¶76 (dissenting) — I agree with the lead opinion that a field sobriety test (FST) is a seizure, under article I, section 7 of the Washington Constitution, to the extent that “when an officer administers an FST, the suspect driver is not free to return to the vehicle and drive away.” Lead opinion at 137-38 (citing State v. Young, 135 Wn.2d 498, 510, 957 P.2d 681 (1998)). And I agree that a warrantless FST must therefore be predicated, in the first instance, on an officer’s reasonable suspicion that criminal activity is afoot. Lead opinion at 138-39; State v. Gatewood, 163 Wn.2d 534, 539, 182 P.3d 426 (2008) (“‘Terry [v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968),] requires a reasonable, articulable suspicion, based on specific, objective facts, that the person seized has committed or is about to commit a crime.’ ” (quoting State v. Duncan, 146 Wn.2d 166, 172, 43 P.3d 513 (2002))).
¶77 But I disagree with the lead opinion’s conclusion that an FST is not a search under the Fourth Amendment to the United States Constitution or under article I, section 7 of the Washington Constitution. Like the vast majority of courts that have addressed the issue, I conclude that an FST is a search for purposes of constitutional analysis.21
*161¶78 Having reached that conclusion, I next address whether such a search is constitutionally permissible. The answer depends on the facts: if such an FST search is reasonable to protect officer or public safety, then it is constitutionally permissible under Terry, but if such an FST search does not further any legitimate, immediate safety need, then it is constitutionally impermissible under Terry. In this case, Mecham was already handcuffed, removed from his car, and placed under arrest for a separate and unrelated crime before the FSTs were requested. Thus, officer and public safety were fully protected at that point; the FSTs would have served only an evidence-gathering purpose, not the safety purpose of getting a potentially dangerous driver off the road. Because the State has not shown that the Terry safety exception or any other exceptions to the warrant requirement applied in this case, I dissent.
*162I. A Field Sobriety Test Is a Search under Both the Fourth Amendment to the United States Constitution and Article I, Section 7 of the Washington Constitution
¶79 As the lead opinion correctly observes, a search occurs for purposes of article I, section 7 “when the government disturbs ‘those privacy interests which citizens of this state have held, and should be entitled to hold, safe from governmental trespass absent a warrant.’ ” State v. Hinton, 179 Wn.2d 862, 868, 319 P.3d 9 (2014) (emphasis omitted) (quoting State v. Myrick, 102 Wn.2d 506, 511, 688 P.2d 151 (1984)). The lead opinion holds that FSTs are not searches under this standard because they reveal only “physical characteristics that any observer might see upon casual observation of a person under the influence of drugs or alcohol.” Lead opinion at 142.
¶80 I disagree. An FST can reveal information about a person’s body and medical history that are unquestionably private in nature. According to the National Highway Traffic Safety Administration (NHTSA), in addition to possible inebriation, FSTs can reveal a head injury, a neurological disorder, brain tumors or damage, and some inner ear diseases. Int’l Ass’n of Chiefs of Police & NHTSA, DWI Detection and Standardized Field Sobriety Testing, March 2013 Edition, Participant Guide 13, 16, http://www.wsp.wa.gov/breathtest/docs/dre/manuals/SFST_basic_dwidetect/2013/student_mar_2013_SFSTbasic.pdf [https://perma.cc/H9HR-A78U]. These conditions are not necessarily observable in the subject’s normal public behavior; they may well be revealed only by the special maneuvers the subject is directed to perform during the FST. Indeed, if an FST did not reveal information beyond what is readily observable by the general public, there would be no need to administer it in the first place. I therefore conclude that FSTs are searches under article I, section 7 of our state constitution.
*163¶81 I also conclude that FSTs are searches under the Fourth Amendment to the United States Constitution. In addition to revealing sensitive personal information, an FST is at least as “annoying” and publicly “humiliating” as the limited frisk for weapons at issue in Terry. 392 U.S. at 24-25 (“Even a limited search of the outer clothing for weapons constitutes a severe, though brief, intrusion upon cherished personal security, and it must surely be an annoying, frightening, and perhaps humiliating experience.”). These aspects of the Terry frisk—as much as any potential for a pat down to reveal sensitive personal information—were crucial to the Court’s decision that the Fourth Amendment limits officer conduct during an investigative detention. Id. at 16-17. And they led the Court to “emphatically reject” the argument that a Terry frisk is not a “ ‘search’ . . . within the meaning of the Constitution”:
[I] t is simply fantastic to urge that [a pat down] performed in public by a policeman while the citizen stands helpless, perhaps facing a wall with his hands raised, is a “petty indignity.” It is a serious intrusion upon the sanctity of the person, which may inflict great indignity and arouse strong resentment, and it is not to be undertaken lightly.
Id. (footnotes omitted).
¶82 Field sobriety tests implicate similar concerns.22 Accordingly, they should trigger similar constitutional protections.
*164II. In This Case, No Exception to the Warrant Requirement Justified the Officer’s Request That Mecham Submit to a Field Sobriety Test
¶83 Because an FST is a search, for purposes of constitutional analysis, Mecham had an absolute constitutional right to refuse to perform any FSTs unless an exception to the warrant requirement applied. See lead opinion at 136 (if defendant has a constitutional right to refuse participation in an FST, then State may not admit refusal evidence at trial). In this case, the State argues that two different exceptions applied. First, it argues that the warrantless FSTs were a Terry stop; second, it argues that the warrant-less FSTs were a search incident to arrest. Given the peculiar facts of this particular case, both arguments fail.
A. The warrantless field sobriety test in this case was not permissible as a Terry search
¶84 In the context of a Terry stop—an investigative detention predicated on reasonable suspicion that criminal activity is afoot—the Fourth Amendment permits only a “limited search” of the suspect’s “outer clothing” for weapons. Terry, 392 U.S. at 30-31. This search is not necessarily permitted in every Terry stop; instead, an officer may conduct this “limited search” only if he or she has a “reasonable fear” that the suspect is armed and dangerous. Id. An officer may not conduct a Terry search for purely evidentiary purposes—that is strictly barred by the Fourth Amendment. Id.
¶85 While the search approved in Terry was a pat down of the suspect’s “outer clothing,” id., the United States Supreme Court has since defined permissible Terry searches more abstractly as “protective search [es] ... ‘limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby.’ ” Minnesota v. Dickerson, 508 U.S. 366, 373, 113 S. Ct. 2130, 124 L. Ed. 2d 334 (1993) (quoting Terry, 392 U.S. at 26 and citing Michigan *165v. Long, 463 U.S. 1032, 1049, 1052 n.16, 103 S. Ct. 3469, 77 L. Ed. 2d 1201 (1983)); Ybarra v. Illinois, 444 U.S. 85, 93-94, 100 S. Ct. 338, 62 L. Ed. 2d 238 (1979). Using this definition, the Court has approved, under Teny, a comprehensive search of the passenger compartment of a suspect’s car after officers saw a knife sitting on one of the floorboards. Long, 463 U.S. at 1050-51. This court has reached a similar conclusion under article I, section 7. In State v. Kennedy, we held that when an officer has reason to suspect that a weapon is concealed in the front seat of a suspect’s car, searching that front seat is “similar to a Teny frisk” and therefore “reasonable” under our state constitution. 107 Wn.2d 1, 12-13, 726 P.2d 445 (1986).23
¶86 In this case, the Court of Appeals held that even if an FST is a search under the state and federal constitutions, it is analogous to a Terry frisk and is permissible without a warrant if “the degree of intrusion [is] appropriate to . . . [the defendant’s] probable dangerousness.” State v. Mecham, *166181 Wn. App. 932, 941, 331 P.3d 80, review granted, 181 Wn.2d 1014, 337 P.3d 325 (2014). In other words, the Court of Appeals reasoned that a drunk driver behind the wheel is like a concealed weapon, for which an officer may conduct a limited search during a Terry stop. The court further held that the balance of interests justified the search in this case: “The attendant intrusion was . . . appropriate given [the officer’s] training and Mecham’s evident intoxication. . . . [The] request for Mecham to perform a field sobriety test was justified under the Terry stop exception to the warrant requirement.” Id. at 945.
¶87 In the usual case, the Court of Appeals’ conclusion may well be correct. Indeed, nearly every jurisdiction that has addressed the issue has approved warrantless FSTs under Terry.24
¶88 But this case is different. In this case, the subject of the FST, Mecham, posed absolutely no risk to public safety: he was already handcuffed and under arrest when the officer asked him to perform the tests and therefore presented no possibility of returning to his car to drive drunk. Lead opinion at 131.
¶89 Under those circumstances, an FST serves no public safety function. Instead, it serves only to reveal evidence that may be used against the subject in a criminal prosecution. Such purely evidentiary searches are absolutely prohibited under Terry, as even the State appears to concede. 392 U.S. at 30-31; Ybarra, 444 U.S. at 93-94; see State’s Suppl. Br. at 14-15 (arguing that it does not matter that the FST served purely evidentiary purposes in this case because the FST was not a search). In fact, even the lead opinion concedes this legal point. Lead opinion at 152 n.13 (“Officers conducting a lawful brief investigative detention *167may not search an individual based merely on their reasonable suspicion of criminal activity. Under Terry, officers may conduct a limited frisk for weapons only if the officer has a reasonable concern for danger and the search is limited in scope to finding weapons. [State v.] Setterstrom, 163 Wn.2d [621,] 626[, 183 P.3d 1075 (2008)].”).
¶90 The FST in this case was a purely evidentiary search prohibited under Terry. Thus, Terry’s exception to the warrant requirement did not apply.
B. The warrantless field sobriety test in this case was not permissible as a search incident to arrest
¶91 The State also argues that because Mecham was under arrest when the officer asked him to perform the FSTs, the FSTs were a valid “intrusion incident to arrest.” Suppl. Br. of Resp’t at 19. It cites this court’s decision in State v. Byrd, which reasoned that “[t]he authority to search an arrestee’s person and personal effects flows from the authority of a custodial arrest itself.” 178 Wn.2d 611, 618, 310 P.3d 793 (2013) (citing United States v. Robinson, 414 U.S. 218, 232, 94 S. Ct. 467, 38 L. Ed. 2d 427 (1973)). The State argues that, excluding certain extremely invasive searches, “the full search of a person under lawful arrest is per se reasonable.” Suppl. Br. of Resp’t at 20 & n.4 (citing Robinson, 414 U.S. at 235).
¶92 This argument is meritless. Officers may always search an arrestee’s person incident to arrest, but that is because certain “exigencies are presumed when an officer searches an arrestee’s person.” Byrd, 178 Wn.2d at 620 (emphasis omitted). Specifically, it is presumed that the arrestee may be concealing a weapon or destructible evidence—these are the only two “exigencies” that can justify a search incident to arrest. Id. at 617-18.
¶93 Mecham’s possible intoxication is neither a weapon endangering officer safety nor evidence that Mecham might have destroyed. Thus, an FST—a search that served only to *168uncover this intoxication—does not fall within the search incident to arrest exception.
CONCLUSION
¶94 Mecham posed no risk to public safety once he was placed under arrest, so the FST at issue in this case was a purely evidentiary search. That search was therefore unconstitutional. As all parties and the lead opinion agree, a person has a right to refuse an unconstitutional search and the prosecution “may not comment on a refusal to waive a constitutional right.” Lead opinion at 136.25 Accordingly, I would reverse the Court of Appeals and hold that evidence of Mecham’s refusal was improperly admitted at trial. I therefore respectfully dissent.
Stephens, J., concurs with Gordon McCloud, J.After modification, further reconsideration denied September 7, 2016.
I am aware of 17 cases that squarely address the question of whether police officers may compel a subject to submit to an PST absent a warrant or probable cause. State v. Royer, 276 Neb. 173, 179, 753 N.W.2d 333 (2008); Galimba v. Municipality of Anchorage, 19 P.3d 609, 612 (Alaska Ct. App. 2001); People v. Rizzo, 243 Mich. App. 151, 161, 622 N.W.2d 319 (2000); State v. Ferreira, 133 Idaho 474, 480, 988 P.2d 700 (1999); Commonwealth v. Blais, 428 Mass. 294, 701 N.E.2d 314 (1998); Hulse v. State, 1998 MT 108, 289 Mont. 1, 19-20, 961 P.2d 75; State v. Taylor, 648 So. 2d 701 (Fla. 1995); State v. Nagel, 320 Or. 24, 34-37, 880 P.2d 451 (1994); State v. Lamme, 19 Conn. App. 594, 600, 563 A.2d 1372 (1989), aff’d, 216 Conn. 172, 579 A.2d 484 (1990); State v. Gray, 150 Vt. 184, 190-91, 552 A.2d 1190 (1988); Dixon v. State, 103 Nev. 272, 273-74, 737 P.2d 1162 (1987); State v. Superior Court, 149 Ariz. 269, 274, 718 P.2d 171 (1986); State v. Stevens, 394 N.W.2d 388, 391 (Iowa 1986); State v. Golden, 171 Ga. App. 27, 30, 318 S.E.2d 693 (1984); People *161v. Carlson, 677 P.2d 310, 316-17 (Colo. 1984); State v. Wyatt, 67 Haw. 293, 304-05, 687 P.2d 544 (1984); State v. Little, 468 A.2d 615 (Me. 1983). Of these 17, 12 treat an PST as a search for purposes of the Fourth Amendment analysis adopted in Terry, 392 U.S. at 30-31: Royer, 276 Neb. at 179; Galimba, 19 P.3d at 612; Rizzo, 243 Mich. App. at 161; Ferreira, 133 Idaho at 480; Blais, 428 Mass. 294; Hulse, 289 Mont. at 19-20; Nagel, 320 Or. at 34-37; Lamme, 19 Conn. App. 594; Dixon, 103 Nev. at 273-74; Superior Court, 149 Ariz. at 274; Golden, 171 Ga. App. at 30; and Carlson, 677 P.2d at 316-17. The lead opinion points out that only 2 of these cases (Nagel and Carlson) hold that an FST must be supported by probable cause. Lead opinion at 139. That is true, but it is irrelevant to the question of whether an PST is a search for purposes of the Terry analysis. Under Terry, searches may proceed on less than probable cause, but they are nonetheless limited in ways that mere seizures are not. See supra Section II.A. The lead opinion also asserts that one of the cases cited above—Galimba, 19 P.3d at 612—expressly holds that FSTs are not searches for purposes of the Terry analysis. Lead opinion at 139. I disagree. Galimba, 19 P.3d at 612 (“assuming (without deciding) that field sobriety tests are a form of a Terry search!;] the tests in this case were justified’’). Finally, the lead opinion asserts that another case—Golden, 171 Ga. App. at 30—treats FSTs as seizures because it “never once mentions the word ‘search.’ ’’ Lead opinion at 140. But the court in Golden upheld the PST under Terry only because the PST was justified by “the enormous danger to the public created by the presence of drunk drivers on the roadways.’’ 171 Ga. App. at 30. Danger to the public is irrelevant under Terry unless the intrusion at issue is a search. See supra Section II.A. Thus, the Golden court treated FSTs as searches.
See Carlson, 677 P.2d at 317 (“Indeed, in some respects, roadside sobriety testing might be considered more invasive of privacy interests than chemical testing. The latter is usually performed in the relatively obscure setting of a station house or hospital, while roadside sobriety testing will often take place on or near a public street with the suspect exposed to the full view of motorists, pedestrians, or anyone else who happens to be in the area.’’); see also Nagel, 320 Or. at 34-35 (“the tests require defendant to perform certain maneuvers that are not regularly performed in public" (emphasis added)).
The lead opinion mistakenly asserts that Washington’s constitution (article I, section 7) is always “unconcerned with the reasonableness of the search’’ in question. Lead opinion at 140. On the contrary, whether “reasonableness” factors into our state constitutional analysis depends on the government’s justification for the search. Where an officer asserts only a “reasonable [but erroneous] good faith belief” that he or she had permission to conduct a warrantless search, we depart from Fourth Amendment analysis and hold that the reasonableness of the officer’s belief is irrelevant. State v. Morse, 156 Wn.2d 1, 9, 123 P.3d 832 (2005); see also State v. Eisfeldt, 163 Wn.2d 628, 634-35, 638, 185 P.3d 580 (2008) (declining to adopt any “private search doctrine” on the basis that “article I, section 7 is unconcerned with the reasonableness of the search”). But in the context of Teny searches, this court applies the same basic analysis, under article I, section 7, that the United States Supreme Court applies under the Fourth Amendment—an analysis that asks whether a search was reasonable. Cf. Long, 463 U.S. at 1051 (“[i]n evaluating the validity of an officer’s investigative or protective conduct under Terry, the ‘[t]ouchstone of our analysis ... is always the reasonableness in all circumstances of the particular governmental invasion of a citizen’s personal security’ ” (second and third alterations in original) (internal quotation marks omitted) (quoting Pennsylvania v. Mimms, 434 U.S. 106, 108-09, 98 S. Ct. 330, 54 L. Ed. 2d 331 (1977))); Kennedy, 107 Wn.2d at 12-13 (search of front seat of suspect’s car was “similar to a Teny frisk” and therefore “reasonable” under article I, section 7); State v. Horrace, 144 Wn.2d 386, 394, 28 P.3d 753 (2001) (quoting Terry and embracing its search analysis as consistent with article I, section 7 protections: “to justify the intrusion of a limited pat-down search, ‘the police officer must be able to point to specific and articulable facts which . . . reasonably warrant that intrusion’ ”).
E.g., Royer, 276 Neb. at 179; Galimba, 19 P.3d at 612; Rizzo, 243 Mich. App. at 161; Ferreira, 133 Idaho at 480; Blais, 428 Mass. 294; Hulse, 289 Mont. at 19-20; Taylor, 648 So. 2d 701; Lamme, 19 Conn. App. at 600; Gray, 150 Vt. at 190-91; Dixon, 103 Nev. at 273-274; Superior Court, 149 Ariz. at 274; Stevens, 394 N.W.2d at 391; Golden, 171 Ga. App. at 30; Wyatt, 67 Haw. at 304-05; Little, 468 A.2d 615.
Since the State commented on this defendant’s right to refuse to waive a constitutional right, I do not analyze the lawfulness of a comment on a defendant’s refusal to waive a “common law’’ right, as the lead opinion calls the right to refuse PSTs. Lead opinion at 135. I note, however, that the lead opinion errs in citing State v. Nordlund, 113 Wn. App. 171, 188, 53 P.3d 520 (2002), for the supposed rule that “the State may admit evidence that a defendant is asserting a noncon-stitutional right as evidence of consciousness of guilt.’’ Lead opinion at 136. Nordlund actually held that the State has a right to argue consciousness of guilt when the defendant fails to comply with a lawful court order (in that case, an order to supply hair samples). 113 Wn. App. at 188. It does not address a defendant’s refusal to comply with an unlawful order, even one that is unlawful only under the common law. I also note that the arresting officer here specifically told Mecham that the PSTs were “voluntary.’’ Lead opinion at 132. To the extent that Mecham reasonably relied on this statement when he declined to perform the tests, then, regardless of the source of the right to refuse, estoppel principles arguably bar the State from using that decision against Mecham at trial. See, e.g., State v. Minor, 162 Wn.2d 796, 800-01, 804, 174 P.3d 1162 (2008) (conviction for unlawful possession of a firearm reversed because prior court’s failure to properly fill out order affirmatively “misled [defendant] into believing he could possess firearms’’); United States v. Pa. Indus. Chem. Corp., 411 U.S. 655, 659, 93 S. Ct. 1804, 36 L. Ed. 2d 567 (1973) (corporate defendant’s conviction reversed so that trial court could consider whether defendant reasonably relied on United States Army Corps of Engineers’ regulations to conclude that its conduct did not violate statute).