United States v. Edwards

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
MAR 9 2001
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v.
No. 00-1007
CHRISTOPHER ALAN EDWARDS,

Defendant-Appellant.

Appeal from the United States District Court
for the District of Colorado
(D.C. No. 99-CR-213-D)

Howard A. Pincus, Assistant Federal Public Defender (Michael G. Katz, Federal
Public Defender, with him on the briefs) of Denver, Colorado, for Defendant-
Appellant.

Andrew A. Vogt, Assistant United States Attorney (Thomas L. Strickland, United
States Attorney, District of Colorado, with him on the brief) of Denver, Colorado,
for Plaintiff-Appellee.

Before EBEL, HOLLOWAY and MURPHY, Circuit Judges.

EBEL, Circuit Judge.

Defendant-Appellant Christopher Edwards (“Edwards”) appeals his

conviction and sentence for armed robbery in violation of 18 U.S.C. §2113(a),
(d). The district court denied Edwards’ motion to suppress certain evidence

obtained by the police immediately following his arrest on the grounds that

Edwards’ warrantless arrest was supported by probable cause and the subsequent

search of bags stored in his companion’s rental vehicle was a search incident to

that arrest. Edwards was subsequently convicted and, at sentencing, received a

two-point enhancement for obstruction of justice based upon his testimony at

trial. For the reasons set forth herein, we find that the search of the rental car was

not a valid search incident to arrest, and cannot be justified either as an inventory

search or as a search supported by probable cause. We therefore REVERSE

Edwards’ conviction on the ground that the district court incorrectly denied his

motion to suppress and REMAND this case to the district court. 1

I. BACKGROUND

At about 3:00 p.m. on June 4, 1999, the West Hollywood, California, police

learned that a dye pack had gone off inside the City National Bank 2 when a bank

1
Because we hold that Edwards’ conviction must be reversed, we need not
decide whether the district court’s decision to enhance Edwards’ sentence for
obstruction of justice was clearly erroneous.
2
Many banks use dye packs during robberies to aid in catching the
criminal. Dye packs are disguised as ordinary, unused packs of currency. A
portion of the bills in the middle of the pack is hollowed out for a small,
explosive device. Shortly after the dye pack passes through the magnetic field at
the bank’s doors, it explodes, releasing red smoke, tear gas, and red dye. Dye
(continued...)

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employee tripped the bank’s silent alarm. When the police arrived, they found

Edwards and his girlfriend, Renee Dittrich, standing outside the bank with a

parking lot attendant. An open camera bag was on the ground between them, with

about $2000 in plain view. Red smoke was coming from the bag, the inside of the

bag was covered with red dye, and some of the money appeared to be charred.

Dittrich had red stains on her hands, face, and dress.

Deputies William Lynch and Timothy Fives frisked Edwards and Dittrich

and did not find any weapons, but discovered a roll of United States currency in

Edwards’ pocket. Deputy Lynch then read Edwards his Miranda rights, see

Miranda v. Arizona, 384 U.S. 436 (1966), and Edwards agreed to talk with police.

Deputy Fives questioned Edwards about the money and received two different

stories: first, that it was profits from his dog-biscuit bakery in Boulder, and

second, that it was the proceeds from selling three oil paintings in California.

Deputy Fives asked for additional information about the paintings (for example,

the name of the artist), and Edwards had “no good answers.” Because Edwards

could not supply details, Deputy Fives did not believe his stories. Deputy Fives

responded by handcuffing Edwards and placing him in the back seat of a patrol

car. Dittrich was also handcuffed and placed in the back of another patrol car.

2
(...continued)
packs are not available to the public.

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 While Edwards was being held in the back of the police car, but before he

was transported to the police station, the police discovered that the City National

Bank had not been robbed. The exact timing of this discovery is disputed, and it

seems likely that different officers learned this at different times. During the time

period when it is unclear exactly who knew the City National Bank had not been

robbed, the police decided to search the rental car being used by Edwards and

Dittrich. 3 The car was rented in Dittrich’s name, and Edwards was not listed on

the rental agreement as an authorized driver of the vehicle. The rental car was

parked in the City National Bank parking lot, roughly 50 feet from the bank

entrance and 100 to 150 feet from where the police were questioning Edwards and

Dittrich. The bank’s parking lot attendant, Ernesto Lopez, pointed out the car as

belonging to the couple. In their search of the rental car, the police found a

clothing bag in the trunk of the car that was later identified as belonging to

Edwards. The bag contained plastic bags full of dye-covered currency which was

bundled together with Federal Reserve wrappers from the Bank in Boulder.

Another bag belonging to Edwards, also seized from the trunk, contained a red-

and-blue mask. After the police searched the car, they decided to impound it so

that the Federal Bureau of Investigation (“FBI”) could later search it again. The

3
The officer who conducted the search, Deputy Gilinets, testified that he
knew there had been no robbery when he searched the rental car.

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next day, after the car was impounded, the police found a sweatshirt and black

shoes in the car; it is unclear exactly where in the car, or in Edwards’ luggage,

those items were found. The officer who conducted the search merely stated: “I

went back over and removed everything from the car and just to look for if there

was any additional evidence we had missed. And I recovered – I booked in

evidence a pair of shoes and a shirt.”

Deputy Fives testified that he knew there had been no robbery of the City

National Bank when he took Edwards to the station for booking. Edwards was

thus booked for “reasonable cause 211,” an armed robbery charge used when the

police have probable cause to believe that a robbery has taken place, but do not

yet know the victim. 4 When they arrived at the station, Deputy Fives counted the

money he had discovered on Edwards when patting him down at the scene and

noticed that it was stained red. The stains resembled those caused by dye packs,

which are used by banks to mark stolen money. Later, an FBI agent noticed that

some of the currency retrieved from Edwards’ bags in the rental car had a wrapper

from the Bank in Boulder. The FBI then contacted its Denver office and learned

that the Bank in Boulder had been robbed the previous week, on May 28, 1999.

The mask and sweatshirt found in the rental car matched the description of items

4
“Reasonable cause” is generally considered synonymous with “probable
cause” in California. See Kobzoff v. Los Angeles County Harbor/UCLA Med.
Ctr., 968 P.2d 514, 518 (Cal. 1998).

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worn by the perpetrator of that crime. In addition, Edwards’ physical description

matched at least some of the physical descriptors provided by eye witnesses to the

Bank in Boulder robbery. Based on this information, a magistrate judge issued a

warrant on June 7, 1999, for Edwards’ arrest on charges of armed robbery.

Later that day, the FBI took Edwards to the federal courthouse for his

initial appearance on these charges. In the car, Edwards volunteered, “[i]f you

would have asked me [where the money came from], I would have told you I

found it.” Because Edwards had invoked his right to counsel, the agents did not

follow up on this statement.

Edwards was indicted for the robbery of the Bank in Boulder under 18

U.S.C. §2113(a), (d) on June 24, 1999. Edwards moved to suppress the evidence

discovered when the police searched his bag and the statements he made to the

police at the scene of his arrest, arguing that the police had lacked probable cause

to arrest him. After hearing the testimony of several officers, the district court

denied Edwards’ motion to suppress, ruling that the officers had probable cause to

arrest him even after they discovered that the City National Bank had not been

robbed. The district court further held that, because the arrest was valid, the

police’s search of the rental car, and the bags contained within it, was a search

incident to arrest and that Edwards’ statements to the police were not “fruit of the

poisonous tree.”

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 At trial, the government introduced evidence about the incident at City

National Bank that largely mirrored that presented against the motion to suppress.

It also presented eyewitnesses to the Boulder robbery and a surveillance video.

The Boulder robbery took place at about 11:35 a.m. on May 28, 1999. The

tellers, a customer, and a passer-by on the street identified the mask and

sweatshirt found by the police in Edwards’ luggage as that worn by the robber. 5

They also gave a generic description of the robber as a white male in his late 20s

and roughly 5'10" tall, with a medium-pitched voice, medium build and sandy-

brown hair. They could not identify Edwards. 6 Renee Dittrich, who had since

ceased her relationship with Edwards, also testified. She stated that Edwards

bought her a ticket to California the day after the Bank in Boulder robbery and

that, once she arrived in California, Edwards gave her several packets of money.

Dittrich also identified the sweatshirt seized from the bags in the rental car, which

Edwards denied owning, as belonging to Edwards.

Edwards’ defense largely consisted of alibis for his whereabouts on the day

of the robbery. Edwards testified that he picked up some glasses shortly after

11:00 a.m. At approximately 11:30 a.m., he went to a restaurant and stayed for

5
The defense continued to object to the admission of this evidence on the
same grounds it had argued at the suppression hearing.
6
Various witnesses also placed Edwards in a restaurant and a sunglasses
store near the Bank in Boulder around the time of the crime, but could not
pinpoint the exact times.

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about twenty minutes. Around 11:50 a.m., he went to the sunglasses store and

spent nearly $140 in cash on a pair of Ray Ban sunglasses. Edwards testified that

he then bought a shirt for nearly $150 and returned to the restaurant around 1:00

p.m. Around 2:00 p.m., he decided to go jogging through the Pearl Street mall

area. As he passed a small wooded area with some stairs (about six or seven

blocks from the bank), Edwards stated that he saw a $10 or $20 bill on the

ground. He picked it up and saw a bag a few feet away. The bag was covered in

something red and contained a garment and a lot of red-stained money. He picked

up the bag and ran home. Edwards then left for California, as he had apparently

been planning to do for some time. Once there, Edwards testified, he sold some

paintings and then met Dittrich so they could travel together.

The jury convicted Edwards of armed bank robbery. The government

moved to enhance his sentence for obstructing justice by giving false testimony.

Edwards objected to this enhancement. The district court applied the enhancement

solely on the basis of Edwards’ testimony at trial. Edwards was sentenced to 102

months in prison.

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 II. DISCUSSION

The district court had jurisdiction over the criminal case pursuant to 18

U.S.C. §3231. We have jurisdiction under 28 U.S.C. §1291.

“In reviewing the denial of a motion to suppress, we must accept the

district court’s factual findings unless they are clearly erroneous and we view the

evidence in the light most favorable to the prevailing party. However, we review

de novo the legal issue of whether the police had probable cause to arrest the

defendant.” United States v. Springfield, 196 F.3d 1180, 1183 (10th Cir. 1999)

(citations omitted). The ultimate determination of the reasonableness of a

warrantless search or seizure under the Fourth Amendment is a determination of

law that we review de novo. See United States v. Pena, 920 F.2d 1509, 1513-14

(10th Cir. 1990).

A. Probable Cause for the Arrest

“To be lawful, a warrantless arrest must be supported by probable cause to

arrest.” United States v. Vazquez-Pulido, 155 F.3d 1213, 1216 (10th Cir. 1998).

Edwards argues that the police did not have probable cause to arrest him, and

therefore that the evidence discovered in the rental car and his statements to the

police should have been suppressed.

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 The district court found, and the government does not dispute, that Deputy

Fives arrested Edwards when he handcuffed Edwards and placed him in the back

of the police car. An arrest occurs when the police use a “show of official

authority such that a reasonable person would have believed he was not free to

leave.” United States v. Ritchie, 35 F.3d 1477, 1481 (10th Cir. 1994) (citations

and quotations omitted). After the police arrived at City National Bank, Edwards

was questioned for several minutes, frisked, handcuffed and placed in the back of

a police car. 7 Under these circumstances, Edwards could not have believed he

was free to leave. Therefore, we agree with the district court that the arrest

happened at approximately 3:15 p.m. on June 4, 1999, at the point when the

police handcuffed Edwards and placed him in the back of a police vehicle.

The police arrested Edwards without a warrant. The question, then, is

whether the police had probable cause to arrest Edwards when they placed him in

the back of the police vehicle.

The constitutional validity of a warrantless arrest depends on
whether the arresting officer had probable cause. Probable cause
exists where the facts and circumstances within the officers’
knowledge, and of which they have reasonably trustworthy
information, are sufficient in themselves to warrant a man of
reasonable caution in the belief that an offense has been or is being
committed. Although it is not necessary that the officer possess

7
Moreover, the booking slip indicated that the police arrested Edwards at
3:15 p.m., which meant that the police believed Edwards was arrested at the scene
at approximately the time that he was placed in the car.

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 knowledge of facts sufficient to establish guilt, mere suspicion is
insufficient to establish probable cause. . . . [P]robable cause must be
evaluated in light of circumstances as they would have appeared to a
prudent, cautious, trained police officer.

United States v. Maher, 919 F.2d 1482, 1485-86 (10th Cir. 1990) (citations

omitted); see also United States v. Guerrero-Hernandez, 95 F.3d 983, 986 (10th

Cir. 1996).

The evidence shows that Deputy Fives was not aware when he arrested

Edwards that City National Bank had not been robbed. Indeed, the evidence

shows that Deputy Fives fully believed at the time of arrest that City National

Bank had been robbed based upon the dye-stained money he could see in the

camera bag and the alarm set off by a bank employee. In addition, Edwards had

been identified by bank personnel as the person who caused them to call the

police and both Edwards and Dittrich were covered with red dye from what

appeared to be an exploded dye-pack. Based upon these facts, Deputy Fives had

probable cause to believe that Edwards had committed bank robbery when he

placed Edwards in the back of the police vehicle.

Shortly after the arrest but before they searched the rental vehicle, however,

the police discovered that the City National Bank had not been robbed. If the

police learn information that destroys their probable cause to arrest a defendant,

the arrest may become illegal. Cf. United States v. Watson, 423 U.S. 411, 449

(1976) (Marshall, J., dissenting) (“[P]robable cause to arrest, once formed, will

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continue to exist for the indefinite future, at least if no intervening exculpatory

facts come to light.”). The question, then, is whether the police still had probable

cause to keep Edwards under arrest after learning that the bank had not been

robbed but before discovering the other evidence in the rental car. We find that

they did. Dye-packs are not available to the public, and are primarily used to

mark money stolen from banks. Edwards was found outside a bank carrying a bag

full of dye-stained money and offered only implausible, inconsistent explanations

of how he came into possession of the money. Under these circumstances, and

despite knowing that the City National Bank had not been robbed, the police had

probable cause to believe that a crime – whether bank robbery or possession of

stolen property – had occurred. Cf. Maher, 919 F.2d at 1486 (finding probable

cause to arrest the defendant where the defendant was driving an unregistered

trailer with stolen plates, could not produce ownership papers, and was unable to

provide the name or address of the person from whom he had allegedly purchased

the trailer); United States v. Smith, 833 F.2d 213, 218 (10th Cir. 1987)

(“Possession of property recently stolen, if not satisfactorily explained, is

ordinarily a circumstance from which an inference may reasonably be drawn that

the person knew the property had been stolen.”) The fact that the police did not,

at the time of arrest, know exactly what crime had occurred is not relevant, so

long as they had probable cause to believe “an offense” had been committed. See

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Maher, 919 F.2d at 1485 (emphasis added); United States v. Henderson, 464 F.2d

260, 263 (2d Cir. 1972) (“We recognize that even though Officer Keane had

reasonable cause to believe that a serious crime had been committed, he could not

at the crucial moment determine precisely what crime that was – whether, for

example, it was robbery, armed robbery, or burglary. But common sense and

authority suggest that this inability should not invalidate an otherwise proper

arrest.”); see also Model Code of Pre-Arraignment Procedure § 120.1(2)

(Proposed Official Draft 1975) (“An arrest shall not be deemed to have been

made on insufficient cause hereunder solely on the ground that the officer is

unable to determine the particular crime which may have been committed.”).

For the foregoing reasons, we find that the warrantless arrest of Edwards

was supported by probable cause and was therefore valid.

B. Search of the Car

The district court found that, because the arrest of Edwards was supported

by probable cause, the warrantless search of the rental car was a valid search

incident to arrest. This search turned up the important evidence against Edwards:

more dye-stained money, Federal Reserve wrappers linking the money to the

Boulder robbery, and clothing worn by the robber. This was the only evidence

directly linking Edwards to the Bank in Boulder robbery. We find that the district

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court erred in holding that this was a valid search incident to arrest. We note,

however, that the government advanced two alternate theories below on which it

believed the district court could have denied Edwards’ motion to suppress: (1)

that it was an inventory search, and (2) that the search was supported by probable

cause. 8 Because we may affirm the district court “on any grounds for which there

is a record sufficient to permit conclusions of law, even grounds not relied upon

by the district court,” United States v. Sandoval, 29 F.3d 537, 542 n.6 (10th Cir.

1994) (quotations omitted), we address both alternative arguments presented by

the government on their merits. In so doing, however, we find that this search

was not an inventory search, nor was it supported by probable cause. We

therefore reverse the district court’s decision and hold that the evidence seized

from the rental car should have been suppressed.

1. Standing to Challenge the Search

Edwards does not have standing to challenge the search of the car itself

because it was rented in Dittrich’s name and he was not an authorized driver of

8
The government has not argued, either to the district court or on appeal,
that the evidence seized from the rental car used by Dittrich and Edwards would
inevitably have been discovered by the police following their decision to impound
the vehicle. Because the government has never argued this alternative theory as
justification for the district court’s denial of Edwards’ motion to suppress, we
will not consider it on appeal. See Walker v. Mather , 959 F.2d 894, 896 (10th
Cir. 1992).

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the vehicle. See United States v. Shareef, 100 F.3d 1491, 1499-500 (10th Cir.

1996); United States v. Obregon, 748 F.2d 1371, 1374-75 (10th Cir. 1984)

(holding that defendant driver had no reasonable expectation of privacy in a rental

car where the rental agreement demonstrated that the car had been rented by a

third party and there was no evidence that the rental company had permitted

defendant lawfully to drive the car). However, the police did not just search the

car, they searched bags found in the trunk of the car, several of which belonged to

Edwards. We must therefore determine whether Edwards has standing to

challenge the search of his bags, despite his lack of standing to challenge the

search of the rental car itself.

We answer this question by looking to general Fourth Amendment analysis

previously enunciated by this court: “Because the standing issue remains

‘invariably intertwined’ with substantive Fourth Amendment privacy rights

analysis, logic dictates that we ‘determine “whether the challenged search or

seizure violated the Fourth Amendment rights of the criminal defendant who

seeks to exclude the evidence.”’” United States v. Martinez, 983 F.2d 968, 972

(10th Cir. 1992) (quoting United States v. Arango, 912 F.2d 441, 445 (10th Cir.

1990) (quoting Rakas v. Illinois, 439 U.S. 128, 139-40 (1978))). In deciding

whether a search has infringed upon a defendant’s protected constitutional rights,

“we examine two primary factors: ‘whether the defendant manifested a subjective

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expectation of privacy in the area searched and whether society would recognize

that expectation as objectively reasonable.’” Id. (quoting Arango, 912 F.2d at

445).

Edwards was not the registered driver of the rental car and “passengers

often have little or no privacy rights in a motor vehicle.” See id. at 972-73.

Relying upon that principle, we held in Martinez, 983 F.2d at 972-73, that neither

a non-owner driver nor a non-owner passenger had standing to challenge the

police’s search of the trunk of the car in which they were traveling. There we

squarely rejected the defendants’ argument that the mere existence of their stored

luggage in the trunk of the car was sufficient to convey a reasonable expectation

of privacy over the trunk itself. See id. at 973. However, although we found

storage of luggage within the car’s trunk insufficient to confer standing over the

entire trunk, this court intimated that the defendants might have had standing to

challenge a search of the luggage being stored there. See id. (“[G]iven the

uncertainty over the ownership of the vehicle, she may have possessed a

reasonable expectation of privacy over the contents of the luggage, [but] not over

the trunk where the luggage was located.”); see also Arkansas v. Sanders, 442

U.S. 753, 761 n.8 (1979) (noting that “there is no question of [the defendant’s]

standing to challenge the search” where he asserted ownership over the luggage in

question), abrogated on other grounds by California v. Acevedo , 500 U.S. 565,

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579 (1991); United States v. Buchner, 7 F.3d 1149, 1154 (5th Cir. 1993) (“The

owner of a suitcase located in another’s car may have a legitimate expectation of

privacy with respect to the contents of his suitcase.”).

Here, Edwards’ bags were closed and stored in the trunk of the rental car. 9

They contained items such as clothing and toiletries in addition to the contraband

seized by the police, and were being used to transport Edwards’ personal

belongings while traveling. Based upon these facts, we find that Edwards clearly

manifested a subjective expectation of privacy in the bags and that his expectation

was one that society has recognized as reasonable. Accord Sanders, 442 U.S. at

761 n.8; Buchner, 7 F.3d at 1154. We therefore find that Edwards has standing to

9
We acknowledge that there is some confusion regarding the state of the
rental car’s trunk when the police arrived, i.e., whether it was open or closed, and
that the answer to that question might impact our analysis of Edwards’ reasonable
expectation of privacy in regard to items stored in the trunk. There was no
factual finding by the district court on this issue. Deputy Fives testified at the
suppression hearing that, when he arrived at the scene, he “was pretty sure [he]
saw some few wisps of red smoke still drifting around the car, and the trunk of
that car was open.” Deputy Fives was not, however, the first officer to arrive on
the scene. In addition, Deputy Fives testified that he “remember[ed] seeing the
trunk of a car opened,” which implies that he was already on the scene when the
trunk of the rental car was actually opened. Finally, the government has not
argued that the trunk of the rental vehicle was open when the officers arrived at
the scene, such that Edwards’ reasonable expectation of privacy in the items
stored in the trunk would be diminished. For these reasons, we read the record to
indicate that the trunk of the rental vehicle was closed when the officers arrived
on the scene.

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challenge the search of his personal luggage contained within the trunk of the

rental vehicle.

2. Search Incident to Arrest

It is well established that warrantless searches violate the Fourth

Amendment unless they fall within a specific exception to the warrant

requirement. See United States v. Karo, 468 U.S. 705, 717 (1984). “[T]he

government has the burden of proving that an exception to the warrant

requirement applies.” United States v. Maestas, 2 F.3d 1485, 1491 (10th Cir.

1993). One such exception is a search incident to arrest: “[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.” New

York v. Belton, 453 U.S. 454, 457 (1981).

“[T]he scope of a search [incident to arrest] must be strictly tied to and

justified by the circumstances which rendered its initiation permissible.” Chimel

v. California, 395 U.S. 752, 762 (1969) (citations and quotations omitted).

Because searches incident to arrest are meant to discover hidden weapons and to

prevent the suspect from destroying evidence, see id at 763, a search incident to

arrest may extend only to the area within the suspect’s “immediate control,” as

that is the only area from which the suspect could draw a weapon or damage

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evidence. See id.; United States v. Franco, 981 F.2d 470, 472 (10th Cir. 1992)

(“The scope of the warrantless search under this exception is restricted to the

person of the arrestee and to any area into which the arrestee could reach.”)

Thus, if the police arrest the occupant of a car they may also search the passenger

compartment of the vehicle, but they may not search other areas that are outside

the suspect’s immediate control or “grab” space. See Belton, 452 U.S. at 460;

Chimel, 395 U.S. at 763; Franco, 981 F.2d at 472.

The justification for allowing searches incident to arrest also places a

temporal restriction upon the police’s conduct. As this court stated in United

States v. Lugo, 978 F.2d 631, 635 (10th Cir. 1992), once the immediate rationale

for conducting a search incident to arrest has passed, the police may not then

engage in a search absent probable cause to do so. See id. (“[W]hen the search of

Lugo’s truck began, Lugo was no longer at the scene. He was handcuffed and

sitting in the back seat of a patrol car proceeding toward Green River. Once Lugo

had been taken from the scene, there was obviously no threat that he might reach

in his vehicle and grab a weapon or destroy evidence. Thus, the rationale for a

search incident to arrest had evaporated.”). Lugo thus involved a much different

set of facts than those presented in United States v. Cotton, 751 F.2d 1146, 1149

(10th Cir. 1985), where we upheld as a search incident to arrest a search of the

passenger compartment of the vehicle which was conducted after the defendant

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was removed from the compartment and handcuffed, but while he was still

standing next to the vehicle and conceivably could have accessed a weapon stored

within the vehicle.

In this case, the police searched both the rental car and the bags located

within its trunk. Edwards was not arrested in or near the car, but 100-150 feet

away from the car, and he was handcuffed in the back of a police vehicle at the

time of the search. There was thus no reason to fear that Edwards could retrieve a

weapon or destroy evidence in the car, as nothing within the car was in Edwards’

“grab space” or immediate control. Accord Chimel, 395 U.S. at 763 (stating that

the police may search the immediate area around an arrested suspect but that there

is “no . . . justification . . . for routinely searching any room other than that in

which an arrest occurs”). And unlike in Franco, 981 F.2d at 473, where the

defendant demonstrated control over his vehicle immediately prior to and at the

time of arrest, there is no evidence whatsoever that Edwards had any control over

the rental car immediately preceding or at the time of his arrest. Because

Edwards was incapacitated with handcuffs and sitting in the back of a police car

approximately 100-150 feet away from the rental car, any justification to conduct

a search incident to arrest had dissipated. Just as this court found on similar

relevant facts in Lugo, the rationale for conducting a search incident to arrest had

evaporated prior to the police’s search of the rental vehicle.

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 Under these circumstances, we find that the search of the rental car was not

a valid search incident to arrest.

3. Inventory Search

The government argued below, and implies in its brief on appeal, that the

search of the rental car could also be justified as an inventory search. We

disagree.

An inventory search conducted as part of regular procedures, and for

administrative rather than investigatory purposes, does not require a warrant.

See United States v. Haro-Salcedo, 107 F.3d 769, 772-73 (10th Cir. 1997). The

officers testified that it was standard procedure for the L.A. County police to

impound a vehicle used in a crime, and to conduct an inventory search of its

contents. To be justified as an inventory search, however, the search cannot be

investigatory in nature but must instead be used only as a tool to record the

defendant’s belongings to protect the police from potential liability. See South

Dakota v. Opperman, 428 U.S. 364, 376 (1976) (upholding inventory search

where “there is no suggestion whatever that this standard procedure . . . was a

pretext concealing an investigatory police motive”); Haro-Salcedo, 107 F.3d at

772-73 (“An inventory search must not be a ruse for a general rummaging in order

to discover incriminating evidence . . . .”).

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 In this case, it is clear that the search of the rental vehicle was conducted

for investigatory, rather than administrative, purposes. Deputy Gilinets testified

that he “was assigned to the suspects’ vehicle to search for any additional

evidence or anything that would indicate this is their vehicle and indicate

anything that would suffice that a crime occurred.” He also admitted on cross-

examination that he was “searching for evidence of the crime.” In addition, the

decision to impound the car was not made until after the search revealed

incriminating evidence against Edwards, which makes it exceedingly difficult to

believe that this was an inventory search conducted to protect the police from

liability after the decision was made to impound the car.

Based upon the foregoing facts, we have no trouble determining that this

search was conducted for investigative rather than administrative purposes and

cannot be justified as a mere inventory search.

4. Probable Cause to Search the Car

The government also argued below that the search of Dittrich’s rental car

was supported by probable cause and that a search warrant was not necessary to

conduct the search because the car presented “exigent circumstances.” The

district court made no finding of probable cause to search the vehicle, relying

instead on the conclusion that the search was made incident to Edwards’ arrest.

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 Under the Fourth Amendment, the police may conduct a warrantless search

where they have probable cause to search the area in question and exigent

circumstances exist to make the warrant requirement impractical. See Carroll v.

United States, 267 U.S. 132 (1925). In the context of vehicle searches, a

warrantless search is permissible if there is probable cause to believe that the

vehicle contains contraband. See California v. Carney, 471 U.S. 386, 392 (1985);

United States v. Crabb, 952 F.2d 1245, 1246 (10th Cir. 1991). In addition, if

there is probable cause to search a vehicle, the police are allowed to search any

package within the vehicle that is capable of concealing the object of the search.

See Wyoming v. Houghton, 526 U.S. 295, 307 (1999). Accordingly, despite the

fact that this was not a valid search incident to arrest and not an inventory search,

the search may nevertheless be justified if we find that it was supported by

probable cause.

Although this is a much closer issue, we cannot affirm the district court’s

ruling on this alternative ground. “Probable cause to search a vehicle is

established if, under the ‘totality of the circumstances[,]’ there is a ‘fair

probability’ that the car contains contraband or evidence.” United States v.

Nielsen, 9 F.3d 1487, 1489-90 (10th Cir. 1993). Edwards and Dittrich were not

arrested in or near the vehicle and, although they were carrying what appeared to

be contraband in Dittrich’s camera bag, there was no testimony presented at the

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suppression hearing that would support a belief by the police that additional

contraband or evidence could be found in the vehicle. 10 Furthermore, by the time

the police decided to search the rental car, the police were aware that the City

National Bank had not been robbed, making it even less likely that traditional

tools of robbery (such as guns or disguises) might be found in the vehicle. In

short, we see no evidence from which the police could have deduced a “fair

probability” that a search of the car would reveal contraband or further evidence

of criminal activity.

For these reasons, we find that the search of the rental car was not

supported by probable cause. We therefore need not determine whether exigent

circumstances existed to justify an immediate search of the vehicle.

CONCLUSION

For the foregoing reasons, we REVERSE the decision of the district court

and find that the evidence seized by the police during the search of the rental car

10
There is some suggestion in both parties’ briefs to the district court on
the suppression issue that one or more witnesses might have observed Edwards
trying to place the smoking camera bag into a vehicle in the parking lot of City
National Bank. At the suppression hearing, however, no such witness was called
by either party. There is thus no record of any testimony to this effect at the
suppression hearing, and we do not consider what impact such testimony might
have had on the probable cause determination regarding the search of the rental
vehicle.

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should have been suppressed. Because we find that the only evidence linking

Edwards to the Bank in Boulder robbery was either seized illegally, or uncovered

as a direct result of the illegal search, we REVERSE his conviction and

REMAND to the district court for further proceedings not inconsistent with this

opinion.

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