Kelly v. State

JAMES R. EYLER (Retired, specially assigned), J. This is an appeal by Wesley Torrance Kelly, appellant, from convictions in the Circuit Court for Howard County and the Circuit Court for Anne Arundel County. The cases were consolidated on appeal. In Anne Arundel County, the court convicted appellant of burglary in the second degree, committed on April 12, 2010, ²²⁰ and sentenced him to ten-years’ imprisonment. In Howard County, a jury convicted appellant of theft, committed on April 5, 2010, and the court sentenced him to ten-years’ imprisonment.

In both cases, appellant contends the courts erred in denying his motions to suppress evidence allegedly obtained as a result of a Global Positioning System (GPS) device placed on his vehicle on April 2, 2010, by police officers without a warrant. On January 23, 2012, the Supreme Court decided United States v. Jones, — U.S. —, 132 S.Ct. 945 , 181 L.Ed.2d 911 (2012), holding that placement of a GPS device on a vehicle located on a public thoroughfare constitutes a search. Jones applies to the cases before us; nevertheless, based on the good faith exception to the exclusionary rule, we shall affirm the judgments. Factual and Procedural Background On December 1, 2010, appellant was convicted in Anne Arundel County.

On January 4, 2011, appellant was convicted in Howard County. After appeal and briefing in this Court, the parties requested that the cases be stayed pending the Supreme Court’s decision in Jones . This Court granted the request. After the Supreme Court’s decision was issued on January 23, 2012, the parties filed new briefs.

The issue in both cases is the denial of a motion to suppress evidence. Consequently, the material evidence is that introduced at the hearings on the motions to suppress. In summary, a series of commercial burglaries occurred in Howard County on February 22, 2010, February 24, 2010, March 2, 2010, March 29, 2010, April 5, 2010, and in Anne Arundel County on April 12, 2010. Howard County police officers began investigating the incidents on February 22, 2010.

The first burglary was of a dental office from which, inter alia, a signed blank bank check was taken. On February 27, 2010, the check was cashed, with the name of a payee, Nicole Cromwell, and an amount having been added. After reviewing surveillance tape at the bank where the check was ²²¹ cashed, police officers identified Ms. Cromwell through a computer check. Police officers also learned from the tape that Ms. Cromwell had been dropped off at the bank by a green Chevrolet Trailblazer.

On March 5, 2010, officers obtained an arrest warrant for Ms. Cromwell. On March 9, officers arrested Ms. Cromwell. She cooperated and identified a person named “Tony” as the person who gave her the check. She also provided a residence address for Tony, an apartment at 3706 W. Saratoga Street.

Police officers conducted surveillance of that residence, noted the presence of the Trailblazer, conducted a computer check of the Trailblazer, and determined it was owned by appellant. Police officers obtained a photograph of appellant and showed it to Ms. Cromwell, who identified appellant as Tony, the person who gave her the check. Subsequently, on April 2, 2010, police officers placed a GPS tracking device on the exterior of appellant’s Trailblazer. The device was on the vehicle from April 2 through April 12.

The device tracked and recorded movement of the vehicle, producing six hundred pages of data. Police officers did not monitor the device at all times but used it to locate appellant on at least three occasions. Based on the information obtained prior to placement of the device and additional information obtained after placement of the device, police officers, on April 12, 2010, obtained search warrants for appellant’s Trailblazer, two residences, and three pawn shops. A search of those locations produced incriminating evidence.

A more detailed recitation follows. Anne Arundel County Suppression Hearing On October 15, 2010, the Anne Arundel County circuit court held a hearing. Sergeant Duane Pierce, a detective with the Howard County Police Department, testified that, sometime prior to April 2, 2010, he became involved in the surveillance of appellant because appellant was a suspect in commercial burglaries. Sergeant Pierce determined that appellant lived at 1118 Harwall Road in Gwynn Oak.

On April 2, 2010, Sergeant Pierce attached, with a magnet, a GPS device to the ²²² exterior of appellant’s vehicle. At that time, the vehicle was located on a public street, parked near appellant’s residence. Sergeant Pierce stated the device was basically “an ordinary cell phone” with GPS and cellular components. In addition to monitoring the signal from the GPS device, officers conducted visual surveillance of appellant’s vehicle at various times, the first being on April 5.

On April 12, Sergeant Pierce was monitoring the GPS device, and he was alerted that appellant’s vehicle was moving. Sergeant Pierce directed units to the location of the vehicle as revealed by the device, which was the Chesapeake Square Shopping Center, on Ritchie Highway, south of the Interstate 695 Beltway. Corporal David Abuelhawa, a detective with the Howard County Police Department, testified that he was involved in visual surveillance of appellant’s vehicle on April 5, 6, and 12. On April 12, after being alerted by Sergeant Pierce, Corporal Abuelhawa responded to the location of appellant’s vehicle at Chesapeake Square Shopping Center.

After observing appellant’s vehicle parked in front of a clothing store, Corporal Abuelhawa called for back up. Corporal Abuelhawa observed appellant kick the glass out of the front door to the store, enter the store, and exit with a bag full of clothing. Appellant placed the bag in his vehicle. When a police officer approached appellant, appellant fled the scene.

Detective Matthew Mergenthaler, a detective with the Howard County Police Department, testified that on April 12, he obtained a search warrant for appellant’s vehicle. The documents relating to the warrant were admitted into evidence. Detective Mergenthaler included the following information in the affidavit in support of the request for a warrant. Detective Mergenthaler was assigned to investigate a series of commercial burglaries of medical offices and computer stores that had occurred from February 22, 2010 through April 5, 2010 in Howard County.

The burglary on February 22 was of a dental office. Among other things, a signed blank bank check was reported missing. Detective Mergenthaler determined that the stolen check had ²²³ been made payable to Nicole Cromwell and cashed. A review of the bank’s surveillance footage from the time of the transaction revealed a white female matching the description of Nicole Cromwell, as determined from a computer check with the Maryland Motor Vehicle Administration.

The surveillance footage also revealed that the female had been dropped off by someone driving a green Trailblazer. On March 5, 2010, Detective Mergenthaler obtained an arrest warrant for Nicole Cromwell and, on March 9, arrested her. Ms. Cromwell stated that she had obtained the check from someone named “Tony” who drove the Trailblazer depicted in the surveillance tape and who resided at 3706 W. Saratoga Street. Detectives conducted surveillance of the residence and determined that the Trailblazer described by Ms. Cromwell was registered to appellant.

They obtained a photo of appellant and showed it to Ms. Cromwell who identified him as Tony. With respect to the April 5 burglary, when police officers arrived at the scene of the burglary, they noticed a Trailblazer in the area that matched, by appearance, appellant’s vehicle. The scene of the burglary was a computer warehouse from which computer equipment had been taken. Shortly after the burglary, detectives located appellant, observed a printer manual on the front seat of his vehicle, and observed appellant place what appeared to be a computer monitor in a box.

Detectives followed appellant while he visited three different trading stores or pawn shops, and in each instance, he entered with boxes and returned to his vehicle with boxes. They followed appellant to a residence at 3706 W. Saratoga Street, which he entered carrying boxes. On April 12, while conducting visual surveillance of appellant in his Trailblazer, they followed him to a location on Ritchie Highway, the Chesapeake Square Shopping Center. The detectives observed appellant smash a window in a place of business, enter the business, and return with clothing.

When approached, appellant fled in his vehicle. The detec ²²⁴ tives pursued him. Appellant “bailed out” at some point, and the detectives recovered appellant’s vehicle. Defense counsel argued that all of the evidence had been obtained as a result of the illegal placement of the GPS device and should be suppressed.

The court denied the motion. Anne Arundel County Trial Appellant and the State entered into a plea agreement. Appellant pled not guilty on an agreed statement of facts to burglary in the second degree in exchange for a nolle pros in another case and a sentence not to exceed ten years to run concurrently with any other sentence. The agreed facts were as follows.

That on April 12, 2010 beginning at approximately 4 a.m. detectives from the Howard County Police Department ROU [Repeat Offender] Unit as well as Property Crimes Section began surveillance of the Defendant with the aid of a GPS system attached to the Defendant’s car. They also began visual surveillance of the Defendant. They followed the Defendant into Anne Arundel County and the Defendant proceeded to the Casual Male store which was at 6710 Governor Ritchie Highway Number G in Glen Burnie, Anne Arundel County, Maryland. That store is the property of Casual Male Retail Group, LLC.

At that time the detective set up surveillance and watched the Defendant from covert locations and at that point Detective Abuelhawa of the Howard County Police got out of his car and then proceeded to the Defendant’s location on foot. The Defendant’s car was parked in front of the Casual Male store with the hatch up. He was driving a Chevrolet Trail Blazer blue—sorry—green in color. The Defendant was seen by Detective Abuelhawa [to] go into the back of his truck and retrieve a plastic bag.

He then took that plastic bag over to the front of the store where Detective Abuelhawa observed that the glass window of the side of [the] front door had been smashed. The Defendant further smashed the glass using the plastic bag ²²⁵ to cover his hand and then proceeded inside of the store ■without permission of owners or the manager, Andrew Zabka. The Defendant went into the Casual Male, he then proceeded to load the plastic bag with several items of clothing, then left the store, went to this truck, and then put the bag of clothing inside of his truck. At that point the Defendant had also dropped some of the items that he had taken from the store.

Detective Abuelhawa identified himself as a police officer. The Defendant made eye contact with the detective [who] recognized the Defendant as Wesley Torrence Kelly who is seated at defense table next to counsel in blue. He recognized him from prior surveillance. He watched as the Defendant jumped into his vehicle and fled.

The defendant led the police officers on a high speed chase. At some point Anne Arundel County got involved in the chase, and in fact at some point they lost sight of the Defendant. They knew that at some point the Defendant made a stop, I believe it was at Powder Mill Lane—Wesley Lane and Powder Mill Road. The Defendant proceeded into Baltimore City where he bailed out of the car and left the car.

Detective Laffin of the Howard County Police actually recovered the car, secured it, and police towed it back to Howard County where they did in fact search the car and found a shirt belonging to the Casual Male with the tag still attached. They also found along the trail, the route the Defendant took, clothes belonging to the Casual Male store. Mr. Zabka would have testified the Defendant did not have permission to go into the store, nor was he an employee, he did not have permission to remove any of the clothing items that belonged to Casual Male. Howard County Suppression Hearing On November 19, 2010, Howard County held a hearing on appellant’s motion to suppress.

The court admitted into evi ²²⁶ dence the six search warrants obtained by Detective Mergenthaler on April 13, including the applications for warrants. In addition to appellant’s vehicle, the warrants were directed at the apartment at 3706 W. Saratoga Street, the Gold Trading Center, Shine Corner, the Edmondson Village Center Pawn Shop 1 and the residence at 1118 Harwall Road. The applications for warrants directed at residences and businesses contained essentially the same information as that contained in the application for a search warrant for appellant’s vehicle. Defense counsel argued that all evidence was obtained as a result of the illegal placement of the GPS unit and should be suppressed.

After Sergeant Pierce and Detective Mergenthaler testified, the parties supplemented the evidence with a proffer of relevant facts. We reproduce appellant’s summary of the testimony and proffer, as set forth in his brief, deleting transcript references. The State proffered that a GPS tracker was placed on Mr. Kelly’s vehicle on a public street outside his residence at 1118 Harwall Road in Woodlawn in Baltimore County. The GPS unit was installed on April 2, 2010 at the request of property detectives who had been investigating a burglary that had occurred earlier in the year in Howard County and suspected Mr. Kelly’s involvement.

The tracker was programmed such that Howard County police would be notified if and when Mr. Kelly’s vehicle, a green 2004 Chevrolet Trailblazer, came within a perimeter of Howard County. On April 5, 2010, shortly after 4:00 a.m., the GPS tracker notified Sergeant Pierce that Mr. Kelly’s vehicle was approaching Howard County. He obtained a location and sent Detective Laffin to Riverwood Drive and Old Columbia Road in Howard County. As Detective Laffin drove towards the area, he observed a vehicle matching the descrip ²²⁷ tion of Mr. Kelly’s, but was not able to see who was driving the vehicle.

Laffin continued to 7125 Riverwood Road after Sergeant Pierce informed him that the vehicle in question had stopped at that location. Laffin found a door at the Advanced Programs, Inc. (“API”) building at 7125 River-wood Drive to be unsecured and observed pry marks and damage to the strike plate. Meanwhile, the alarm company monitoring the business alerted police to an alarm at that location. Detective Mergenthaler met with an API employee who informed him that there were items in brown cardboard boxes that had been stolen from the warehouse.

Specifically, two Hewlett Packard printer models, two API computer monitors and four API boxes containing computer hard drives, keyboards, and computer mice had been taken. Mergenthaler obtained serial numbers for the missing equipment. After determining that a burglary had occurred at API, officers again utilized the GPS tracker to locate Mr. Kelly’s vehicle at 8:30 a.m. at the Carroll Manor Elementary School in Adamstown. Detectives Luckey and Laffin responded to the area and observed the vehicle parked in the parking lot of the school which was under construction.

At 10:30 a.m., the officers went onto the construction site to look inside of the vehicle. Detective Luckey saw several large boxes in the back of the vehicle and a Hewlett Packard printer manual located in the front passenger seat. They left the site and continued their surveillance and Detective Luckey observed a man matching Mr. Kelly’s description enter the vehicle, open the rear door, and place a computer monitor in one of the boxes. He remained in the car for 20 minutes then returned to the construction site.

Mr. Kelly left in the vehicle at approximately 2:30 p.m. and he was followed by the detectives. They followed him to his residence at 1118 Harwall Road in Gwynn Oak, Maryland. He entered the house, then left shortly thereafter. He drove to another residence at 3706 West Saratoga Street, entered and exited with two computer boxes that he placed in his truck.

Mr. Kelly was then followed to the ²²⁸ Gold Center Pawn Shop at 2022 Dennison Street in Baltimore. He removed a large box from the rear of the vehicle and entered the pawn shop. He returned and retrieved another object and reentered the shop. He then exited the pawn shop at 4:21 p.m. carrying a small box and returned to his vehicle.

He then drove to the Shine Corner, Inc. pawn shop at 26 Hilton Street in Baltimore. He entered the pawn shop with three large computer boxes, then exited about ten minutes later and drove back to the residence at 3706 West Saratoga Street. At 5:06 p.m. Mr. Kelly was observed carrying two large Hewlett Packard boxes and two other smaller boxes up to the residence.

At 5:10 p.m., Mr. Kelly was observed entering the vehicle and driving to the Edmondson Village Pawn Shop in Baltimore. He entered carrying paperwork, and exited about five minutes later. He returned to the Harwall Road residence and went inside. On April 6, 2010, surveillance was resumed when Detective Pierce received a notification from the GPS unit indicating that the vehicle was moving.

Officers found the vehicle at the Westview Promenade Center in Frederick, parked to the rear of the shopping center behind several closed businesses. Detective Laffin observed a black male, matching Mr. Kelly’s description walking from the direction of the Verizon Wireless and White House Black Market stores before the suspect saw Laffin and returned to his vehicle and left the area. He proceeded to a commercial business park on Pegasus Court in Frederick and was observed driving and stopping in front of several closed businesses. He exited the vehicle briefly then walked back and drove to the construction site at Carroll Manor Elementary School.

Officers found evidence of two attempted break-ins at the business park. On April 12, 2010, at approximately 4:00 a.m., Detective Pierce received an alert from the GPS tracking unit that the vehicle was in motion and thereafter notified surveillance units to follow the vehicle. Sergeant Pierce notified officers that the vehicle was on Interstate 695 headed towards Glen ²²⁹ Burnie. At 4:35 a.m., Sergeant Pierce notified the responding officers that the vehicle was parked in the parking lot of the Chesapeake Square Shopping Center.

Officers arrived to find the vehicle backed into a parking spot in front of the Casual Male clothing store at 6710 Ritchie Highway in Glen Burnie. One of the detectives noticed that the front door of the business had been smashed out and observed the suspect enter the store with an empty plastic bag and exit the store with a full bag of clothing. Officers then approached the vehicle and the suspect quickly entered the vehicle and exited the parking lot at a high rate of speed. The suspect led officers on a high speed chase and eventually eluded them.

Sergeant Pierce utilized the GPS tracker to locate the vehicle parked in the alley between Wesley Avenue and Bellview avenue. The driver had fled the scene prior to the officers’s arrival and the vehicle was towed to the Howard County Police Department Northern District. At 6:15 a.m., officers set up surveillance at both the 1118 Harwall Road residence in Gwynn Oak and the 3706 West Saratoga Street residence in Baltimore. Search and seizure warrants were prepared for both locations and for the vehicle as well as the pawn shops visited by Mr. Kelly.

Mr. Kelly was taken into custody at 2:00 p.m. after leaving 3706 West Saratoga Street. Sergeant Duane Pierce of the Howard County Police Department testified that he installed a GPS tracking device on Appellant’s Chevrolet Trailblazer on April 2, 2010. According to Sergeant Pierce, the GPS device used, like most modern cellular phones, had a cell phone component and a GPS component and both were used to determine the location of the target vehicle at any given time. The device transmitted information, “just like a cell phone would.” The self-powered device was installed on the exterior of the vehicle using magnets.

Sergeant Pierce crawled underneath the vehicle and attached the device to the frame of the car. At the time of the installation, the car was parked ²³⁰ at 1118 Harwall Road in Gwynn Oak, Maryland, across the street from Appellant’s residence. It was stationed in a public parking spot on the street. The GPS device was programmed to continuously track and record the location of the vehicle and immediately began to do so upon installation.

Officers had the option of reviewing the location data at a later time and could also initiate “real time” tracking, which allowed them to track the vehicle as it moved. Sergeant Pierce programmed the device to alert him whenever Appellant’s vehicle approached the Howard County line. According to Sergeant Pierce, there were three methods of retrieving data from the GPS device: 1) connecting it to a computer after detachment from the vehicle, 2) obtaining the recorded information wirelessly while the device was still attached to the vehicle, and 3) “live tracking.” Sergeant Pierce could not recall whether “live tracking” was used between April 6th and April 12th, nor did he know whether the archived information in the GPS device was later used in the investigation. On April 5th, 2010, at approximately 4:00 a.m., Sergeant Pierce received a notification from the tracker that the vehicle had entered Howard County and at that point he notified other officers to respond to the Columbia area of Riverwood Drive and Old Columbia Road.

Detective Laffin responded to the area, and observed the vehicle driving through parking lots slowly making short stops. Laffin then proceeded to check the buildings in the area. Later that day it became known that a burglary had occurred at 7125 Riverwood Drive, in the area in question. Detective Matthew Mergenthaler responded to 7125 Riverwood Drive on April 5, 2010 and met with a business representative of Advanced Programs, Inc. He learned that items had been taken from the business early that morning and obtained search and seizure warrants in an attempt to locate the missing items.

The warrants were executed on April 13th, 2010 at different pawn shops and some items were recovered. ²³¹ At approximately 8:30 a.m. on April 5, 2010, the GPS device was again utilized to locate the vehicle at Carroll Manor Elementary School in Adamstown. Detectives Laffin and Luckey were directed to respond to that area. Once the detectives responded, they found the vehicle and conducted surveillance throughout the day. Sergeant Pierce used the “live tracking” option on the GPS periodically throughout the day as needed in conjunction with the surveillance by the other detectives.

Sergeant Pierce testified that based on previous patterns, he was requested to do more mobile surveillance and change the parameters utilized in locating the vehicle. At around 4:00 a.m. on April 12, 2010, Detective Pierce received an alert through his phone that the Appellant’s vehicle was moving and he initiated “live tracking.” He then directed police surveillance members to the location of the vehicle which was parked at the 6700 block of Ritchie Highway in Glen Burnie. The officers responded and found the vehicle. A chase ensued later that day and Sergeant Pierce assisted with the pursuit by tracking the vehicle and advising officers of its location.

The vehicle was eventually found unoccupied in Baltimore City and was towed back to the Northern District where the GPS tracker was removed on April 12. Relying on this Court’s decision in Stone v. State, 178 Md.App. 428 , 941 A.2d 1238 (2008), discussed later in this opinion, the court denied the motion to suppress all evidence. Howard County Trial At trial, the police officers testified to their investigation and observations but did not mention GPS tracking. Arguments Relying heavily on Jones, supra, appellant argues that placement of the GPS device was a search because it constituted a physical trespass to chattel and violated his reasonable expectation of privacy.

Acknowledging that the Supreme Court, in Jones , did not reach the question of reasonableness, ²³² appellant argues that a warrantless search is per se unreasonable, unless it fits within a recognized exception, none of which are applicable in these cases. Appellant adds that the State has waived any reasonableness argument because it was the State’s burden to establish reasonableness, and it failed to do so in circuit court. Appellant also argues that the good faith exception to application of the exclusionary rule, as enunciated in Davis v. United States, — U.S. —, 131 S.Ct. 2419 , 180 L.Ed.2d 285 (2011), does not apply because there was no “binding appellate precedent” in Maryland, at the time of placement of the tracking device, holding that such action was legal. Appellant explains that this Court’s decision in Stone, supra, relied on by the circuit court, is distinguishable and, in light of Jones , based on faulty reasoning.

Thus, it was not binding appellate precedent within the meaning of Davis . The State, impliedly conceding that placement of the GPS device was a search, argues that appellant failed to argue that the search was unreasonable, and thus, he waived that argument. The State also argues that the facts in these cases are very different from those in Jones , and the search in these cases was reasonable. Belying on Davis and Stone , the State argues that, in any event, the officers acted in good faith based on established precedent.

Next, the State argues that all of the evidence was seized pursuant to search warrants, and thus, the independent source doctrine applies. Pursuant to that doctrine, the State argues the “tainted” information in the applications for warrants should be excised, and the untainted information assessed to determine if it constituted probable cause. The State concludes that the untainted information was sufficient to constitute probable cause. Finally, the State argues that appellant’s commission of a new crime on April 12, in the presence of police officers, purged the taint from any unlawful search.

With respect to the independent source and intervening crime arguments, appellant responds that they were not raised in circuit court and, thus, cannot be raised on appeal. ²³³ In any event, according to appellant, all of the evidence was obtained as a result of placement of the GPS device and was tainted. Discussion Pre-United States v. Jones In the context of police use of electronic tracking devices, we begin with Katz v. United States, 389 U.S. 347 , 88 S.Ct. 507 , 19 L.Ed.2d 576 (1967). In that case, the defendant was convicted of transmitting wagering information by telephone, in violation of a federal statute. The government introduced evidence of a telephone conversation by defendant which had been obtained by virtue of a listening device attached to the outside of a public telephone booth.

The majority, recognizing the absence of a physical trespass, and recognizing that the government had probable cause to obtain a warrant, id. at 354 , 88 S.Ct. 507 , concluded that placing the device without a warrant was an unreasonable search and seizure. Id. at 353 , 88 S.Ct. 507 . The basis for the conclusion was that the government’s action violated what has come to be known as a reasonable expectation of privacy. In United States v. Knotts, 460 U.S. 276 , 103 S.Ct. 1081 , 75 L.Ed.2d 55 (1983), police officers had information that the defendant was purchasing chloroform to use in an illicit drug operation.

With the consent of the seller, the officers placed a beeper in a drum of chloroform which was then sold to the defendant. After the drum was placed in the defendant’s vehicle, the officers followed the vehicle through a combination of tracking the beeper signal and visual surveillance. They tracked the defendant to a cabin in a secluded area. After three days of visual surveillance, the officers obtained a search warrant for the cabin and found a drug laboratory.

Id. at 277 , 103 S.Ct. 1081 . A majority of the Court held that the application for warrant, based in part on information obtained via the beeper, was not constitutionally infirm. Applying the Katz analysis, the Court explained that a person traveling on a public ²³⁴ highway in a vehicle has no reasonable expectation of privacy in the person’s movements from one location to another. Id. at 281, 103 S.Ct. 1081 .

The Court further explained that the Constitution did not prevent the officers from augmenting their natural senses with technology, id. at 282 , 103 S.Ct. 1081 , and that the beeper simply was a more effective method of observing what was already public. Id. at 284 , 103 S.Ct. 1081 . Before turning our attention to Maryland cases, we expound on Davis, supra. In that case, police officers conducted a traffic stop of a vehicle in which the defendant was a passenger.

The officers arrested the defendant for providing a false name and placed him in their vehicle. The officers then conducted a search incident to arrest of the vehicle, including the defendant’s jacket, where they found a firearm. After the defendant’s motion to suppress the firearm was denied, the defendant was convicted of unlawful possession of a firearm. The search occurred in Alabama, located in the Eleventh Circuit.

It was conducted in accordance with binding precedent in that circuit, i.e., United States v. Gonzalez, 71 F.3d 819, 822 (11th Cir.1996), which, applying New York v. Belton, 453 U.S. 454 , 101 S.Ct. 2860 , 69 L.Ed.2d 768 (1981), had held that a search of a passenger compartment in a motor vehicle incident to arrest of an occupant is lawful, even if the occupant is no longer in the vehicle at the time of the search. While the defendant’s appeal was pending, the Supreme Court decided Arizona v.