dissenting.
I agree with the majority that this appeal presents the narrow issue “whether it was unreasonable for [Officer] Warren to ask *311Bethea [who was a passenger in a legally detained car] to step out of the car.” The majority concludes that, in order for Officer Warren legally to have requested that Bethea exit the car, Warren must have “reasonably suspected that Bethea had committed, was committing, or was about to commit a felony,” Terry v. Ohio, 392 U.S. 1, 21 (1968), or reasonably suspected that Bethea was armed and dangerous. Simmons v. Commonwealth, 217 Va. 552, 555-56, 231 S.E.2d 218, 220-21 (1977) (quoting Adams v. Williams, 407 U.S. 143 (1972)). However, in my view, the principles announced in Pennsylvania v. Mimms, 434 U.S. 106 (1977), control this case and require that we uphold the ruling of the trial court, which found that Officer Warren was justified under all of the circumstances in asking Bethea to exit the vehicle in order to establish a face-to-face confrontation and, thereby, diminish the possibility of danger from “assault” and “unobserved movements.” Id. at 110. Accordingly, I dissent and would affirm the ruling of the trial court which admitted into evidence the drugs which fell from Bethea’s shorts after he exited the vehicle.
Admittedly, the Mimms case involved the driver of the vehicle, rather than a passenger, who was asked to exit his vehicle after being routinely stopped for driving with an expired license plate. But, as Justice Stevens writing for the dissenters in Mimms acknowledged, “the Court’s logic necessarily encompasses the passenger,” id. at 122, even though in the case of a passenger, other considerations exist that must be weighed in the balancing equation in order to decide whether the intrusion by the state on the individual’s privacy interest is reasonable under the circumstances. See W. LaFave Search and Seizure § 5.2(h) (2d ed. 1987). Justice Powell, in a concurring opinion in Rakas v. Illinois, in which he was construing Pennsylvania v. Mimms, stated: “Last Term, this Court determined in Pennsylvania v. Mimms that passengers in automobiles have no Fourth Amendment right not to be ordered from their vehicle, once a proper stop is made.” Rakas, 439 U.S. 128, 155 n.4 (1978). Because the passenger has no possessory interest in the vehicle, he has no expectation of privacy inside the vehicle. Although the passenger has a personal expectation of privacy under the fourth amendment which would protect him from an unreasonable search of his person, that right is not infringed by ordering the person to exit the vehicle where no personal search or seizure has occurred.
*312Nevertheless, assuming that fourth amendment considerations obtain, the Mimms decision expressly rejected the rationale upon which the majority here relies. The majority’s approach is the same approach upon which the Pennsylvania Supreme Court based its decision in Mimms, namely, to justify the minimal intrusion of having an occupant exit the vehicle, the officer must suspect of the occupant that criminal activity is afoot or that he is armed and dangerous. 434 U.S. at 108. The United States Supreme Court, however, rejected that approach and held that asking a driver to exit a car after a lawful stop “can only be described as a de minimis [intrusion in which the] driver is being asked to expose to view very little more of his person than is already exposed.” Id. at 111. Since no physical search or touching of the person is involved, having the driver, and likewise the passenger, stand where he can be observed is “not a ‘serious intrusion upon the sanctity of the person,’. . . it hardly rises to the level of a ‘petty indignity.’” Id. (quoting Terry v. Ohio, 392 U.S. 1, 17 (1968). “What is at most a mere inconvenience cannot prevail when balanced against legitimate concerns for the officer’s safety.” Id.
In rejecting the argument that this type of minimal intrusion requires a reasonable suspicion of crime or that the passenger is armed and dangerous, the United States Supreme Court in Mimms defined the state interest which justified the action:
We think it too plain for argument that the State’s proffered justification—the safety of the officer—is both legitimate and weighty. “Certainly it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties.” Terry v. Ohio, supra, 392 U.S. at 23 ... . [W]e have before expressly declined to accept the argument that traffic violations necessarily involve less danger to officers than other types of confrontations. United States v. Robinson, 414 U.S. 218, 234 (1973). . . . “[A] significant percentage of murders of police officers occurs when the officers are making traffic stops.” Id. at 234 n.5.
Id. at 110. Thus, even if the rationales in Mimms and Rakas do not support the proposition that every legal stop of a driver for a traffic infraction justifies having the passenger exit the vehicle, where the circumstances give rise to reasonable safety considera*313tions, an officer may request or order a passenger to exit the vehicle.3
Here, no factors were present that supported Bethea’s argument that he had a privacy interest that made Officer Warren’s request that he exit the vehicle unreasonable. In fact, although the conduct of Bethea did not give rise to a reasonable suspicion of criminal activity or that he was armed and dangerous, his behavior, which consisted of gestures and antics toward the police officers which were demonstrated to the trial judge, was sufficiently out of the ordinary to warrant a prudent officer in taking the minimal precaution of having that person stand where he could be more readily observed. “Weird and unsettling developments before and during the stop gave the officers the additional cause to order the driver and his passengers out of the car.” United States v. Wilkerson, 598 F.2d 621, 624 (D.C. Cir. 1978) (citing Pennsylvania v. Mimms, 434 U.S. 106 (1977)); see also United States v. Pelley, 572 F.2d 264, 266 (10th Cir. 1978). In my view, Mimms requires that we affirm the ruling of the trial court.
We are not confronted with a situation where the passenger, or driver, would apparently pose no threat to the safety of the officers by virtue of such factors as the age or health of the person or other extrinsic considerations, or where exiting the car may pose a threat to the safety or health of the person or a substantial inconvenience due to factors such as heavy traffic or inclement weather. Whether a request to exit a vehicle under those conditions infringes protected privacy interests and may constitute an unreasonable detention we leave for another time.