did here, to leave it on the public street.

Of course, the fact that a car has not been reported stolen is

not determinative of whether an officer has probable cause to

believe that it is stolen and to search the trunk for evidence of

ownership. Cf. United States v. Brigham, 382 F.3d 500, 509

(5th Cir. 2004). But the cases upon which the government and

our dissenting colleague rely are manifestly dissimilar to the

circumstances here. In fact, the government does not cite a

single case where a vehicle with stolen tags and without any

documentation of ownership, alone, provided probable cause to

search the trunk. In United States v. Owens, 346 F.2d 329 (7th

Cir. 1965), for instance, the police had probable cause to believe

a vehicle was stolen because the driver did not recognize the

name of the vehicle’s owner. Similarly, contrary to the

dissent’s characterization of United States v. Maher, 919 F.2d

1482 (10th Cir. 1990), see Dissenting Op. at 6, the driver’s

inability to provide the complete name and address of the

person whom he claimed sold him a trailer assisted the court in

finding probable cause to arrest the driver. But here, the

officers did not ask the driver about ownership prior to

searching the trunk and therefore could not evaluate the

17

plausibility of his explanation. Further, in Botts v. United

States, 310 A.2d 237 (D.C. 1973), the inspection sticker was

expired, and the police could not check whether the vehicle had

been reported stolen because their computer was inoperable.

Here, the officers conducted a computer records check and

determined that the car had not been reported stolen, leaving the

circumstances ambiguous and not implausibly inconsistent with

authorized use. The reliance by the government and the dissent,

see Dissenting Op. at 6-7, on isolated dicta in a footnote in

United States v. Robinson, 471 F.2d 1082, 1104 n.38 (D.C. Cir.

1972) (en banc), rev’d, 414 U.S. 218 (1973), indicating that

“some courts have held that when a car has no license plates, or

fictitious plates, and the driver cannot produce proof of

ownership, probable cause exists to believe that the car may

have been stolen,” is of no moment. The court neither indicated

that it endorsed that approach nor provided any analysis of the

constitutional requirements for probable cause; moreover, here

the officers searched the car trunk for documentation of

ownership even though neither a search of the passenger

compartment nor any discussion with the driver provided an

indication that the car was stolen.

Accordingly, because the officers lacked probable cause to

search the car trunk for additional contraband, such as

additional stolen tags, other evidence concerning the driver’s

probable criminal activity, or documentation that the driver was

an unauthorized user of the car, the district court erred in

denying the motion to suppress the evidence seized from the

trunk, and we reverse the judgment of conviction.

EDWARDS, Circuit Judge, concurring:

The needs of law enforcement stand in constant tension

with the Constitution’s protections of the individual

against certain exercises of official power. It is

precisely the predictability of these pressures that

counsels a resolute loyalty to constitutional

safeguards. It is well to recall the words of Mr. Justice

Jackson, soon after his return from the Nuremberg

Trials:

“These [Fourth Amendment rights], I protest,

are not mere second-class rights but belong in the

catalog of indispensable freedoms. Among

deprivations of rights, none is so effective in

cowing a population, crushing the spirit of the

individual and putting terror in every heart.

Uncontrolled search and seizure is one of the first

and most effective weapons in the arsenal of every

arbitrary government.” Brinegar v. United States,

338 U.S. 160, 180 (Jackson, J., dissenting).

Almeida-Sanchez v. United States, 413 U.S. 266, 273-74 (1973)

(alteration in original).

****

“It [is] a cardinal principle that searches conducted outside

the judicial process, without prior approval by judge or

magistrate, are per se unreasonable under the Fourth

Amendment – subject only to a few specifically established and

well-delineated exceptions.” California v. Acevedo, 500 U.S.

565, 580 (1991) (internal quotation marks omitted). The

officers in this case obtained no warrant before searching the

trunk of the car Tarry Jackson was driving. The Government

invokes the so-called “automobile exception” established by the

Court in Carroll v. United States, 267 U.S. 132 (1925), which,

because of the exigency arising out of an automobile’s likely

disappearance, permits warrantless searches of moving vehicles.

Although that exception relieves officers of the duty to obtain a

2

warrant, it retains the requirement that there exist “probable

cause to believe that the vehicle contain[s] evidence of crime.”

Acevedo, 500 U.S. at 569. Accordingly, the question before us

is whether, “given all the circumstances” preceding the search,

there existed “a fair probability that contraband or evidence of

a crime [would] be found” in the trunk. Illinois v. Gates, 462

U.S. 213, 238 (1983) (reaffirming an objective “totality-of-the-

circumstances analysis” in probable cause determinations).

****

The police officers in this case were faced with an

unlicensed driver operating a car with a broken tag light and

stolen tags. The car itself was unregistered, and a records check

revealed that it had not been reported stolen. The District Court

concluded that a fair probability existed that the officers might

find the car’s “real tags” in the trunk. Wisely, the Government

does not defend this argument before us, for, as Jackson points

out, there is no reason to believe that an unregistered car would

have any legitimate tags. Br. for Appellant at 9-10. Instead, the

Government presents two arguments in support of its claim that

the facts here gave rise to probable cause to search the trunk.

Neither argument is persuasive.

First, the Government argues that the presence of stolen

tags on the car creates a fair probability that “additional

contraband, such as one or more additional stolen tags, might

well be in the trunk too.” Gov’t Br. at 14. This is a

preposterous contention. The fact that a car has stolen tags

affixed to it creates no good reason to believe that additional

contraband will be found in the trunk. The Government’s

reliance on United States v. Rocky Brown, 334 F.3d 1161 (D.C.

Cir. 2003), and United States v. Turner, 119 F.3d 18 (D.C. Cir.

1997), is unavailing. Those cases stand only for the

unremarkable proposition that finding drugs or guns in the

passenger compartment of a car gives rise to probable cause to

search the trunk for additional contraband. Finding stolen

3

license plates affixed to a car, however, is fundamentally

different from finding drugs or guns in the passenger

compartment.

Unlike in Brown and Turner, where we noted the empirical

connection between the existence of guns and drugs in a

passenger compartment and additional contraband in the trunk,

there is no evidence before us to suggest that a person who

affixes stolen tags to a car is likely to have additional stolen tags

or related contraband in the trunk. And the Government fails to

provide any specific explanation why such an inference should

be drawn.

The Government’s reliance on United States v. Monte

Brown, 374 F.3d 1326 (D.C. Cir. 2004), is similarly misplaced.

In that case, we held that a fraudulent credit card and fraudulent

driver’s licenses found in the passenger compartment of a car

created a fair probability that items fraudulently purchased with

the documents would be found in the trunk. Finding stolen tags

on a car creates no similar inference that related contraband will

be located in the trunk. One is hard pressed even to imagine

what contraband could be associated with stolen tags in a

manner similar to the way in which fraudulent purchases are

associated with fraudulent credit cards and identification.

At bottom, the Government’s position would require us to

accept the view that any time contraband is found in a person’s

possession, a fair probability exists that additional contraband

will be found in other areas under the person’s control. In other

words, the Government would have us hold that evidence

indicating that a person may have committed one crime, without

more, invariably gives rise to probable cause to believe that he

has committed others. This position is clearly untenable under

our Fourth Amendment jurisprudence.

The Government’s second contention is that the stolen tags

gave the police officers reason to believe that the car was stolen,

4

creating a fair probability that evidence related to the theft

would be found in the trunk. This might be a tenable argument

in some cases, because it is not entirely implausible to assume

that people who steal cars may replace the stolen car’s real tags

with stolen tags in order to conceal the true identity of the car.

In this case, however, such an inference cannot be easily drawn,

because the police officers knew that the car was unregistered

and that it had not been reported stolen.

If a car is not registered, then it has no legitimate tags. The

most reasonable inference to be drawn in this situation is that the

owner has placed stolen tags on the car to avoid being stopped

for driving without tags, while avoiding the expense attendant

to registering the car and obtaining legitimate tags. In other

words, if a car has no legitimate tags because it is unregistered,

then police officers have no good reason to assume that the

stolen tags are intended to conceal the true identity of the

vehicle. Moreover, the explanation Jackson gave to the officers

– that he had borrowed the car from his girlfriend who had

recently purchased it at an auction – is reasonable on its face and

comports with the inference that the stolen tags were affixed not

to conceal that the car was stolen but instead because the car had

no legitimate tags. Accordingly, considering the totality of the

circumstances – including the known and undisputed facts that

the car was unregistered and had not been reported stolen – the

officers lacked probable cause to search the trunk for evidence

that the car was stolen.

In short, before the officers conducted their search of the

vehicle’s trunk, there was no fair probability that contraband or

evidence of a crime would be found. Therefore, the District

Court erred in holding that the police officers were engaged in

objectively reasonable law enforcement activity when they

searched the trunk of the car that Jackson was driving.

****

5

There is always a temptation to turn a blind eye to invasions

of citizens’ Fourth Amendment rights in the face of potentially

inculpatory evidence. Judges are not immune from the burdens

of human nature, so we are invariably tested when asked to

exclude evidence that tends to prove a defendant’s guilt. “The

cost to the truth-seeking process of evidentiary exclusion

invariably is perceived more tangibly in discrete prosecutions

than is the protection of privacy values through deterrence of

future police misconduct.” James v. Illinois, 493 U.S. 307, 319

(1990). But judges must resist the temptation to ignore

unconstitutional conduct by police officers, because it is our

sworn obligation to show “jealous regard for maintaining the

integrity of individual rights” and “‘resist every encroachment

upon rights expressly stipulated for in the Constitution by the

declaration of rights.’” Mapp v. Ohio, 367 U.S. 643, 647 (1961)

(quoting I Annals of Cong. 439 (1789) (remarks of James

Madison)).

In applying the exclusionary rule, courts “must focus on

systemic effects . . . to ensure that individual liberty from

arbitrary or oppressive police conduct does not succumb to the

inexorable pressure to introduce all incriminating evidence, no

matter how obtained, in each and every criminal case.” James,

493 U.S. at 319-20. “The occasional suppression of illegally

obtained yet probative evidence,” distasteful though it may seem

in the context of a particular case, “has long been considered a

necessary cost of preserving overriding constitutional values.”

Id. at 311. It is our duty to maintain the sanctity of the

constitutional right to privacy free from unreasonable

government intrusion.

ROBERTS, Circuit Judge, dissenting: The question for the

court is whether the circumstances of the stop and arrest of

Tarry Jackson presented “a fair probability that contraband or

evidence of a crime [would] be found” in the trunk of the car he

was driving. Illinois v. Gates, 462 U.S. 213, 238 (1983). Like

the district court, I conclude that they did, and therefore dissent.

The officers who stopped Jackson had good grounds for

believing that the car he was driving had been stolen and that

relevant evidence could be found in the trunk. It was late at

night and the tag light was out — suggesting from the beginning

of the encounter that Jackson was attempting to obscure the

car’s license plates. Once Jackson was pulled over, the officers

learned there was indeed something to hide: the temporary tags

affixed to the car had been stolen and altered to match the car’s

make, model, and vehicle identification number.

Stolen tags often accompany stolen cars. See, e.g., United

States v. Rhind, 289 F.3d 690, 692 (11th Cir. 2002) (defendants

traveled in stolen car with stolen plates); United States v. Rose,

104 F.3d 1408, 1411 (1st Cir. 1997) (same); United States v.

Barlow, 41 F.3d 935, 939 & n.6 (5th Cir. 1994) (same). The

reason is obvious: by replacing the real tags with stolen tags, the

thief makes it impossible for police to identify a stolen vehicle

by sight. A stolen vehicle will normally be described by its

make, model, and license plate number. An officer cruising the

streets cannot readily identify a particular Mercury Marquis as

the stolen Mercury Marquis if the original tags have been

replaced. See Turner v. United States, 623 A.2d 1170, 1172

(D.C. 1993) (officer noting that “a lot of time if a crime was to

go down, say like a stolen vehicle, . . . license plates can easily

be switched” (alteration in original)). So the stolen tags raised

a suspicion that the car may have been stolen as well.

The officers’ records check on the vehicle did nothing to

dispel this suspicion. Had Jackson been able to produce the

car’s registration or had the records check indicated that it was

his car, the police would have been reasonably certain they were

dealing only with stolen tags, a broken tag light, and a driver

2

with a suspended license. But no such reassurance was forth-

coming: Jackson himself could produce no license and no proof

of registration, and the records check, which revealed only an

old listing for the vehicle, did not show Jackson as the owner.

My colleagues seem to believe that the inconclusive records

check somehow dissipated any suspicion that the car was stolen.

See Op. at 9. To the officers on the scene, however, the failure

of the records check to resolve ownership of the vehicle was

unusual. See Hr’g Tr., June 9, 2003, at 9–10 (“Normally if you

run [a registration check] having already run the operator, it’ll

tell you that it comes back with an expired listing to that

operator. And that was not the case in this case.”) (emphasis

added) (Officer Garboe). The fact that Jackson was not listed on

the car’s last registration could reasonably have heightened the

officers’ suspicion: now they were dealing not only with a car

with stolen tags, but with a car that had no recorded connection

to Jackson.

Given the cumulation of suspicious circumstances suggest-

ing the car may have been stolen, the officers, reasonably in my

view, turned their attention to the trunk. Why the trunk? One

of the officers at the scene would later testify that he had made

about ten previous vehicle stops involving stolen tags. Hr’g Tr.,

June 9, 2003, at 13–14 (Officer Garboe). On six or seven of

those occasions, he had found the vehicle’s real tags in the

trunk. Id. at 19; see Ornelas v. United States, 517 U.S. 690, 700

(1996) (“our cases have recognized that a police officer may

draw inferences based on his own experience in deciding

whether probable cause exists”); United States v. Brown, 374

F.3d 1326, 1328 (D.C. Cir. 2004) (“ ‘probable cause’ is evalu-

ated not only from the perspective of a ‘prudent man,’ but also

from the particular viewpoint of the officer involved in the

3

search or seizure” (citation omitted)).1 This is not especially

surprising: the trunk is certainly a convenient place to stash the

real tags once they have been removed from the back of the

vehicle. See Brown, 374 F.3d at 1329 (“The trunks of automo-

biles store items; they also conceal them.”). Real tags in the

trunk would clearly be probative evidence suggesting the car

was stolen, for the reason just noted: car thieves replace the real

tags with stolen ones to help avoid detection.

The real tags were not the only piece of evidence police

could have been looking for in the trunk. Given the ample

grounds to suspect the car was stolen, the officers certainly had

a reasonable basis for supposing that the trunk would contain

other items that might have confirmed their suspicion — such as

identification or belongings of the real owner — or items that

helped connect Jackson to stealing it. Such items could have

included “equipment that’s used to steal a car,” such as “a

crowbar, or whatever tools one uses to punch an ignition or . . .

open a locked door.” See Oral Arg. Tr. at 2:20–:27, 3:00–:16

(Jackson’s counsel acknowledging that, had the car been

reported stolen, officers might have had reason to search the

trunk for such items).

1

The majority dismisses the officer’s testimony out of hand

because it “is devoid of the critical circumstances of those searches,

including whether the identifying information revealed that the vehicle

was stolen.” Op. at 12. I fail to see how this undermines the rele-

vance of the officer’s experience. Whatever the circumstances, the

officer noted a strong correlation between stolen tags on a vehicle and

the presence of the vehicle’s real tags in the trunk. If Jackson’s

attorney had thought that the surrounding circumstances of those stops

might undermine the probative value of the officer’s experience, the

attorney had ample opportunity to question the officer about them on

cross-examination.

4

My colleagues offer several reasons why they believe the

officers lacked probable cause to search the trunk for evidence

that the car was stolen:

1. The concurrence contends that because the car was

unregistered, there could be no real tags or other documents for

the officers to discover in the trunk. See Conc. Op. at 2. Not so.

A vehicle’s license plates do not simply disappear once its

registration lapses; many cars roam the roads bearing plates

from expired registrations. People get tickets for that all the

time, but they are usually able to show that they are the owner

listed on the expired registration. Jackson was not able to do

that, heightening the suspicion that he had no legitimate

connection to the car.

Moreover, contrary to the majority’s suggestion, finding the

expired “real tags” would have provided police with additional

evidence of criminal activity. As explained, switching tags is a

common ploy of car thieves. And under the majority’s own

analysis, see Op. at 10, finding the real tags would have ruled

out the possibility the stolen tags were being used only to drive

a vehicle that otherwise had no tags, making it more likely that

the vehicle had been stolen.

2. The majority doubts the rationale for replacing a stolen

vehicle’s real tags with stolen tags and therefore discounts the

inference that the car might have been stolen. Op. at 10. But

lawyers learn early on that “a page of history is worth a volume

of logic.” New York Trust Co. v. Eisner, 256 U.S. 345, 349

(1921) (Holmes, J.). Officer Garboe’s history with stolen tags

had confirmed that they, more often than not, led to real tags in

the trunk. The reported cases confirm that criminals often use

stolen tags on stolen cars. This history is enough to support the

officers’ inferring from the stolen tags and the lack of any

registration (current or expired) linking Jackson to the car that

the car might well have been stolen.

5

Moreover, replacing a stolen vehicle’s original tags makes

sense: it prevents the vehicle from being readily identified as

stolen by a passing police cruiser. Of course, the tags may have

been reported stolen, and the police can check that, too. But a

busy police officer is not going to run a check on the tags of

every Mercury Marquis he passes, and people are likely to be

much less diligent about reporting stolen tags — particularly

temporary ones — than stolen cars.

3. The majority reasons that the officers lacked probable

cause because they “were confronted with three possible

explanations for the presence of the stolen tags on the car, two

of which suggested authorized use and were consistent with the

lack of registration and the absence of a report that the car was

stolen, and only one of which supported an inference of unau-

thorized use.” Op. at 10.

Even assuming for the moment the validity of this ap-

proach, one of the majority’s “possible explanations” — that

stolen tags might be used to conceal an expired registration —

does not strike me as probable at all. Using stolen license plates

is a serious offense. See D.C. Code Ann. § 22-3232(c) (2001)

(receipt of stolen property punishable by up to 180 days in

prison if value of property is less than $250, up to seven years

if greater than $250). It is unlikely that someone would run so

great a risk merely to avoid getting stopped for an expired

registration — a steep ticket, to be sure, but not likely to lead to

hard time.

The more serious problem is that probable cause does not

depend on eliminating other innocent (or, here, less incriminat-

ing) explanations for a suspicious set of facts. See United States

v. Gagnon, 373 F.3d 230, 236 (2d Cir. 2004) (“the fact that an

innocent explanation may be consistent with the facts as alleged

does not negate probable cause”) (citation omitted); United

States v. Funches, 327 F.3d 582, 587 (7th Cir. 2003) (“the mere

existence of innocent explanations does not necessarily negate

6

probable cause”); see also Gates, 462 U.S. at 243 n.13 (“proba-

ble cause requires only a probability or substantial chance of

criminal activity, not an actual showing of such activity . . .

[and] therefore, innocent behavior frequently will provide the

basis for a showing of probable cause”). Of course, considering

alternative explanations is “often helpful,” Funches, 327 F.3d at

587, but the officers were not required, before searching the

trunk, to negate the possibility that the stolen tags were used

only to drive an unregistered car. This is particularly so here,

where any plausible explanation for the circumstances of

Jackson’s stop — the broken tag light, the stolen tags, Jackson’s

lack of registration, and the failure of the records check to

connect Jackson with the vehicle — suggested that Jackson was

deliberately trying to conceal unlawful activity involving the car

itself.

4. Like the majority, I see no reason why the fact that a

vehicle has not been reported stolen should preclude probable

cause. See Op. at 16. It may take time for a vehicle’s owner to

learn that his car has been stolen. A car being driven at 1:00

a.m. by someone without a license and with no registration,

bearing stolen tags, may not have been reported stolen because

its owner had retired for the night and would be blissfully

unaware of his loss until he awoke the next morning. See

United States v. Brigham, 382 F.3d 500, 509 (5th Cir. 2004) (en

banc) (officer’s suspicion that vehicle was stolen was reasonable

“because in his experience, the fact that a vehicle has not yet

been reported stolen does not necessarily mean that the vehicle

has not actually been stolen”); United States v. Maher, 919 F.2d

1482, 1486 (10th Cir. 1990) (probable cause to arrest suspect for

stealing trailer where “the trailer bore a stolen license plate; the

trailer was unregistered; [suspect] was carrying no ownership

documents for the trailer; and [suspect] was unable to provide a

complete name or address of the person who allegedly sold him

the trailer”); see also United States v. Robinson, 471 F.2d 1082,

1104 n.38 (D.C. Cir. 1972) (en banc) (“some courts have held

7

that when a car has no license plates, or fictitious plates, and the

driver cannot produce proof of ownership, probable cause exists

to believe that the car may have been stolen, and the officer may

. . . search [the] car . . . for evidence of ownership and identity”).

The majority nevertheless purports to distinguish Jackson’s

case on the ground that “the officers did not ask the driver about

ownership prior to searching the trunk and therefore could not

evaluate the plausibility of the driver’s explanation.” Op. at

16–17. This accords with the majority’s suggestion that the

officers might have gathered facts amounting to probable cause

if only they had “ask[ed] the driver a few questions” and not

“stopped their investigation too soon.” Op. at 13, 14. This is a

hazardous approach to assessing probable cause.

The officers who stopped Jackson had no ready means of

verifying ownership of the vehicle at the scene. Jackson himself

had no license and no proof of registration, and the car had

stolen tags. The officers’ records check not only failed to

resolve the question of ownership but raised more suspicion: the

car itself was not registered and Jackson’s name was not on the

old listing. The majority suggests that the officers should have

called “the purported owner and ha[d] the owner come to the

scene with proof.” Op. at 14. But this assumes that the officers

had nothing better to do while on night patrol than linger

roadside, tracking down exculpatory leads for suspects.2

The officers could have reasonably concluded that further

questioning would have yielded nothing more than the usual

2

Officer G arboe testified that, if police find proof of ownership

they can verify, they usually call the “registered owner” of the vehicle

to ask if he or she would “like to come and get it or . . . to have it

towed.” Hr’g T r. at 62. T his is very different from the majority’s

suggestion that police could verify ownership by waiting around for

a suspect’s girlfriend to meet them on a District street at one o’clock

in the m orning. See Op. at 14.

8

story any suspect in Jackson’s situation would be expected to

deliver. See Williams ex rel. Allen v. Cambridge Bd. of Educ.,

370 F.3d 630, 637 (6th Cir. 2004) (“law enforcement is under no

obligation to give any credence to a suspect’s story . . . nor

should a plausible explanation in any sense require the officer to

forego arrest pending further investigation if the facts as initially

discovered provide probable cause” (internal quotation marks

omitted)). The best Jackson could do was tell the officers — as

he did, at some point — that the car belonged to his girlfriend.3

Sometimes a car being driven by an unlicensed driver, with no

registration and stolen tags, really does belong to the driver’s

friend, and sometimes dogs do eat homework, but in neither case

is it reasonable to insist on checking out the story before taking

other appropriate action. Even if Jackson had provided contact

information for his girlfriend in response to inquiries from the

officers, and even if the officers had been able to reach the

girlfriend and she were responsive to their questions, I cannot

see any conceivable value in the over-the-phone testimony of a

suspect’s apparent girlfriend — someone unknown to the

officers, whose number was given to them by the suspect

himself — that an unregistered car with stolen tags, driven by an

unlicensed driver, was indeed hers and was being used with her

permission.

3

Because Jackson did not argue below that the police should have

conducted a more elaborate investigation, the district court did not

make any factual finding as to precisely when the suspect told officers

that the car belonged to his girlfriend. Com pare Hr’g Tr., June 9,

2003, at 62 (“ I don’t recall exactly when the conversation took place

in which he . . . informed us that his girlfriend had purchased the

vehicle at an auction.”) (redirect of Officer G arboe) with id. at 70 (Q.

“Did you have any information regarding this defendant or anyone

else’s possible ownership of this particular vehicle prior to the

search?” A. “No.”) (Officer Johnson).

9

Finally, my colleagues’ insistence that police should have

further questioned Jackson amounts to prescribing preferred

investigative procedures for law enforcement. We have neither

the authority nor the expertise for such an enterprise. See United

States v. Montoya de Hernandez, 473 U.S. 531, 542 (1985)

(“creative judges engaged in post hoc evaluations of police

conduct can almost always imagine some alternative means by

which the objectives of the police might have been accom-

plished” (internal quotation marks omitted)). In the end, I would

leave the judgment as to what lines of inquiry ought to be

pursued to the officer himself, and judge probable cause on the

facts as they are, rather than on what they might have been had

the officer pursued a different course.

* * *

I wholeheartedly subscribe to the sentiments expressed in

the concurring opinion about the Fourth Amendment’s place

among our most prized freedoms. See Conc. Op. at 1, 5. But

sentiments do not decide cases; facts and the law do. There is

no dispute here on the law: if the officers had probable cause,

they did not need a warrant; if they did not have probable cause,

no warrant would issue in any event. As for the facts, the

officers encountered at 1:00 a.m. an unlicensed driver operating

an unregistered car with a broken tag light and stolen tags. The

experienced district court judge concluded — and I agree — that

“the circumstances were suspicious enough to amount to

probable cause to search the trunk.” Memorandum Order, at 5.

Right or wrong, nothing about that determination reflected

insensitivity to constitutional values, any more than a contrary

determination would have reflected insensitivity to the needs of

law enforcement.

I respectfully dissent.