(dissenting) — I dissent from the majority opinion because I believe that the search of the interior of Cass's automobile constituted an invasion of Cass's personal affairs, and thus, violated article 1, section 7 of the Washington Constitution. In reaching that conclusion, I part from the majority's view that the search was lawful as incident to the lawful arrest of Jendry, a passenger who was arrested and removed from Cass's car pursuant to previously issued warrants for Jendry's arrest.
In affirming the trial court, the majority opinion places great reliance on our Supreme Court's opinion in State v. Stroud, 106 Wn.2d 144, 720 P.2d 436 (1986). The opinion concludes that the rule announced in Stroud should be extended to permit the search of an automobile in any case where a passenger in that car is lawfully arrested. In my judgment, the factual differences between the instant case and Stroud are significant and should preclude extension of the Stroud rule to these facts.
The majority stresses what it believes is the necessity for a "bright line" rule in cases such as this so that police officers are not burdened with having to make case-by-case decisions as to whether a search of a car is justified. It appears to be attracted to a rule that says any car in which a passenger is arrested may be searched as incident to the arrest of that passenger. Such a rule, in my opinion, not only goes beyond Stroud, but is far too intrusive to be tolerated. I reach that conclusion for several reasons. First, our Supreme Court has recognized that a person in possession of a vehicle has a legitimate expectation of privacy and is entitled to the heightened protection afforded by article 1, section 7 of our State Constitution. State v. Simpson, 95 Wn.2d 170, 622 P.2d 1199 (1980). In addition, the car being searched was not, so far as we know, the property of the person under arrest. It seems obvious and almost beyond debate that the property rights of persons who are not under arrest should be *799accorded more sanctity than should the property rights of persons under arrest. We should be slower, therefore, to disturb the personal affairs and property rights of persons who are not under arrest. A more reasonable balance between the privacy rights of individuals who are not under arrest and the need for effective law enforcement can and should be struck. Extending the rule announced in Stroud, which permits the search of a car incident to the arrest of the driver of that car, to cases such as this is not a reasonable balance.
That is not to say that an automobile should never be searched as incident to the passenger's arrest. In some cases the totality of the facts, combined with the exigent circumstance that cars are mobile, might furnish a basis for a search of the car with or without a warrant. The rationale usually given for a warrantless search of a car is to discover weapons that might be used against the officers and to prevent destruction of evidence by the arrestee of the crime for which he is arrested. New York v. Belton, 453 U.S. 454, 69 L. Ed. 2d 768, 101 S. Ct. 2860 (1981). Here, it is obvious that there was no need to search the car for either of those reasons. Jendry had been removed from Cass's car and it is clear that after his removal there was no danger that he could obtain weapons from the car. Furthermore, he was not in any position to destroy any evidence that might have been in the car. While the other occupants of the car, including Cass, could perhaps have removed any evidence that was in the car, there was no reason to believe that the car contained any evidence relating to the crime for which Jendry had been arrested. It is worth noting in this regard that Jendry was arrested pursuant to outstanding arrest warrants for alleged crimes that are unknown to us. For all we know, the warrants were issued for his failure to pay parking citations. In short, there is nothing in the record to suggest that Jendry was committing a crime while he was a passenger in Cass's car. It was, *800therefore, not reasonable to believe that the car in which he was riding contained evidence or contraband.
Plainly, there were no facts or circumstances that justified this substantial intrusion into Cass's personal affairs. There was no warrant for Cass's arrest and during the course of the stop Cass did nothing that would suggest that she or anyone else in her car was doing anything unlawful. Indeed, there was no more justification for a search of Cass's car, after Jendry was removed from it, than there was to search the next car coming down the road. The search of Cass's car was nothing more than a fishing expedition and it violated Cass's right of privacy as guaranteed by our State's constitution. The evidence seized as a result of this search should have been suppressed.
Review denied at 118 Wn.2d 1012 (1992).