concurring in the judgment:
What the police knew was that Lopez was not the registered owner of the Ford Focus whose rescue he had aided and whose driver he had then taken steps to follow. What would these facts suggest to a reasonable police officer? The police knew that the gunman had engaged in a desperate enterprise — an attempt to break up a police investigation by directing deadly force at the police themselves. Would such a criminal have used his own car? Not likely. That Lopez didn’t own the Ford Focus didn’t help him a bit. In terms of diluting probable cause it was a zero, just as his submissive behavior was a zero.
What might have dissipated probable cause was a plausible explanation by Lopez of why he engaged in the rescue of the Ford Focus. At the suppression hearing, he offered no less than two accounts of why he dropped off the lady with the keys to the Ford Focus and why he followed her out of the parking lot. The record is barren of evidence that he offered these explanations to the police at the time of his arrest. Lopez’s failure to give an innocent connection with the car must have loomed large in the mind of the police. Only an unreasonably slack officer would have brushed off the connection.
That Lopez had no idea why he had been pursued from the parking lot, surrounded by police cars, and at gun point ordered to the ground is unbelievable. Nothing suggests that this drug dealer was a moron. He couldn’t figure out that his part in rescuing the Ford Focus and following it in tandem had made the police suspicious? It was his burden to show that the police had been given a plausible story to account for his extraordinary conduct. He had a fair amount of time to converse with the officers. When the record is silent, the inference is inescapable that he kept his mouth shut.
If Lopez was not himself the gunman, it was probable that he was in on the gunman’s scheme. The police knew that the gunman was part of a drug conspiracy. Why else would the gunman have tried to use a gun to stop a police narcotics investigation? It was reasonable to think that a conspiracy of this kind, leading to an act of violence against law enforcement, must have more than two members. The chances were fair that the gunman would not himself return to the car but use another member of the gang to get it. Arriving, after dark, in a car whose windows were tinted so darkly that they violated state law, Lopez drove directly to the car that had been used in the attempted shooting earlier in the day, dropped off a driver with keys fitting that car, and then, after the kind of evasive maneuvers designed to thwart surveillance, had followed the Focus. There was a fair probability that Lopez’s actions were those of, if not the gunman himself, then a fellow conspirator.
As long as Lopez did not offer an explanation of his role — and the record shows no evidence that he did at the police station — a police officer could reasonably believe that they had in custody either the gunman himself or another participant in the drug conspiracy the gunman was trying to defend by his desperate assault on the police. Either way, probable cause was present and undiminished at the time *1080that Lopez consented to the search of his car.