(dissenting).
[¶ 36.] I dissent. In making the blanket determination that Wilson lacked standing to challenge this search or seizure, the majority opinion improperly removes whatever Fourth Amendment protection remained after this Court’s decisions in cases such as State v. Chavez, 2003 SD 93, 668 N.W.2d 89, and State v. De La Rosa, 2003 SD 18, 657 N.W.2d 683. The majority opinion engages in analysis which serves little purpose but to once again put the goal of drug interdiction above the protections of our Federal and State Constitutions.
[¶ 37.] The question is not whether a passenger has “standing” to object to an illegal search, but whether Wilson had a legitimate expectation of privacy in the area searched and the property seized. In Rakas, the Court rejected the standing analysis of Jones and held instead that the question presented was to be considered under the rubric of the Fourth Amendment reasonable expectation analysis. In other words, the Court must consider whether the “proponent of the motion to suppress has had his own Fourth Amendment rights infringed by the search and seizure which he seeks to challenge.” Rakas, 439 U.S. at 133, 99 S.Ct. at 425, 58 L.Ed.2d at 394. I submit that Wilson’s Fourth Amendment rights were infringed by both the illegal search under his seat and the seizure of his sunglass’ case.
[¶ 38.] The majority opinion correctly lists the factors the majority adopted in Krebs, but does not properly apply the factors to the facts. Among the considerations for this Court in determining whether Wilson had a legitimate expectation of privacy are whether he had:
1) a legitimate presence in the area searched;
2) possession or ownership of the area searched;
3) possession or ownership of the property seized;
4) prior use of the area searched;
5) prior use of the property seized;
6) ability to control or exclude others’ use of the property;
7) a subjective expectation of privacy.
The majority opinion provides mere lip service to these factors. Specifically, it ignores the facts that: 1) Wilson was legitimately in the vehicle; 2) he owned the property seized, asserted ownership of that property to the officer, and it was within an area under his exclusive control while he was riding in the car; 3) he had prior use of the property seized; 4) by simply locking his door or refusing to move his body, he had the ability to control or exclude others’ use of the sunglass’ case and the seat in which he sat; and 5) as discussed below, it must be conceded that all passengers in a vehicle have some subjective expectation of privacy in their belongings, especially if they have placed them under the seat, out of public view.
[¶ 39.] Most adults in South Dakota either ride in or drive a private vehicle on a *187daily basis. As the Supreme Court noted in Delaware v. Prouse, “[m]any people spend more hours each day traveling in cars than walking on the streets.” 440 U.S. 648, 662, 99 S.Ct. 1391, 1401, 59 L.Ed.2d 660, 663 (1979). The government actively encourages people to car pool, and many people commute distances up to an hour to work every day. Passengers and drivers carry briefcases, book bags, handbags, sunglass’ cases and other objects with them in the car wherever they go. Given the relatively small size of our state, more citizens choose to drive the distance between cities rather than fly when they go visiting or on vacations away from home. In all of these instances, people carry items with them that society considers private; everything from personal hygiene products to private papers. By its broad ruling and generalized reasoning, the majority opinion equates the average passenger’s privacy interests with “all who occupy a vehicle for whatever reason ... even car thieves.” Majority opinion ¶ 31.
[¶ 40.] There can be no question that the average person believes they have more privacy in an automobile than they would walking down the street. This is especially so when they take pains to conceal objects away from the public view, e.g. in a glove compartment or under their seat. Certainly the majority opinion would acknowledge that a person walking down the street holding a handbag has a reasonable expectation of privacy in that handbag. Today, the majority opinion would hold that if that person got into a car and put the handbag on the floor between her feet, she’d have little or no expectation of privacy in the handbag. If the person placed the handbag under her seat, she would unquestionably have no legitimate expectation of privacy under this decision.
[¶ 41.] The only difference between these two victims of police overreaching (the pedestrian and the passenger) is that one of them got into a vehicle. The majority opinion glosses over the key factors in Krebs, which indicate that a person can establish an expectation of privacy in the property that was seized. Based on the totality of circumstances, Wilson established that interest, and it should be protected. I urge the members of the Court to properly analyze the totality of the circumstances and refuse to adopt the holding of the majority opinion. However, if this is to be the law of this state, all occupants of vehicles in South Dakota should be bluntly warned that they lose their basic Fourth Amendment protections the moment they get into a vehicle. The consequences of this opinion will be far-reaching.3
*188[¶ 42.] Under this majority opinion, people in South Dakota have little or no Fourth Amendment protection once they enter a vehicle. This is clearly demonstrated in the recent Fourth Amendment cases coming from this Court.
[¶ 43.] According to our Fourth Amendment jurisprudence in the last several years and including this case, it is now acceptable for a police officer to stop a vehicle on the flimsiest pretense. For ex-, ample, in the instant case, the police officer is presumed to have had reasonable suspicion to pull the vehicle over based on his sighting of a “dangling object” from the rear view mirror. Viewing the videotape, one can see the shadow of each occupant of the car and the shadow of the rear view mirror, but, in defiance of logic, one cannot see the dangling object or the shadow of the dangling object. Once the officer has the vehicle stopped, there seems no limit on the officer’s ability to search the vehicle. Although the officer is supposed to have probable cause to search or the driver’s consent, this is a legal fantasy. If the driver refuses to consent, as in this case, the officer merely threatens to bring a drug dog to the scene and holds the occupants there as long as necessary to bring a dog, or the officer makes clear that refusal to consent is a temporary bump in the road that can easily be rectified by making an arrest, or, as in this case, the officer coerces consent from the driver. This case goes even further in eroding individuals’ protection from government intrusion, holding that by placing oneself in the passenger seat of a vehicle, one loses any expectation of privacy.
[¶ 44.] It is often said that bad facts make bad law. I urge the Court not to allow the bad facts of this case to lead to bad law. Obviously, Wilson was in possession and under the influence of drugs. The State’s interest in drug interdiction is compelling, and suppressing drug evidence is difficult for courts and law enforcement. However, the Fourth Amendment does not provide:
The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures shall not be violated, except in drug cases.
[¶ 45.] MEIERHENRY, Justice, joins this dissent.
. The following scenarios run the spectrum from plausible to possible consequences of this decision:
1. The majority opinion opens the door to flagrant police abuses against innocent citizens. Now, whenever police lack probable cause to search the belongings or person of one suspected of a crime, police need only wait until the person is a passenger in someone else's car. The officer may simply violate the Fourth Amendment rights of the innocent driver to initiate a search of the belongings of the passenger.
2. The majority opinion ignores the legitimate expectations of the average vehicle passenger. The reason for this seems simple: the defendant was caught with drugs. In the interest of drug interdiction, this Court's jurisprudence allows substantial intrusions on the privacy rights of South Dakota's citizens. One need only consider an alternative factual scenario to recognize the danger of the majority opinion's conclusions. For example, imagine if an officer were to pull over two attorneys based on his visually unsupported belief that there was an object dangling from the rear view mirror. As the stop proceeds, the officer begins to believe *188that the vehicle contains contraband. He asks the driver for permission to search the car, the driver declines to consent, but the officer searches the car in spite of the driver’s objection. Under the passenger's seat is a file containing the attorney’s confidential work product from a client's case. The officer goes through the entire file in search of contraband. Based on the majority opinion’s determination, the passenger has no standing to object to the search and a subsequent § 1983 action would be too little too late to protect constitutional rights.
3. Another scenario is more disturbing because it may happen more often. The driver of the stopped vehicle initially refuses to give consent, but the officer informs the driver that if he is more ’’helpful” things will "go easier” for him. The driver, knowing that his contraband is under the passenger's seat, consents to the search after insisting to the officer that he has no knowledge of any contraband in the car. Given that the contraband is within the reach and therefore under the control of the passenger, the officer arrests the unwitting passenger for possession of the contraband. The passenger has no standing to challenge the legality of the search, despite the fact that he has essentially been "set up” by the driver and officer.