dissenting:
Because I am persuaded that the majority misreads the record as to facts critical to a proper application of the law regarding warrantless searches, I respectfully dissent. I would affirm the suppression order entered by the district court.
The case involves Trooper Alford’s search of a garbage bag which he found in the trunk of defendants’ car. It is the majority’s thesis that Trooper Alford had probable cause to search the trunk because he detected the odor of marijuana and that the intense odor, together with the distinctive configuration of the garbage bags, brought the contraband into plain view and justified its seizure.
I.
Nothing in the record supports the majority’s implied factual premise that the trunk or the garbage bags gave off an odor of marijuana. Alford’s testimony is that (1) he opened the trunk to take an inventory; (2) he saw marijuana through a hole in one of the garbage bags found in the trunk; and (3) he closed the trunk immediately after spotting the marijuana through the hole. Nowhere in the record does Alford suggest that he opened the trunk because it smelled of marijuana. Nowhere does he even hint that the bags themselves gave off the telltale odor.
This, of course, is not to suggest that the smell of marijuana played no role in the episode. Alford testified that he detected the odor on Haley’s person while the two of them were sitting in the police cruiser. Alford stated that he again smelled marijuana —or, more precisely, marijuana smoke— when he opened the passenger door of the car and spoke with Riehl.
Coneededly, on cross-examination Alford stated: “I knowed for a fact that there was a strong odor of marijuana coming from the vehicle.” In context, it is clear that this remark refers to the impressions which Al*205ford formed from his perusal of the passenger compartment and not to any odor coming from the trunk or the bags subsequently found there.1
Thus there is no factual basis for the majority’s contention that any distinctive odor of marijuana emanated from the trunk of the car or the garbage bags contained therein. This brings me to the majority’s assertion that the bags had a “distinctive configuration” which brought their illicit contents into “plain view.”
Alford did not testify that any “distinctive configuration” of the garbage bags bespoke their contents. Any such conclusion is foreclosed, moreover, by Robbins v. California, 453 U.S. 420, 101 S.Ct. 2841, 69 L.Ed.2d 744 (1981), which, so long as it remains the law, controls this case.2 There a plurality of the Court held that “a container may not be opened without a warrant, even if it is found during the course of the lawful search of an automobile.” 453 U.S. at 428, 101 S.Ct. at 2847. This rule excepts only containers the contents of which are effectively in plain view either because the container is open or “so clearly announce[s] its contents, whether by its distinctive configuration, its transparency, or otherwise, that its contents are obvious to an observer.” 453 U.S. at 428, 101 S.Ct. at 2847. Justice Powell, the fifth vote necessary to a judgment, concurred on the ground that “the manner in which the package at issue was carefully wrapped and sealed evidenced petitioner’s expectation of privacy in its contents.” 453 U.S. at 429, 101 S.Ct. at 2847. The Chief Justice concurred in the judgment invalidating the search without opinion.
Like the plastic packages in Robbins, the garbage bags here were closed, opaque, and packed in a locked trunk.3 Even under Justice Powell’s theory, therefore, the containers were protected from a warrantless search because their physical characteristics and location “evidenced [defendants’] expectation of privacy in [their] contents.” See also 453 U.S. at 429, 101 S.Ct. at 2847 (plurality opinion). Furthermore, the plastic bags cannot be said to have made their “contents . . . obvious to an observer” by any “distinctive configuration.” Garbage bags are commonly used to store and transport many things besides contraband, and the fact that several such containers were found in the trunk does not exclude myriad innocent uses. The inference that the garbage bags contained marijuana undoubtedly seemed compelling to Alford, who, (like the officer in Robbins) had just discovered marijuana in the front seat. The Robbins Court held, however, that such an inference *206is not reasonable within the meaning of the Fourth Amendment.
II.
As I have shown, the record does not support an assertion that Alford detected the odor of marijuana emanating from the bags or the trunk, and there is no legal or factual basis for a claim that the bags revealed their contents by any distinctive configuration. I am brought, then, to a contention of the government noticed but not relied upon by the majority in upholding the validity of the search. It is the claim that Alford could see the contents of one bag because it had a hole in it.
Alford did testify that he saw marijuana through a hole in one of the bags, and he also testified that he neither created the hole in the bag, nor widened it. However, Laner, the tow truck operator, testified that Alford “reached his hand in and tore one of the big bags open. . . . [H]e stuck his fingers in the bag and ripped the bag open.” The district court discredited Alford’s testimony “where it was contradicted by Mr. Laner as to the ripping open of the garbage bag containing marijuana in the trunk of the car.” This credibility determination is one that we cannot disturb.
In its statement of facts, the majority suggests that Laner’s testimony and Alford’s testimony are not necessarily inconsistent: “The truck operator did not explicitly state whether Alford punched a hole in the bag or whether he simply widened a pre-existing hole.” Concededly, Laner was never specifically asked whether there was a hole in the bag before Alford ripped it open. As I read the transcript, however, Laner clearly implied that any hole was of Alford’s making. The district court, moreover, found that Alford testified falsely when he denied ripping the bag. Any ambiguity in the conflict between Laner’s and Alford’s testimony must therefore be resolved against Alford.
Alford engaged in a warrantless search when he ripped the garbage bag open. Because there is no basis in fact or law for applying the plain view exception to the warrant requirement, I would affirm the district court’s order suppressing the use of evidence illegally obtained.4
. Alford made the statement on cross-examination by way of explaining why he wished to search the car after defendants produced a small bag of marijuana from under the front seat:
Q. It was the marijuana that you were worried about?
A. No sir. The fact that it appeared that they were hiding something in the vehicle.
Q. It was the fact that they wouldn’t let you search their car; is that right?
A. Yes, sir.
Q. What did you suspect was in the vehicle?
A. I did not know what was in the vehicle at that point.
Q. But you knew something was?
A. Well, I knowed that for some reason they didn’t want me to search the vehicle. I knowed for a fact that there was a strong odor of marijuana coming from the vehicle.
Q. That was explained by the little bag of marijuana almost an ounce, twenty-three grams; isn’t that right?
A. Yes, sir.
Q. That was the smoke that you smelled; was it?
A. Possibly.
Q. But you had an instinctive feeling that there was something in that car; is that what you are saying?
A. Yes, sir.
Q. And that was because these boys didn’t want you to search the car?
A. Yes, sir. (Emphasis added)
. The Supreme Court has granted certiorari in a case largely indistinguishable from Robbins and has directed counsel to address the question of whether the Court should reconsider Robbins. See United States v. Ross, - U.S. -, 102 S.Ct. 386, 70 L.Ed.2d 205 (1981).
. As noted above, Alford testified that one of the bags had a two-inch hole in it — a point I will address hereafter. For present purposes, it is sufficient to note that the majority’s plain view theory disavows any reliance upon this questionable evidence.
. In response to defendants’ first suppression motion, the district court upheld the validity of the search under the Fourth Amendment. In my view, that ruling was erroneous. The trial judge later vacated that ruling and suppressed the evidence because a subsequent station-house search was conducted under a state warrant that failed to meet the requirements of Federal Rule of Criminal Procedure 41(a). This position is somewhat problematical, because, if the roadside search was valid, it is unclear why a warrant was required for the ensuing search at the stationhouse. Since I conclude that Alford’s initial search of the garbage bag was unlawful under the Fourth Amendment, however, I would suppress as tainted fruit the evidence seized at the stationhouse. Like the majority, I find it unnecessary to address the rule 41(a) issue.