State v. Funkhouser

CHARLES E. MOYLAN, Jr., Judge (Retired, Specially Assigned) This appeal, taken by the State from an adverse pre-trial suppression ruling, was noted on March 23, 2001. The record on appeal was filed in this Court on May 21. Briefs were filed and the case was submitted on brief for consideration by us on September 7. Under the time constraints of Courts and Judicial Proceedings Article, Sect. 12 — 302(c)(3)(iii), the decision of this Court was required to be filed no later than September 18.

Accordingly, our decision, affirming the suppression ruling and assessing costs to the State, was filed on September 12. This opinion, explaining that decision, now follows. * * * In the criminal appellate process, adversaries do not always meet on a level playing field. The question of who possesses ⁷⁰¹ the advantage, however, is not a matter of status as State or as defendant. It is rather the ad hoc circumstance of which party, on a given occasion, enjoys the luxury of being the appellee and which suffers the burden of being the appellant.

There is a strong presumption — a discernible “tilt” of the playing field — in favor of the status quo. The appellee, Samuel Donovan Funkhouser, was charged by the Anne Arundel County Police Department with the possession of cocaine with the intent to distribute it. He moved, pretrial, to have the physical evidence suppressed on Fourth Amendment grounds. Following a hearing in the Circuit Court for Anne Arundel County, Judge Eugene M. Lemer granted the suppression motion.

Pursuant to Courts and Judicial Proceedings Article, Sect. 12-302(c)(3), the State has filed the present appeal. We affirm Judge Lemer’s ruling that the evidence will be suppressed. The Seizure and Subsequent Search: An Overview On August 1, 2000, a white Jeep Wrangler, of which Funkhouser was the driver and sole occupant, was stopped by Detective Tom McBride, Jr. for an ostensible traffic violation. The traffic stop was ultimately followed by a warrantless search of the Jeep Wrangler for possible narcotics.

After that search failed to produce either narcotics or other evidence, the police took from Funkhouser’s person a pouch or “fanny pack” he had strapped around his waist and searched it. It contained a substance believed to be cocaine. As a result of that discovery, Funkhouser was arrested. At the suppression hearing, Detective McBride and Detective Michael Barclay testified for the State.

Funkhouser testified for the defense. At the conclusion of the hearing, Judge Lemer, without articulating any detailed findings of fact, made his ruling in essentially conclusory terms: I am going to grant his motion to suppress. I don’t believe that [Detective Barclay] has a right to search that— to come and pull the — unbuckle that thing around his waist and just go in there and search that pouch, that pouch that he had on. I am going to grant the motion. ⁷⁰² The twenty to twenty-five minute period of escalating investigative activity between the initial traffic stop and the ultimate search of the fanny pack analytically breaks out into three distinct stages: 1) the traffic stop; 2) the warrantless automobile search, including two proffered justifications and the question of its possible scope; and 3) what was, in effect, the search of Funkhouser’s person.

If Portia’s quality of mercy was twice blessed, the State’s case on this appeal is thrice cursed. It is fatally flawed at each of the three analytic stages. Any one of the flaws would be sufficient to support Judge Lemer’s ruling. Because an analysis of this roadside confrontation presents such a potentially instructive teaching vehicle, however, it behooves us to examine the flaw at each of the three stages.

The Initial Whren Stop Detectives McBride and Barclay were both narcotics officers, not traffic officers. On August 1, they had received a “tip” that a suspect driving a white Jeep Wrangler was in possession of a large quantity of cocaine at a gymnasium in a mall on Ritchie Highway. Their investigative purpose was to check out that “tip.” With commendable candor, they freely acknowledged that they were taking advantage of the broad investigative prerogative available to them by virtue of Whren v. United States, 517 U.S. 806 , 116 S.Ct. 1769 , 135 L.Ed.2d 89 (1996). In Charity v. State, 132 Md.App. 598, 601 , 753 A.2d 556 (2000), this Court described that broad prerogative: In Whren ... the Supreme Court extended law enforcement officers a sweeping prerogative, permitting them to exploit the investigative opportunities presented to them by observing traffic infractions even when their primary, subjective intention is to look for narcotics violations.

The Fourth Amendment, Whren taught, is unconcerned with the actual subjective motivation or purpose of an officer who makes a traffic stop. The officer may be, as were Detectives McBride and Barclay here, concerned only with catching a narcotics dealer. To that end, they may wait opportunistically for a traffic violation to occur and then ⁷⁰³ pounce on that opportunity. What must never be forgotten, however, is that Whren establishes as an indispensable requirement that there be an actual, objectively measurable traffic violation.

Absent an actual traffic infraction, the Whren scenario is never triggered. What is unusual about this case is that the critical Whren issue is the objective occurrence of the triggering traffic infraction. Normally we are concerned with the scope or duration of an initially valid Whren stop. The Shifting Lenses of Appellate Review Both Detective McBride and Detective Barclay testified that they saw Funkhouser in the Jeep Wrangler exit the mall at a red light and make a right-hand turn onto Ritchie Highway without first coming to a complete stop.

On that basis, they overtook and then stopped the Jeep Wrangler. Funkhouser, by diametric contrast, testified that what the detectives said was untrue. He testified that, because of heavy traffic coming down Ritchie Highway, he was stopped “for a good two minutes” before he was able to turn onto Ritchie Highway. If that were, indeed, the case, the traffic stop was objectively bad and everything that followed from it was the tainted “fruit of the poisonous tree.” As we prepare to make our own independent constitutional appraisal of the second-level or conclusory issue of whether the traffic stop was objectively reasonable, we are faced with the familiar problem, but in an unusual posture, of which version of first-level facts from which to proceed.

The detectives’ version yields a good stop; Funkhouser’s version yields a bad stop. The choice is that simple. Had Judge Lerner made detailed findings of first-level facts, of course, it would be those findings we would accept, unless clearly erroneous. It was of this deference that we spoke in Charity v. State, 132 Md.App. at 606 , 753 A.2d 556 : The one obvious qualification to or modification of a reviewing court’s acceptance of the version of the evidence most favorable to the prevailing party, of course, is with ⁷⁰⁴ respect to findings of first-level fact actually made by the hearing judge.

Except in rare cases of clear error, we give great deference to such findings of fact when actually made. The actual findings of fact made by the hearing judge, unless clearly erroneous, “trump” the version most favorable to the prevailing party to the extent to which they might be in conflict. Again, Judge Karwacki [in In re Tariq A-R-Y, 347 Md. 484, 488-89 , 701 A.2d 691 (1997)] explained: 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 determining the credibility of witnesses and to weighing and determining first-level facts. Riddick [v. State], 319 Md. [180] at 183, 571 A.2d [1239] at 1240.

When conflicting evidence is presented, we accept the facts as found by the hearing judge unless it is shown that those findings were clearly erroneous. When we, as in this case, however, do not have express findings of fact by the hearing judge to which to defer, we are-bound to take as true that version of the facts most favorable to the prevailing party. Again in the case of In re Tariq A-R-Y, 347 Md. at 488 , 701 A.2d 691 , Judge Karwacki explained: We are further limited to considering only that evidence and the inferences therefrom that are most favorable to the prevailing party on the motion, in this instance the State. Riddick v. State, 319 Md. 180, 183 , 571 A.2d 1239, 1240 (1990); see also Simpler v. State, 318 Md. 311, 312 , 568 A.2d 22, 22 (1990).

See also Wilkes v. State, 364 Md. 554, 569 , 774 A.2d 420 (2001) (‘We review the facts found by the trial court in the light most favorable to the prevailing party.”). What is at least slightly unusual about this particular appellate review of a suppression ruling is the identification of the prevailing party. Of the suppression rulings that are appealed, nine times out of ten (if not 19 times out of 20) it is the State that is the prevailing party, with all the rights, honors and privileges thereto appertaining. In Whren situations, we ⁷⁰⁵ typically accept as controlling the testimony of the stopping officer that he, indeed, observed the traffic violation that justified the stop.

To the chagrin of defense counsel, we typically reject utterly the testimony of the defendant as if it had never been given. A classic statement of which version of facts will be accepted was given in Charity v. State, 132 Md.App. at 606 , 753 A.2d 556 : At the suppression hearing in this case, for instance, the appellant himself testified, diametrically contrary to the testimony of Sergeant Lewis, 1) that he was not closely following any other automobile but was many car lengths behind the nearest vehicle and 2) that he was never asked to consent to a frisk of his person and never did consent. For present purposes, however, we treat that testimony as if it had never been given. Our ruling mil be based exclusively on the State’s most favorable version of the events.

(Emphasis supplied). This is a valuable (nay, an indispensable) tool of appellate review, but it is a two-edged sword and those who are content frequently to live by that sword must also be prepared occasionally to die by that sword. The State, as more frequently than not the prevailing party, is routinely the beneficiary of that interpretative tilt but, as Macbeth once noted, occasionally “even-handed justice commends the ingredient of our poisoned chalice to our own lips.” Sometimes the roles are reversed. When the roles are reversed, the results are frequently reversed.

In this case, of course, it is Funkhouser who is the prevailing party. It is, therefore, his version of the alleged traffic infraction that we will accept as our factual predicate for deciding the ultimate Fourth Amendment proprieties. To the extent that it is contradicted by Funkhouser, the testimony of Detectives McBride and Barclay will be utterly disregarded as if it had never been given. Under that version of the facts most favorable to Funkhouser, the initial traffic stop was bad because there was no basis for it.

Not only had Funkhouser come to a complete stop, he ⁷⁰⁶ remained stopped for approximately two minutes. It logically follows from that version of the facts that all of the sequelae of that unlawful stop were constitutionally tainted. The State does not even argue this issue of why we should accept a different version of the facts more favorable to it as the non-prevailing party, but glosses over the oft-expressed interpretive rule as if it did not exist. Judge Lerner was correct in suppressing the evidence.

In keeping with the theme we sounded at the very outset of the opinion, the lesson of this decision is that our resolution of the issue would have been a diametrically opposite one had the roles of appellant and appellee been reversed. The respective appellate postures of the parties, therefore, will frequently be controlling on such issues. The Warrantless Automobile Search Even if, however, we were to assume, purely arguendo, that the traffic stop had been objectively reasonable, the warrant-less search of the Jeep Wrangler that ensued shortly thereafter would still be fraught with crippling doctrinal problems. As a justification for the warrantless search, the State proffers but then drifts back and forth between two absolutely distinct theories.

A. A Consensual Search of the Vehicle On the one hand, the State argues that Funkhouser voluntarily consented to the search of his vehicle. The request for consent and the alleged giving of consent was unquestionably timely in terms of occurring while the processing of the ostensible traffic violation was still operational. In the very act of first approaching Funkhouser and requesting his driver’s license and registration card, Detective McBride initiated the discussion with respect to consent to search the car. As Funkhouser was producing his license and registration, McBride told him that he was stopped for a traffic infraction involving the light at the parking lot. ⁷⁰⁷ McBride then asked Funkhouser “if he had any type of weapons, drugs, bombs, anything like that in the vehicle.” Funkhouser replied “No.” McBride then asked if Funkhouser would mind if McBride took a look inside Funkhouser’s vehicle.

Funkhouser questioned why McBride wanted to look in his vehicle. McBride told Funkhouser: “It’s completely up to you whether I search your vehicle. Do you mind if I take a look?” Funkhouser replied: “No. Go ahead.” The State’s consent theory poses no problem in terms of its timeliness. In another respect, however, the State’s consent theory runs afoul of the same problem that ensnaried the State’s attempt to establish the initial traffic infraction.

The problem is that the version of the facts most favorable to the prevailing party is the one we must accept. Funkhouser, the prevailing party, testified that, when asked by Detective McBride if he minded whether the officer searched his vehicle, he replied, “Yes, I do mind.” Accepting as we must that version of first-level fact, we necessarily conclude that Funkhouser did not consent to the search of his vehicle. That theory of justification does not get off the ground. Again, however, the State blithely recites Detective McBride’s testimony as if it were unquestioned historic fact and ignores the “trumping” reality that we look at the evidence through a very different lens on those occasions when the State happens not to be the prevailing party.

The State seems to be in denial about being cast in the unaccustomed role of appellate underdog. B. A Carroll Doctrine Search of the Vehicle Detective McBride testified that he immediately informed the other officers that Funkhouser had given his consent to the search of the vehicle. Neither detective explained why, if they thought they had valid consent for a search, they did not proceed immediately with the search at that point. Indeed, immediately after Detective McBride announced to his fellow officers that he had obtained consent to search the car, he ordered Funkhouser out of the vehicle.

That was for the ⁷⁰⁸ express purpose of facilitating the search of the car’s interior. That step was taken before the drug-sniffing dog had even been removed from the police cruiser. Under Pennsylvania v. Mimms, 434 U.S. 106 , 98 S.Ct. 330 , 54 L.Ed.2d 331 (1977), on the other hand, the police would have needed no further justification beyond a valid traffic stop to have ordered Funkhouser out of the car. The consensual search that seemed imminent was inexplicably put “on hold.” Instead, Detective McBride testified that he returned to the police cruiser to make a radio check on Funkhouser’s driving record and also to check for any outstanding warrants.

After doing that, he brought out from his cruiser a trained and certified cocaine-sniffing canine and had the dog sniff the outside of the vehicle. The dog, after scanning the full circumference of the vehicle, made a positive alert at both the front driver’s side door and the front passenger’s side door. The search of the Jeep Wrangler did not begin until the canine “alert” was a fait accompli. The officers were clearly trying to develop probable cause for a Carroll Doctrine search of the vehicle and that is the theory of justification that the State argues primarily.

Consent, of course, has nothing to do with the Carroll Doctrine, and the intermittent references to consent do more to obscure than to clarify the State’s position. Analysis is best in cleanly differentiated, watertight compartments. C. Did Probable Cause Accrue Before The Whren Traffic Stop Ceased To Be Operational? The canine “alert,” as will be discussed more fully, was potentially very strong evidence in the State’s favor.

A key question with respect to it, however, could be that of whether it was timely. As we probe for that precise borderline when the energizing force of the Whren-based traffic stop ran out and the ensuing narcotics investigation had to generate its own exclusive justification, we note that the canine “alert” on the vehicle came a number of minutes, possibly a critical number, after the timely request for consent to search the car. The State’s consent theory, even if otherwise flawed, was at ⁷⁰⁹ least timely. The timeliness of the canine “alert,” however, cannot “piggyback” on the timeliness of the request for consent.

It demands a separate and distinct analysis. Unlike both of the parties, who seem to be concentrating on the lapses of time between the initial stop and 1) the completion of the car search or 2) the search of Funkhouser’s fanny pack, we think the critical passage of time was that between the initial stop and the first “alert” by the cocaine-sniffing dog. That “alert” was the moment when the criminal phase of the case took on a viable life of its own. Until that point, the reasonably diligent processing of the traffic violation had to be relied on to justify the detention.

In view of Detective McBride’s acknowledgment that it normally would take him “about three or four minutes” to write a traffic ticket, the question of whether the reasonable processing of the traffic infraction stretched far enough to embrace and to legitimate the dog sniff of the Jeep Wrangler is problematic. McBride’s testimony was that the canine “alert” came approximately five or six minutes after the initiation of the traffic stop. By way of emphasizing the earlier lesson, let it be noted in this regard that if the State had been the prevailing party, a viewing of the evidence in the light most favorable to it would have rendered these extra few minutes now being discussed negligible and the State would almost certainly have prevailed on any challenge to the timeliness of the “alert.” See Wilkes v. State, 364 Md. 554, 570-84 , 774 A.2d 420 (2001) (In Wilkes, the State was the prevailing party). When viewing the same additional minutes in the light most favorable to Funkhouser, by contrast, the result will by no means necessarily be the same.

This shifting in a reviewing court’s perspective is akin to looking through opposite ends of a telescope. One way of looking at things magnifies; the other miniaturizes. It makes a critical difference, therefore, which side on a given occasion enjoys the advantage of having us view the critical confrontation through its end of the telescope. Detective McBride, for instance, testified that he got back in his police car to radio in his request for a records check.

If ⁷¹⁰ that were true, it would clearly have justified some additional delay in processing the traffic stop. Funkhouser, on the other hand, testified that Detective McBride did not get back into the car or talk on the radio. The issue here, therefore, would be not how long it took to do a reasonable records check but whether, in fact, a records check was ever actually made. This is the quintessential type of factual ambiguity that would be resolved in the State’s favor were it the prevailing party but in this case will be resolved in Funkhouser’s favor because he is the prevailing party.

It would, of course, have been fatal to the State’s case if the Whren-based justification for the detention had evaporated before the canine “alert” supervened. As Chief Judge Murphy explained for this Court in Pryor v. State, 122 Md.App. 671, 674-75 , 716 A.2d 338 (1998): We hold that, unless continued detention can be justified by what occurs during the brief period of time it takes to determine whether the motorist has a valid license and whether the vehicle has been reported stolen, a motorist who is subjected to a “Whren stop” for a minor traffic violation cannot be detained at the scene of the stop longer than it takes — or reasonably should take — to issue a citation for the traffic violation that the motorist committed. See also Charity v. State, 132 Md.App at 614-15, 753 A.2d 556 ; Whitehead v. State, 116 Md.App. 497, 503 , 698 A.2d 1115 (1997); Munafo v. State, 105 Md.App. 662, 673 , 660 A.2d 1068 (1995). On this issue, however, we will again assume, purely arguendo, that the dog sniff, which pumped independent viability into the criminal investigation, was operational before the processing of the traffic stop had been totally drained of constitutional vitality.

D. Probable Cause For A Carroll Doctrine Search As to both the legitimacy of the canine investigation (if timely) and its probable-cause-generating significance, we fully agree with the State’s arguments. ⁷¹¹ The smelling or sniffing of the exterior surface of an otherwise protected repository (automobile, suitcase, locker, etc.) is not a “search” within the contemplation of the Fourth Amendment. It, therefore, needed no justification. United States v. Place, 462 U.S. 696, 707 , 103 S.Ct. 2637 , 77 L.Ed.2d 110 (1983); cf. United States v. Jacobsen, 466 U.S. 109, 124 , 104 S.Ct. 1652 , 80 L.Ed.2d 85 (1984). And see Wilkes v. State, 364 Md. 554, 580-82 , 774 A.2d 420 (2001).

The only thing that needed justification was the detention of the Jeep Wrangler for enough time so that it would still be in place to be sniffed. Gadson v. State, 341 Md. 1, 20-21 , 668 A.2d 22 (1995). In this case there was no disputing the olfactory expertise of the trained and certified cocaine-sniffing canine. When a qualified dog signals to its handler that narcotics are in a vehicle, moreover, that is ipso facto probable cause to justify a warrantless Carroll Doctrine search of the vehicle.

Wilkes v. State, 364 Md. at 586-87, 774 A.2d 420 ; Gadson v. State, 341 Md. at 8 , 668 A.2d 22 ; Timmons v. State, 114 Md.App. 410, 417 , 690 A.2d 530 (1997); In Re Montrail M., 87 Md.App. 420, 437 , 589 A.2d 1318 (1991); Snow v. State, 84 Md.App. 243, 248 , 578 A.2d 816 (1990). If, therefore, 1) we were to assume that the traffic stop had been objectively reasonable and 2) we were also to assume that the processing of the traffic violation was still in progress when the dog “alerted” to the car, the subsequent warrantless search of the vehicle was reasonable. In and of itself, however, that yields the State nothing. The Jeep Wrangler was searched twice.

No narcotics were discovered. E. The Scope Of The Carroll Doctrine Search When the searches of the Wrangler proved unproductive, the detectives turned their attention to Funkhouser himself, who was walking around, unrestrained, outside the vehicle. He was wearing a “fanny pack,” buckled around his waist. Detective Barclay physically removed the “fanny pack” from Funkhouser’s person.

He unzipped it and searched it, finding what he believed to be cocaine. At the suppression ⁷¹² hearing, attention focused on the State’s proffered justification for seizing the pack from Funkhouser’s person and searching it. Judge Lerner inquired, “What right did they have to take [the] pouch?” The only theory of justification advanced by the State was that Funkhouser, by virtue of his recent presence in the vehicle, was for Carroll Doctrine purposes a mere extension of the vehicle. The only exception to the warrant requirement argued, or even mentioned, by the State was the Carroll Doctrine, amplified by this arguable geographic expansion of its permissible search perimeter.

The State argued that Funkhouser’s “presence in that car seconds before the dog scanned is included in that probable cause, in that odor that the dog is alerting on.” The State’s line of argument was clear: “So, in this case the Defendant is an extension of the car.” (Emphasis supplied). The State seemed to be arguing that Funkhouser, albeit actually outside the car, was constructively still in the car: “Merely because he happened to be standing at the back of the car rather than in the car, [the detectives] get to search the Defendant because he is, you know, in the car.” Despite the creativity of the State’s position, there is no case, state or federal, that has ever stretched the perimeter of a Carroll Doctrine search to embrace a former occupant of a vehicle who is at the moment of search already outside the vehicle. There has never been a Carroll Doctrine search of a person. The State conceded that it “did not have a case to cite” but argued that it was “asking this Court to take the common sense approach.” Indeed, in its appellate brief the State argued to us: Although none of the above cases specifically addressed whether the alert of a drug detection dog to the passenger compartment of a car establishes probable cause to search the occupants of the car, that is a logical conclusion.

This is especially so given the circumstances of this case, where the dog gave a strong alert to the driver’s seat area of the car. For the purpose of searching for drugs contained in that area of the car, it would be unreasonable to distinguish ⁷¹³ between the interior of the vehicle and the driver and sole occupant. (Emphasis in original and emphasis supplied). In terms of probable cause, there might be no reasonable distinction between a car and its driver.

In terms of the degree of protection conferred by the Fourth Amendment, however, there is a very real distinction between an automobile and a human being. The State’s appeal to common sense is an argument eerily reminiscent of United States v. Di Re, 332 U.S. 581, 586 , 68 S.Ct. 222 , 92 L.Ed. 210 (1948), where the prosecution unsuccessfully urged on the Supreme Court precisely the proposition the State is now urging on us: Assuming, however, without deciding, that there was reasonable cause for searching the car, did it confer an incidental right to search Di Re? It is admitted by the Government that there is no authority to that effect, either in the statute or in precedent decision of this Court, but we are asked to extend the assumed right of car search to Include the person of occupants because “common sense demands that such right exist in a case such as this where the contraband sought is a small article which could easily be concealed on the person.” (Emphasis supplied). In United States v. Di Re it was assumed, arguendo, that there was probable cause to believe that contraband documents were in an automobile in which Di Re had been present as one of its three occupants.

The government’s claim was indistinguishable from the State’s claim in this case: The claim is that officers have the right, without a warrant, to search any car which they have reasonable cause to believe carries contraband, and incidentally may search any occupant of such car when the contraband sought is of a character that might be concealed on the person. 332 U.S. at 584 , 68 S.Ct. 222 (emphasis supplied). The Supreme Court refused to construe the Carroll Doctrine’s ⁷¹⁴ range of permissible searching as being intrusive enough to permit the search of occupants of the car: We see no ground for expanding the ruling in the Carroll case to justify this ... search as incident to the search of a car. We are not convinced that a person, by mere presence in a suspected car, loses immunities from search of his person to which he would otherwise be entitled. 332 U.S. at 587 , 68 S.Ct. 222 . The State might have argued, but did not, that stretching the Carroll Doctrine search perimeter to include a container that had shortly before been in the car is analytically distinct from stretching the search perimeter to include a person who had shortly before been in the car.

It could have sought to analyze the “fanny pack” in a vacuum, as something distinct from and unconnected with the person wearing the “fanny pack.” In Wyoming v. Houghton, 526 U.S. 295 , 119 S.Ct. 1297 , 143 L.Ed.2d 408 (1999), to be sure, the vulnerability to warrantless search of a container — in that case, a woman’s purse — was deemed to be analytically distinct from the vulnerability to warrantless search of the person who was the owner of the container. In terms of all of the critical criteria, however, Wyoming v. Houghton and this case are totally unlike each other. In Wyoming v. Houghton there was probable cause to search an automobile for contraband drugs. Sandra Houghton had been one of three occupants of the car and had been a passenger in the front seat.

All three of the occupants were removed from the car before the Carroll Doctrine search of the car took place. Sandra Houghton’s purse was sitting on the back seat when the car was searched. It was not attached to her body and was not being held by her in any way. It was searched just as the rest of the automobile was searched.

It contained contraband drugs. The holding of Wyoming v. Houghton is that a container 1) sitting on its own 2) in an automobile is just as vulnerable to a warrantless automobile search as any other part of the automobile in which the suspected evidence might be lurking. ⁷¹⁵ The first requirement, clearly not satisfied in the case now before us, is that the container, in fact, be inside the automobile when the automobile is searched. “This case presents the question whether police officers violate the Fourth Amendment when they search a passenger’s personal belongings INSIDE AN AUTOMOBILE.” 526 U.S. at 297 , 119 S.Ct. 1297 (emphasis supplied). “[T]he Framers would have regarded as reasonable (if there was probable cause) the warrantless search of containers WITHIN AN AUTOMOBILE.” Id. at 300 , 119 S.Ct. 1297 (emphasis supplied). “We hold that police officers with probable cause to search a car may inspect passengers’ belongings FOUND IN THE CAR that are capable of concealing the object of the search.” Id. at 307 , 119 S.Ct. 1297 (emphasis supplied). See also California v. Acevedo, 500 U.S. 565, 572 , 111 S.Ct. 1982 , 114 L.Ed.2d 619 (1991) (“This Court in [United States v.] Ross[, 456 U.S. 798 , 102 S.Ct. 2157 , 72 L.Ed.2d 572 ] took the critical step of saying that closed containers IN CARS could be searched without a warrant because of THEIR PRESENCE WITHIN THE AUTOMOBILE.” (Emphasis supplied)); United States v. Johns, 469 U.S. 478, 479-80 , 105 S.Ct. 881 , 83 L.Ed.2d 890 (1985) (“Ross ‘held that if police officers have probable cause to search a lawfully stopped vehicle, they may conduct a warrantless search of any container FOUND INSIDE that may conceal the object of the search.’ ”) (emphasis supplied). Wyoming v. Houghton, 526 U.S. at 301 , 119 S.Ct. 1297 characterized Ross as “applying broadly to all containers WITHIN A CAR.” (Emphasis supplied).

The “fanny pack” in this case was not inside the Jeep Wrangler during the Carroll Doctrine search of the Wrangler. Had it been and had it not been attached to the body of Funkhouser, it would unquestionably have been vulnerable to a warrantless search under Wyoming v. Houghton and United States v. Ross. Neither of those criteria, however, was satisfied. It is the second of those two qualifying criteria that is implicit in Justice Scalia’s majority opinion in Wyoming v. ⁷¹⁶ Houghton but is fleshed out more articulately in the concurring opinion of Justice Breyer, who explained, 526 U.S. at 308 , 119 S.Ct. 1297 : Obviously, the rule applies only to automobile searches.

Equally obviously, the rule applies only to containers found within automobiles. And it does not extend to the search of a person found in that automobile. As the Court notes, and as United States v. Di Re, makes clear, the search of a person, including even “ ‘a limited search of the outer clothing, is a very different matter in respect to which the law provides “significantly heightened protection.” (Emphasis supplied). Justice Breyer emphasized that because of the physical separation between the purse and the owner of the purse, the Fourth Amendment status of the purse under the circumstances of the case was that of a mere container and it could not be construed, as it might be in other circumstances, as constituting part of the outer clothing and, therefore, part of the person of the owner.

Less obviously, but in my view also important, is the fact that the container here at issue, a woman’s purse, was found at a considerable distance from its owner.... I can say that it would matter if a woman’s purse, like a man’s billfold, were attached to her person. It might then amount to a kind of “outer clothing,” Terry v. Ohio, supra, [ 392 U.S. 1 ] at 24, [ 88 S.Ct. 1868 , 20 L.Ed.2d 889 ] which under the Court’s cases would properly receive increased protection. In this case, the purse was separate from the person---- 526 U.S. at 308 , 119 S.Ct. 1297 (emphasis supplied).

In this case, the “fanny pack,” strapped around the waist of Funkhouser, was as much a part of Funkhouser’s outer clothing as was the overcoat worn by John Terry in Terry v. Ohio, 392 U.S. 1, 24-25 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968). It was as intimately a part of his person as would have been a money belt strapped around his waist, a wallet in his pocket, or a woman’s purse actually being held in the hand of its owner. As Justice Scalia noted in the majority opinion: ⁷¹⁷ And if the dissent thinks “pockets” and “clothing” do not count as part of the person, it must believe that the only-searches of the person are strip searches. 526 U.S. at 303 n. 1, 119 S.Ct. 1297 . Under no stretch of the imagination could the warrantless seizure and subsequent search of the “fanny pack” be held to fall within the scope of a Carroll Doctrine search of the Jeep Wrangler or even to be an independent “container exception” search pursuant to whatever vitality may still remain in United States v. Chadwick, 433 U.S. 1 , 97 S.Ct. 2476 , 53 L.Ed.2d 538 (1977) or Arkansas v. Sanders, 442 U.S. 753 , 99 S.Ct. 2586 , 61 L.Ed.2d 235 (1979).

Search Incident to Lawful Arrest On appeal