dissenting:
I cannot concur with the language or the result reached by my colleagues in part III and IV of the panel opinion, and I write this dissent to express my contrary views as to each of those parts.
First of all, the critical issue in part III is the question of the constitutional propriety of the impoundment of the pickup truck. The second sentence of Section 5.04.01 of the general regulations of the City of Austin about impoundment of vehicles states: “Officers may initiate impoundment of a vehicle if such impoundment is necessary to facilitate or expedite a particular law enforcement or investigative action.” (emphasis added). The panel majority does not mention this sentence anywhere in their opinion; but I think it is critically important in that it sets, at the very beginning of the city’s regulations, the concept of “necessity.” Under the facts of this case, I think it was clearly not “necessary” for officer Joe Nichols to impound the pickup truck. Officer Nichols’ “particular law enforcement action” was to effect the arrest of Ponce; he had Ponce in handcuffs and in custody without coming anywhere near the truck, or even knowing that the truck existed. Furthermore, Section 5.04.05 of the regulations identifies seven circumstances under which an officer may impound a vehicle: When the vehicle has been, “.1” abandoned, “.2” stolen, “.3” imperiled by “reason of catastrophe, emergency, or unusual circumstances,” “A” parked illegally, “.5” involved in a crime during or after the commission, “.6” ordered to be towed, or “.7” “The operator has been arrested, and there is no responsible adult present to immediately take custody of the vehicle. (See also Section 5.04.07 — Alternative to Impoundment.)” Clearly, the first six of these circumstances specify situations where the circumstance authorizing impoundment relates to the vehicle itself. Applying a rule of ejusdem generis, I think the words “the operator has been arrested” in the .7th circumstance, clearly should be read as contemplating the circumstance when the arrest occurs at the time the party being arrested was actually operating the vehicle. The panel opinion brushes this contention under the rug by saying simply that: “We decline to construe the term ‘operator’ in the extremely narrow way that Ponce’s argument requires.” But it seems to me that when courts are called upon to construe regulations which authorize the police to seize, search, and impound private property, they should construe such regulations strictly and narrowly. Additionally, the panel opinion states that because Ponce had the keys to the truck in his pocket and drove it to the probation office, “that is enough to make Ponce an operator of the truck under Austin police procedures.” (emphasis added). The phrase in sub-part .7 says “the operator,” not “an operator”, and in my view requires the interpretation that at the time of arrest, the party being arrested is “the operator” of the vehicle. Certainly, when Ponce was sitting in the probation office, no one would describe him as the “the operator” of the truck.
The primary test contemplated by the Fourth and Fourteenth Amendments regarding search and seizure is one of “reasonableness.” Both sub-part .7 of Section 5.04.05 and Section 5.04.07 contemplate a “reasonable alternative” to impoundment when there is a “responsible adult present to immediately take custody of the vehicle.” The testimony at the suppression hearing clearly shows that Ponce’s girlfriend accompanied him to the probation office, that she was present in that office when Ponce was arrested, that Ponce requested that custody of the vehicle be turned over to her, and that the arresting officer declined to do so only because she did not have a driver’s license. There is nothing in the testimony that indicates the girlfriend did not meet the test of “responsible adult”; while she may not have been able to personally drive the truck away, there is nothing in the record to indicate that she was not mentally or physically “capable” of providing custody of the vehicle as it sat on the parking lot of the office building until she could make arrangements for someone else to come and drive or tow the vehicle away. Therefore, *1001what was clearly contemplated by the city’s regulations was that no impoundment would be effected in these circumstances; the arresting officer would simply note in his report that Ponce directed that custody of the truck be turned over to his girlfriend and that the keys to the truck were given to her. In my view, that was the common sense, reasonable thing to do. There was no need for the arresting officer to impound the vehicle; the decision of officer Nichols to seize the vehicle was not required under the rules and regulations of the City of Austin and was unreasonable in the Fourth and Fourteenth Amendment sense.
Affirmance of impoundment under the facts of this case will establish bad precedent. By approving the impoundment of the vehicle in this case, the panel decision will stand for the proposition that, if a person who is arrested has keys to a vehicle in his pocket, the arresting officer may locate that vehicle and impound and search it, even though the person arrested was not in the vehicle at the time of arrest. The Supreme Court has always insisted that exceptions to the Fourth Amendment warrant requirement be limited and specific. In my view, the exception which the Supreme Court has recognized permitting the impoundment of vehicles without a warrant should be kept limited to the specific circumstances where there is a necessity (an “exigency” to use the new terminology) or where there is a relationship (a “nexus” to again use the new terminology) between the vehicle to be impounded and the circumstances justifying impoundment or arrest of the operator. No such exigency or nexus exist in this case, and I think the impoundment was unconstitutional and the heroin seized in the vehicle’s ashtray should have been excluded.
Turning now to part IV, and the appropriateness of the personal search which officer Ivey Yancy did on Ponce at the filling station which resulted in the discovery of a dose of heroin in Ponce’s watch pocket, I commend and concur with the writing of the panel opinion beginning on page 999, which demonstrates so exquisitely why the Supreme Court’s decision in Minnesota v. Dickerson, — U.S. —, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993) prevents an endorsement of the government’s view that Yancy’s removal of the contents of Ponce’s watch pocket was permissible as part of a protective search for weapons under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). In my view, Minnesota v. Dickerson should have controlled the disposition of this entire issue because officer Yancy was clearly outside of the bounds of ? Terry stop when he put his finger in Ponce’s watch pocket to extract something which sounded like paper rattling and which he thought was folded-up money. The suppression hearing in Ponce’s case took place about a year before the decision of the Supreme Court in Minnesota v. Dickerson, and had that Supreme Court opinion been available, I doubt seriously that the trial judge would have ruled as he did. The government attempts to avoid the impact of Dickerson by contending that there was some special consent given by Ponce to the search of his person and that the discovery of the heroin in his watch pocket was within the scope of that consensual search. Appended as Exhibit “A” to this dissent is an extract showing all of the questions propounded by both the prosecutor and defense counsel to officer Yancy at the suppression hearing which deals with the subject of consent to search or scope of search. In my view, a detailed review of these questions and answers from the written transcript (disregarding contrary testimony offered by Ponce on the credibility choice available to the trial judge) shows conclusively that: (i) Officer Yancy never really requested permission from Ponce to conduct a body search, but simply told Ponce that he “was going to pat him down”; and (ii) even if some sort of request for consent was made, the request related only to a search for “weapons.” A request to search for weapons, even if consented to, should not be construed as including the right to examine the contents of a watch pocket, particularly not when the officer had already fingered the contents of that watch pocket from the outside and testified that he thought it made a noise like rattling paper and could have been more folded-up money. It is patently clear that officer Yan-cy never asked, “Can I search for you for drugs?” Until that question gets asked, I *1002would hold that a police officer is limited in the scope of his search to that which was spoken about, i.e., “weapons” in this case.
With all due respect to the honorable trial judge in this case, I conclude that his rulings on both points in this suppression hearing were clearly erroneous and that the conviction should be REVERSED.
EXHIBIT “A”
No. 92-8356; USA v. Ponce
This extract includes all questions regarding consent to search and scope of search propounded by both the prosecutor (Mark Marshall) and defense counsel (Ben Florey) to the witness (officer Ivey Yancy) at the suppression hearing held in Austin, Texas, on April 17, 1992, at the U.S. Courthouse, regarding events which occurred on November 10, 1990.
DIRECT EXAMINATION
by prosecutor
Mark Marshall
(page 7, lines 9-25)
Q All right. Did you talk with him about anything else?
A Then I — Officer Barber pulled up at that time. He pulled up at that time, and he got out and he walked to the other side, and I began to — when I began to talk with Officer Barber, he told me there was a possibility of weapons in the car.
Q Did he indicate he knew Mr. Ponce?
A Yes, sir.
Q Did he tell you anything about weapons on Mr. Ponce?
A As — repeat the question.
Q Did he relate anything to you concerning weapons about Mr. Ponce, that he might have a weapon?
A Yes, sir. There was a possibility that he might have some weapons on him.
Q Was this based on Officer Barber’s prior knowledge of this Defendant?
A Yes, sir.
(page 8, lines 1-13)
Q Did you get a little more suspicious at that point?
A Yes, sir.
Q What did you do after Officer Barber gave you that information; did you talk with Mr. Ponce?
A Yes, sir, and I asked him if it was okay for us to search his car.
Q How did he reply?
A Sure.
Q Did he ever deny—
A No.
Q I notice that you indicated there was a refusal of consent.
A That was my misrepresenting of this officer’s report.
(page 8, lines 16-21)
Q (By Mr. Marshall) What happened after Mr. Ponce gave consent to search his vehicle?
A Officer Barber then began to search his vehicle. At that time another officer called me on the radio and advised me that he had known Mr. Ponce and he had dealt with him with narcotics before.
(page 9, lines 13-20)
Q All right. Did there come a time when you searched the Defendant?
A Yes, sir. I searched him for weapons.
Q All right. Did you just search him on your own?
A I asked him, and then I just frisked him down.
Q How did he reply when you asked if you could search him?
A Go ahead.
(page 10, lines 3-12)
Q All right, sir. Did there come a time when you searched him again?
A Yes, sir.
Q All right. Why did you search him that time?
A To check again for possible weapons.
Q Did you search his entire body the first time?
A I just patted him down the first time, just a qu[i]ck frisk.
*1003Q What were you searching for the second time?
A Still possible weapons.
(page 11, lines 15-17)
Q All right, sir. At any time did the Defendant refuse to consent to either a search of his vehicle or his person?
A Yes, sir.
CROSS EXAMINATION
by defense counsel
Ben Florey
(page 13, lines 21-25; page 14, lines 1, 2)
Q All right. So if he did consent, you would have to put that in the report, right?
A Well, he said — he didn’t say no, so he said yes.
Q I mean, if you asked him for consent and he did or did not consent, you would put both the request and the reply in your report.
A Yes, sir.
(page 19, lines 18-25; page 20, lines 1^4)
Q Did you ask him if he had any weapons?
A Yes, sir. That was after I was — Officer Barber informed me that there were possible weapons.
Q All right. Did you pat him down before you searched his vehicle?
A Yes, sir. I believe I did. I believe I did.
Q Why did you pat him down?
A To make sure he didn’t have any on his person.
Q Have any what?
A Weapons.
Q You patted him down for weapons?
A Yes, sir.
(page 20, lines 10-24)
Q Did you ask him to put his arms out?
A I said, “I just want to pat you down.”
Q He didn’t have any problem with you patting him down?
A Yes, sir.
Q Or did you even ask him?
A He was cooperative.
Q He didn’t say no?
A No, sir.
Q Did he say yes?
A Yes, sir.
Q He said, “Please pat me down?”
A No. When I asked him, I said, “I’m going to pat you down,” and he said okay.
Q You didn’t ask him?
A I told him, “Well, I’m going to pat you down.”
(page 21, lines 14-17)
Q Did you pat down his jacket?
A I had him take it off and give it to me.
Q That was during the initial pat-down?
A Would be part of it, concurrent with it.
(page 22, lines 20-22)
Q You say you patted him down for weapons in your offense report?
A Yes, sir.
(page 23, lines 24, 25; page 24, lines 1, 2)
Q All right. Now, your offense report then goes into after you patted him down, you found no weapons, is that right?
A Right.
(page 25, lines 24, 25; page 26, line 1)
Q Did you then ask him for permission to look in his jacket?
A As for weapons.
(page 26, lines 20-23)
Q Yes, sir. And then you asked him if it was okay to search his jacket?
A If it was okay if I patted him down again for my safety.
(page 28, lines 15-25; page 29, lines 1-8)
Q (By Mr. Florey)
When you patted him down the second time, you said you were patting him down for weapons, is that right?
A Yes, sir.
Q And you know you don’t have to ask consent to pat down for weapons if you are in a situation where you felt like your safety is concerned?
A That’s right.
Q He had already given you permission to pat down the jacket?
A Yes, sir.
*1004Q You proceeded to pat down his person or the pants the second time looking for weapons?
A Yes, sir.
Q You didn’t ask for consent to search for weapons did you?
A I asked him could I pat him down again.
Q Well, he didn’t resist is what you’re saying?
A No, no resistance.
(page 32, lines 20-25; page 33, lines 1-5)
Q (By Mr. Florey)
When you asked him for his jacket, or did you say, “I’m going to search your jacket,” which way?
A As in?
Q As in—
A Give me your jacket, I’m going to search it?
Q Yeah, give me your jacket, you’re going to search.
A It would be more along the lines, “Is there any weapons on your jacket or in your jacket? Could I touch your jacket?”
Q And he handed it to you?
A Yes, sir. There wasn’t no problem.
REDIRECT EXAMINATION
by prosecutor
Mark Marshall
(page 33, lines 24, 25; page 34, lines 1-3)
Q Did the Defendant make any statement?
A He — he made one statement, but I didn’t put it in the report sir.
Q What did he say?
A He said, “Dang, I forgot it was in there.”