dissenting:
Eight years ago, the Supreme Court expanded the “search-incident-to-arrest” exception to the warrant requirement in the automobile context. New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981).1 In Belton, the majority eliminated the probable cause requirement for a search incident to a custodial arrest of an “occupant ” of a car. Id. at 460, 101 S.Ct. at 2864 (emphasis added). The right to search extended to the car’s interior, including open and closed glove compartments, and containers found therein. Id. at 460 n. 4, 101 S.Ct. at 2864 n. 4. The Court claimed to do no more than apply the principles it had laid out in Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), wherein the Court narrowed the parameters of the search incident exception by limiting the search to the “arrestee’s person and the area ‘within his immediate control’ — construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.” Id. at 763, 89 S.Ct. at 2040.
Justice Stewart premised the decision in Belton on a “generalization” that the dual concerns of ensuring police safety and preserving evidence are always implicated in the automobile context and therefore, a search of the car incident to an occupant’s arrest is always permissible under the fourth amendment. Belton, supra, 453 U.S. at 460-63, 101 S.Ct. at 2864-66. This assertion derived from the need for a “workable” rule under which a police officer could “ ‘reach a correct determination beforehand as to whether an invasion of privacy is justified in the interest of law enforcement.’ ” Id. at 458, 101 S.Ct. at 2863 (quoting LaFave, “Case-By-Case Adjudication” versus “Standardized Procedures”: The Robinson Dilemma, 1974 Sup.Ct.Rev. 127, 142).
The case now before us illustrates the troubling results arising out of the application by courts of Belton’s wholesale retreat from the probable cause requirement in the automobile context. Contrary to the majority’s claim, my grievance is not with Belton per se, but rather with the unprecedented extension of Belton in a highly dissimilar factual setting. Here we are presented with the question whether the *94lawful arrest of the driver justifies the infringement of any privacy interest that a non-arrestee, passenger owner of the car may have. The majority believes Belton is the controlling case. I do not. The result, which I find so deeply offensive to fourth amendment principles, reveals how Belton can be misapplied to swallow up cases which should be exempt from its swath. I dissent.
The facts in this case may be “few,” but they are telling. Significantly, they are radically different than the facts which gave rise to the bright line rule in Belton. Staten, along with two other men, Redd and Daley, were pulled over by two police officers after Redd, the driver, made an illegal U-turn. After stopping the car, the officers asked Redd to step out of the car, whereupon they determined that he was driving while intoxicated. They arrested Redd and then searched him. The officers did not find any contraband or weapons as a result of this search.
Meanwhile Staten, who had been asleep in the back, informed the officers that he owned the car. At this point, the police ordered Staten and Daley to step out of the car and searched them as well. This search also failed to produce any seizable items.
The police then ran a WALES check and established that the car was indeed registered to Staten. Despite this verification and absent any probable cause to believe that the automobile contained seizable items, the police nevertheless proceeded to search the car. Upon finding the glove compartment locked, one of the officers removed the keys from the ignition and, after Staten identified the proper key, accessed the compartment. Inside the glove compartment he found a loaded pistol.2 Staten claimed ownership of the pistol and explained that he used the gun to “kill groundhogs and snakes” and that he had forgotten to remove it from the car when he left his home in Virginia.3
In Belton, the automobile search was triggered by far more compelling circumstances. A lone state trooper pulled over an automobile for speeding. Belton, supra, 453 U.S. at 455, 101 S.Ct. at 2861. After asking to see the driver’s license and registration he discovered that neither the driver nor the three passengers owned the car or were related to its owner. The trooper also smelled burnt marijuana and saw an envelope bearing a trademark he associated with marijuana on the car floor. Id. at 455-56, 101 S.Ct. at 2861-62.
Based on these facts, the trooper ordered the men out of the car and placed all four of them under arrest. Id. at 456, 101 S.Ct. at 2862. He separated the men, but none of them were handcuffed. The trooper went back to the car, picked up the envelope and found that it contained marijuana. At this point he searched the men and then conducted a search of the car. The trooper found cocaine in the zippered pocket of a jacket that was lying on the back passenger seat. The Supreme Court subsequently upheld the search of the car incident to the arrest. Id.
In Belton, the Court determined that the exigent circumstances of danger to the trooper and possible destruction of evidence were real.4 This case, by contrast, *95involves a routine traffic stop and DWI. Only the driver, Redd, was guilty of any wrongdoing. Staten was helpful and forthright during the entire encounter with the police. Officer Tighe testified that the officers had no reason to believe that Staten or the others were armed or that the car contained seizable items. Thus, it follows quite clearly that neither of the Chimel factors of ensuring police safety or preserving evidence were implicated, and that probable cause did not exist to search the vehicle; circumstances which admittedly are constitutionally irrelevant to the outcome of the case under Belton.
Belton, however, did not deal with a situation involving an innocent passenger and owner of the car who had an intervening, legitimate expectation of privacy in the vehicle, and on this point Belton should be distinguished. In Belton, all of the automobile’s “occupants” were also “arres-tees,” and while an arrestee may have a privacy interest in the car, “the lawful custodial arrest justifies the infringement of any privacy interest the arrestee may have.” Supra, 453 U.S. at 461, 101 S.Ct. at 2864. The Court did not address the rights of non-arrestee occupants.
Staten was not an arrestee; he was not even under any suspicion of wrongdoing. His reasonable expectation of privacy in the car, and particularly the locked glove compartment, was therefore preserved and must be factored into the fourth amendment equation before any intrusion can be justified. Notwithstanding the law’s general recognition that an automobile owner has a lesser expectation of privacy in their car than in other forms of property, see, e.g., United States v. Boss, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982); United States v. Chadwick, 433 U.S. 1, 12-13, 97 S.Ct. 2476, 2484-85, 53 L.Ed.2d 538 (1977); Cardwell v. Lewis, 417 U.S. 583, 590, 94 S.Ct. 2464, 2469, 41 L.Ed.2d 325 (1974); Cady v. Dombrowski, 413 U.S. 433, 441, 93 S.Ct. 2523, 2528, 37 L.Ed.2d 706 (1973), the right has not yet been eliminated altogether, and on the facts before us, I can find no justification for the search.
While our own cases reflect an increasing tolerance of warrantless automobile searches incident to a lawful arrest of its occupants, those cases may be distinguished on the same grounds as Belton. In Smith v. United States, for example, we applied Belton to uphold the seizure of a gun forcibly removed from a car’s locked glove compartment. 435 A.2d 1066, 1068 (D.C.1981), cert. denied, 455 U.S. 950, 102 S.Ct. 1454, 71 L.Ed.2d 665 (1982). There, the challenged search took place after the assault victim’s positive identification and the arrest of both of the car’s occupants. Id.
Prior to the showup and arrest in Smith, the police officers were warned that there should be a gun in the car. Id. at 1067. Following the arrest, the officers searched the vehicle and found a gun holster and a round of ammunition. Id. at 1068. Using a flashlight, one of the officers could see the outline of a gun through a small crack in the locked glove compartment. He pried open the compartment and found a loaded gun. Id.
Under these circumstances, this court found that the search was reasonable. However, unlike the present case, we were not confronted with a non-arrestee, occupant owner of the car’s intervening privacy rights; rights which have to be factored into our constitutional analysis. See also Hammond v. United States, 501 A.2d 796, 797 (D.C.1985) (upholding seizure of gun resulting from search incident to sole occupant’s arrest for driving while under the influence of alcohol); Logan v. United States, 489 A.2d 485, 487 n. 2 (D.C.1985) (upholding seizure of evidence found during search of car following both occupants’ arrest for various traffic violations, including high speed chase).
*96The Supreme Court’s holding in Belton may be quite broad, but I do not find it broad enough to reach the facts here presented. Staten’s ownership of the car, his innocent presence as a passenger and his independent expectation of privacy interpose constitutional issues not dealt with in Belton or any of our own cases applying Belton. The majority trivializes these issues by claiming that the caselaw addresses the problems raised herein. Unlike the majority, I will not quietly relegate to precedent facts and issues that compel a far different result. I dissent.
. Justice Stewart, writing for the majority, was joined by Chief Justice Burger and Justices Blackmun, Powell and Rehnquist. Justice Rehnquist filed a concurring statement and Justice Stevens Hied a statement concurring in the judgment. Justices Brennan and White filed dissenting opinions, in which Justice Marshall joined.
.At the suppression hearing Officer Tighe testified that the loaded pistol and shotgun shells were found in the locked glove compartment. Staten testified that the loaded pistol was found in the compartment and that he was the owner of both the pistol and the ammunition in the pistol. Staten denied that he owned the shotgun shells or knew about their presence in the vehicle. He testified that he had recently purchased the car and he believed the shells had been left there by the former owner. Furthermore, he testified that the shells were discovered under the seat, not in the glove compartment. Although Judge Holmes denied the suppression motion, at the plea proceeding her inquiry on the ammunition charge was narrowly focused: “And for the ammunition in the pistol, did you have any registration in the District of Columbia for the ammunition?” — she made no mention whatsoever of the shotgun shells.
. Staten later testified that the gun was registered in Virginia.
. Indeed, I believe the search could have been upheld on other grounds; specifically, under the "automobile exception” to the warrant requirement because there was probable cause to believe that the car contained drags. See Robbins v. California, 453 U.S. 420, 447-49, 101 S.Ct. 2841, 2856-58, 69 L.Ed.2d 744 (1981) (Stevens, *95J., dissenting); Id. at 436-37, 101 S.Ct. at 2851-52 (Blackmun, J., dissenting); Id. at 441, 101 S.Ct. at 2853-54 (Rehnquist, J., dissenting). But see Belton, supra, 453 U.S. at 462 n. 6, 101 S.Ct. at 2865 n. 6 (stating that because of the "disposition of the case, there is no need here to consider whether the search and seizure were permissible under the so-called ‘automobile exception.’ ”).