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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

U NITED S TATES OF A MERICA

, A PPELLEE

v.

T ARRY M. J ACKSON

, A PPELLANT

Appeal from the United States District Court

for the District of Columbia
(No. 02cr00328-01)

Sandra G. Roland

, Assistant Federal Pub lic Defender, argued the cause for appellant. With her on the briefs was A

. J.

Kramer

, Federal

Public Defender. N

eil H. Jaffee

, Assistant Federal Public Defender, entered an appearance.

Thomas S. Rees

, Assistant U.S. Attorney, argue d the cause

for appellee. With him on the brief were K enneth L. Wainstein

, U.S. Attorney, and J

ohn R. Fisher and Thomas J. Tourish, Jr.

, Assistant U.S. Attorneys.2

Before: E

DWARDS

, R

OG ERS and R

OBERTS

, Circuit Judges

.

Opinion for the Court filed by Circuit Judge R OGERS

.

Concurring opinion filed by Circuit Judge E DWARDS

.

Dissenting opinion filed by Circuit Judge R OBERTS

.

R OGERS

, Circuit Judge :

This appeal challenges the district

court’s denial of a motion to suppress evidence on th e 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 crim e

. U nited 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 d e novo review, see Ornelas v. United States

, 51 7 U.S. 690, 699 (1996), we hold that the police lacked probable cause to search the trunk, and accordin gly, we reverse the judgment of conviction.

I.

At approximately 1:00 a.m. on May 4, 2 002, United States

Park Police Officers Jeffrey Garboe and Wayne Jo hnson

obs erved 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 tag s had

been reported stolen from Fairfax Co unty, Virginia. The

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

driver was unable to produce a regi stration or a driver’s license,

the officers conducted a further records check that in dicated that

h is driving privileges had been suspended in Virginia. The3

officers also ch

ecked the vehicle identification number in a computer database, and it yielded an “old listing” from Virginia, meaning that the car had once be en registered there but that it

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

had been stolen.

After handcuffing the dri

ver and securing him inside their cruiser, the officers searched the passenger compartment of the

car, including the glove compartment, for documentation of

ow nership. They did not find any documentation, contraband,

or evidenc e of criminal activity. Nevertheless, the officers

searched the trunk, based on their prior experience of finding

“real t ags” and “other identifying information about the vehicle”

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

a ny 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 rememb ered the driver making such a statement, including

that his girlfriend had purchased the car at an auction a month before, but he somewha t inconsistently could not recall at what point the driver made the st atement. The district court did not

make a fin

ding 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 eviden ce seized from the car

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

that the office

rs’ testimony about why they searched the trunk

was “confused,” the district cour t 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 s tolen tag4

– perhaps the ‘real’ tags

– or informati on indicating that Jackson

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

district court acknowledged that “[t]he vehicle had n ot 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,

preserv i ng his right to appeal the denial of the suppression

motion. He was sentenced to twenty-one months of
incarceration, th

ree 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. S ee, 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

th e judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth

Amendment

– subje ct only to a few specifically established and

well-delineated exceptions.” C alifornia v. Acev edo , 500 U.S. 565, 580 (1991) (internal quotation marks omitted).

One exception allows the police to search a vehicle’s

passenger compartment, including th e glove compartment,

incident to the lawful arrest of the vehicle’s occupant. N ew 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 “art

i cles inside the relatively narrow compass of the

passenger compartment of an aut omobile are in fact generally,

even if not inevi

tably, 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.5

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

a search of the passenger compartme nt, 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. S ee id. at 461 n.4 ; s ee also Pennsy lvania v. Labron , 518 U.S. 938, 940 (1996). Rather, although a search warrant was not required, the off icers could

constit utionally search the trunk (and the containers therein) only if they h

ad probable cause to believe that the trunk

contained contraband or evidence of a crime. S ee Acevedo

, 500

U.S. at 579-80.

Probable cause is syn

onymous with “fair probability,”

Gates

, 462 U.S. at 238, an d 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, O rnelas

, 517
U.S. at 695-96; Gates , 462 U.S. at 230-31; cf. United States v.

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

no role in ordinary, probable-cause Four th Amendment analysis,” Whren v. United States , 517 U.S. 806, 813 (1996), and

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

relevant as long as [their] actions were ob jectively 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 (20 0 4);

United States v. Holmes

, 385 F.3d 786, 790 (D.C. Cir. 2004).

The court has reco gnized that “the discovery of contraband in

the passenger compartment of a car is a factor that strongly

supports the lawfulness o f a trunk search.” ( Rocky Lee) Brown

, 33 4 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. R oss , 456 U.S. 798, 825 (1982); s ee also Wyoming v. Houghton , 526 U.S. 295, 300-02 (1999).6

Both in the district court and in thi s court upon d e novo review, “the b urden is on those seeking the exemption [from the

warrant requirement] to s how the need for it.” U nited States v. Jeff ers , 342 U.S. 48, 51 (1951); s ee also Chimel

, 395 U.S. at 762; In Re Sealed Case

, 153 F.3d 759, 764 (D.C. Cir. 1998). In

this instance, i

t 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

circumst a nces known to the officers at the time of the search of

the car trunk, including that the driver likely had c ommitted

several traffic violations and had received stolen pr operty, 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 be lieve that the

driver had committed several offenses: three traffic violations

for which he received citations

- driving with a susp ended
license, D.C. C ODE A NN

. § 5 0-1403.01 (2001), operating an unregistered motor vehicle, id. § 50-1501. 0 4(a)(1)(A), driving

without required vehicle identific ation tags, i d. § 50-

1501 .04(a)(1)(B) - and two criminal offenses – receiving stolen

property (the stolen t ags), i d. § 22-3232, and unauthorized use
of a m otor vehicle, i d. § 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 Appe llee at 14, or that

“further evidence concerning this range of probable criminal activity might well have been concealed in the trunk of the car,”

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

court’s determi n ation that the search was permissible based on the fair probability o f finding the car’s “real tags,” but,

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

the offi cers had probable cause to search for documentation of7

ownership, assum

ing, as it does, there was probable cause to

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

The governme n t’s first justification

– that the officers had probab le cause to search for contraband – is readily dismissed.

There can be no serious argument that th e existence of stolen

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

additional contraband, particularly additiona l 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 com partment 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,

reasonab le, cautious police officer’ to believe that there was a

reasonable likelihood the trunk contained contrab a nd.” I d. at
1328 (quoting D avis

, 458 F.2d at 821). This was so, the court explained, because of th

e significant correlation between what

was found in the passenger compartment indicating a de sire to

engage in fraudulent transactions and the likely fruits of acting

on that desire th

at could be in the trunk. Here, on the other hand, fin ding stolen tags affixed to the car provides no similar

co r relation 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 stole n tags, wherever
found, that is of a nature similar to fraudulent document s 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 th ings, the8

empirical connection between guns discovered in a car’s

passenger compartment and th e presence of other contraband in

the trunk. 334 F.3d at 1171 (citing cases). Similarly, in T urner
, the court relied on the established connection betw een 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 conne ction between stolen

tags displayed on a vehicle and additional contraband . Nor does

the pres ence of displayed stolen tags suggest a fair probability

that the re 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 bac k 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, viewe d cumulatively, would be located the re. It is entirely implausible

that the trunk would contain additional evidence to support the charges of drivi

ng on a suspended license, operating an unregistered vehicle, and driving without required vehicle

iden tification 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 acknowledge d 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 t

he records check and the visual inspection of the car.

Our analysis thus is consistent with Knowle s v. Iowa , 525 U.S.
113, 118 (1998), where the Supreme Court declined to extend

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

and reversed the denial of a motion to suppress evid ence found

in a car’s passeng er compartment, where the police, having9

“stopped [a car] for speeding and issued a citation [to the driver, had] all the evidence necessary to prosecute that offense.”

Turning to the offic ers’ professed need to search the trunk

for evidence of ownership, the district court ju stified 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 agai nst, rather

than supports, a finding o f probable cause to search the trunk

because the result would authorize officers to search a vehicle anytime it is unregistered, a propo sition 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; search i ng the trunk for

documentation establis hing or confirming that the driver properly possessed the car wou ld not constitute contraband or

evidence of a crime as is required under the probable cause

standard. S ee 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 regis t rant’s name; the record does not suggest that such a result was suspicious. Similarly, the search of the passenger

compartment did not re v eal any evidence that the driver was an unauthorized user of the car. For reasons already discussed,

considered commutatively, other circumstanc es that the officers encountered – a driver with a suspended license driving late at night with a broken tag light and without a regist ration – do not

affect the probabili ty that the driver was an unauthorized user. Otherwise, borrowing a friend’s car becomes a very risky10

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 lik elihood why stolen tags would be on the

car, and the government has not suggeste d any others. First,

stolen tags may

be placed on an otherwise lawfully used car

without tags to give the appearance of legi timate tags and

therefore to reduce the risk that the po lice will initiate a traffic stop for lack of tags. Second, stolen tags may be used to replace expired tags on an otherwise lawfully used v ehicle, 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 sto len

vehicle’s “real tags.”

However, as Jackson’s counsel pointed

out during oral a rgument, the government has not demonstrated

a significant correlation between the presence of sto len tags and

the vehicle itself being stole n, and a case that our dissenting colleague cites, United States v. Barlow

, 41 F.3d 935, 939 (5th

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

tags to obscure the fact that a vehicle is stole n at best may momentarily delay police discovery that t he car is stolen while

a records check is made

of the car’s tags, for in B arlow

, the

officer det e rmined through a records check that the vehicle possessed stolen ta gs before d etermining 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 aut horized use and were

consistent w ith 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 docume ntation that the driver was

an unauthorized user of the car.11

While the existence of probable cause does n ot depend on

the elimination of all innoc ent 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 ci

rcumstances, as though the existence of countervailing probabilities was irrelevant. Were that the law,

then the governm

ent’s burden would be considerably eased, for the particular circumstances causing the police to make a traffic

stop could often be viewed most negatively w ithout regard to a

citizen’ s Fourth Amendment protections. The Fourth

A mendment requires a different analysis, as the concurring opinion of Judge Edwards makes clear. S ee 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 know

n 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

asse rting that there was a fair probability that Jackson was an

unauthorized user of the car.

O ur dissenting colleague emphasizes that Officer Garb o e
also testified that on six or seven occasions he had encountered

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

infor mation in the trunk, s ee Dissenting Op. at 2, but the

government on appeal does not embrace the aspect of the district

court’s ru ling 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,

under cut the dissent’s position. Even if there was probable

cause to believe that the trunk woul d contain the car’s expired

“real tags,” these tags, like a tool kit, are neither contraband nor12

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 col

league, s ee Dissenting Op. at 3, posits

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

that is irrelevant in the absence of prob able cause to believe that

the trunk contai

ned 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 additio n al information

rega rding the ownership of the car because a records check

ba sed on the vehicle identification number indicated only an

“old listing.”

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

information could in some instances con stitute contraband or

evidence of a crime, the officer’s pr ior experience of finding

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

Brown

, 374 F.3d at 1328, is unhelpful here bec ause his testimony is dev

o id 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 t runks of vehicles with stolen tags often contain contraband

or evidence of a crime i

n the form of identifying information, as opposed merely to containing o wnership information confirming

that the driver is an authorized user.

The government’s difficulty in demonstrating w hy the

officers’ experience is pertinent here, and in expl aining why the

p resence of expired “real tags” in the trunk is at all re levant to

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

district court characterized as the office rs’ confusion about why they searc hed 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 ha d probable cause to believe the other stolen

tag or t he “real tags” might be in the car trunk. Indeed, the13

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

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

Garboe testified at the s u ppression hearing, however, he

a cknowledged there were stolen tags on both the front and back of the car, thus eliminating a strong strain of the government’s

argument.

In se arching 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 b e drawn here. Instead of establishing probable

cause and justif

ying a search of the trunk, the lack of

i nformation about the driver’s authority to use the car and the ownership of the car should have served to prompt further inquiry. S ee 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 t he time the officers

searched the car, the driver, who wa s 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 ex

planation for his use of the car. The cases cited by the g overnment illustrate that a prudent, cautious, and experienced officer would seek information from the driver precisely because t

he driver’s responses to police inquiries can

clari f y the situation and may provide probable cause for a
f urther search of a vehicle. S ee, e.g.
, United States v . Maher

, 919 F.2d 1482 (10th Cir. 1 990); U nited States v. Owens

, 346

F. 2d 329 (7th Cir. 1965). Had the officers, for example, inquired of the driver about the ownership of t h e 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 evid ence of a crime was in the trunk, or the14

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 wo uld not

have been futile, as they had “ready means” of verifying ownership of the car: they could have called t he purported

owner and had h

er come to the scene with proof, much like

Officer Garboe testified he does upon findi n g verified proof of ownership in a vehicle.

Th is 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 consist e nt explanation. Officer Johnson

testified that Ja c kson did identify the owner, but only while he was being driven to the police station after the car trunk had

been searche d; Officer Garboe confirmed that fact and while he

was uncertain about when Jac kson identified the owner, he

never suggested

the identification Jackson provided was

unver ifiable. Nor is this a case where ownership documents in

the passenger compartment were incon sistent with the driver’s explan ation for being in possession of the car. Rather, the ambiguity of the circumstances prese n ted the officers, like the

officers in the c ases on which the government relies, with the

need to continue their investigatio n. While courts are not to

dictate proper investigative techn iques 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 proce dures” here, Dissenting Op. at 9, those cases

suggest t hat the officers could have continued their investigation

here by asking the dri

ver a few questions to determine whether

it would b e reasonable to conclude that documentation of the

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

Inst e ad, lacking any such indication that the driver was an unauthorized user of the car and lacking any docu mentation in

the passenger comp artment suggesting that he did not have authorization, the officers nonetheless proceeded to s earch the15

trunk.

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

an uncooperative or non-comm unicative person and therefore

were unable to obtain ev e n basic information regarding

ownershi p or identity. C

f. 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 indi c ate that he was lucid. Nor

was this a fast-movi ng, quickly evolving situation where the

officers were forced to process the facts before them rapidly and

to make a hasty d ecision regarding the search of the trunk. C f.

Graham v. Connor

, 490 U.S. 3 86, 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 sa fety 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 p reserve evidence of a crime, cf. Schmerber v. California , 384 U.S. 757,

770-71 (1966), much less to remove dangerou s contraband, s ee 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 appreciati on for the distinction between a permissible search of

th e passenger compartment incident to a lawful arrest, s ee Belton

, 453 U.S. at 460, and an unconstitutiona l search of a car

trunk in the absence o f probable cause, s ee 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 to16

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 inconsiste n t
with the Court’s rationa l e for the passenger-compartment exception, see Belton

, 453 U.S. at 460. Although Officer

Garbo e 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 stree t, in the absence of probable cause to

search the car trunk for documentation that the driver is an

unauthorized user, the constitutional route i s 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 s earch the trunk for evidence of

o wnership. C

f. 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

s ingle case where a vehicle with stolen tags and without any

docume n tation of ownership, alone, provided probable cause to
search the trunk. In U

nited 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 characteriza tion of U nited States v. Maher

, 919 F.2d

1482 (10th

Cir. 1990), s ee Dissenting Op. at 6, the driver’s inability to provid e the complete name and address of the

p erson whom he claimed sold him a trailer assisted the court i n finding probable cause to arrest the driver. But here, the

officers did not ask the driver abou t ownership prior to searching the trunk and therefore could not evaluate the17

plausibility of his explanation. Further, in B otts v. United

States

, 310 A.2d 237 (D.C. 1973), t he inspection sticker was expired, and the police could no t check whether the vehicle had

been reported stolen

because their computer was inoperable.
Here, the officers conducted a computer records check and

determin ed that the car had not been reported stolen, leaving the

c ircumstances ambiguous and not implausibly inconsistent wi t h

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

see Dissenting Op. at 6-7, on isola ted 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 dri ver cannot produce proof of ownership, proba

ble cause exists to believe that the car may

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

that it endorsed th

at approach nor provided any analysis of the

constitutional requirements for probable cause; m oreover, 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 seiz ed from the trunk, and we reverse the judgment of conviction.E DWARDS

, Circuit Judge, concurring :

The needs of law enforcement stand in constant tension with the Constitution’s protections of the individual against certain exercises of officia l power. It is precisely the predictability of these pressure s that

counsels a resolute loyalty to consti tutional 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 effec tive in
cowing a pop ulation, 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 p rior approval by judge or magistrate, are per se unreasonable under the Fourth

Amendment

– subject only to a few specif ically established and

well-deline ated exceptions.” C alifornia 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 dri ving. The Government

invokes the so-called “automobile exception” establishe d 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 o fficers of the duty to obtain a2

wa rrant, 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,

t here existed “a fair probability that contraband or evidence of

a crime [would] be found ” in the trunk. I llinois v. Gates

, 462

U.S. 213, 238 (1983) (reaffirming a n objective “totality-of-thecircumstances analysis” in probable cause determinations).

* * * *

The poli ce 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 th at the officers might

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

does not defend this argument before u s, for, as Jackson points

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

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

Government presents two arguments in suppo rt of its claim that

the facts here gave rise to probable cause to se arch 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 a dditional stolen tags, might

well be in the trunk too.” Gov’t Br. at 14. This is a preposter ous contention. The fact that a car has stolen tags affixed to it creates no good reason to believe that additional

contraban d 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 g u ns in the

passenger compartment of a car gives rise to probable cause to search th e trunk for additional contraband. Finding stolen3

license plates affixed to a ca r
, however, is fundamentally

different from finding drugs or guns in the passenger

compartment.

Unlike in B rown and Turner

, where we noted the empiri cal

connection between the e xistence of guns and drugs in a

passenger compartment and additional contraband in the trunk,

there is no evidence befo re us to suggest that a person who

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

or related contra

band in the trunk. And the Government fails to

p rovide 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 misp laced.

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

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

created a fair p r obability 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 c ontraband 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

accep t 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 ha ve committed one crime, without

more, invariably gi

ves 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 w as stolen,4

cr eating 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 replac e the stolen car’s real tags

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

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

because the police officers knew that the car was u nregistered and that it had not been reported stolen.

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

most rea sonable 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, wh ile avoiding the expense attendant

to registering the car and obtaining legitimate tags. In other
words, if a car has no le gitimate 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

– th at he had borrowed the car from his girlfriend who had recently purchased it at an auction

– is reasonable on its face and

comports with t

he 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

offic ers lacked probable cause to search the trunk for evidence

that the car was stolen.

In short, before the officers conducted their se arch of the

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

evidence o f a crime would be found. Therefore, the District

Court erred in holding that the police offi c ers 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’ F ourth Amendment rights in the face of potentially inculpatory evidence. Judges are not immune from the burdens

of human nature, so we are i nvariably tested when asked to

exclud e 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 p rosecutions

than is the protection of privacy values through deterrence of

future police misconduct.” J ames 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 regar d for maintaining the integrity of individual rig

hts” and “‘resist every encroachment

upon rights expressly stipulated for in the Co nstitution 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 r ule, courts “must focus on
systemic effects

. . . to ensure that individ ual liberty from arbitrary or oppressive police conduct does not suc cumb to the

i nexorable pressure to introduce all incriminating evidenc e, no

matter how obtained, in ea c h and every criminal case.” J ames
, 493 U.S. at 319-20. “The occasional suppression of illegally

obtained yet probative evidence,” dis t asteful though it may seem in the context of a particular case, “has long been con sidered a

necessary cost of preser ving 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.R OBER TS

, Circuit J u dge , dissenting: The question for the

c ourt is whether the circumstances of the stop and a rrest o f Tarry Jackson pr

ese nted “a fair probability that contraband or

evidence of a

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

was dr ivin g. Illinois v. Gates

, 462 U.S. 213, 238 (1983). Like

the district c ourt, I

conclude that they did, and th

erefor e dissent

.

T he officers who stopped Jackson had good grounds f or believing that the car he was dr i ving had been stolen and that

relevant evidenc e could

be found in the trunk. It was late at night and the tag light was out — sugge sting from the beginning

of the encounter that Jackson was attempting to obscure the

car’s license plates. Once Jackson was pulled over, the office rs learned there was indeed something to hide: the temporary tags

affixed to the car had

been stol en and a

ltered to match the car’s
make, model, and vehicle identification number.

Stol en tags often accompany stolen cars. See, e.g.

, United

States v. Rhind

, 289 F.3d 690, 692 (11th C ir. 2002) (defen dants

traveled in stolen c ar with st

olen plat es); United

States v. Rose

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

Barlow

, 41 F.3d 93 5, 939 & n .6 (5th Ci r. 1994) (s ame). The

reason is obvious: by replacing the rea l tags wi th stolen ta

gs, the

thief makes it im

possible f or police to id ent ify

a stolen v ehicle by sight. A

stolen ve

hicle wil l norma

ll y be descr

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

streets cannot readily

identify a par

ticular Mercury

Marquis as

the stolen Mercury

Marquis if the o rigi nal tags have been replaced. See Tu rne r v. United States , 623 A.2d 1170, 1172 (D.C. 1993) (officer noting that “a lot of time if a crime w as to go down, say

like a stol en vehic le, . . . lic ense plates c an easil

y be switched

” (alter ation in original)). So the stolen tags raised a suspici on that the

car may have be en stolen

as well.

The office

rs’ rec ords che ck on the v ehicle d id noth in g to dispel thi s s uspicion. Had Jackson been able to produce the

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

his car, the police would have been rea sonably cer tain they were dealing only with stolen tags, a br ok en tag l ig ht, and a driver2

witha suspended license. But no such reassuran ce wa s forthcomin g: Jackson him self cou ld produce no license and no proof

of registration, and the records che ck, which re v ealed only a n old listing for the vehicle, did not show Jackson as the owner.

My colleag ues seem to believe that the inconclusive records

check somehow dissipated any suspicion that the ca r was stolen.

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

of t he records check to resolve owner ship of the vehicl e wa s unusual. See Hr’g Tr., June 9, 2003, at 9–10 (“Normally if y

ou

run [a registration check] having alrea dy run the oper

a tor, it ’ll

tell you that i t come s back with an ex pired list ing to that

operator

. And that w as n ot t he case in this cas e.”) (e

mphasis added) (Officer

Garboe). The

fact that Jackson was not listed on

the car ’s last re gistra

tion could

reasona bly have heightened

the

o fficer s’ suspicion: now they were dealing not only w ith a c a r withstolen tags, but

with acar that had no recorded connection

to Jackson.

Given the cumulation of suspic ious circumstance s sugg esting the car may

have been stolen, the office rs, rea sonably

in my
view, turned their attention to the trunk. Why the tru nk? One

of the officers at the scene

would later testify that he ha d made

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

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

those occasio ns, he ha

d found th e vehicle’s real tags in the

trunk. Id. at 19; see Ornelas v. United States , 517 U.S. 690, 700 (1996) (“our cases hav e recognized that a police officer ma y draw in ference s based on his own experience in deciding

whether prob able cause e

xists”); United Sta tes v. Bro wn , 374

F.3d 1326, 1328 (D.C. Cir. 2004) (“ ‘probable cause’ is eva luated not only from the perspe ctive of a ‘prudent man,’ but also

f rom the particular viewpoint of the officer involved in th e3

1 The ma jority d ismis ses th e offic er’s te stimo ny ou t of ha nd

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

incl uding whether the identi fyi ng information revea led th at the veh icle

was st olen .” Op. at 12. I fail to see how this undermines the relevance of the offic e r’s exper ienc e. What ever the ci rcums tanc es, the

offic er note d a st

rong correl ation between st ole n ta gs on a vehi cle and

the presence of t

he vehicle’ s real tag s in the t runk. If Jackson’s

attor ney had t hought

tha t t he sur roundi ng ci rcums tanc es o f t hose st ops might und ermi ne the proba ti ve va lue of t he of fi cer ’s e xperi ence, the

attorn ey had am ple oppor tuni ty to que st ion t he of fi cer about them on

cro ss- exami nati on. search or seizure” (citation omitted)). 1 This is not e special ly

surpr isin g: the trunk

is certa inly 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 automobiles store ite

ms; they also conc eal them. ”) . Real tags in the

trunk w ould c learly be pr

obative 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

c ould have been looking for in the trunk. Given the am pl e grounds to suspect the car was stolen, the officers cer tainly had

a reasonable basis for suppos in g that the trunk w ould conta in

other items that might have confirmed their suspicion — such as

identif ic ation or belongings of the real owne r — or items that helped c onn ect

Ja ckson 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 a

ckn owledging that, had the car be en reported stolen, officers might have ha d reason to search the trunk for such items).4

My colleagues offer sever al reasons why

they believe the

officers lac ked p robable cause to search the trunk for e vidence

that the car was stolen:

1. The conc

urrenc e conten ds that be cause the car was unregistered, there could be no real tags or other documents for

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

A vehi cle’s lic ense pla

tes do not s imply

disappea r once it s registrationlapse s; man y cars roam the ro ads be aring p l ates

fro m expired r

egistr ations. Pe ople ge

t tickets f or that a ll t h e time, but they

are usua lly a ble to show

that they are th e owner listed on the expired registration . Ja ckson was not able to do
that, he ight ening th

e suspici on that he

had no leg

itimate

connection to the car.

Moreover, contrary

to the majority’s sugg estion, finding the expired “real tags” would have provided police with additional

evidence of criminal activity . As explain ed, switc hing tag s is a

common ploy of car

thieves. And under the majority ’s own analy sis, see O p. at 10, finding the real tags would have r uled

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

veh icle’s real tags with stolen tags and theref ore discount s th e infere nce tha t the car might have been stolen. Op. at 10. But lawyers learn early

on that “a

page o f history

is worth a volume

of log ic.” New York Trust Co. v. Eisner , 256 U.S. 345, 3 4 9 (1921) (Holmes, J.). Officer Garboe ’s hist ory with s tolen tags

had confirme d that the

y, m ore ofte n than not, led to re al tags in

the trunk. Th e repor ted case s confir m that cri minals oft

en use stolen tags on s tolen ca

rs. This history is enough to support the

of ficers’ inferri ng from

the stolen

tags and the lack o f an y 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 pr events t

he vehicle from being readily identified as

stolen by a passi ng pol ice cru iser. Of cour se, th e tags may have

been repo rted stole

n, and the police c an chec

k that, too . But a busy police officer is not goi ng to run a check on the tags of

every M ercur y Marquis he passe s, and people are likely to be

much less dilig ent about reportin g stolen

tags — pa

rticular ly

tempora ry ones — tha

n stolen c ars.

3. The majo rity

reasons that the o fficer s lacked probable

cause because they

“were confron ted with th ree poss ible 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 onl y one of which supported an inference of unauthorized use.” Op. at 10.

Even assuming for the moment the va lidi ty of this approach, on e of the majority’s “ possible explanations” — that

stolen tags mig

ht be used

to concea

l an expired registration —

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

is a serious offense. See D.C . Cod e Ann. § 22-3232(c) (2001) (receipt of st o len prope

rty punishabl e by

up to 180 da

ys i n prison if valu e of property is less than $250, up to seve n years i f great er than $ 250). I

t is unlikel

y th at someon e would r

un so great a ri sk merely to avoid g etting stopped for an expired registration— a steep

ticket, to be sure , but not lik ely to lead to

hard time.

The more ser

ious probl em is t hat probable cause does not depend on eliminating other inn ocent (o r, here , less incriminating) explanations for a suspicious set of facts. See United States

v. Gagnon , 373 F.3d 230, 236 (2d Cir. 20 04 ) (“the fact that an

innocent explanation may

be consis tent with

the facts as alleged

does not negate probable cause” ) (citat ion omitted); United

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

exis tenc e of innoce

nt explana

tions does not nece ssarily negate6

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

a probability or substantial cha n ce o f

c riminal ac tivity, not an actual showing of such activity . . . [and] therefore, innocent behavior fre q uentl y will provide the

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

alternative explanations is “often helpful,” Funches , 327 F.3d at 587, b ut the officers were not required, be fore searching the
trunk, to negate the possibility tha t the stolen tags were used only to driv e an unregistered car. This is particula rly so here,

where any plaus ible explanation for the circumstances of

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

lack of registration, and the fa ilure of the re cords ch

eck to

connect Jackson with the vehicle — suggested that Jackson was deliber ately trying to conceal unlawful activity involving the c ar itself.

4. Li ke the majority, I

see no reason why

the fact tha t a vehicle has not been reported stolen should preclude pr o bable

cause. See Op. at

16. It ma

y ta ke time fo

r a vehic le’s owne

r to

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

a.m. by s omeone w it hout a license and with no registration, bearing stolen tags, may

not have been reported

stolen be cause its owner had

retired for the n

ight and would be b lissfully

unaware of his loss until h e 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 rea sonable

“becau se in his experience, the fact that a vehicle has no t ye t
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) (probab le cause to arrest suspect for stealing trailer where “the trailer bore a stolen license plate; the

trailer was un regi ste red; [suspe ct] was ca

rry ing no ow nership

document s for the tr

ailer; a nd [suspec t] was unab le to provide a complete name or address of

the pers on who all egedly sold him

the trailer ”); see also United

States v. Robinson , 471 F.2d 1082,

1104 n.38 (D.C. Cir. 1972) (en banc) (“s ome c ourts hav e held7

2 Of ficer G arbo e testified that, if poli ce f ind pro of of o wn ersh ip
they can verify, th ey usu ally call the “regis tered owner” of the v ehic le

to ask if he or she woul d “like t o come an d ge t it or . . . to h ave it

towed .” Hr ’g T r. at 6 2. T his is ve ry differen t fr om the majority ’s
suggestion that poli ce could veri fy ow n ership by wait ing around for

a suspe ct’ s gi rl fr iend to me et them o n a D istr ict s treet at one o’cloc k

in the m ornin g. See Op. at 14. that when a car has no license plates, or fictitious plates, and the

driver cannot pr oduce pr oof of ow nership, probable cause e xists

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

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

.

The majority

neverth eless pur ports to distinguish Jackson’s

case on the ground

that “the officers did not ask the driver about

ownershi p prior to searching the trunk and theref ore could not

eval uat e the plausibility of the driver’s e xplanation.” Op. at

16–17. This acc ords with t he major ity’ s sugg estio n t hat the

officers might

have g athere d facts a

mounting to probab le cause if only they

had “ask[ed] the driver

a few que stions” and not “stopped their

investig ation too s oon.” Op. at 13, 14. This is a hazardous approach to assessing probable c ause.

The officers who stopped Jackson had no ready me ans of verifying ownersh ip of the v ehicle a

t the sce ne. Jackso n himself

had no licen se an d no proof of registration, and the car ha d

stolen tags. Th e officers’ records che ck 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 sug gests that the officers should have

called “the pu rpor ted owner and ha[d] the owner come to the

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

had nothing better to do while on night patrol than linger

roadside , tracki ng down

exculpato

ry leads fo r suspec ts. 2

The officers could have reasona bly concluded that further questioning would have yielde d nothing m ore than the usual8

3 Becau se Jackson did not argue below that t he police should have

conducted a mo re elab orate in vestig ation , the d istrict c o urt did not

make any fac tual

fi nding as t o pre cis ely

when the susp ect told officers

that the car b elonge d to his g irlfriend. Com pare Hr’g Tr

., June 9,

2003, at 6 2 (“ I d on’t recal l exactl y when the conversati on took place

in which he

. . . i nfor med u s t hat hi s gi rl fr iend had purc hase d the

veh icle at an aucti on.”) (r edirect of Officer G arboe) with id. at 70 ( Q.

“D id yo u have any inf ormat ion r egar ding t

his defe ndant or a nyone

else’s possi ble ow ners hip of thi s par

ti cula r ve hicl e pri or t o the

search? ” A. “ No .”) (Officer J ohn son). story any suspect in Jackson’s situation would b e expect ed to

deliver. Se e Wil liams ex rel. Allen v. Cambridge Bd. of Educ.

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

ny c redenc e to a su spect’s sto ry . . . nor should a plausib le explanation in any sense re quire the

office r to forego arrest pending further investiga tion if the fa

cts as init ially

di scove red 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 dri ver, with no registrationand stole

n tags, r eally does b elong to the driver’s
friend, and sometimes dogs do eat homework, but in neithe r case is it reason able

to insist on checking out the story before taking

other appropriate action. Even if Jackson had provided contact

information for his g irlfrie nd in resp onse to inq

uirie s fr om the

offi cers, a nd even if the officers had been able to reach the girlfriend and she were responsive t o th eir questions, I cannot

see any conc eivable value in the over-the-phone testimony of a

s uspect’s appare

nt girlf riend — so meone unk

nown to th e office rs, whose number

w as 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.9

Fi na ll y, my collea gues’ insistence that police should have

further questioned Jackson amounts to prescribing preferred investigative procedures for law enfo rcemen t. We have neither

the authority

nor the e xpertise for such an enterprise. See United

States v. Montoya de Hernandez , 473 U.S. 531, 542 (1985) (“c rea tive judges engage d in post hoc evaluations of police

conduct can almost alway s imagine some alternative means by

whi ch the o bjective s of the po lice mig ht have be

en acco mplished” (internal quotation marks omitted)). In the end, I would

l eave the judg ment as to w hat lines o f inquiry

ought to b e pursued to the office

r himself , and judg e probab le cause on the

facts as they are

, rather than on what they might have been had the officer pursued a differe nt course.

* * *

I wholeheartedly

sub scrib e to the se

ntiments e

xpressed i n the concurri ng o pinion about the Fourth Amendment’s place

among o ur most pri z ed freedoms. See Conc. Op. at 1, 5. But

sentiment s do not deci de case s; facts a nd the law

do. Ther e is

no dispute h ere on the law: if the officers had proba ble cause, they did not need a

warran t; if they did not have proba

ble cause,

no warrant wou ld iss ue in any eve nt. As for the facts, the

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

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 amoun t to probable cause to search the trunk.” Memorandum Order, at 5. Right or wrong, nothing about that de t ermination reflected

ins ensitivity

to constitutional values, any more than a contrary

determination would

have reflected

insensitivity to the needs of

law enfo rcemen t.

I re spectfu lly d

issent.