Purnell v. State

DAVIS, J. Appellant, James Davis Purnell, was tried and convicted in the Circuit Court for Baltimore County at a bench trial (Ballou-Watts, J.) for possession with intent to distribute cocaine and possession of marijuana. He was thereafter sentenced as a subsequent offender to a term of ten years imprisonment, without the possibility of parole, for possession with intent to distribute cocaine and to a concurrent sentence of one year imprisonment for possession of marijuana. From these convictions and sentences, appellant files this timely appeal, presenting the following issues for our review: I. Whether the trial court erred in denying appellant’s motion to suppress; and II. Whether the evidence was sufficient to sustain appellant’s conviction for possession with intent to distribute cocaine.

FACTUAL AND PROCEDURAL BACKGROUND At the hearing on appellant’s Motion to Suppress, the following testimony was elicited. On December 2, 2003, Police ⁵⁸⁶ Officer Jeffrey Peach, assigned to the Baltimore County K-9 unit, was sitting in marked Unit No. 1112 on Dartford Road in Baltimore County and, at approximately 2:45 p.m., observed a gold Honda Accord traveling down Dartford Road. The vehicle did not have a front license plate affixed to the front grill, but rather it was placed on the dash board within the vehicle. After following the car for three to five minutes, Officer Peach stopped the vehicle for the traffic violation.

Appellant, James D. Purnell, was the passenger in the front seat of the gold Honda driven by Lakisha Conyers. Officer Peach approached the vehicle and first met with the driver and advised her of the reason for the stop. Afterwards, Officer Peach requested her driver’s license and registration. Although the driver failed to produce identification, she provided her name and date of birth.

The officer also spoke to appellant and requested his driver’s license. Appellant retrieved his license from the pocket of a black coat that was on the rear seat behind him. The coat was within the reach of both the driver and the passenger. The officer returned to his police cruiser and had the dispatcher “run a routine driver’s license check of the driver.” The routine check revealed that Conyers’ license “was currently suspended.” Based upon the information retrieved and the driver’s failure to produce her identification, she was arrested and ordered into the police cruiser.

Upon securing the driver, the police officer returned to the Honda and asked appellant to exit the vehicle to allow him to conduct a search of the vehicle incident to an arrest. Appellant was then instructed to exit the vehicle. He sat down on the grassy area approximately fifteen feet from the Honda Accord. The officer searched the front and rear of the car, including the coat that appellant previously “retrieved his driver’s license from.” The officer discovered, inside the opposite pocket from where appellant retrieved his license, a “small recyclable grocery bag” that was “tied in a knot.” Inside the bag, Officer Peach found twelve individualized yellow baggies containing crack cocaine and three baggies of marijuana.

Appel ⁵⁸⁷ lant was then placed under arrest, advised of his Miranda 1 rights, and transported to the police precinct. While at the police precinct, appellant made a statement acknowledging ownership of the drugs. On December 13, 2004, alleging a violation of his Fourth Amendment rights under the United States Constitution, appellant moved to suppress evidence obtained by the police officer during the search of his coat and his statement made subsequent to the search. At the conclusion of the hearing on the motion to suppress, the circuit court issued its ruling, denying appellant’s motion: The State argues that this search was based on a search incident to arrest of the female driver who was properly arrested because she was driving on a suspended license.

The defense does not see that as the appropriate exception, particularly in light of Officer Peach’s acknowledgment that he knew that the jacket that was searched belonged to this defendant. The court finds, in looking at the totality of circumstances, first of all, I find that the arrest of the female passenger was a proper arrest, and therefore, the police had the authority, they had a right to search incident to arrest the passenger compartment of the Honda Accord. And this includes the black, puffy jacket that has been referred to. There was testimony that during Mister or Officer Peach’s direct that the jacket could be retrieved by either the passenger or the driver reaching back simply to access it on the back seat.

And while I am concerned about the fact that the driver was secured in the police cruiser at the time that the search was conducted, I think the case law is very clear that the police were entitled to conduct that search. And that search would include a search of the black jacket that has been mentioned several times. And so the court finds that the search was valid. ⁵⁸⁸ Immediately following the court’s ruling on the motion to suppress, appellant waived his right to a jury trial and agreed to proceed by way of a court trial. Appellant and the State stipulated to the officer’s suppression hearing testimony incorporated into the record and agreed to limit the scope of evidence to expert testimony on the issue of intent to distribute.

Defense counsel stated: There is no issue as to the facts, Your Honor. The only question that exists is whether the defendant’s possession was simple position [sic] or with intent. So I have no problem if we can agree on a statement of facts as to the entire case, except the one issue as to his intent and the possession. Detective Massoni can testify on that point, and the defendant can testify on that point and everything else is conceded or we can try it from scratch, either way.

The prosecutor replied: Your Honor, if your honor would be inclined to allow us to proceed in the following way: [w]e would have Officer Peach’s testimony from the motions incorporated into this trial, with a very brief addition to that. We’d submit a copy of the analysis, as well as the drugs themselves as State’s [Exhibits 1 and 2]— And then the State would call Detective Frank Massoni, who is not a factual witness, but purely in an expertise situation, to testify about possession with intent, obviously with cross-examination by counsel. Detective Frank Massoni of Baltimore County’s Community Drug and Violence Interdiction Team (CDVIT) unit was called by the State as an expert in the area of packaging, distribution and recognition of cocaine. The circuit court rejected appellant’s testimony in which he had explained that he bought drugs from “Pooky” and that the drugs were strictly for his personal use.

The court further stated that it “did not find the [appellant’s] testimony credible” and it was “satisfied [that] the State has met its burden beyond a reasonable doubt and I find the defendant guilty.” ⁵⁸⁹ After rejecting appellant’s explanation as to how the drugs came to be in his possession, the Circuit Court for Baltimore County issued its ruling: [T]he Court finds that the testimony of Detective Massoni was very helpful in evaluating the evidence in this case. The defendant had twelve bags of cocaine. They were packaged in a manner that is consistent with distribution. It is true that nothing was found in the vehicle, in the Honda Accord, such as some type of sheet, no scales were found, no other indicia of drug distribution, but then the vehicle did not belong to the defendant.

The defendant was catching a ride with this young lady who was a friend of his. I don’t know that I would necessarily expect those types of things to be found in a vehicle. Nothing was found that would be consistent with him simply being a user of crack cocaine. The twelve bags of crack cocaine were contained in individual twenty dollar bags, and those bags were contained in another bag.

In addition, as was pointed out during the State’s case, if the defendant were truly a user, it would have made more sense for him to buy an eighth of an ounce at a lesser amount. STANDARD OF REVIEW The standard which we must apply in our review of a challenge to the denial of a motion to suppress has been summarized by the Court of Appeals in State v. Collins, 367 Md. 700, 706-07 , 790 A.2d 660 (2002): Our review of a Circuit Court’s denial of a motion to suppress evidence under the Fourth Amendment is limited, ordinarily, to information contained in the record of the suppression hearing and not the record of the trial. See Ferris v. State, 355 Md. 356, 368 , 735 A.2d 491 (1999); In re Tariq A-R-Y, 347 Md. 484, 488 , 701 A.2d 691 (1997); Simpler v. State, 318 Md. 311, 312 , 568 A.2d 22 , (1990); Trusty v. State, 308 Md. 658, 670 , 521 A.2d 749 (1987). When there is a denial of a motion to suppress, we are further limited to considering facts in the light most favor ⁵⁹⁰ able to the State as the prevailing party on the motion.

Riddick v. State, 319 Md. 180, 183 , 571 A.2d 1239 (1990); Simpler, 318 Md. at 312 , 568 A.2d 22 . In considering the evidence presented at the suppression hearing, we extend great deference to the fact-finding of the suppression hearing judge with respect to the weighing and determining first-level facts. Lancaster v. State, 86 Md.App. 74, 95 , 585 A.2d 274 (1991); Perkins v. State, 83 Md.App. 341, 346 , 574 A.2d 356 (1990).... Even so, as to the ultimate conclusion of whether an action taken was proper, we must make our own independent constitutional appraisal by reviewing the law and applying it to the facts of the case.

Riddick, 319 Md. at 183 , 571 A.2d 1239 ; Munafo v. State, 105 Md.App. 662, 669 , 660 A.2d 1068 (1995). LEGAL ANALYSIS I Appellant, in his first assignment of error, posits in his brief: In this case, [appellant] was a passenger in a car that was stopped for a minor traffic violation. Ms. Conyers was arrested for driving on a suspended license, a crime that only one person can commit. It was only after Ms. Conyers was arrested and placed in the back of a police cruiser that [appellant] was ordered out of the car and a search of the passenger compartment was conducted.

During that search, Officer Peach picked up the coat, which he knew belonged to [appellant], a person who was not under arrest nor was suspected of being involved in any criminal wrongdoing, and opened up every pocket in order to examine its contents. Such a search clearly falls outside the scope of Belton. The search in this case was not required for the purpose of officer safety, nor was it necessary to prevent evidence of the crime from being destroyed. See [N.Y. v.] Belton, [ 453 U.S. 454 , 101 S.Ct. 2860 , 69 L.Ed.2d 768 (1981), Chimel [v. CA], 395 U.S. 752 , 89 S.Ct. 2034 , 23 L.Ed.2d 685 (1969)]. ⁵⁹¹ The only crime committed in this case was committed by Ms. Conyers when she drove on a suspended license and there was certainly no evidence in [appellant’s] coat pocket regarding that crime.

The Fourth Amendment to the United States Constitution provides: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. Judge Cathell, writing for the Court of Appeals, in the recent decision in Byndloss v. State, 391 Md. 462, 479-81 , 893 A.2d 1119 (2006), discussed the yardstick by which we measure whether the stopping of a motor vehicle violates Fourth Amendment strictures: The Fourth Amendment protects against unreasonable searches and seizures. See Whren v. United States, 517 U.S. 806, 809-10 , 116 S.Ct. 1769, 1772 , 135 L.Ed.2d 89 (1996); United States v. Mendenhall, 446 U.S. 544, 550-51 , 100 S.Ct. 1870, 1875 , 64 L.Ed.2d 497 , reh’g denied, 448 U.S. 908 , 100 S.Ct. 3051 , 65 L.Ed.2d 1138 (1980). It is evident that the stopping of a vehicle and the detention of its occupants is a seizure and thus implicates the Fourth Amendment.

See Whren, 517 U.S. at 809-10 , 116 S.Ct. at 1772 , 135 L.Ed.2d 89 ; United States v. Sharpe, 470 U.S. 675, 682 , 105 S.Ct. 1568, 1573 , 84 L.Ed.2d 605 (1985). “An automobile stop is thus subject to the constitutional imperative that it not be ‘unreasonable’ under the circumstances. As a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred.” Whren, 517 U.S. at 810 , 116 S.Ct. at 1772 , 135 L.Ed.2d 89 (citing Delaware v. Prouse, 440 U.S. 648, 653 , 99 S.Ct. 1391, 1395 , 59 L.Ed.2d 660 (1979); Pennsylvania v. Mimms, 434 U.S. 106, 109 , 98 S.Ct. 330, 332 , 54 L.Ed.2d 331 (1977) (per curiam)). How ⁵⁹² ever, the detention of a person “must be temporary and last no longer than is necessary to effectuate the purpose of the stop.” Florida v. Royer, 460 U.S. 491, 500 , 103 S.Ct. 1319, 1325 , 75 L.Ed.2d 229 (1983) (plurality opinion). We stated in Wilkes v. State, 364 Md. 554 , 774 A.2d 420 (2001): In determining whether there has been a violation of the Fourth Amendment right against unreasonable searches and seizures, the Supreme Court has stated: The touchstone of our analysis under the Fourth Amendment is always “the reasonableness in all the circumstances of the particular governmental invasion of a citizen’s personal security.” Terry v. Ohio, 392 U.S. 1, 19 , 88 S.Ct. 1868, 1878 , 20 L.Ed.2d 889 (1968).

Reasonableness, of course, depends “on a balance between the public interest and the individual’s right to personal security free from arbitrary interference by law officers.” United States v. Brignoni-Ponce, 422 U.S. 873, 878 , 95 S.Ct. 2574 , 45 L.Ed.2d 607 (1975). Pennsylvania v. Mimms, 434 U.S. 106, 108-09 , 98 S.Ct. 330, 332 , 54 L.Ed.2d 331 (1977); see also Ohio v. Robinette, 519 U.S. 33, 39 , 117 S.Ct. 417, 421 , 136 L.Ed.2d 347 (1996); Stokes [v. State ], 362 Md. [407,] 412-13 n. 7, 765 A.2d [612,] 615 n. 7 [ (2001) ]. There are certain basic premises upon which the Fourth Amendment analysis is grounded. In determining whether there has been a violation of the Fourth Amendment right against unreasonable searches and seizures, the touchstone of our analysis under the Fourth Amendment is always “the reasonableness in all the circumstances of the particular governmental invasion of a citizen’s personal security.” Wilkes, swpra; Terry, supra.

Reasonableness, of course, depends “on a balance between the public interest and the individual’s right to personal security free from arbitrary interference by law officers.” Brignoni-Ponce, 422 U.S. at 878 , 95 S.Ct. 2574 ; Mimms, 434 U.S. at 108-09 , 98 S.Ct. 330 ; see also Robinette, 519 U.S. at 39 , 117 S.Ct. 417 ; Stokes, 362 ⁵⁹³ Md. at 412-13 n. 7, 765 A.2d 612 ; Wilkes, 364 Md. at 571, 774 A.2d 420 . In Belton, 453 U.S. at 455-56 , 101 S.Ct. 2860 , the Supreme Court granted certiorari to consider whether the recovery of cocaine from the pocket of a leather jacket belonging to an occupant of a vehicle which had been stopped for traveling at an excessive rate of speed on the New York Thruway comported with Fourth Amendment strictures. It was discovered that none of the four occupants owned the vehicle or was related to its owner when the driver was asked for his license and registration. Because the policeman had smelled burnt marijuana and had seen on the floor of the car an envelope marked “Supergold,” which he associated with marijuana, he directed the men to get out the car and placed them under arrest for the unlawful possession of marijuana.

The officer then picked up the envelope marked “Supergold” and found that it contained marijuana, after which he gave the four men the warnings required by Miranda, supra, he then searched each one of them. Significantly, the jacket had been on the back seat of the vehicle at a time when the four men had been placed under arrest and ordered out of the car. The Supreme Court held that (1) when a policeman has made a lawful custodial arrest of the oecupant[s] of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of the vehicle and may also examine the contents of any container found within the passenger compartment and such “container”, i.e., an object capable of holding another object, may be searched whether it is open or closed, and (2) where defendant, an automobile occupant, was subject of lawful custodial arrest on charge of possessing marijuana, search of defendant’s jacket, which was found inside passenger compartment immediately following arrest, was incident to lawful custodial arrest, notwithstanding that officer unzipped pockets and discovered cocaine. Id. at 460, 86 S.Ct. 1602 (emphasis added).

Appellant, in an attempt to distinguish Belton from the case, sub judice, posits the following: ⁵⁹⁴ In Belton, all of the occupants of an automobile were arrested after the car they were driving in was stopped for a traffic violation. 453 U.S. at 455 , 101 S.Ct. 2860 . During the stop, the officer discovered that none of the occupants owned the vehicle or were related to the owner. Id. More importantly, the officer smelled burnt marijuaná and saw an envelope containing what he believed to be marijuana on the floor of the car.

Id. at 455-56 , 101 S.Ct. 2860 . All of the occupants were then ordered out of the car and arrested for possession of marijuana. Id. It was only then that a search of a passenger compartment of the car was conducted.

Id. During that search, the officer found cocaine inside the pocket of a jacket that belonged to Belton. Appellant further argues that Belton may be distinguished because the Belton decision addresses “an occupant of an automobile.” In Thornton v. U.S., 541 U.S. 615, 617-18 , 124 S.Ct. 2127, 2129 , 158 L.Ed.2d 905 (2004), the Supreme Court granted certiorari to determine whether Belton’s rule is limited to situations where the officer makes contact with the occupant while the occupant is inside the vehicle or whether it applies as well when the officer first makes contact with the arrestee after the latter has stepped out of his vehicle. In deciding the question, the Court concluded that Belton governs even when an officer does not make contact until the person arrested has left the vehicle.

Petitioner Marcus Thornton was first noticed by Officer Deion Nichols of the Norfolk, Virginia, Police Department, who was in uniform but driving an unmarked police car, when he slowed down so as to avoid driving next to the officer. After discovering from a computer check of petitioner’s license tags, which revealed that the tags had been issued to a 1982 Chevy two-door and not to a Lincoln Towne Car, the model of car petitioner was driving, Thornton drove into a parking lot, parked, and got out of the vehicle before the officer had an opportunity to pull him over. The officer pulled in behind him, parked the patrol car and accosted Thornton, asking him ⁵⁹⁵ for his driver’s license. He also told him that his license tags did not match the vehicle that he was driving.

Upon questioning by the officer, Thornton admitted that he had drugs on him and reached into his pocket and pulled out two individual bags, one containing three bags of marihuana and the other containing a large amount of crack cocaine. Also recovered from under the driver’s seat was a BryCo 9-millimeter handgun. Id. at 617-18 , 124 S.Ct. at 2129 . The Court ultimately held: In all relevant aspects, the arrest of a suspect who is next to a vehicle presents identical concerns regarding officer safety and the destruction of evidence as the arrest of one who is inside the vehicle.

An officer may search a suspect’s vehicle under Belton only if the suspect is arrested. See Knowles [v. Iowa, 525 U.S. 113 ,] 117-18, 119 S.Ct. 484 , 142 L.Ed.2d 492 . A custodial arrest is fluid and “[t]he danger to the police officer flows from the fact of the arrest, and its attendant proximity, stress, and uncertainty,” [U.S. v. Robinson, 414 U.S. 218 , 234-235 n. 5, 94 S.Ct. 467 , 38 L.Ed.2d 427 (1973)] (emphasis added). See Washington v. Chrisman, 455 U.S. 1, 7 , 102 S.Ct. 812 , 70 L.Ed.2d 778 (1982) (“Every arrest must be presumed to present a risk of danger to the arresting officer”).

The stress is no less merely because the arrestee exited his car before the officer initiated contact, nor is an arrestee less likely to attempt to lunge for a weapon or to destroy evidence if he is outside of, but still in control of, the vehicle. In either case, the officer faces a highly volatile situation. It would make little sense to apply two different rules to what is, at bottom, the same situation. In some circumstances it may be safer and more effective for officers to conceal their presence from a suspect until he has left his vehicle.

Certainly that is a judgment officers should be free to make. But under the strictures of petitioner’s proposed “contact initiation” rule, officers who do so would be unable to search the car’s passenger compartment in the event of a custodial arrest, potentially compromising their safety and placing incriminating evidence at risk of ⁵⁹⁶ concealment or destruction. The Fourth Amendment does not require such a gamble. Petitioner argues, however, that Belton will fail to provide a “bright-line” rule if it applies to more than vehicle “occupants. ” Brief for Petitioner 29-34.

But Belton allows police to search the passenger compartment of a vehicle incident to a lawful custodial arrest of both “occupants” and “recent occupants.” 453 U.S. at 460 , 101 S.Ct. 2860 , 69 L.Ed.2d 768 . Indeed, the respondent in Belton was not inside the car at the time of the arrest and search; he was standing on the highway. In any event, while an arrestee’s status as a “recent occupant” may turn on his temporal or spatial relationship to the car at the time of the arrest and search, it certainly does not turn on whether he was inside or outside the car at the moment that the officer first initiated contact with him. Id. at 621-22, 124 S.Ct. 2127 (emphasis added).

Ultimately, appellant, in arguing that the search of his jacket “clearly falls outside the scope of Belton,” relies on the facts that: (1) he was not under arrest nor suspected of being involved in any criminal wrongdoing prior to the search of his coat (2) the search was not required for the purpose of officer safety; and (3) the search was unnecessary to prevent evidence of the crime from being destroyed. The State, initially acknowledging that “there does not appear to be a Maryland case directly on point,” nevertheless argues that “a number of jurisdictions have squarely addressed this issue,” and directs us to several decisions from sister jurisdictions. The California Supreme Court, in People v. Mitchell, 36 Cal.App.4th 672 , 42 Cal.Rptr.2d 537 (1995), in discussing whether the Fourth Amendment is implicated as to so-called “third parties,” opined: “[T]hird-party ownership of the auto or ‘containers’ therein would not necessarily prevent the arrestee from gaining access to those items. It should not, therefore, bar the police from searching them in the same manner as if they were owned by the arrestee.

The Supreme Court has ⁵⁹⁷ observed that the justification for this type of search is ‘not that the arrestee has no privacy interest in the container, but that the lawful custodial arrest justifies the infringement of any privacy interest the arrestee may have.’ Belton, supra, 453 U.S. at 461 , 101 S.Ct. at 2864 . So too, we think that the arrest justifies the reasonable infringement on any privacy interest that another passenger in the automobile may have in that container.'” Staten v. U.S., [ 562 A.2d 90, 92 (1989)] We agree and note such a conclusion is consistent with the Supreme Court’s goal in Belton to create a bright-line rule: “In short, ‘[a] single familiar standard is essential to guide police officers, who have only limited time and expertise to reflect on and balance the social and individual interests involved in the specific circumstances they confront.’ [Citation.]” (Belton, supra, 453 U.S. at 458 , 101 S.Ct. at 2863 .) People v. Mitchell, 36 Cal.App.4th 672, 676 , 42 Cal.Rptr.2d 537, 539-40 (1995)(emphasis added). The Supreme Court of Colorado in People v. Kirk, 103 P.3d 918, 922 (2005), recently held that “a police officer may search the belongings of a passenger after the vehicle’s driver has been arrested if the items are in the vehicle when the search is made.” People v. McMillon, 892 P.2d 879, 883 (Colo.1995) (citing Belton, 453 U.S. 454 , 101 S.Ct. 2860 , 69 L.Ed.2d 768 and several subsequent state and federal cases). The Fifth District Court of Appeal of Florida reviewed a passenger’s claim, in State v. Lofbis, 568 So.2d 121, 122 (1990), where the officer discovered cannabis inside an open purse located on the front floorboard on the passenger side.

The Court concluded: According to the Supreme Court in Belton , “... when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.” Moreover, the officer may examine the contents of containers found within the passenger compartment which are considered to have been within reach of the ⁵⁹⁸ arrestee. Belton, 101 S.Ct. at 2864 . The Court pointed out that this holding was consistent with the requirement in Chimel v. California, 395 U.S. 752 , 89 S.Ct. 2034 , 23 L.Ed.2d 685 (1969), that the object searched be “within the arrestee’s immediate control.” Belton, 101 S.Ct. at 2865 . Belton established a bright-line test of what is in an automobile occupant’s immediate control: the entire passenger compartment of the automobile.

(Emphasis added). The Fourth District Appellate Court of Illinois, in its interpretation of the Belton decision, explained in People v. Morales, 343 Ill.App.3d 987 , 279 Ill.Dec. 183 , 799 N.E.2d 986, 990 (2003): [i]n so holding, the [Belton] Court reiterated that “a lawful custodial arrest creates a situation which justifies the contemporaneous search without a warrant of the person arrested and of the immediately surrounding area. Such searches have long been considered valid because of the need ‘to remove any weapons that [the arrestee] might seek to use in order to resist arrest or effect his escape’ and the need to prevent the concealment or destruction of evidence.” Belton, 453 U.S. at 457 , 101 S.Ct. at 2862 , 69 L.Ed.2d at 773 , quoting Chimel v. California, 395 U.S. 752, 763 , 89 S.Ct. 2034, 2040 , 23 L.Ed.2d 685, 694 (1969). Belton thus essentially held that the entire passenger compartment lies within the reach of the arrested occupant.

By so holding, Belton sought to provide a workable “bright-line” rule for police and thereby “avoid case-by-case evaluations of whether the arrestee’s area of control within the automobile extended to the precise place where the officer found the weapon or evidence.” People v. Stehman, 203 Ill.2d 26, 34 , 270 Ill.Dec. 426 , 783 N.E.2d 1, 5 (2002). The Belton Court also noted that “ ‘[a] custodial arrest of a suspect based on probable cause is a reasonable intrusion under the [fjourth [a]mendment; that intrusion being lawful, a search incident to the arrest requires no additional justification.’ ” Id. at 991 (citation omitted)(emphasis added). The Morales Court continued: ⁵⁹⁹ Although Houghton involved a vehicle search based on probable cause, courts have applied its reasoning, in conjunction with Belton , when faced with the issue now before us-namely, whether, upon the lawful arrest of the operator of a vehicle, a warrantless search incident to that arrest may properly extend to a container situated in the passenger compartment of the vehicle when that container belongs to a passenger who has not been arrested at the time of the search. See, e.g., State v. Tognotti, 663 N.W.2d 642, 648 (N.D.2003) (holding that incident to the valid arrest of a car’s occupant, the arresting officer could search the contents of a nonarrested occupant’s purse that was voluntarily left inside the car and citing relevant cases).

We agree with this analysis. Houghton well articulates the need for maintaining clear and workable rules for police searches, and we conclude that imposing a restriction on vehicle searches incident to arrest based on ownership of containers or other articles left inside the vehicle would “unnecessarily dim” Belton’s bright-line rule. Id. at 995-96 (citation omitted)(emphasis added). The Supreme Court of Nebraska, in an in-depth analysis of the rationale for permitting a search of items belonging to the passenger, reasoned, in State v. Ray, 260 Neb. 868 , 620 N.W.2d 83, 87-88 (2000): This case is factually distinguishable from Belton in that Ray, the owner of the property seized during the vehicle search, had not been arrested prior to the search.

Thus, the question presented is whether, upon the lawful arrest of the operator of a motor vehicle, a warrantless search incident to that arrest may properly extend to a container situated in the passenger compartment of the vehicle which belongs to a passenger who has not been arrested at the time of the search. In resolving this question in the affirmative, the Court of Appeals relied upon the reasoning of Wyoming v. Houghton, 526 U.S. 295 , 119 S.Ct. 1297 , 143 L.Ed.2d 408 (1999). In that case, an officer stopped a vehicle for speeding. While talking to the driver, the officer noticed a ⁶⁰⁰ hypodermic syringe in the driver’s shirt pocket, and upon inquiry, the driver replied that he used the syringe to take drugs.

The officer then ordered two female passengers out of the car. On the strength of the driver’s incriminating admission, the officer searched the passenger compartment of the car for contraband and in doing so, found a purse on the back seat belonging to Houghton, one of the passengers. The officer discovered methamphetamine and drug paraphernalia inside the purse. In addressing the validity of the search of the purse, the Supreme Court noted the uncontroverted fact that the officer had probable cause to believe there were illegal drugs in the car.

The Court noted its holding in United States v. Ross, 456 U.S. 798, 825 , 102 S.Ct. 2157 , 72 L.Ed.2d 572 (1982), wherein it determined that “[i]f probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search.” Recognizing that under the facts of Ross it was not claimed that the package searched belonged to anyone other than the driver, the Court nevertheless reasoned that “if the rule of law that Ross announced were limited to contents belonging to the driver, or contents other than those belonging to passengers, one would have expected that substantial limitation to be expressed.” Houghton, 526 U.S. at 301-02 , 119 S.Ct. 1297 , 143 L.Ed.2d 408 . The Court further reasoned that “[a] passenger’s personal belongings, just like the driver’s belongings or containers attached to the car like a glove compartment, are ‘in’ the car, and the officer has probable cause to search for contraband in the car.” (Emphasis in original.) 526 U.S. at 302 , 119 S.Ct. 1297 , 143 L.Ed.2d 408 . In addition, the Court held “[p]assengers, no less than drivers, possess a reduced expectation of privacy with regard to the property that they transport in cars... 526 U.S. at 303 , 119 S.Ct. 1297 , 143 L.Ed.2d 408 . The Court distinguished cases involving the search of a passenger’s person, which it found to hold a significantly heightened protection, from searches of a passenger’s belongings.

See United States v. Di Re, 332 U.S. 581 , 68 S.Ct. 222 , 92 L.Ed. 210 (1948). The Court also found that a ⁶⁰¹ “criminal might be able to hide contraband in a passenger’s belongings as readily as in other containers in the car.” Houghton, 526 U.S. at 305 , 119 S.Ct. 1297 , 143 L.Ed.2d 408 . (Emphasis added). Finally, Ray deemed not insignificant the potential for mischief where there may be complicity between a vehicle’s occupants, but no observable conduct: Rejecting the rationale applied by the Wyoming Supreme Court in determining the search to be invalid, the Supreme Court reasoned: To require that the investigating officer have positive reason to believe that the passenger and driver were engaged in a common enterprise, or positive reason to believe that the driver had time and occasion to conceal the item in the passenger’s belongings, surreptitiously or with friendly permission, is to impose requirements so seldom met that a “passenger’s property” rule would dramatically reduce