Rodgers

Mary Anne Royle (argued), Vancouver, WA, for the defendant-appellant.

Jenny A. Durkan, United States Attorney, and Jill Otake (argued), Assistant United States Attorney, U.S. Attorney's Office, Seattle, WA, for the plaintiff-appellee.

Before: MARY M. SCHROEDER, M. MARGARET McKEOWN, and CONSUELO M. CALLAHAN, Circuit Judges.

McKEOWN, Circuit Judge:

Passenger and vehicle searches have played a prominent role in Fourth Amendment jurisprudence. The Supreme Court has consistently held that probable cause is necessary to conduct a warrantless search of a vehicle. See Carroll v. United States, 267 U.S. 132, 160-62 , 45 S.Ct. 280 , 69 L.Ed. 543 (1925); California v. Carney, 471 U.S. 386, 390 , 105 S.Ct. 2066 , 85 L.Ed.2d 406 (1985). In recent years, the Court has clarified that "[i]f there is probable cause to believe a vehicle contains evidence of criminal activity," the search may extend to any area where evidence might be found. See Arizona v. Gant, 556 U.S. 332 , 129 S.Ct. 1710, 1721 , 173 L.Ed.2d 485 (2009) (citing United States v. Ross, 456 U.S. 798, 820-21 , 102 S.Ct. 2157 , 72 L.Ed.2d 572 (1982)). In addition, when an arrest is made, a warrantless search is permitted "if the…

Passenger and vehicle searches have played a prominent role in Fourth Anendment jurisprudence. The Supreme Court has consistently held that probable cause is necessary to conduct a warrantless search of a vehicle. See Carroll v. United States, 267 U.S. 132, 160-62 , 45 S.Ct. 280 , 69 L.Ed. 543 (1925); California v. Carney, 471 U.S. 386, 390 , 105 S.Ct. 2066 , 85 L.Ed.2d 406 (1985). In recent years, the Court has clarified that “[i]f there is probable cause to believe a vehicle contains evidence of criminal activity,” the search may extend to any area where evidence might be found. See Arizona v. Gant, 556 U.S. 332 , 129 S.Ct. 1710, 1721 , 173 L.Ed.2d 485 (2009) (citing United States v. Ross, 456 U.S. 798, 820-21 , 102 S.Ct. 2157 , 72 L.Ed.2d 572 (1982)). In addition, when an arrest is made, a warrantless search is permitted “if the arrestee is within reaching distance of the passenger compartment ... or it is reasonable to believe the vehicle contains evidence of the offense of arrest.” Id. at 1723. But the Court has never sanctioned a vehicle search simply because there was probable cause to arrest a passenger or because a passenger could not provide identification. The…

dissenting:

The police acted admirably, reasonably, and lawfully throughout the events giving rise to this case. Accordingly, I respectfully dissent.

The initial stop of the car was lawful. Officer Moody testified that there was a stark difference between the color listed on the car registration records and the actual color of the car. Officer Moody, an experienced police officer, thought this discrepancy to be suggestive that the car was stolen. Further, the stop was made at 3:30 a.m., in a high-crime area that had a prevalence of car thefts. These factors were more than sufficient to support a finding of reasonable suspicion. See United States v. Malone, 886 F.2d 1162, 1165 (9th Cir.1989) (“Wholly lawful conduct may justify a reasonable suspicion of criminal activity.”) (internal citation omitted).

For a search to be lawful under United States v. Ross, 456 U.S. 798 , 102 S.Ct. 2157 , 72 L.Ed.2d 572 (1982), there must be “probable cause to believe that contraband [or evidence] is concealed somewhere within” the car. Id. at 800 , 102 S.Ct. 2157 . As the majority notes, probable cause to search is evaluated in light of the totality of the circumstances. United States v.…