(dissenting).
[¶ 23.] I respectfully dissent.
[¶ 24.] I disagree with the majority’s reliance on New York v. Belton as controlling in this case. In Belton, the passenger was subject to a “lawful custodial arrest” and therefore, subject to a search incident to that arrest. See New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981). That is not the situation before this Court. In the present case, Steele was not arrested, she was merely a passenger in a vehicle where the driver was stopped for speeding and later arrested. The search of Steele’s purse was not incident to a lawful custodial arrest. There is no similarity between the facts before us and Belton; therefore, any reb-anee on Belton is misplaced.
[¶ 25.] In State v. Newsom, 132 Idaho 698, 979 P.2d 100 (1998), the Idaho Supreme Court was faced with facts analogous to those presently before this Court. After officers had stopped a vehicle and arrested the driver, the passenger (New-som) was asked to exit the vehicle. Upon leaving the vehicle, Newsom attempted to remove her purse. The officer ordered her to leave her purse in the vehicle. While searching the vehicle, the officers searched Newsom’s purse and found two glass vials and several tinfoil bindles of methamphetamines. Newsom moved to suppress the evidence, but it was ultimately denied based upon being “ ‘a search incident to a valid arrest under the Belton case.’ ” Id. at 101.
[¶ 26.] On appeal, the Idaho Supreme Court identified the rule announced in Bel-ton as,
[W]hen a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.
*831It follows from this conclusion that the police may also examine the contents of any containers found within the passenger compartment, for if the passenger compartment is within reach of the ar-restee, so also will containers in it be within his reach. Such a container may, of course, be searched whether it is open or closed....
Id. (citing Belton, 453 U.S. at 460-61, 101 S.Ct. at 2864, 69 L.Ed.2d at 775 (citations omitted)). In reversing the denial of New-som’s motion to suppress, the court held:
Belton does not authorize the search of another occupant of the automobile merely because the other occupant was there when the arrest occurred. As the Supreme Court carefully pointed out in Belton, “the lawful custodial arrest justifies the infringement of any privacy interest the arrestee may have.” [citation omitted.] Therefore, in the present case Belton does not authorize a search of the passenger based solely on the arrest of the driver.
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In these circumstances, the passenger’s purse was entitled to as much privacy and freedom from search and seizure as the passenger herself.
[¶ 27.] In State v. Nelson, 89 Wash.App. 179, 948 P.2d 1314 (1997), the passenger in a vehicle driven by Nelson was arrested based upon an outstanding warrant. Nelson was asked to get out of the truck and leave her purse, which had been between her legs at the time. During the officer’s search of the vehicle, they searched Nelson’s purse and found methamphetamine and drug paraphernalia. Nelson moved to suppress the evidence seized from her purse and the motion was granted. On appeal by the State, the court noted,
[t]he valid arrest of a driver justifies a search of the car’s passenger compartment, not including locked containers. The valid arrest of a passenger justifies a search of the car’s passenger compartment, not including locked containers. The valid arrest of either the driver or passenger justifies the search of a purse found in the car, and without so holding, we assume this is true regardless of whether the purse belongs to the driver or the passenger.
Id. at 1316. The court stated that a distinction exists between a purse left in the car by the defendant when leaving the car and a purse kept by the defendant upon exiting, but ordered to leave the purse in the car pursuant to an officer’s instructions. Id. The court further opined,
The distinction is based upon the amount of control the non-arrested person maintains over his or her personal property. When the person maintains control over the personal property and there are no furtive movements indicating he or she is trying to hide something, the police are not allowed to search the property.
In order to do a pat-down search of a person, the police must be able to point to specific and articulable facts creating an objectively reasonable belief that a suspect is armed and presently dangerous. [citation omitted.] Thus, if the police do not believe a person presents a danger, they cannot search the person and their clothing. This would include a purse they are carrying.
Id.
[¶ 28.] In a recent United States Supreme Court decision, Bond v. United States, — U.S. -, 120 S.Ct. 1462, 146 L.Ed.2d 365 (2000), the Supreme Court was faced with a Border Patrol Officer’s squeezing manipulation of Bond’s soft luggage which was located above his seat in the bus head storage space. The Supreme Court noted that “[t]he Fourth Amendment provides that ‘[t]he right of the people to be secure in their persons, houses, *832papers, and effects, against unreasonable searches and seizures, shall not be violated. ..” — U.S. at-, 120 S.Ct. at 1464, 146 L.Ed.2d at 369. The Court further opined:
Our Fourth Amendment analysis embraces two questions. First, we ask whether the individual, by his conduct, has exhibited an actual expectation of privacy; that is, whether he has shown that “he [sought] to preserve [something] as private.... ” Second, we inquire whether the individual’s expectation of privacy is “one that society is prepared to recognize as reasonable.”
- U.S. at -, 120 S.Ct. at 1465, 146 L.Ed.2d at 370.
[¶ 29.] In the present case, there is no doubt that Steele attempted to preserve privacy by leaving the vehicle with her purse. Further, it is a reasonable expectation of Steele that her purse will not be subject to search by other individuals. The majority attempts to circumvent Steele’s Fourth Amendment rights by ignoring the Newsom opinion on the grounds that it “blurs the bright line Belton sought to provide law enforcement in the field” and because Newsom “did not discuss the possibility that the arrestee could hide a weapon or contraband, the harm sought to be contained in Belton, in another’s purse even where the purse is on a passenger’s lap.” Why do we continually utilize this phantom safety crutch to validate improper searches? As stated in Nelson, to justify a pat-down search of Steele and her purse, the police officers “must be able to point to specific and articulable facts creating an objectively reasonable belief that a suspect is armed and presently dangerous.” See Nelson, 948 P.2d at 1316. Where a person maintains control over their personal property, such as Steele did when she attempted to leave the vehicle with her purse, when there are no furtive movements indicating she is trying to hide something, a police officer is not allowed to search her person and property. A review of this record fails to show any evidence that the officers feared for their safety. To disallow the suppression of this evidence against Steele would be to blur the constitutional rights of passengers in automobiles and subject them and their property to searches and seizures solely on the basis that they were in the wrong place at the wrong time. I find this search violated the Fourth Amendment and I would reverse.
[¶ 30.] SABERS, Justice, joins this dissent.