dissenting.
I respectfully dissent. I would conclude that the search of Lewis's vehicle did not violate the Fourth Amendment of the United States Constitution or Article 1, Section 11 of the Indiana Constitution.
In reaching her conclusion, Judge Riley relies on Washington v. State, 922 N.E.2d 109 (Ind.Ct.App.2010) and State v. Moore, 796 N.E.2d 764 (Ind.Ct.App.2003), trams. denied, in which our court concluded that the warrantless searches under consideration could not be justified by the officer safety exception. In Washington, the defendant, who was the only person in the vehicle, admitted to the presence of a handgun and was completely cooperative *882with the officer. 922 N.E.2d at 112. In Moore, the defendant and his passengers were removed from the vehicle and under the control of two officers on the scene. 796 N.E.2d at 770-71.
The traffic stop at issue in this appeal occurred on May 22, 2008 at 10:00 p.m. Although Lewis was cooperative with the officer, he exhibited nervous behavior a bit out of the ordinary. After determining that Lewis's driver's license had been suspended, Officer Joson removed Lewis from the vehicle and placed him in handcuffs.
Officer Joson then asked Lewis whether there were drugs and weapons in the vehicle. After Lewis responded that there were no drugs, Officer Joson had a reasonable suspicion that there was a weapon in the vehicle. The officer was then reasonably concerned for his safety because the passenger had not yet been asked to exit the vehicle and had the ability to immediately access any weapon that might be inside the vehicle. Officer Joson chose to return to the vehicle on the side of the open driver's door, to lean into the passenger compartment, and to ask the passenger to exit the vehicle. Judge Riley seems to rely on this decision when it concludes, "[wlhile Officer Joson might have been concerned about his safety, in light of the facts, we do not believe this concern to be legitimate." Op. at 879.
Each Fourth Amendment and/or Article 1, Section 11 case is extraordinarily fact-sensitive. I can wish in 20/20 hindsight that the record was a bit more complete in explaining why Officer Joson chose to walk back to the vehicle and lean into the area of the open driver's door to order the female passenger to exit the vehicle in preparation for the tow, rather than use the onboard public address system that is part of most every police vehicle. Similarly, I can wish that Officer Joson had been asked and fully explained on the record why he still felt concerned for his safety if he was willing to lean into the area of the open driver's door.
The officer safety exception to the warrant requirement in the context of a motor vehicle at the side of a road will never fit within bright line rules, and I am concerned that Judge Riley's opinion begins to take the law there. Officer Joson's behavior, while questionable in purely logical terms, was human. He knew that there might well be a weapon in the vehicle and that there was a passenger who remained there. Under the unique facts and cireumstances of this case, those two pieces of information were enough to justify the warrantless search of this particular vehicle at the side of the road. Washington and Moore are both distinguishable in important details that bear on the totality of the cireumstances presented to the officers involved in those cases and this.