(dissenting).
I respectfully dissent. The majority relies upon the Mimms case, supra, which seems inappropriate. The facts in that case disclose that the police officer arrested the driver of an automobile for a traffic offense and ordered him out of the car. Upon seeing a bulge under his jacket, the officer patted him down and a weapon was found. Defendant was charged with carrying a concealed deadly weapon and of possession of a firearm without a license.
The determinative issue in the case at hand has to do with a passenger; whether Deputy Neubauer’s conduct of opening the passenger door without permission, seizing certain evidence and taking the passenger into custody, and subsequently searching the car was in accord with constitutional requirements.
It is obvious that at the time of the intrusion, search, and restraint of the passenger, all the deputy knew was that a possible traffic violation had been committed by a driver of an automobile who was now in custody and that radio inquiries were being made. He admits that at this point he in no way connected the driver or his passenger with any other crime.
In the past we have quoted Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), for the proposition that “when an officer is justified in believing that an individual whose suspicious behavior he is investigating at close range is armed and presently dangerous,” the officer may “stop and frisk” the suspect for weapons, and have applied this standard to certain factual settings where such was the case, allowing a passenger to be invited from the car and frisked. State v. Brazil, 269 N.W.2d 15 (Minn.1978). Here, there is no evidence whatsoever supporting the investigation of this passenger for his “suspicious behavior” and no justifiable reason to search the car and take the passenger into custody. We have suggested, in State v. McKinley, 305 Minn. 297, 232 N.W.2d 906 (1975), that Fourth Amendment protections,1 as articulated in Terry, supra, apply to automobiles. We therefore do not have the ample probable cause in this case which is required by the constitutions of both the United States and the State of Minnesota, nor the extension thereunder of the “stop and frisk” doctrine as instituted by Terry, supra, where the United States Supreme Court said:
*892“ * * * We merely hold today that where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others’ safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him.” 392 U.S. 30, 88 S.Ct. 1884, 20 L.Ed.2d 911.
Certainly, the facts in this case do not meet the standards laid down in Terry as quoted above. It is also interesting to note that in Terry the Court went on to say:
“ * * * it is quite plain that the Fourth Amendment governs ‘seizures’ of the person which do not eventuate in a trip to the stationhouse and prosecution for crime — ‘arrests’ in traditional terminology. It must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he has ‘seized’ that person.” 392 U.S. 16, 88 S.Ct. 1877, 20 L.Ed.2d 903.
It seems difficult under the above to find that Deputy Neubauer “seized” the passenger and evidence while adhering to all the constitutional requirements indicated by both this court and the Supreme Court of the United States in the past. On cross-examination Deputy Neubauer candidly testified to the following:
“Q. Was there any reason why you didn’t tap on the window and look in the windshield or motion the man to get out of the car?
“A. It was cold. I guess I’m basically maybe a suspicious person. I don’t know. I thought — it was cold and I couldn’t see inside. He said there was someone in there. I don’t know why, I just opened the door.
“Q. So in other words you are admitting more suspicion than anything else?
“A. Okay.”
While I agree with the trial court that this factual setting presents a very close question, I believe that allowing this search and seizure to stand as to the passenger will do violence to the law as we now understand it.
I feel that the evidence gathered from the searches of the automobile at the scene of the arrest and the seizure of the passenger must be suppressed. This of course does not preclude charges substantiated by independent evidence, if such be the case, from witnesses at the robbery scene, or from other independent sources, including evidence of the whereabouts of the driver at that time of night and a description of the driver and his car, since the first traffic arrest of the driver was proper. But under the evidence submitted, we should reverse.
. “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue but upon probable cause supported by Oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.” Amendment IV, Constitution of the United States.
“The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the person or things to be seized.” Article 1, Section 10, Constitution of the State of Minnesota.