dissenting.
I.
The rationale of the court of appeals in arriving at its conclusion that the handguns should have been suppressed appears to me to be somewhat unclear. The court stated: “ ... the inventory search of the locked trunk was an unlawful search. Gill v. State, 625 S.W.2d 307, 317-320 (Tex.Cr.App.1981) (en banc) (Opinion on motion for rehearing) [other citations omitted]. The fact that a small quantity of suspected contraband and a large amount of cash were found in the front seat area of the vehicle does not amount to probable cause to search the trunk. Gill at 311.” 648 S.W.2d at 791. It appears that the court of appeals thus invalidated the search in this case on the grounds that there was no probable cause to support a search of the trunk of the car merely because suspected contraband was observed in the passenger compartment of the appellant’s car, and that the scope of a permissible inventory search did not encompass the locked trunk. In its petition to this Court the State has challenged both of these apparent holdings. The majority writes only on the issue of probable cause.1
*116The State argues that discovery of the Black Mollies in the ashtray of the front seat of the Cadillac provided Officer Dean with probable cause to believe he would find more contraband in the locked trunk of the car. We are urged to reconsider our opinion on original submission in Gill, supra, in light of recent cases of the United States Supreme Court, notably United States v. Ross, 456 U.S. 798,102 S.Ct. 2157, 72 L.Ed.2d 572 (1982) and Michigan v. Thomas, 458 U.S. 259, 102 S.Ct. 3079, 73 L.Ed.2d 750 (1982).
In its analysis the majority begins by distinguishing the instant case from Gill on its facts, thusly:
“Here, not only contraband, but a large amount of cash was discovered, suggesting that the driver of the car might be involved in the sale of controlled substances and might possess larger quantities of such substances in the trunk.”
Maj. op. at p. 109. Rather than pursue its perceived distinction between circumstances which would lead a cautious man to conclude he has found a casual user of drugs from those “suggesting” he has discovered a contraband salesman,2 however, the majority instead concludes that despite the distinction the instant case is “close enough” to Gill on its facts that it may reach out and overrule it. In doing so the majority does not rely on Ross, as the State urges. Indeed, it cannot, for the simple reason that the rationale in Ross does not “undercut” that of Gill.
II.
In Gill a search of the defendant’s car uncovered a marihuana cigarette and other items which could be construed as drug paraphernalia.3 The officers then requested of the defendant the keys to the trunk, and when he refused, they had the back seat of the car removed so that they could search the trunk. There they found a bottle of hydromorphone tablets, for possession of which the defendant was prosecuted.
In his opinion on original submission Judge Roberts broke down his probable cause analysis thusly:
“The issue of probable cause for the search of the trunk comprises two questions: Does the existence of probable cause to search the interior of the car necessarily mean that there was probable cause to search the trunk? If not, was there nonetheless probable cause to search the trunk? The answer to both questions is, No.”
625 S.W.2d 310. As to the scope of the search which was supported by the discovery of the marihuana and paraphernalia in the front seat of the automobile, the Court concluded:
“A search based on probable cause which reasonably tends to support only the inference that contraband or evidence will be found in the passenger compartment *117is of intolerable intensity and scope if it is expanded to include a closed trunk. Such an expansion must be justified by specific, articulable facts that give probable cause to believe that contraband or evidence is concealed in the trunk. [Citations omitted].”
Id., at 311. As to whether the items found in the front seat gave rise to independent probable cause to believe contraband was contained in the trunk, the Court held:
“The finding of a small quantity of suspected contraband in the passenger compartment of an automobile does not alone amount to probable cause to search the trunk. [Citations omitted].”
Id. These holdings are unaffected by the decisions in United States v. Ross and Michigan v. Thomas, both supra.
In Ross the Supreme Court concluded that where police officers have probable cause to believe contraband is contained somewhere within the confines of a motor vehicle “ ... they may conduct a search of the vehicle that is as thorough as a magistrate could authorize in a warrant ‘particularly describing the place to be searched.’ ” 456 U.S. at 800, 102 S.Ct. at 2160, 72 L.Ed.2d at 578. The Court elaborated:
“When a legitimate search is under way, and when its purpose and its limits have been precisely defined, nice distinctions between closets, drawers and containers, in the case of a home, or between glove compartments, upholstered seats, trunks and wrapped packages, in the case of a vehicle, must give way to the prompt and efficient completion of the task at hand.”4
456 U.S. at 821-822, 102 S.Ct. at 2171, 72 L.Ed.2d at 591. Thus the Court delineated the legitimate reach of a vehicle search once probable cause has been established which justifies searching the entire vehicle.
In Ross the arresting officers had probable cause to support a general search of the vehicle before they made the stop. Thus, the scope of their search was held to extend to any area of the car, and to the contents of any container therein, within which it was reasonable to believe that the contraband might be concealed. See also Esco v. State, 668 S.W.2d 358 (Tex.Cr.App.1982) (Opinion on state’s motion for rehearing).
In the instant case, as in Gill, the arresting officers had no probable cause whatever to believe appellant’s car contained contraband prior to making the stop. Probable cause to search must therefore be predicated, and its scope defined, by factors observed after appellant was pulled over for driving without a license. Unless those factors add up to establish probable cause to believe contraband may be found throughout the car, not simply in the passenger compartment, then the search of the trunk is indefensible. This is so because until the factors so add up, the purpose and limit of the search have not yet been defined to include the trunk.
The question really boils down to this: based on the facts purporting to give rise to probable cause in this case, how extensive a search could a magistrate have authorized? Officer Dean found cash and “Black Mollies” in the front seat of the car. Nothing was found in the back seat.5 Clearly the capsules in the ashtray would support a search of the passenger compartment and any receptacle therein which reasonably might contain further controlled substances. Ross so dictates. However, whether these facts also give rise to probable cause to believe contraband has been stowed in the trunk is a question that continues to be controlled by Gill, irrespective of the decision in Ross;6 at least it was until today.
*118III.
What the majority does rely on, sua sponte, to overrule Gill is a semantically watered down conception of probable cause. Rather than inquire whether it was reasonable under the circumstances to believe that a controlled substance would be found in the trunk of the automobile, the majority now asks whether it was reasonable to “assume” a controlled substance “might” be found there. The distinction, while subtle, is nevertheless critical — indeed, in the instant case it would appear dispositive.
Quoting from the Supreme Court of Nebraska the majority observes:
“Having found a quantity of illicit drugs in one part of the automobile does not sensibly suggest the probability that no more such substance is present.”
State v. Watts, 209 Neb. 371, 307 N.W.2d 816, 819 (1981).7 But stating the double negative thus does not make self evident its converse, viz: that finding a quantity of illicit drugs in part of an automobile does sensibly suggest the probability that more such substance is present in another, independently enclosed portion of the vehicle. Even if it did, to say that a probability is “suggested” is really no more than to point out a possibility. It is always reasonable to assume that a suspected violator “might” be keeping concealed weapons or contraband. It is that possibility that ren*119ders permissible the Terry patdown and the automatic search of the person incident to arrest. However, more is required to sustain the search of what must be presumed to evince some reasonable expectation of privacy, Ross, supra, and Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970) notwithstanding, viz: the locked trunk of a car. That the trunk inevitably “goes along for the ride” may well justify its search without a warrant, but it cannot alone give rise to probable cause to search, as the majority pithily suggests. Even a “practical, nontechnical” understanding of probable cause, Texas v. Brown, 460 U.S. 730, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983); Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), does not transform it into simply that which under the circumstances cannot be ruled out. I cannot join in this gratuitous emasculation of the probable cause requirement.
IV.
Finally I must protest the majority’s importation of New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981) into this cause. Presumably the majority does so because it cannot otherwise place Officer Dean in a position to discover the “Black Mollies” and the cash which it finds gave rise to probable cause to search the trunk,8 since that discovery cannot be justified pursuant to a lawful impoundment and inventory. See n. 1, ante. Dean’s presence in the car need not be justified at all by this Court, however, since it was not made an issue on appeal nor passed on sua sponte by the court of appeals. Thus, the “question remains” only in the overreaching minds of the majority.
For all the foregoing reasons I respectfully dissent.
. The State maintains that the search of the trunk occurred pursuant to a lawful inventory of appellant’s Cadillac. This Court has recently handed down a trilogy of cases regarding the lawful scope of an inventory search. Kelley v. State, 677 S.W.2d 34 (Tex.Cr.App.1984); Guillett v. State, 677 S.W.2d 46 (Tex.Cr.App.1984); Stephen v. State, 677 S.W.2d 42 (Tex.Cr.App.1984). At first blush these cases seem to control the instant case. Each case upheld a search, as part of an inventory pursuant to a lawful impoundment, of a locked compartment of an automobile, because the search was not conducted by means of a forcible entry. The Court reasoned that once the arresting officer obtained access to the key to the locked compartment, that compartment fell within the ambit of one of the justifications for inventory searches enumerated in South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976), viz,, to protect against possible future claims of theft of property by the police. See Stephen, supra.
However, I find that application of any analysis of the scope of the inventory in this case to be pretermitted. Before an inventory search will be upheld there must be a lawful impoundment. Benavides v. State, 600 S.W.2d 813 (Tex. Cr.App.1980). An automobile may be impounded if the driver has been removed from it and placed under custodial arrest and no other alternative is available to insure the protection of the vehicle. Smyth v. State, 634 S.W.2d 721 (Tex. Cr.App.1982); Benavides v. State, supra.
At the pretrial hearing the following exchange transpired during recrossexamination of Officer Dean:
"Q: Officer Dean, as a matter of fact, sir, Mr. Osban over here told you there was someone at that location that he could leave the keys with, who he had a direct relationship with who could take custody of that car at that instant, didn’t he?
A: Yes.
Q: And he asked you if he could do that, didn’t he?
A: Yes.
Q: And you told him no, isn’t that correct?
A: That’s correct."
Immediately thereafter, on redirect examination by the prosecutor, the following occurred:
“Q: Give the Judge the reason why you didn’t release it to the other person.
A: Because I didn’t know who the other person was. And it would be just the same as leaving it there unattended, because I didn’t know who she was.”
Whereupon, again on recross, the following:
“Q: Didn’t he tell you it was his ex-wife?
A: Yes.
Q: Did you make any attempt whatsoever to determine whether or not she would be willing to take custody of that vehicle.?
A: No, I did not.
Q: You didn't?
A: I did not know who she was."
Based on this testimony it appears that Officer Dean had a clear alternative before him which he chose to ignore. Had he relinquished custody of the Cadillac to appellant’s ex-wife, who was at the scene, all caretaking responsibility on the part of the police would have been obviated. Dean could easily have ascertained whether this *116"other person” was indeed appellant’s ex-wife, and whether she would willingly have taken custody of the vehicle, as appellant requested. Further, that Dean did not know who she was makes no difference as long as it was appellant’s desire to turn the car over to her. This case is clearly distinguishable from Stephen, supra, wherein it was shown that the passenger in defendant’s car when he was stopped had no license and therefore could not legally have driven the car. In a footnote Judge McCormick noted that "... if [defendant’s] companion had had a valid driver’s license and it was [defendant’s] desire to leave the car with his companion the officers should have respected his wishes. See Daniels v. State, 600 S.W.2d 813, 815 (Tex. Cr.App.1980).” Stephen, supra, at 44.
Because there was an alternative available to Officer Dean which would have removed any caretaking responsibility from the hands of the police, the impoundment in this case was gratuitous and unlawful. Therefore the search of the trunk cannot be justified as an inventory pursuant to a lawful impoundment. Benavides v. State, supra. Daniels v. State, 600 S.W.2d 813 (Tex.Cr.App.1980). Appellant raised this matter in his brief to the court of appeals, which did not address it.
. Like Judge Teague, I fail to see how circumstances "suggesting” contraband “might” be found are "sufficiently strong in themselves to warrant a cautious man in the belief' that contraband will be found.
. To wit: "... a syringe which contained a liquid that was not identified, a marihuana cigarette, a towel, a bottle of rubbing alcohol, a spoon, some cotton, and a briefcase which contained various papers.” 625 S.W.2d at 309.
. All emphasis is supplied throughout by the writer of this opinion unless otherwise indicated.
. Gill distinguishes Bomer v. State, 521 S.W.2d 852 (Tex.Cr.App.1975) in that, in Bomer there was a strong odor of marihuana emanating from the back of the vehicle which gave the officers probable cause to believe they might find a quantity of marihuana in the trunk. There was no such factor in Gill. There is no such factor in this case.
. Nor is the State’s argument supported by Michigan v. Thomas, supra. In that case the defendant was arrested for possession of open intoxicants in a motor vehicle. Because the defendant’s passenger was too young to legally drive, the arresting officers impounded his car *118and commenced to inventory its contents. During the course of the inventory marihuana was found in the glove compartment. The officers proceeded to conduct a thorough investigation of the car interior and the trunk. In the air vents under the dashboard was found a .38 caliber revolver. The defendant was prosecuted for possession of a concealed weapon.
The State contended, inter alia, that the discovery of marihuana in the glove compartment during the legitimate inventory search provided probable cause to believe there was contraband elsewhere in the car, including the trunk. “Without attempting to refute the State’s contention that this discovery gave the officers probable cause to believe there was contraband elsewhere in the vehicle, the [Michigan] Court of Appeals held that the absence of ‘exigent circumstances’ precluded a warrantless search." 458 U.S. at 262, 102 S.Ct. at 3081, 73 L.Ed.2d at 753. It is the holding that exigent circumstances are required to justify a warrantless automobile search that the Supreme Court found erroneous in Michigan v. Thomas. Neither the Michigan Court of Appeals nor the United States Supreme Court expressly decided the question of whether the contraband in the glove compartment provided probable cause to search the trunk.
. I do not read the quote from Watts as expansively as does the majority. There the defendant was stopped for speeding. The arresting officer smelled burnt marihuana and asked the defendant if he had any in the car. After the defendant denied having marihuana, the officer spotted in the back seat "a small amount of marijuana in plain view in a cooler with the lid partially off.” The defendant was arrested and the key to the trunk was found in his sock, after he told the officer he could not find it.
The full paragraph from which the quote is taken reads as follows:
“The defendant argues that the state trooper may have had probable cause to search the interior of the car, but after finding the bag of marijuana in the cooler, he could search no further without independent reason to believe that there was marijuana in the trunk. For support, the defendant refers this court to Wimberly v. Superior Court, 16 Cal.3d 557, 547 P.2d 417, 128 Cal.Rptr. 641 (1976); Commonwealth v. White, 374 Mass. 132, 371 N.E.2d 777 (1977); State v. Patino, 163 N.J.Super. 116, 394 A.2d 365 (1978); and others. The holdings in those cases to the contrary notwithstanding, we believe it just as logical to conclude that the finding of the small amount of marijuana in the passenger compartment, after being told by the defendant that none existed, simply served to substantiate the officer’s suspicions and furnish additional probable cause to make a complete search of the automobile. Having found a quantity of illicit drugs in one part of the automobile does not sensibly suggest the probability that no more such substance is present.”
It is clear that the Nebraska court’s statement was made in the context of refuting the defendant’s assertion that once some marihuana was discovered the officer’s suspicion was confirmed and he had no cause to search the vehicle further. Thus it was intended to convey no more than the idea that the probable cause the court perceived already had arisen, on the strength of the marihuana odor, did not dissipate once some marihuana was found. It was not meant to serve as some kind of analytical framework for applying the probable cause standard, as the majority seems to imply.
I find it significant that the Nebraska court ultimately held that it was the marihuana found in the back seat, along with the defendant's several attempts to deceive the arresting officer, that supplied the probable cause to search the trunk.
. Query, however, whether it was "reasonable” under the Fourth Amendment and Art. I, § 9 of the Texas Constitution to have placed appellant under full custodial arrest for driving without a valid Texas driver’s license. See Williams v. State, 726 S.W.2d 99 (Tex.Cr.App. delivered this day) (Clinton, J., dissenting). But see also Snyder v. State, 629 S.W.2d 930, 934 (Tex.Cr.-App.1982). This issue was neither briefed nor decided in the court of appeals.