(concurring) — Many recent opinions addressing searches of automobiles lead away from a clearly defined set of bright-line rules readily capable of being applied by police officers in the field. In my opinion, this confusion is the result of the parties and the reviewing courts conflating the “automobile” and “search incident to arrest” exceptions to the search warrant requirement. I write separately in an attempt to clarify the two exceptions and to emphasize the limits of the issue presented for our review in this case.
Three exceptions to the search warrant requirement arguably apply here: (1) automobile search exception, (2) *662officer safety exception, and (3) search incident to arrest exception.
Automobile Exception
Under the automobile exception the State must demonstrate that Turner was operating a motor vehicle at the time of his arrest and that police had probable cause to arrest Turner. State v. Stroud, 106 Wn.2d 144, 151-52, 720 P.2d 436 (1986). Once these facts are demonstrated, the presumption that the driver of the vehicle has dominion and control over the contents of the vehicle that are not confined to locked containers operates and the State need not prove specific exigent circumstances support the warrantless search. Stroud, 106 Wn.2d at 151.
Except for the three-year period between State v. Ringer, 100 Wn.2d 686, 674 P.2d 1240 (1983), and Stroud, 106 Wn.2d 144, police officers have not been required to prove that the “totality of circumstances” surrounding the arrest and the exigencies of the particular situation supported a warrantless search of an arrested driver’s vehicle since 1923. See, e.g., State v. Hughlett, 124 Wash. 366, 370, 214 P. 841 (1923), overruled by Ringer, 100 Wn.2d 686. Both the federal and our state Supreme Court acknowledged that the case-by-case approach to vehicular search and seizure questions is “theoretically unsound” and a clear “set of rules is needed to aid the police.” Stroud, 106 Wn.2d at 167 (Durham, J., concurring).
“A highly sophisticated set of rules ... requiring the drawing of subtle nuances and hairline distinctions, may be the sort of heady stuff upon which the facile minds of lawyers and judges eagerly feed, but they may be ‘literally impossible of application by the officer in the field.’ ”
New York v. Belton, 453 U.S. 454, 458, 101 S. Ct. 2860, 69 L. Ed. 2d 768 (1981) (quoting Wayne R. LaFave, “Case-by-Case Adjudication” Versus “Standardized Procedures”: The Robinson Dilemma, 1974 Sup. Ct. Rev. 127, 142).
If Turner were driving the vehicle at the time of the initial stop and if probable cause supports Turner’s arrest, *663the automobile exception applies and the State is not required to prove specific circumstances justifying a search of the interior of the vehicle and any unlocked containers in it. Thus, the location and time of the defendant’s arrest is critical to application of the automobile exception to the warrant requirement: the State must establish that the defendant was in the vehicle at the time of the initial police contact leading to his arrest. See, e.g., State v. Porter, 102 Wn. App. 327, 333-34, 6 P.3d 1245 (2000) (search of vehicle unlawful when suspect arrested 300 feet from vehicle while walking his dog and directed to return to his vehicle). But the automobile exception does not require the State to prove that Turner was positioned in such a way that he could have attempted to reach into or enter the car. Such factors are relevant only to the search incident to arrest exception.
To trigger the automobile exception, it is enough that the person arrested was in control of the vehicle at the time of the initial police contact. State v. Fladebo, 113 Wn.2d 388, 397, 779 P.2d 707 (1989). But Turner was not the driver of the pickup at the time of the initial police contact, therefore the automobile exception to the warrant requirement does not apply.
Officer Safety
In my opinion, the record demonstrates that officer safety justified the arresting officer’s cursory look through the open door of the occupied cab of Turner’s pickup truck— where the gun was seen and then seized. But the State did not argue that officer safety (from the passenger in the pickup truck) justified the limited intrusion.4 Thus, this exception is not before us for review. Nast v. Michels, 107 Wn.2d 300, 308, 730 P.2d 54 (1986).
Thus, the only exception to the warrant requirement presented for our review is the search incident to arrest exception.
*664Search Incident to Arrest
Under the search incident to arrest exception, the State must prove that police had probable cause to arrest Turner and that Turner was in immediate control of the items and area searched (in this case the vehicle) contemporaneous with that arrest. State v. Lopez, 70 Wn. App. 259, 268, 856 P.2d 390 (1993), review denied, 123 Wn.2d 1002 (1994).
Thus, the majority correctly places upon the State the duty of proving that “the vehicle’s passenger compartment was within Turner’s immediate control at the time of his arrest.” Majority at 656.
On page 657 of its opinion the majority asserts that to invoke the search incident to arrest exception to the warrant requirement
the State must prove both close physical and close temporal proximity. See, e.g., State v. Johnston, 107 Wn. App. 280, 28 P.3d 775 (2001), review denied, 145 Wn.2d 1021 (2002).
. . . State v. Bradley, 105 Wn. App. 30, 33, 18 P.3d 602, 27 P.3d 613 (2001) (search valid where suspect leaned into vehicle, then walked 10 to 12 feet away from car leaving the door “somewhat ajar”).
Majority at 657-58.5
To the extent that the majority opinion can be misread to characterize the factors giving rise to the automobile exception to the warrant requirement in terms of specific factual circumstances existing at the time of the arrest, it conflates the automobile and incident to arrest exceptions. Such factors may be relevant to justify a search incident to arrest but they do not control the application of the bright-line automobile exception to the warrant requirement.
I acknowledge that the language of some automobile search cases is confusing and appears to support the conflation of the two exceptions. But, in my view, the *665totality of the circumstances analysis applies to searches incident to arrest, not to the automobile exception.
Here, Turner was standing outside the pickup when police contacted him to investigate conduct unrelated to the operation of the vehicle. Thus, the automobile exception does not apply. State v. Johnston, 107 Wn. App. 280, 288, 28 P.3d 775 (2001), review denied, 145 Wn.2d 1021 (2002). According to the majority, the trial court’s finding that Turner was standing in the parking lot near the driver’s side of the pickup with the driver’s door remaining open is legally insufficient to establish that the contents of the truck were within Turner’s “wingspan” at the time of his arrest. Therefore, it reasons, the State failed to provide sufficient evidence to satisfy the search incident to arrest exception to the warrant requirement and the trial court’s order suppressing the items found in the pickup should be affirmed. On that limited basis, I agree. In addition, I concur in all respects with the majority’s discussion of prejudgment interest.
Nor did it argue that Turner’s decision to leave his truck door open while he relieved himself in public demonstrated a diminished expectation of privacy.
The majority’s characterization of Bradley does not include that the suspect was fleeing the scene of a shooting at the time the officers saw him lean into the vehicle.