PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 12-6624

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

MARIO N. BAKER,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern 

District of Virginia, at Richmond. Robert E. Payne, Senior

District Judge. (3:08-cr-00088-REP-1; 3:10-cv-00579-REP)

Argued: May 14, 2013 Decided: June 13, 2013

Before WILKINSON, GREGORY, and KEENAN, Circuit Judges.

Affirmed by published opinion. Judge Wilkinson wrote the 

opinion, in which Judge Gregory and Judge Keenan joined.

ARGUED: John W. Akin, UNIVERSITY OF VIRGINIA SCHOOL OF LAW, 

Charlottesville, Virginia, for Appellant. Michael F. Murray, 

OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for 

Appellee. ON BRIEF: Neal L. Walters, Benjamin P. Kyber, Third 

Year Law Student, UNIVERSITY OF VIRGINIA SCHOOL OF LAW, 

Charlottesville, Virginia, for Appellant. Neil H. MacBride, 

United States Attorney, Alexandria, Virginia; Richard D. Cooke, 

Assistant United States Attorney, OFFICE OF THE UNITED STATES 

ATTORNEY, Richmond, Virginia, for Appellee.
2

WILKINSON, Circuit Judge:

Defendant Mario Nathaniel Baker was convicted of multiple 

federal firearm and drug offenses based on evidence that police 

officers uncovered while searching his vehicle during a traffic 

stop. Baker’s counsel never challenged the constitutionality of 

the search, either through a suppression motion or on direct 

appeal. After his conviction became final, Baker filed a motion 

under 28 U.S.C. § 2255 seeking to vacate, set aside, or correct 

his sentence partly on the ground that his counsel had been 

unconstitutionally ineffective in failing to challenge the 

search on direct appeal under Arizona v. Gant, 556 U.S. 332 

(2009), which the Supreme Court decided while his appeal was 

still pending. The district court rejected this claim, and we 

affirm for the reasons stated herein. 

I.

A.

We take the facts pertinent to this appeal from the 

evidence presented at Baker’s trial, construed in the light most 

favorable to the government. See Bereano v. United States, 706 

F.3d 568, 571 n.5 (4th Cir. 2013). 

On March 3, 2008, Shawn Nelson, an officer with the Henrico 

County, Virginia, Police Department, stopped a vehicle that had 

a broken taillight and an expired license plate. Baker was 
3

driving the vehicle, and Dashawn Brown occupied the front 

passenger seat. On checking Baker’s driver’s license against 

state records, Nelson learned that Baker was the subject of an 

outstanding federal arrest warrant. While verifying the 

warrant, Nelson called for backup. Once additional officers 

arrived, Nelson arrested Baker and handed him over to one of the 

other officers, who searched him and, finding no contraband, 

secured him in a police car. 

While the other officer was dealing with Baker, Nelson 

turned his attention to Brown, asking him to exit the vehicle. 

Brown did so but then began to walk away. Nelson ordered Brown 

to put his hands on the vehicle and started frisking him. When 

Nelson felt a handgun in Brown’s pocket, Brown attempted to 

reenter the vehicle -- claiming at the time that he wanted to 

retrieve his cellphone, which was on the passenger-side 

floorboard. Nelson struggled with Brown, wrestled him to the 

ground, and arrested him for possessing the handgun. He then 

searched Brown incident to the arrest, finding 0.90 grams of 

heroin, 0.40 grams of crack cocaine, $980 in cash, and a small 

digital scale on his person. 

After securing Brown in a police car, Nelson searched the 

passenger compartment of Baker’s vehicle, starting with the 

center console, where he found 20.6 grams of heroin, 0.24 grams 
4

of crack cocaine, 12.2 grams of methadone, and a burnt marijuana 

cigarette. He also found another handgun in the glove box.

B.

Based on the evidence found during the search of his 

vehicle, Baker was indicted for various federal firearm and drug 

offenses. See 18 U.S.C. §§ 922(g)(1), 924(c); 21 U.S.C. § 841. 

He was also charged with an additional firearm count stemming 

from a previous run-in with the police, in 2007. Although 

Baker’s lawyer moved (unsuccessfully) to sever this additional 

count, he never filed a suppression motion challenging the 

search of Baker’s vehicle. Baker was convicted by a jury of all 

counts and was sentenced by the trial court to 185 months’ 

imprisonment.

Baker appealed his convictions and sentence to this court, 

with his lawyer filing an opening brief on March 16, 2009. On 

April 21, 2009, the day before the government filed its response 

brief, the Supreme Court decided Arizona v. Gant, which held 

that, under the Fourth Amendment, the “[p]olice 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.” 

556 U.S. 332, 351 (2009). We affirmed Baker’s convictions and 

sentence on August 7, 2009. See United States v. Baker, 340 F. 
5

App’x 145 (4th Cir. 2009), cert. denied, 130 S. Ct. 1548 (2010). 

At no point between when the Supreme Court decided Gant and when 

this court decided Baker’s appeal did Baker’s lawyer argue that 

the search of Baker’s vehicle violated the Fourth Amendment 

under Gant.

C.

Proceeding pro se, Baker subsequently filed a motion to 

vacate, set aside, or correct his sentence under 28 U.S.C. 

§ 2255. His motion asserted four claims for relief, all of 

which the district court rejected. See United States v. Baker, 

No. 3:08cr88, 2012 WL 620240 (E.D. Va. Feb. 24, 2012). 

Specifically, as relevant to this appeal, the district court 

found that Baker’s counsel had not been unconstitutionally 

ineffective in failing to challenge the search of Baker’s 

vehicle under Gant on direct appeal “[b]ecause the evidence 

found as a result of the search . . . still would be admissible 

under the good faith exception to the Fourth Amendment’s 

exclusionary rule,” meaning that Baker could not “show that 

counsel’s failure to argue Gant on appeal prejudiced him.” Id.

at *2 (footnote omitted).

The district court denied a certificate of appealability 

for all four of Baker’s claims. See id. at *3; 28 U.S.C. 

§ 2253(c). While agreeing with the district court that three of 

the claims did not merit our review, we granted a partial 
6

certificate of appealability to consider the question whether 

Baker’s lawyer was ineffective in failing to raise a Gant

argument on direct appeal.

II.

Warrantless searches “are per se unreasonable under the 

Fourth Amendment -- subject to only a few specifically 

established and well-delineated exceptions.” Katz v. United 

States, 389 U.S. 347, 357 (1967) (footnote omitted). Arizona v. 

Gant, 556 U.S. 332 (2009), addressed when the exception to the 

Fourth Amendment’s warrant requirement for searches incident to 

a lawful arrest justifies a search of the passenger compartment 

of the vehicle in which an arrestee is traveling. As a general 

matter, a search incident to a lawful arrest may extend only to 

“the arrestee’s person and the area ‘within his immediate 

control’ -- construing that phrase to mean the area from within 

which he might gain possession of a weapon or destructible 

evidence.” Chimel v. California, 395 U.S. 752, 763 (1969). 

Before Gant, the Supreme Court had interpreted this rule in the 

context of vehicle searches to mean that “when a policeman has 

made a lawful custodial arrest of the occupant of an automobile, 

he may, as a contemporaneous incident of that arrest, search the 

passenger compartment of the automobile” as well as “any 

containers found within the passenger compartment.” New York v. 
7

Belton, 453 U.S. 454, 460 (1981) (footnote omitted); see also

Thornton v. United States, 541 U.S. 615 (2004).

The federal courts of appeals tended to construe the 

Court’s pronouncement in Belton capaciously. Although a few 

circuits cabined Belton’s holding to permit a search of a 

vehicle incident to the arrest of an occupant only when the 

arrestee could actually reach the vehicle’s passenger 

compartment, most espoused a broader interpretation, according 

to which police officers could search the vehicle regardless of 

the arrestee’s location at the time of the search. See Gant, 

556 U.S. at 341-43 & nn.2-3 (collecting cases). This court 

adopted the broad reading, upholding, for instance, the search 

of a vehicle as a search incident to an arrest where the 

arrestee had been handcuffed and removed from the vehicle when 

the search occurred. See United States v. Milton, 52 F.3d 78, 

80 (4th Cir. 1995), overruling recognized by United States v. 

Wilks, 647 F.3d 520, 522 (4th Cir. 2011).

Without purporting to overrule Belton and its progeny, Gant

rejected the lower courts’ capacious reading of that decision, 

making clear that the exception for searches incident to an 

arrest authorizes vehicle searches only in two specific 

circumstances. The first circumstance is “when the arrestee is 

unsecured and within reaching distance of the passenger 

compartment at the time of the search.” Gant, 556 U.S. at 343. 
8

The second is “when it is ‘reasonable to believe evidence 

relevant to the crime of arrest might be found in the vehicle.’” 

Id. (quoting Thornton, 541 U.S. at 632 (Scalia, J., concurring 

in the judgment)). “When these justifications are absent,” the

Court concluded, “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.” Id. at 351. 

It is important to recognize those aspects of Fourth 

Amendment doctrine that Gant did not change. The decision 

addressed only the exception to the warrant requirement for 

searches incident to a lawful arrest, as applied to vehicle 

searches. It left unaltered other exceptions that might 

authorize the police to search a vehicle without a warrant even 

when an arrestee is secured beyond reaching distance of the 

passenger compartment and it is unreasonable to expect to find 

any evidence of the crime of arrest in the vehicle. See id. at 

346-47. The one most relevant to this appeal is the so-called 

automobile exception, which permits a warrantless search of a 

vehicle when there is probable cause to believe the vehicle 

contains contraband or other evidence of criminal activity. See

Carroll v. United States, 267 U.S. 132 (1925). 
9

III.

Baker argues that his lawyer was unconstitutionally 

ineffective in failing to challenge the search of his vehicle 

under Gant on direct appeal. Once the Supreme Court decided 

Gant, he contends, his lawyer should have argued to this court 

that the decision rendered the search of his vehicle 

unconstitutional, given that neither he nor Brown was within 

reaching distance of the passenger compartment when Officer 

Nelson searched the vehicle.*

 Had his lawyer made this argument, 

Baker insists, the evidence obtained during the search would 

likely have been excluded and all his convictions based on that 

evidence would likely have been overturned. 

To show a violation of the Sixth Amendment right to 

effective assistance of counsel, a defendant must prove (1) 

“that [his] counsel’s performance was deficient” and (2) “that 

the deficient performance prejudiced the defense.” Strickland 

v. Washington, 466 U.S. 668, 687 (1984). In evaluating a 

district court’s rulings on each prong, we review its legal 

conclusions de novo and its factual findings for clear error. 

See United States v. Fulks, 683 F.3d 512, 516 (4th Cir. 2012). 

 * Because of the other available grounds for disposing of 

Baker’s appeal, we need not decide whether the search was 

justified under Gant’s other rationale -- namely, that it was 

reasonable to expect to find additional evidence of the crimes 

for which Baker and Brown were arrested in the vehicle. 
10

For the following reasons, Baker has failed to make the 

requisite showing under either prong of the Strickland standard. 

A.

Regarding the first prong, a lawyer’s performance is 

deficient when his representation falls “below an objective 

standard of reasonableness,” as measured against “prevailing 

professional norms.” Strickland, 466 U.S. at 688. “[T]he 

reasonableness of counsel’s challenged conduct,” in turn, is 

judged “on the facts of the particular case, viewed as of the 

time of counsel’s conduct.” Id. at 690. To guard against 

hindsight bias and unfair “second-guess[ing],” a defendant must 

overcome “a strong presumption that counsel’s conduct falls 

within the wide range of reasonable professional assistance.” 

Id. at 689. 

The range of reasonable professional assistance is just as 

wide on direct appeal as it is at trial. In particular, 

“[c]ounsel is not obligated to assert all nonfrivolous issues on 

appeal, as ‘[t]here can hardly be any question about the 

importance of having the appellate advocate examine the record 

with a view to selecting the most promising issues for review.’” 

Bell v. Jarvis, 236 F.3d 149, 164 (4th Cir. 2000) (en banc) 

(quoting Jones v. Barnes, 463 U.S. 745, 752 (1983)). Indeed, 

requiring counsel to raise every claim, or even a multiplicity 

of claims, runs the risk of detracting from contentions that may 
11

be truly meritorious. Appellate counsel accordingly enjoys a 

“presumption that he decided which issues were most likely to 

afford relief on appeal,” a presumption that a defendant can 

rebut “only when ignored issues are clearly stronger than those 

presented.” Id. (quoting Pruett v. Thompson, 996 F.2d 1560, 

1568 (4th Cir. 1993); Smith v. Robbins, 528 U.S. 259, 288 

(2000)).

Baker’s counsel claimed on direct appeal that the trial 

court had erred in three respects: in denying Baker’s motion to 

sever the charge stemming from his previous encounter with the 

police, in denying his post-trial motion for a judgment of 

acquittal, and in imposing an unreasonable sentence. According 

to Baker, each of these issues was clearly weaker than an 

argument under Gant would have been, since the latter would have 

impugned the search of his vehicle, the evidence it uncovered, 

and thus the sole basis for all but one of his convictions.

Baker incorrectly assumes, however, that the search of his 

vehicle would necessarily be unconstitutional if it violated 

Gant. In fact, even if the search exceeded the limits of the 

exception to the warrant requirement for searches incident to a 

lawful arrest, as delineated in Gant, it was still justified by 

another, independent exception, such that Baker’s lawyer acted 

reasonably in declining to challenge it. 
12

As noted above, Gant addressed only the rule permitting 

warrantless searches incident to a lawful arrest, as applied in 

the context of vehicle searches, leaving unaltered other 

exceptions to the warrant requirement that might be relevant in 

that context. To illustrate the limits of its holding, the 

Court in Gant expressly identified three such exceptions. See

556 U.S. at 346-47. Among them was the “automobile exception,” 

according to which police officers may search a vehicle without 

first obtaining a warrant if it “is readily mobile and probable 

cause exists to believe it contains contraband” or evidence of 

criminal activity. Pennsylvania v. Labron, 518 U.S. 938, 940 

(1996) (per curiam); see also Maryland v. Dyson, 527 U.S. 465, 

466-67 (1999) (per curiam). Note that, in contrast to Gant’s 

rule, this exception permits police officers to search a vehicle 

for evidence of any crime, not just the crime of arrest, but 

only on a showing of probable cause rather than a mere 

reasonable belief.

The Court in Gant emphasized that its decision in no way 

affected the validity or scope of the automobile exception, 

noting that “[i]f there is probable cause to believe a vehicle 

contains evidence of criminal activity, United States v. Ross, 

456 U.S. 798, 820-821 (1982), authorizes a search of any area of 

the vehicle in which the evidence might be found.” Gant, 556 

U.S. at 347. This court, in turn, similarly confirmed the 
13

continued viability of this exception in the wake of Gant, 

holding that even though a warrantless vehicle search might have 

exceeded the limits articulated in Gant, it was nevertheless 

constitutional because it was supported by probable cause. See

United States v. Kellam, 568 F.3d 125, 136 n.15 (4th Cir. 2009).

So too here. After Officer Nelson found a gun, drugs, $980 

in cash, and a digital scale on Brown’s person, he had probable 

cause to search the passenger compartment of Baker’s vehicle. 

Probable cause to search a vehicle exists when “reasonable 

officers can conclude that what they see, in light of their 

experience, supports an objective belief that contraband is in 

the vehicle.” United States v. Ortiz, 669 F.3d 439, 446 (4th 

Cir. 2012). This standard is satisfied when a police officer 

lawfully searches a vehicle’s recent occupant and finds 

contraband on his person. See United States v. Johnson, 383 

F.3d 538, 545-46 (7th Cir. 2004) (“[A police officer’s] 

discovery of a banned substance (drugs) on Johnson’s person 

clearly provided him with probable cause to search the trunk of 

the vehicle . . . since the officer had a reasonable basis for 

believing that more drugs or other illegal contraband may have 

been concealed inside.” (footnote omitted)).

Thus, having found drugs, as well as other items indicating 

involvement in the drug trade, on Brown’s person, Nelson had 

probable cause to search the passenger compartment of the 
14

vehicle in which Brown had just been sitting for additional 

contraband. And if there were any doubt that the drugs and 

other items alone justified the search of the vehicle, we note 

that Brown also walked away from Nelson, reached back into the 

vehicle while being frisked, and struggled with Nelson. These 

facts provided further reason for Nelson to believe that there 

was additional contraband in the vehicle. We thus conclude that 

Nelson’s search of Baker’s vehicle was supported by probable 

cause and that it therefore comported with the automobile 

exception to the warrant requirement.

This all assumes, of course, that Nelson’s search of 

Brown’s person, which uncovered the items that gave Nelson 

probable cause to search the vehicle, was itself lawful. The 

parties argue extensively over the point, but even assuming 

arguendo that Nelson’s search of Brown in some way violated the 

Fourth Amendment, it would be of no avail to Baker. For a 

defendant must have proper standing in order to challenge a 

search under the Fourth Amendment. See Rakas v. Illinois, 439 

U.S. 128 (1978). Baker of course has standing to challenge the 

search of his own vehicle. But not so the search of Brown. 

This court has repeatedly held that one occupant of a vehicle 

lacks standing to challenge the frisk or search of another. 

See, e.g., United States v. Rumley, 588 F.3d 202, 206 n.2 (4th 

Cir. 2009); United States v. Taylor, 857 F.2d 210, 214 (4th Cir. 
15

1988). Baker therefore lacks standing to challenge the frisk 

and search of Brown, which uncovered the contraband that 

ultimately gave Nelson probable cause to search Baker’s vehicle. 

For this reason as well, it would have been futile for Baker’s 

lawyer to challenge the search of the vehicle on direct appeal.

In short, because the search of Baker’s vehicle was plainly 

justified by the automobile exception to the warrant requirement 

irrespective of Gant, Baker’s lawyer did not perform deficiently 

in declining to challenge the search on direct appeal. And 

because we find no deficient performance on this basis, we need 

not address the government’s alternative argument that his 

lawyer would have been precluded from raising such a challenge 

in the first place because, under Federal Rule of Criminal 

Procedure 12, Baker had waived the issue by failing to file

prior to trial a motion to suppress the fruits of the search.

B.

We must reject as well Baker’s argument under the second 

prong of Strickland, namely that what he alleges was deficient 

performance somehow prejudiced the defense. To show prejudice, 

a defendant must demonstrate “a reasonable probability that, but 

for counsel’s unprofessional errors, the result of the 

proceeding would have been different.” Strickland, 466 U.S. at 

694. A “reasonable probability is a probability sufficient to 

undermine confidence in the outcome.” Id. 
16

Baker takes it for granted that he was prejudiced by his 

lawyer’s failure to challenge the search of his vehicle under 

Gant on direct appeal. Had such a challenge succeeded, he 

contends, this court would have had to suppress the evidence 

found during the search pursuant to the Fourth Amendment 

exclusionary rule. And because all but one of his convictions 

were based solely on that evidence, Baker argues that those 

convictions would necessarily have been overturned.

As the district court noted, however, application of the 

exclusionary rule is in fact barred in Baker’s case by the 

Supreme Court’s decision in Davis v. United States, 131 S. Ct. 

2419 (2011). Davis extended the “good faith” exception to the 

exclusionary rule to hold that “[e]vidence obtained during a 

search conducted in reasonable reliance on binding precedent is 

not subject to the exclusionary rule.” Id. at 2429. The Court 

announced this rule, moreover, in a case that also involved the 

retroactive application of Gant. See id. at 2426. Applying the 

good-faith exception to Davis’s case, the Court held that even 

though Davis had successfully challenged a search on direct 

appeal under Gant, the evidence obtained during the search was 

not subject to suppression because the search had accorded with 

binding circuit precedent when it was conducted. See id. at 

2434. 
17

Similarly, at the time Nelson searched Baker’s vehicle, our 

precedent permitted the police to search a vehicle incident to 

the lawful arrest of one of its occupants regardless of whether 

the occupant was within reaching distance of the passenger 

compartment, a rule that Gant subsequently abrogated. See

United States v. Wilks, 647 F.3d 520, 522 (4th Cir. 2011) 

(citing United States v. Milton, 52 F.3d 78, 80 (4th Cir. 

1995)). Following Davis, we have accordingly held that the 

exclusionary rule does not bar the introduction of evidence 

found during searches that would have been constitutional but 

for Gant and that were conducted before the decision. See id.

at 524. Davis mandates the same result here, given that Nelson 

was doing exactly what the law at the time said he could do when 

he searched Baker’s vehicle. This is precisely the kind of 

good-faith reliance on precedent that Davis meant to protect and 

encourage.

Baker attempts to avoid this conclusion by noting that 

Davis was not decided until 2011, after his appeal had concluded 

and his conviction had become final. Baker thus argues that, 

had his lawyer successfully challenged the search of his vehicle 

under Gant on direct appeal, the good-faith exception would not 

have barred the application of the exclusionary rule to his 

case. This shows, Baker contends, that the outcome of his 

appeal would have been very different indeed had his lawyer 
18

raised Gant and that his defense was therefore prejudiced within 

the meaning of Strickland. 

Baker, however, misunderstands the nature of Strickland’s 

prejudice inquiry. While it is certainly necessary to show that 

the outcome of the proceeding at issue would have been different 

in order to prove prejudice, it is not sufficient. As the 

Supreme Court has explained, “an analysis focusing solely on 

mere outcome determination, without attention to whether the 

result of the proceeding was fundamentally unfair or unreliable, 

is defective,” for “set[ting] aside a conviction or sentence 

solely because the outcome would have been different but for 

counsel’s error may grant the defendant a windfall to which the 

law does not entitle him.” Lockhart v. Fretwell, 506 U.S. 364, 

369-70 (1993) (citing United States v. Cronic, 466 U.S. 648, 658 

(1984)). To avert such windfalls, Strickland’s prejudice prong 

is governed by the law as it stands at the time a court is 

considering a defendant’s ineffective-assistance claim, in 

contrast to the performance prong, which is governed by the law 

as it stood when the defendant’s lawyer acted. Id. at 372. 

In determining whether Baker was prejudiced by his lawyer’s 

alleged deficient performance, then, we must apply current law, 

including Davis’s application of the good-faith exception. For 

the reasons noted above, the exception would bar us from 

suppressing the evidence found during the search of Baker’s 
19

vehicle, because the officers were following the law as it 

existed at the time of the search. This means that, regardless 

of any appellate challenge to the search under Gant, Baker still 

would not be prejudiced in the sense required to prove his 

Strickland ineffective-assistance claim. To hold otherwise 

would be to confer on Baker “a windfall to which the law does 

not entitle him,” id. at 370, and to stray far from the core 

purpose of the exclusionary rule, which is to deter unlawful 

conduct on the part of officers, not law-abiding actions, see

United States v. Leon, 468 U.S. 897, 906 (1984). This we 

decline to do.

IV.

For the foregoing reasons, the judgment of the district 

court is affirmed.

AFFIRMED