                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                 No. 15-10621
                Plaintiff-Appellee,
                                            D.C. No.
                v.                       1:13-cr-00653-
                                            SOM-6
JACOB DEL MUNDO FAAGAI, AKA
Jacob Faagai-Del Mundo, AKA
Jake,                                      OPINION
              Defendant-Appellant.


     Appeal from the United States District Court
              for the District of Hawaii
  Susan Oki Mollway, Senior District Judge, Presiding

       Argued and Submitted February 24, 2017
                 Honolulu, Hawaii

               Filed September 7, 2017

    Before: Alex Kozinski, Michael Daly Hawkins,
          and Carlos T. Bea, Circuit Judges.

               Opinion by Judge Bea;
              Dissent by Judge Kozinski
2                   UNITED STATES V. FAAGAI

                            SUMMARY*


                           Criminal Law

    The panel affirmed the district court’s order denying the
defendant’s motion to suppress contraband seized during a
warrantless search of the defendant’s truck.

    The panel held that under the totality of the
circumstances, there was probable cause to believe that
contraband would be found in the truck, and that the search
was therefore permissible under the automobile exception to
the warrant requirement.

    Dissenting, Judge Kozinski wrote that the government,
whose case rests on four meetings between the defendant and
a suspected meth dealer, came nowhere close to meeting the
probable cause standard, where officers, who observed most
of the meetings and wiretapped the dealer’s phone, never saw
a handoff of money or contraband, nor heard an explicit
mention of drugs.




    *
      This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                  UNITED STATES V. FAAGAI                        3

                          COUNSEL

Thomas M. Otake (argued), Honolulu, Hawaii, for
Defendant-Appellant.

Chris A. Thomas (argued), Assistant United States Attorney;
Florence T. Nakakuni, United States Attorney; United States
Attorney’s Office, Honolulu, Hawaii; for Plaintiff-Appellee.


                           OPINION

BEA, Circuit Judge:

                        I. Background

     From August to November 2012, John Penitani
(“Penitani”) was the primary target of a court-authorized
wiretap investigation. The purpose of the investigation was
to identify Penitani’s drug trafficking organization, including
his sources of methamphetamine.

    Law enforcement agents began investigating Penitani in
July 2012, based on the seizure of 14 ounces of
methamphetamine and approximately $3,600 from Penitani’s
cousin, Makusi Penitani (“Makusi”). Makusi told law
enforcement agents that he had obtained the seized
methamphetamine from Penitani and that he had been
purchasing approximately one to two pounds of
methamphetamine a month from Penitani.1


    1
      The dissent ignores this evidence of Penitani’s prior acts of
methamphetamine distribution.
4                    UNITED STATES V. FAAGAI

    Appellant Jacob Del Mundo Faagai (“Faagai”) was
introduced to Penitani by Julius Mitchell (“Mitchell”). Law
enforcement agents knew that Mitchell and Penitani had
previously engaged in three illegal drug transactions before
this introduction took place.2 In addition, Mitchell had
assisted Penitani in collecting a drug debt that Makusi owed
to Penitani.

    On October 29, 2012, Penitani met Faagai alone at a
restaurant in West Oahu. Beforehand, Penitani asked Faagai
in an intercepted telephone conversation: “You by yourself[,]
eh?” Faagai responded, “Yeah, yeah automatic.” Agents
observed Penitani and Faagai at the restaurant, but could not
hear what the two men discussed. In an intercepted telephone
call after the meeting, Penitani asked Mitchell whether Faagai
was “trustworthy,” and told Mitchell, “I said I just hope he
don’t try to do me wrong.”

    Later that same day, agents intercepted another call
between Penitani and Faagai, in which Faagai was attempting
to locate Penitani at the Pearlridge Shopping Center for what
appeared to be a pre-planned meeting. Drug Enforcement
Administration Special Agent Clement Sze (“Special Agent
Sze”) testified that he believed that although agents were not
able to conduct surveillance of that meeting, they believed,
based on the entirety of their investigation, that Penitani and
Mitchell were meeting Faagai to supply him with
methamphetamine.




     2
       These prior acts of illegal drug transactions are similarly ignored by
the dissent.
                  UNITED STATES V. FAAGAI                         5

    On November 4, 2012, law enforcement agents seized
five pounds of methamphetamine from a courier whom
Penitani’s supplier had sent to Hawaii.

    On November 5, 2012, agents intercepted a text message
from Faagai to Penitani in which Faagai said that he was
going to Costco in Kapolei “to buy food for [his] house” and
that if Penitani “gotta buy food for [Penitani’s] house,” they
should meet at Costco. Special Agent Sze testified that he
believed that Faagai was using “food” as a code word for
“money.” He also testified that he believed that Faagai
wished to arrange a meeting in which he would pay Penitani
for methamphetamine that Penitani fronted to him on October
29.3 Defense counsel did not object to this opinion testimony.
Agents traveled to the Costco in Kapolei and observed
Penitani and his then girlfriend, Keschan Taylor, exit Costco
and drive away. Agents did not see Faagai in the area, but
Special Agent Sze testified that the agents believed that the
meeting between Faagai and Penitani had already taken place.

    Four hours later, agents intercepted a text message from
Penitani to Faagai stating, “Man thanks to this broad I lost ten
large. Man sorry taking long with da tools bro.” Special
Agent Sze testified that he believed that Penitani was
indicating to Faagai that he had lost $10,000, and that “tools”
referred to methamphetamine. Once again, defense counsel
did not object to Special Agent Sze’s opinion testimony.


    3
       The dissent insists there was no expert testimony that “food”
referred to “money” or that “tools” referred to “methamphetamine.”
However, Special Agent Sze was qualified as an expert in just such
expertise: the government questioned him about his expertise in
translating words used in drug deals, the government asked for his
opinion, and there was no objection.
6                  UNITED STATES V. FAAGAI

    At 6:36 p.m. that same day, Faagai sent a text message to
Penitani that read, “I really need my tools so I can get back to
work bro wat [sic] time we looking at.” Special Agent Sze
testified that he believed that Faagai was asking Penitani for
methamphetamine and that Faagai wished to know what time
they would be meeting. Two minutes later, Faagai sent
Penitani the following text message: “Thanks brradah dont
wanna lose my job.”

    At 7:11 p.m., Penitani responded: “On my way.” Faagai
replied: “OK braddah thank u$.” At 7:46 p.m., agents
intercepted a telephone call between Penitani and Faagai in
which they discussed where they should meet. Penitani
suggested McDonald’s in Waianae, but was concerned that
there would be “[p]lenty [of] people” there. Faagai suggested
Jack In The Box in Waianae, which typically had “hardly any
people” there. Penitani agreed to meet at the Jack In the Box.

   Law enforcement agents conducted surveillance at the
Jack In The Box and did not see Faagai or Penitani. At 8:14
p.m., agents intercepted a text message from Penitani to
Faagai changing the location of the meeting to a 7-Eleven.
The agents drove to the 7-Eleven at 8:30 p.m., where they
saw Faagai in the parking lot, leaning into the passenger side
window of Penitani’s car. Penitani and Faagai had already
been there for approximately 15 minutes.4 Moreover, Special
Agent Sze testified that he believed that the drug transaction
had already occurred by the time agents arrived on scene.



    4
      Special Agent Sze testified that agents believed that Faagai and
Penitani had arrived fifteen minutes prior because there was a fifteen-
minute lapse between when the text message was received and when law
enforcement agents observed them at the 7-Eleven.
                 UNITED STATES V. FAAGAI                     7

    At approximately 9:00 p.m., Faagai left the 7-Eleven
parking lot and drove west on Farrington Highway. Special
Agent Sze had arranged for Honolulu Police Department
Sergeant Leslie Morris to make a purported traffic stop of
Faagai. At 9:05 p.m., Sergeant Morris pulled Faagai over and
told him that his vehicle had been identified as having been
involved in a robbery. Sergeant Morris asked Faagai for
consent to search the vehicle. Faagai refused and became
belligerent. Sergeant Morris then instructed Faagai to exit the
vehicle. Faagai complied, sat on the curb of the road, and
made calls on his cell phone.

    Soon after, some of Faagai’s friends arrived and became
belligerent and verbally combative toward Sergeant Morris.
Special Agent Sze approached and intervened, informing
Faagai that he was investigating a robbery and that the truck
Faagai was driving was identified as being involved in the
robbery. Special Agent Sze asked Faagai for consent to
search his vehicle, but Faagai refused.

    Next, Special Agent Sze asked Faagai where he had come
from, and Faagai said (falsely) that he had come from Jack In
The Box where he had picked up food for his family. Special
Agent Sze asked whether he had come from somewhere else,
but Faagai insisted that he had come from Jack In The Box,
rather than the 7-Eleven where, agents knew, he had met
Penitani. Marked police cars pulled up, and Faagai was
detained on the sidewalk.

    Special Agent Sze began to search Faagai’s vehicle, and
Faagai asserted that the backpack in the front passenger seat
belonged to his uncle. Special Agent Sze found drug
paraphernalia in the backpack, as well as approximately half
of a pound of methamphetamine in a plastic bag located in
8                UNITED STATES V. FAAGAI

the back pocket of the front passenger seat. Faagai was
arrested.

    Faagai was charged with conspiracy and possession with
intent to distribute 50 grams or more of methamphetamine, its
salts and isomers and salts of its isomers, in violation of 21
U.S.C. §§ 841(a)(1), (b)(1)(A), and 846.

    On March 6, 2014, Faagai filed an initial motion to
suppress the contraband seized during the vehicle search.
Faagai, who obtained new counsel, filed a subsequent motion
to suppress on October 27, 2014. An evidentiary hearing was
held on November 21, 2014.

    The district court denied the motion, concluding that the
automobile exception to the warrant requirement justified the
warrantless search of Faagai’s truck. The district court
concluded that agents had probable cause to search Faagai’s
vehicle based on the following facts: First, “Faagai-Del
Mundo was associating with Penitani, an individual under
investigation as a drug distributor who was considered the
source of recently seized methamphetamine.” Second,
“agents knew from their wiretap investigation that Penitani
had been introduced to Faagai-Del Mundo by Julius Mitchell,
a suspected drug trafficking associate of Penitani’s.” Third,
“Penitani’s concern about whether others were around
[during the October 29 meeting] and Faagai-Del Mundo’s
response that it was ‘automatic’ that he was alone signaled
that clandestine activity was occurring.” Fourth, “Penitani
asked Mitchell if Faagai-Del Mundo was ‘trustworthy’ and
expressed his hope that Faagai-Del Mundo would not do him
wrong,” which “further suggested that Faagai-Del Mundo
was involved in illicit activity.” Fifth, “Penitani and Faagai-
Del Mundo appeared to speak in code. . . . The use of terms
                 UNITED STATES V. FAAGAI                    9

such as ‘tools’ does not mesh with anything else in the record
about Penitani. There is no indication that law enforcement
agents had information at the time tying Penitani to
construction work, mechanical work, or other manual labor.
The messages regarding Faagai-Del Mundo’s ‘work’ and
‘job’ indicated that Penitani and Faagai-Del Mundo were
involved in some sort of income-related activity.” Sixth,
“Faagai-Del Mundo became belligerent upon being told by
Sergeant Morris that his vehicle was believed to have been
involved in a robbery.” Seventh, “during the course of
Faagai-Del Mundo’s conversation with Special Agent Sze on
November 5, 2012, Faagai-Del Mundo lied about where he
had been.” The district court concluded, “[g]iven the totality
of circumstances, there was a fair probability that contraband
or evidence of a crime would be found in Faagai-Del
Mundo’s vehicle.”

    Pursuant to a plea agreement, Faagai entered into a
conditional guilty plea on Count 1 (the conspiracy charge),
which reserved his right to appeal the district court’s
suppression ruling. Faagai was sentenced to 188 months of
imprisonment followed by a five-year term of supervised
release. Faagai appeals his judgment of conviction.

                  II. Standard of Review

    “Whether there is probable cause to support the
warrantless search of an automobile is a mixed question of
law and fact reviewed de novo.” United States v. Ibarra, 345
F.3d 711, 715 (9th Cir. 2003) (citing Ornelas v. United
States, 517 U.S. 690, 696–97 (1996)).
10               UNITED STATES V. FAAGAI

                       III. Discussion

    Faagai argues that “[t]he circumstances that the district
court relied on, in sum, add up at most to probable cause to
believe that the defendant was becoming involved with
Penitani’s criminal activity. They did not support concluding
the entirely different proposition that the truck would contain
drugs when agents searched it.”

    The Fourth Amendment of the United States Constitution
protects the “right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and
seizures.” U.S. Const. amend. IV. Accordingly, searches
typically must be conducted pursuant to a warrant issued by
an independent judicial officer. California v. Carney, 471
U.S. 386, 390 (1985). However, there are exceptions to this
general rule, including the “automobile exception,” under
which a warrantless search of a vehicle is permitted “if there
is probable cause to believe that the vehicle contains evidence
of a crime.” United States v. Brooks, 610 F.3d 1186, 1193
(9th Cir. 2010). Probable cause exists if there is a “fair
probability that contraband or evidence of a crime will be
found in a particular place,” under the totality of the
circumstances. United States v. Rodriguez, 869 F.2d 479, 484
(9th Cir. 1989) (quoting Illinois v. Gates, 462 U.S. 213, 238
(1983)). “A finding of probable cause must be supported by
the objective facts known to the officer at the time of the
search.” United States v. Rodgers, 656 F.3d 1023, 1029 (9th
Cir. 2011).

   Under the totality of the circumstances, there was
probable cause to believe that contraband would be found in
Faagai’s truck. Faagai was associating with Penitani, a
known drug dealer. Moreover, Faagai had been introduced to
                 UNITED STATES V. FAAGAI                     11

Penitani by Mitchell, one of Penitani’s drug dealing
associates; law enforcement agents knew that Mitchell and
Penitani had previously engaged in three illegal drug
transactions and that Mitchell had assisted Penitani in
collecting a drug debt.

     As for the October 29 meeting, Penitani’s concern that he
and Faagai meet alone suggests that they were engaging in
illicit activity. As Special Agent Sze testified, “Drug
distribution is a risky endeavor, and when you meet someone
new, you’re already exposing yourself; so you definitely want
to reduce the number of people that you are meeting.”

    And after the meeting, Penitani enquired of Mitchell
whether Faagai was “trustworthy.”            Considering the
circumstances of the meeting, it is apparent that Penitani was
asking whether Faagai was sufficiently “trustworthy” to
participate in drug transactions. Penitani’s statement, “I said
I just hope he don’t try to do me wrong,” was a veiled threat
against Faagai if he proved to be untrustworthy. There is
probable cause to believe that Faagai intended to engage in
drug dealing with Penitani.

    As for the November 5 meetings, the circumstances
suggest that they related to a drug transaction. The Costco in
Kapolei where Faagai suggested that he and Penitani meet
was located 24 miles away from where Penitani lived in
downtown Honolulu. Moreover, there was another Costco
located about a quarter of the distance away from downtown
Honolulu. It is unlikely that Faagai and Penitani met at the
Kapolei Costco to shop for food.

   Later that day, agents intercepted a text message from
Penitani to Faagai stating, “Man thanks to this broad I lost ten
12               UNITED STATES V. FAAGAI

large. Man sorry taking long with da tools bro.” Special
Agent Sze testified to his belief that Penitani was indicating
to Faagai that he lost $10,000, and that “tools” referred to
methamphetamine. Later that day, Faagai sent a text message
to Penitani that read, “I really need my tools so I can get back
to work bro wat [sic] time we looking at.” Special Agent Sze
testified that he believed that Faagai was asking Penitani for
his methamphetamine and that Faagai wished to know what
time they would be meeting. As the district court found, the
use of the term “tools” is suspect because “[t]here is no
indication that law enforcement agents had information at the
time tying Penitani to construction work, mechanical work,
or other manual labor.” This court gives “due weight to
inferences drawn from [findings of historical] facts by
resident judges and local law enforcement officers.” Ornelas,
517 U.S. 690, 699 (1996).

    At the hearing, defense counsel stated that Faagai is in the
construction business, but conceded that Penitani is not.
Even assuming that Faagai may have needed tools for his
work, there is no indication that Penitani would have been
able to supply them. The dissent accuses the majority of
misunderstanding the relationship of Penitani and Faagai as
to “tools.” But the dissent bases the claim of such
misunderstanding on the assumption that Penitani borrowed
tools from Faagai. There is nothing in the record to
substantiate that assumption; not even that Faagai wanted his
“tools” back from Penitani.

   When Penitani and Faagai discussed where they should
meet, they agreed to meet at Jack In The Box rather than
McDonald’s, because the Jack In The Box typically had
“hardly any people.” The fact that Faagai and Penitani
changed the location of their meeting based on the number of
                 UNITED STATES V. FAAGAI                     13

people present—not the food served—suggests that they
planned to engage in illicit activity rather than eat dinner
together. Special Agent Sze testified, “Typically, for drug
traffickers, they prefer to do their trafficking discretely and
away from people so that . . . they’re not caught or they’re not
observed by other people.”

    Penitani and Faagai subsequently changed the location of
their meeting to 7-Eleven. At the 7-Eleven, agents observed
Faagai walk away from Penitani’s car and toward his own
truck without anything in his hands. Agents did not observe
the entirety of the meeting, which lasted roughly 15 minutes.
Because the circumstances indicate the purpose of the
meeting was to engage in a drug transaction, there is probable
cause to believe that Penitani had delivered drugs (the
promised “tools”) to Faagai, and that these drugs could be
found in Faagai’s truck.

    Why in Faagai’s truck? We know that there was probable
cause to believe Penitani brought the “tools” (the drugs) so
that Faagai could “get back to work” and not “lose [his] job”
(deal the drugs). We know that Faagai arrived at the 7-
Eleven in a vehicle, because he drove away in his truck.
When the police saw Faagai leaning into the window of
Penitani’s car, he had nothing in his hands.

    Where could the “tools” (drugs) be located? In Penitani’s
car? Unlikely, because the purpose of the meeting was for
Penitani to deliver drugs to Faagai and Faagai left the scene
in his truck. On Faagai’s person? Perhaps, but unlikely
given that in prior transactions, Penitani had dealt in pounds
of methamphetamine. Hidden in the environs of the 7-
Eleven? Unlikely, given the high value of the drugs. In
Faagai’s truck? More likely than not.
14               UNITED STATES V. FAAGAI

    Lastly, during the purported traffic stop, Faagai’s
belligerent reaction to Sergeant Morris’s assertion that his
vehicle was believed to have been involved in a robbery, as
well as Faagai’s dishonesty regarding where he had come
from, both indicate that Faagai was engaging in illicit activity
with Penitani. The dissent generously and kindly allows that
Faagai “fudged his story when pulled over.” When asked
where he had been, Faagai twice asserted that he had been at
Jack In The Box, when in fact the agents saw Faagai and
Penitani in the 7-Eleven parking lot. “Fudged”? The reader
can judge.

   Accordingly, under the totality of the circumstances, there
was probable cause to believe that contraband would be
found in Faagai’s truck. Thus, the warrantless search of his
vehicle was permissible under the automobile exception.

                       IV. Conclusion

   For the foregoing reasons, we AFFIRM the district
court’s order denying the motion to suppress.



KOZINSKI, Circuit Judge, dissenting:

    Probable cause requires “facts indicat[ing] that [law
enforcement officers] will find what they are looking for in
the place to be searched.” United States v. Johnson, 256 F.3d
895, 906 (9th Cir. 2001) (en banc). This is not a high
standard but the government came nowhere close to meeting
it here.
                UNITED STATES V. FAAGAI                   15

    The government’s entire case rests on four meetings
between Faagai and John Penitani, a suspected meth dealer.
Despite observing most of these meetings and assiduously
wiretapping Penitani’s phone, officers never saw a handoff of
money or contraband, nor heard an explicit mention of drugs.
In fact, they saw and heard nothing objectively suspicious.

    The most probative evidence supporting the search was a
conversation between Penitani and Faagai where they
discussed meeting at Costco to buy food. Agents testified
that they “believed [food] to be a code” for drugs. But there
was no expert testimony or any other evidence supporting the
speculation that food stood for drugs. See United States v.
Bailey, 607 F.2d 237, 240 & n.6 (9th Cir. 1979) (discussing
expert’s testimony on the meaning of alleged code words).
Many people go to Costco to buy food. If talking about
shopping for food at Costco were sufficient to justify a
search, many of us would be searched by the police twice a
week—thrice right before Thanksgiving. Nor does it make
any sense to substitute food for drugs when talking about
where to meet. If Penitani and Faagai were meeting up to
conduct a drug deal, why specify the purpose of the meeting?
Why say “Let’s meet at Costco for a drug transfer” rather
than just “Let’s meet at Costco,” with the purpose of the
meeting understood?

    There was nothing remotely suspicious about the two
men’s discussion of “tools.” The majority seems to
misunderstand their relationship when it states that “[e]ven
assuming that Faagai may have needed tools for his work,
there is no indication that Penitani would have been able to
supply them.” But since Faagai worked in construction, he
would presumably have needed and owned certain tools. And
when Faagai texted Penitani “I really need my tools so I can
16               UNITED STATES V. FAAGAI

get back to work bro wat time we looking at,” Faagai was
clearly requesting his tools, implying that Penitani had
borrowed tools that belonged to Faagai and that were
necessary for Faagai’s work. Penitani even apologized to
Faagai for “taking long with da tools,” which would make
sense if the tools were Faagai’s to begin with. Why is it
suspicious or implausible that Penitani, who wasn’t in
construction, would borrow tools from Faagai, who was?
The majority never explains.

    The fact that the two men decided to meet in a place with
“hardly any people” cuts the wrong way. The government
commonly argues that drug dealers intentionally seek out
busy locations because a “high volume of pedestrian and
vehicle traffic can mask drug-dealing activity.” United States
v. Ruiz, 785 F.3d 1134, 1138 (7th Cir. 2015). Here, the
government claims the opposite, evidently trying to have it
both ways. At best, this fact is irrelevant: There was nothing
incriminating about the two men’s preference for a quieter
location.

    The majority deems it “unlikely that Faagai and John
Penitani met at the Kapolei Costco to shop for food” because
there was another Costco much closer to downtown
Honolulu. But as savvy shoppers know, not all Costcos are
the same. For example, the Kapolei location is twenty years
newer than its downtown Honolulu counterpart, and
features a “fresh deli.” Compare Costco Wholesale,
Find a Warehouse: Kapolei Warehouse,
https://www.costco.com/warehouse-locations/kapolei-hi-
1038.html (last visited July 14, 2017), with Costco
Wholesale, Find a Warehouse: Iwilei Warehouse,
https://www.costco.com/warehouse-locations/iwilei-honolulu-
                 UNITED STATES V. FAAGAI                    17

hi-687.html (last visited July 14, 2017). These are entirely
innocent reasons for preferring the Kapolei store.

    The majority’s remaining justifications for the search fare
even worse. Officers told Faagai that his vehicle was
involved in a robbery: Faagai knew this wasn’t the case, so
his indignant response makes perfect sense. Since any
innocent person might react that way, I don’t understand how
his outburst suggests drug dealing. To the contrary, I should
think that someone hauling drugs would be less likely to
mouth off to the police. That Faagai walked away empty-
handed from Penitani’s truck suggests nothing at all about
drug trafficking. And while one might wonder why Penitani
asked his associate about Faagai’s trustworthiness, or why
Faagai fudged his story when pulled over, this hardly
indicates there were drugs in the car when Faagai was
stopped.

    At no point was there obvious evidence of drug dealing.
Instead, the government relies entirely on Faagai’s
association with Penitani, viewing their every interaction as
suspicious because of Penitani’s drug-dealing past. But for
Penitani’s history, these interactions would seem perfectly
innocuous. And, as we have held time and again, mere
association with others involved in criminal activity does not
give rise to probable cause. See United States v. Collins, 427
F.3d 688, 691 (9th Cir. 2005); United States v. Del Vizo, 918
F.2d 821, 826 n.7 (9th Cir. 1990).

    The majority strings together a sequence of events like
beads on a strand, but doesn’t explain how any of them
provide probable cause that Faagai was carrying drugs in his
car when he was stopped. Nor do my colleagues reckon with
a long line of our cases holding that police suspicions lacking
18               UNITED STATES V. FAAGAI

objective evidence are insufficient to establish probable
cause. See, e.g., United States v. Cervantes, 703 F.3d 1135,
1139 (9th Cir. 2012); Johnson, 256 F.3d at 905; United States
v. Vasey, 834 F.2d 782, 788 (9th Cir. 1987). Instead, they fall
back again and again on their dubious theory of code words,
treating words like “food” and “tools” as nefarious. There’s
a vicious circularity to this logic: With the luxury of
hindsight, anything at all that Faagai and Penitani might’ve
discussed can simply be labeled “code for drugs.”

    Here’s what this case boils down to: Officers had a hunch
that a drug transaction was going down. They saw nothing
obviously suspicious, but got tired of waiting, watching and
wiretapping. They then jumped the gun by executing a
warrantless search. Until today, this was not enough to
support probable cause, but going forward it will be. This is
a green light for the police to search anyone’s property based
on what officers subjectively believe—or claim to
believe—about someone’s everyday conduct. That puts all
of us at risk. Accordingly, I dissent, and I’m off to Costco to
buy some food.
