State v. Parker ( 1999 )

Johnson, J.

These consolidated cases present the question whether the personal belongings of nonarrested vehicle passengers are subject to search incident to the arrest of the driver. In all three cases, the Court of Appeals found the searches valid under the authority of State v. Stroud, 106 Wn.2d 144, 720 P.2d 436 (1986). We reverse. We hold the search incident to arrest exception articulated in Stroud does not automatically extend to the “private affairs” of persons who are not under arrest, including personal possessions police know or should know belong to such nonarrested individuals. Under the facts of these cases, it is undisputed police knew the items searched belonged to individuals who were not under arrest. The facts do not show, nor does the State argue, the existence of any articulable, objective suspicion that any nonarrested passenger was armed or dangerous or had secreted contraband obtained froip the arrestee. Therefore, there was no objective, lawful justification for the searches.

FACTS

State v. Parker

Deborah Parker was a passenger in a vehicle stopped for speeding. A license check revealed the license of the driver, Tim Thomas, was revoked. Thomas was arrested, handcuffed, and placed in the back of the patrol car. The arrest process lasted approximately 15 to 20 minutes, during which period Parker remained in the front passenger seat of the vehicle. Because an open container of beer was spotted in the vehicle, officers decided to check Parker’s sobriety in order to determine whether the vehicle could be released into her custody. Parker was asked to step from the vehicle to take a Breathalyzer test. She complied. While the Breathalyzer was being administered, one of the officers noticed some cash lying on top of Parker’s purse. The officer did not immediately decide to search the purse. Instead, he went back to Parker to ask to whom the money belonged. She said it belonged to her from the sale of a car. When Parker could produce no receipt or other proof of ownership of the money, the officer went back to his patrol car and learned from Thomas that the money belonged to him from a cashed paycheck. After the officers were satisfied the money actually did belong to Thomas, they removed the purse from the vehicle and asked Parker “if there was anything else in her purse [Thomas] placed there prior to being stopped.” Transcript at 13. The officers then searched the purse, taking things out and setting them on the trunk of the vehicle as they went through it. Inside the purse was a small, two-by-three-inch snapped-shut coin purse. Inside this coin purse was a plastic baggie of methamphetamine. Parker was arrested and charged with unlawful possession of a controlled substance.

Before trial, Parker moved to suppress the evidence found in her purse. At the suppression hearing the court found the ownership of the money had been resolved to the officers’ satisfaction before they searched the purse and there was no other evidentiary justification supporting the search. The court, however, found the search lawful incident to the arrest of the driver.

State v. Jines

Steven Jines was a passenger in a vehicle stopped for failing to signal a left turn. A license check revealed the driver, Christopher Oberst, had a suspended license. Oberst was arrested, handcuffed, and placed in the patrol car. Because Jines was not wearing his seat belt he was asked for identification, which he produced from his jacket lying on the center console between the two front seats. The officer then ordered Jines and another passenger out of the car and told them not to take anything as the officer intended to search the car. Jines complied, leaving his jacket behind. During the search of the vehicle, the officer searched through Jines’ jacket and found a small black box inside it. Inside this box the officer found methamphetamine. Jines was arrested and charged with unlawful possession of a controlled substance.

Before trial, Jines moved to suppress the evidence found in his jacket. At the hearing, the trial court found the officer knew, prior to searching it, that the jacket belonged to Jines. The arresting officer also testified that, except for the seat belt infraction, he had no reason to believe Jines was violating the law. The trial court found the search lawful incident to the arrest of the driver.

State v. Hunnel

Anna Hunnel, along with her three small children, was a passenger in a car driven by her husband John Hunnel. The vehicle was pulled over by the local sheriff on an unrelated suspicion of a “wanted” person in the area. However, at the scene the sheriff discovered Hunnel had outstanding arrest warrants for violation of a protection order and driving under the influence. A license check also revealed Hunnel’s license was suspended. Mr. Hunnel was arrested and placed in the patrol car.

After John Hunnel was arrested, the sheriff asked Anna Hunnel for identification in order to determine whether the vehicle could be released into her custody. She produced her identification from a purse at her feet on the front passenger floorboard. Thereafter, the sheriff requested Anna Hunnel exit the vehicle so he could search it. She attempted to take her purse but the sheriff ordered her to leave it in the car. She complied. The sheriff then searched through Hunnel’s purse as part of his search of the vehicle. Inside the purse he found a miniature Marlboro “cigarette pack” matchbox. Inside this matchbox he found two small baggies of methamphetamine. Anna Hunnel was arrested and charged with unlawful possession of a controlled substance.

Before trial, Hunnel moved to suppress the evidence found in her purse. At the suppression hearing, the State conceded the sheriff knew the purse belonged to Ms. Hunnel before he searched it. The court found the search lawful incident to the arrest of the driver.

PROCEDURAL HISTORY

In each case, the Court of Appeals affirmed the validity of the searches under the authority of New York v. Belton, 453 U.S. 454, 101 S. Ct. 2860, 69 L. Ed. 2d 768 (1981) (search of vehicle passenger compartment, including all containers therein, valid incident to arrest of driver), and Stroud, 106 Wn.2d 144 (search of vehicle passenger compartment, except locked containers, valid incident to arrest of driver). See State v. Hunnel, 89 Wn. App. 638, 949 P.2d 847 (1998); State v. Parker, 88 Wn. App. 273, 944 P.2d 1081 (1997); State v. Jines, No. 20454-1-II (Wash. Ct. App. Jan. 23, 1998). We granted review and consolidated these cases in order to determine whether the lawful scope of a vehicle search incident to the arrest of the driver extends to the personal belongings of nonarrested passengers.

ANALYSIS

Defendants claim their right to be free from warrantless searches was violated under both the state and federal constitutions. Since we find the searches violated article I, section 7 of the state constitution, we do not decide whether the warrantless searches also violated the Fourth Amendment.¹ See State v. Young, 123 Wn.2d 173, 188, 867 P.2d 593 (1994). Our analysis begins and ends, therefore, by examining the validity of the searches under article I, section 7 of the state constitution. ²

Article I, Section 7

It is by now axiomatic that article I, section 7 provides greater protection to an individual’s right of privacy than that guaranteed by the Fourth Amendment. State v. Ferrier, 136 Wn.2d 103, 111, 960 P.2d 927 (1998); State v. Hendrickson, 129 Wn.2d 61, 69 n.1, 917 P.2d 563 (1996); Young, 123 Wn.2d at 180; Stroud, 106 Wn.2d at 148; State v. Williams, 102 Wn.2d 733, 741-42, 689 P.2d 1065 (1984); State v. Myrick, 102 Wn.2d 506, 510, 688 P.2d 151 (1984) (citing cases).

Article I, section 7 provides: “No person shall be disturbed in his private affairs, or his home invaded, without authority of law.” This provision differs from the Fourth Amendment in that article I, section 7 “clearly recognizes an individual’s right to privacy with no express limitations.” State v. White, 97 Wn.2d 92, 110, 640 P.2d 1061 (1982). See also Ferrier, 136 Wn.2d at 111. Accordingly, while article I, section 7 necessarily encompasses those legitimate expectations of privacy protected by the Fourth Amendment, its scope is not limited to subjective expectations of privacy but, more broadly, protects “those privacy interests which citizens of this state have held, and should be entitled to hold, safe from governmental trespass absent a warrant.” Myrick, 102 Wn.2d at 511. See also State v. Mendez, 137 Wn.2d 208, 219, 970 P.2d 722 (1999); State v. Johnson, 128 Wn.2d 431, 446, 909 P.2d 293 (1996); State v. Boland, 115 Wn.2d 571, 577, 800 P.2d 1112 (1990).

We have long held the right to be free from unreasonable governmental intrusion into one’s “private affairs” encompasses automobiles and their contents. See, e.g., Mendez, 137 Wn.2d at 217, 219; Hendrickson, 129 Wn.2d at 69 n.1 (citing cases); City of Seattle v. Mesiani, 110 Wn.2d 454, 456-57, 755 P.2d 775 (1988) (citing cases); State v. Kennedy, 107 Wn.2d 1, 4-5, 726 P.2d 445 (1986); State v. Gibbons, 118 Wash. 171, 187-88, 203 P. 390 (1922).

More than 75 years ago, in Gibbons, we explicitly recognized the citizens of this state have a right to the privacy of their vehicles.

We note that the case before us does not involve a search ... in the home of appellant; but manifestly the constitutional guaranty that “no person shall be disturbed in his private affairs, or his home invaded, without authority of law,” protected the person of appellant, and the possession of his automobile and all that was in it, while upon a public street of Ritzville, against arrest and search without authority of a warrant of arrest, or a search warrant, as fully as he would have been so protected had he and his possession been actually inside his own dwelling; that is, his “private affairs” were under the protection of this guaranty of the constitution, whether he was within his dwelling, upon the public highways, or wherever he had the right to be.

Gibbons, 118 Wash. at 187-88 (quoting Wash. Const, art. I, § 7) (most emphasis added).

In Mesiani, we reiterated the holding of Gibbons and subsequent cases, stating that “[f]rom the earliest days óf the automobile in this state, this court has acknowledged the privacy interest of individuals and objects in automobiles.” Mesiani, 110 Wn.2d at 456-57 (citing cases). We expressly adopted the reasoning of the United States Supreme Court into our article I, section 7 analysis:

“An individual operating or traveling in an automobile does not lose all reasonable expectation of privacy simply because the automobile and its use are subject to government regulation. Automobile travel is a basic, pervasive, and often necessary mode of transportation to and from one’s home, workplace, and leisure activities. Many people spend more hours each day traveling in cars than walking on the streets. Undoubtedly, many find a greater sense of security and privacy in traveling in an automobile than they do in exposing themselves by pedestrian or other modes of travel. Were the individual subject to unfettered governmental intrusion every time he entered an automobile, the security guaranteed by the Fourth Amendment would be seriously circumscribed. ...”

Mesiani, 110 Wn.2d at 457 (quoting Delaware v. Prouse, 440 U.S. 648, 662-63, 99 S. Ct. 1391, 59 L. Ed. 2d 660 (1979) (footnote omitted)).

More recently, in Hendrickson, we refused to hold under article I, section 7 that a work release convict had a “diminished expectation of privacy” in his vehicle. Hendrickson, 129 Wn.2d at 71. We expressly held that any alleged subjective expectation of privacy, even if it were reduced, “does not constitute an exception to the requirement of a warrant under art. I, § 7.” Hendrickson, 129 Wn.2d at 71.

Just last winter term, in Mendez, we stated that “preexisting Washington law indicates a general preference for greater privacy for automobiles and a greater protection for passengers than the Fourth Amendment . . . .” Mendez, 137 Wn.2d at 219 (emphasis added). We rejected the proposition that the authority to order a driver to remain in or exit the vehicle to ensure officer safety following a traffic stop automatically extended to passengers. Mendez, 137 Wn.2d at 220. We reasoned that to adopt “such a bright-line, categorical rule” would constitute an unreasonable intrusion into the privacy interests of passengers under article I, section 7. Mendez, 137 Wn.2d at 220. We held, therefore, that officers must “articulate an objective rationale” to support their actions with regard to a passenger in order to prevent “groundless police intrusions on passenger privacy.” Mendez, 137 Wn.2d at 220.

The foregoing underscores our continued recognition of a constitutionally protected privacy interest the citizens of this state have held, and should continue to hold, in their automobiles and the contents therein. Likewise, vehicle passengers hold an independent, constitutionally protected privacy interest. This interest is not diminished merely upon stepping into an automobile with others.

In the cases now before us the State argues the warrant-less searches at issue fall within the search incident to arrest exception as articulated in State v. Stroud, 106 Wn.2d 144, 720 P.2d 436 (1986). Essentially, the State argues the personal possessions of passengers are merely “containers” within the automobile and are, thus, legitimately subject to search whether or not they belong to the arrested individual. We disagree.

Initially, we reiterate that “[a]ny analysis of article I, section 7 in Washington begins with the proposition that warrantless searches are unreasonable per se.” State v. White, 135 Wn.2d 761, 769, 958 P.2d 982 (1998) (citing Hendrickson, 129 Wn.2d at 70). This is a strict rule. White, 135 Wn.2d at 769. Exceptions to the warrant requirement are limited and narrowly drawn. White, 135 Wn.2d at 769; Hendrickson, 129 Wn.2d at 70-71. The State, therefore, bears a heavy burden to prove the warrantless searches at issue fall within the exception it argues for. See Johnson, 128 Wn.2d at 447.

Under article I, section 7, a lawful custodial arrest is a constitutionally required prerequisite to any search incident to arrest. State v. Cyr, 40 Wn.2d 840, 843, 246 P.2d 480 (1952), overruled on other grounds by State v. Ringer, 100 Wn.2d 686, 674 P.2d 1240 (1983). It is the fact of arrest itself that provides the “authority of law” to search, therefore making the search permissible under article I, section 7. Cyr, 40 Wn.2d at 843; Stroud, 106 Wn.2d at 164 (Durham, J., concurring in the result). See also State v. Michaels, 60 Wn.2d 638, 643, 374 P.2d 989 (1962) (citing with approval State v. Cyr, 40 Wn.2d 840). Thus, while the search incident to arrest exception functions to secure officer safety and preserve evidence of the crime for which the suspect is arrested, in the absence of a lawful custodial arrest a full blown search, regardless of the exigencies, may not validly be made. See, e.g., State v. Johnson, 71 Wn.2d 239, 242, 427 P.2d 705 (1967) (lawful arrest is a prerequisite to a lawful search); State v. Miles, 29 Wn.2d 921, 933, 190 P.2d 740 (1948) (if arrest is unlawful, search is unlawful); Gibbons, 118 Wash. at 183 (search following unlawful arrest has “no lawful support as incident thereto”). It states the obvious to observe that where a person is not under arrest there can be no search incident thereto.

We find the fact the defendants here were not under arrest at the time their possessions were searched determinative. In our review of our search incident to arrest jurisprudence we do not find, and the State has not cited to, a single authority for the proposition that the arrest of one person, without more, provides the authority to search another, nonarrested individual.³ To construe the search incident to arrest exception broadly so as to automatically authorize the search of nonarrested individuals because those individuals happen to be associated with the arrestee, or within the vicinity of the arrest, would distort the narrow limits of the exception and offend fundamental constitutional principles. The limited scope of the exception, as well as the basic proposition that constitutional rights are individually held, guides our analytical focus.

Under article I, section 7, we have specifically recognized that “[r]egardless of the setting . . . ‘constitutional protections [are] possessed individually” State v. Broadnax, 98 Wn.2d 289, 296, 654 P.2d 96 (1982) (quoting Ybarra v. Illinois, 444 U.S. 85, 92, 100 S. Ct. 338, 62 L. Ed. 2d 238 (1979)) (second alteration in original). Accordingly, a person’s “mere presence” in a place validly to be searched does not justify a search of that person. Broadnax, 98 Wn.2d at 295, 301; see State v. Worth, 37 Wn. App. 889, 892, 683 P.2d 622 (1984). Merely associating with a person suspected of criminal activity “does not strip away” individual constitutional protections. Broadnax, 98 Wn.2d at 296. Thus, where officers do not have articulable suspicion that an individual is armed or dangerous and have nothing to independently connect such person to illegal activity, a search of the person is invalid under article I, section 7. See Broadnax, 98 Wn.2d at 296.⁴

The principles we adhered to in Broadnax apply with equal force in the context of automobile stops and searches. Individual constitutional rights are not extinguished by mere presence in a lawfully stopped vehicle. See, e.g., Mendez, 137 Wn.2d at 218-20 (under article I, section 7, rights of passenger are independent of driver); State v. Larson, 93 Wn.2d 638, 642-45, 611 P.2d 771 (1980) (stop of vehicle for offense committed by driver does not in and of itself reasonably provide officer with grounds to investigate passenger; in order to be valid under article I, section 7, officer must have independent basis to suspect passenger). See also United States v. Di Re, 332 U.S. 581, 587, 68 S. Ct. 222, 92 L. Ed. 210 (1948) (a person does not, “by mere presence in a suspected car, lose[ ] immunities from search of his person to which he would otherwise be entitled.”).

Although we have not specifically addressed the issue under article I, section 7, we have recognized that readily recognizable personal effects are protected from search to the same extent as the person to whom they belong. See State v. Hill, 123 Wn.2d 641, 644, 647, 870 P.2d 313 (1994). See also Worth, 37 Wn. App. at 892. Fersonal items may be “so intimately connected with” an individual that a search of the items constitutes a search of the person. Hill, 123 Wn.2d at 644. Personal effects need not be worn or held to fall within the scope of protection. Worth, 37 Wn. App. at 893-94 (narrow focus on whether person is holding or wearing a personal item undercuts purpose of constitutional protection and leaves vulnerable to search readily recognizable personal effects which a person has under his or her control and seeks to preserve as private).

Nevertheless, the State argues officer safety justifies the search of nonarrested passengers. However, the authority to conduct a full blown evidentiary search cannot constitutionally derive from the need to secure officer safety alone, although, indisputably, the search incident to arrest exception functions primarily to achieve this purpose. Rather, despite the inevitable danger an officer may face in the field, the authority to search following an arrest stems directly from the fact of the arrest itself and the concomitant lessening of the arrestee’s privacy interest. E.g., State v. White, 44 Wn. App. 276, 278, 722 P.2d 118 (1986) (once arrested there is a diminished expectation of privacy in the person of the arrestee). It is precisely because the privacy interest of a nonarrested individual remains largely undiminished that full blown evidentiary searches of non-arrested individuals are constitutionally invalid even where officers may legitimately fear for their safety. As the United States Supreme Court has repeatedly stated, “there is a ‘distinction in purpose, character, and extent between a search incident to an arrest and a limited search for weapons [to ensure officer safety].’ ” United States v. Robinson, 414 U.S. 218, 227, 94 S. Ct. 467, 38 L. Ed. 2d 427 (1973) (quoting Terry v. Ohio, 392 U.S. 1, 25, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968)).

“[A search, incident to arrest], although justified in part by the acknowledged necessity to protect the arresting officer from assault with a concealed weapon, is also justified on other grounds, and can therefore involve a relatively extensive exploration of the person. A search for weapons in the absence of probable cause to arrest, however, must, like any other search, be strictly circumscribed by the exigencies which justify its initiation. Thus it must be limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby, and may realistically be characterized as something less than a ‘full’ search, even though it remains a serious intrusion.

“. . . An arrest is a wholly different kind of intrusion upon individual freedom from a limited search for weapons, and the interests each is designed to serve are likewise quite different. An arrest is the initial stage of a criminal prosecution. It is intended to vindicate society’s interest in having its laws obeyed, and it is inevitably accompanied by future interference with the individual’s freedom of movement, whether or not trial or conviction ultimately follows. The protective search for weapons, on the other hand, constitutes a brief, though far from inconsiderable, intrusion upon the sanctity of the person.”

Robinson, 414 U.S. at 227-28 (quoting Terry, 392 U.S. at 25-26) (citations omitted) (footnote omitted). Our article I, section 7 precedent is in accord with this analysis and approach.

Despite the State’s assertion that Stroud should control, we find nothing in that decision from which to conclude the privacy rights of nonarrested vehicle occupants are categorically compromised incident to the arrest of some other vehicle occupant. In Stroud, although we agreed in principle with the United States Supreme Court that concern for officer safety and the destruction of evidence justifies a passenger compartment search following the arrest of the vehicle driver and occupants, we stated that because of the heightened privacy protections guaranteed by our state constitution, “we do not believe that these exigencies always allow a search.” Stroud, 106 Wn.2d at 151. Rather, the exigencies flowing from an arrest “must be balanced against whatever privacy interests the individual has in the articles in the car.” Stroud, 106 Wn.2d at 152.

We have continued to reiterate that the purpose of the Stroud rule is to identify “a point at which privacy interests outweigh the exigencies of an arrest . . . State v. Fladebo, 113 Wn.2d 388, 395, 779 P.2d 707 (1989). Significantly, Stroud, and all our precedent following it, considered the exigencies of an arrest situation against the privacy interests of arrested individuals. Here, the items searched belonged to individuals who were not under arrest. There is simply no authority under our precedent to suggest that personal belongings clearly and closely associated with non-arrested vehicle occupants are subject to full blown police searches merely because some other occupant in the vehicle is arrested. Stroud does not stand for that proposition; Broadnax contradicts it. As such, Stroud and its progeny are neither controlling nor persuasive of the State’s position.

We do not disagree with the State that under certain circumstances nonarrested individuals may pose a threat to officer safety in an arrest situation, or may frustrate the State’s interest in having its laws obeyed by secreting contraband on behalf of the arrestee. As the above discussion demonstrates, however, we engage in a delicate balancing of interests, weighing safety and evidentiary concerns against the basic notion that the people of this state enjoy a measure of privacy that is, and will forever be, unassailable. See State v. Young, 123 Wn.2d 173, 181, 867 P.2d 593 (1994) (Washington Constitution protects those privacy interests which citizens of this state have held, and should be entitled to hold, safe from governmental trespass and does not depend on subjective expectations of privacy).

As against the privacy interests of a nonarrested individual, the balance has already been struck. Accordingly, while we have recognized in the context of an automobile stop that nonsuspect companions may pose a danger to officers, a generalized concern for officer safety has never justified a full search of nonarrested companions. See State v. Kennedy, 107 Wn.2d 1, 12, 726 P.2d 445 (1986). Even in the context of an automobile stop, when a person is not under arrest the scope of any search of such individual is limited to ensure officer safety only and must be supported by objective suspicions that the person searched may be armed or dangerous. See Kennedy, 107 Wn.2d at 11-13; see also State v. Hudson, 124 Wn.2d 107, 112, 874 P.2d 160 (1994).

We do conclude, however, that whether or not articulable suspicion exists sufficient to justify a patdown for weapons,⁵ the circumstance of an arrest falls squarely within the rule of Mendez. Thus, a vehicle stop and arrest in and of itself provides officers an objective basis to ensure their safety by “controlling the scene,” including ordering passengers in or out of the vehicle as necessary. See State v. Mendez, 137 Wn.2d 208, 220-21, 970 P.2d 722 (1999).

As to the potential loss of evidence, under the facts presented here there was no evidence to be lost. The defendants were not under arrest. Thus, without some further predicate, no evidence could lawfully be seized from them. ⁶ Kennedy, 107 Wn.2d at 12. Furthermore, where individuals are arrested for driving with license suspended, there is simply no evidence of the crime to be hidden or lost. Cf. Knowles v. Iowa, 525 U.S. 113, 119 S. Ct. 484, 488, 142 L. Ed. 2d 492 (1998) (The need to discover and preserve evidence is not present where defendant was stopped for speeding. “No further evidence of excessive speed was going to be found either on the person of the offender or in the passenger compartment of the car”) (emphasis added).

We hold the arrest of one or more vehicle occupants does not, without more, provide the “authority of law” under article I, section 7 of our state constitution to search other, nonarrested vehicle passengers, including personal belongings clearly associated with such nonarrested individuals. In determining whether an item within a vehicle is “clearly and closely” associated with a nonarrested passenger, we adopt the test recently enunciated by the Wyoming Supreme Court in Houghton v. State, 956 P.2d 363 (Wyo. 1998), rev’d, 526 U.S. 295, 119 S. Ct. 1297, 143 L. Ed. 2d 408 (1999).

In Houghton, the Wyoming Supreme Court invalidated the search of a woman’s purse found in a vehicle where the police had probable cause to search the vehicle but did not have probable cause to believe the passenger was involved in any criminal activity. Houghton, 956 P.2d at 370. The Wyoming court adopted a straightforward rule allowing police officers to assume all containers within the vehicle may be validly searched, unless officers know or should know the container is a personal effect of a passenger who is not independently suspected of criminal activity and where there is no reason to believe contraband is concealed within the personal effect immediately prior to the search.⁷ Houghton, 956 P.2d at 370, 372.

The need for a “bright-line” rule, as urged by the State, does not overcome a nonarrested individual’s privacy interest. Officers in the field routinely make often subtle factual determinations of probable cause, articulable suspicion, and the like. As the facts of these consolidated cases demonstrate, it is not overly difficult to determine to whom a personal effect belongs.

Not even in Stroud did we completely adopt the Belton “bright-line rule,” finding instead that even arrested individuals have a privacy interest in locked containers that is not overcome by the exigencies surrounding an arrest. State v. Stroud, 106 Wn.2d 144, 151, 720 P.2d 436 (1986) (citing New York v. Belton, 453 U.S. 454, 458, 101 S. Ct. 2860, 69 L. Ed. 2d 768 (1981)). Significantly, the categorical rule adopted in Belton is itself premised entirely on the fact of a valid custodial arrest:

[Any container found within the passenger compartment] may, of course, be searched whether it is open or closed, since the justification for the search is not that the arrestee has no privacy interest in the container, but that the lawful custodial arrest justifies the infringement of any privacy interest the arrestee may have.

Belton, 453 U.S. at 461 (emphasis added). See also Stroud, 106 Wn.2d at 164 (the fact of a lawful custodial arrest provides required “authority of law” under article I, section 7 to search vehicle of arrestee) (Durham, J., concurring in the result).

Thus, while a bright-line rule such as the rule in Stroud makes the police officer’s job easier, we refuse to give it “such broad application that it totally submerges the protections our state’s founders obviously had in mind when they adopted article I, section 7 of our state constitution.” State v. Johnson, 128 Wn.2d 431, 459-60, 909 P.2d 293 (1996) (Alexander, J., concurring). An individualized attention to the privacy interests of nonarrested passengers is more in line with the balancing of interests our precedent requires.

Based on the foregoing, we find the searches at issue invalid. Under the facts of these cases, it is undisputed police knew the items searched belonged to individuals who were not under arrest. The facts do not show, nor does the State argue, the existence of any articulable, objective suspicion that any nonarrested passenger was armed or dangerous or had secreted contraband obtained from the arrestee.⁸ Therefore, there was no objective, lawful justification for the searches.

CONCLUSION

“The word ‘automobile’ is not a talisman in whose presence the Fourth Amendment fades away and disappears.” Coolidge v. New Hampshire, 403 U.S. 443, 461-62, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971). Nor do the heightened protections of article I, section 7 fade away or disappear within the confines of an automobile. A rule that protects nonarrested, nonsuspected third parties and their recognizable personal effects against categorical searches based merely on presence in an automobile in which somebody else is arrested strikes the proper balance between the significant privacy interests of innocent third parties and the exigencies that may be faced by officers at the scene of an automobile stop and arrest.

Pursuant to Stroud, officers may lawfully search a vehicle passenger compartment incident to the arrest of the driver. Pursuant to our rationale above, officers may assume all containers in the vehicle are lawfully subject to search. If, however, officers know or should know certain containers within the vehicle belong to nonarrested occupants, such containers may not be searched absent an independent, objective basis to believe the containers hold a weapon or evidence.

Reversed and remanded with directions to suppress the evidence.

Smith, Madsen, and Sanders, JJ., concur.

1 The State cites the United States Supreme Court’s recent decision in Wyoming v. Houghton, 526 U.S. 295, 119 S. Ct. 1297, 143 L. Ed. 2d 408 (1999) as additional authority. There, the Supreme Court held “that police officers with probable cause to search a car may inspect passengers’ belongings found in the car that are capable of concealing the object of the search.” Houghton, 526 U.S. at 307. Here, there was no probable cause to search the car, much less the individual belongings of the passengers. Thus, Houghton would not even control a Fourth Amendment analysis. Compare Knowles v. Iowa, 525 U.S. 113, 119 S. Ct. 484, 488, 142 L. Ed. 2d 492 (1998) (concern for officer safety and destruction of evidence does not alone justify full field-type search in the absence of arrest or probable cause to search). In any event, Houghton does not control the outcome under article I, section 7 and we decline to adopt its rationale.

2 Once this court has conducted an analysis under State v. Gunwall, 106 Wn.2d 54, 720 P.2d 808, 76 A.L.R.4th 517 (1986), and has determined a provision of the state constitution independently applies to a specific legal issue, in subsequent cases it is unnecessary to repeat a Gunwall analysis of the same legal issue. State v. White, 135 Wn.2d 761, 769, 958 P.2d 982 (1998). It is already well established that article I, section 7 of our state constitution provides to individuals broader protection against search and seizure than does the Fourth Amendment. White, 135 Wn.2d at 769. Therefore, no Gunwall analysis is needed in this case because we apply established principles of state constitutional jurisprudence. See White, 135 Wn.2d at 769.

3 For a thorough discussion of the search incident to arrest exception see State v. Ringer, 100 Wn.2d 686, 674 P.2d 1240 (1983) (tracing common law history of the exception and its development under Washington law), overruled in part on other grounds by State v. Stroud, 106 Wn.2d 144, 720 P.2d 436 (1986).

4 While we relied on federal precedent in Broadnax, we specifically held the search at issue was invalid under article I, section 7. Broadnax, 98 Wn.2d at 296, 304.

5 Even assuming a patdown for weapons would have been justified in these cases, the scope of the searches here was impermissible. We have repeatedly recognized that a patdown to ensure officer safety may not be turned into a cursory search for weapons or be used to search for evidence of an independent crime. Broadnax, 98 Wn.2d at 296-97; Hudson, 124 Wn.2d at 112; State v. Hobart, 94 Wn.2d 437, 447, 617 P.2d 429 (1980); State v. Allen, 93 Wn.2d 170, 172-73, 606 P.2d 1235 (1980).

6 If there were an articulable basis to believe contraband had been hidden in the passenger’s belongings, this might provide the “further predicate” necessary to conduct a search for that contraband. See Houghton v. State, 956 P.2d 363 (Wyo. 1998) (passenger possessions may be searched where there is reason to believe contraband was concealed within the personal effect immediately prior to the search), rev’d, 526 U.S. 295, 119 S. Ct. 1297, 143 L. Ed. 2d 408 (1999).

7 We disagree with the United States Supreme Court’s rejection of the Wyoming test. Article I, section 7 requires a particularized basis to search. Even if we did believe, which we do not, that vehicle passengers are often, although not inevitably, “engaged in a common [criminal] enterprise with the driver,” Wyoming v. Houghton, 526 U.S. at 304, we could not constitutionally adopt a rule based on the “generality” of this assumption. We agree with Justice Stevens that a search of a passenger’s purse or other personal effect is a serious intrusion. Houghton, 526 U.S. at 310 (Stevens, J., dissenting). We also agree with Justice Stevens that “a rule requiring a warrant or individualized probable cause to search passenger belongings is every bit as simple as the Court’s rule; it simply protects more privacy.” Houghton, 526 U.S. at 312 (Stevens, J., dissenting). This reasoning parallels the heightened protection of privacy under article I, section 7. Under our precedent, a passenger’s privacy interest is independent of the driver’s and is not diminished merely upon stepping into an automobile with others.

8 The money officers saw in Ms. Parker’s purse was not contraband and did not provide cause to search.