(dissenting) — The issue in this case is the extent to which a police officer's discretion to maintain visual surveillance of an arrestee justifies intrusion into the arrestee's privacy. When the officer is legitimately exercising that discretion, "plain view" contraband, inadvertently discovered, may be seized. See State v. Daugherty, 94 Wn.2d 263, 616 P.2d 649 (1980), cert. denied, 450 U.S. 958 (1981); 2 W. LaFave, Search and Seizure § 6.4, at 421 (1978). The majority excludes "plain view" contraband from evidence in this case by finding that an officer may legitimately accompany the arrestee to the door of his campus dormitory room, but may not enter the room. This distinction in an arrest situation defies common sense.
The majority concedes that the officer should be entitled to maintain his safety and the integrity of the arrest. It escapes me how the officer can do either without watching the room and the arrestee. It follows that the officer's need to monitor the arrestee's movements wherever he might go creates an ongoing right to be present in the room with the arrestee. Washington v. Chrisman, 455 U.S. 1, 70 L. Ed. 2d *823778, 102 S. Ct. 812 (1982); State v. Shaw, 186 Conn. 45, 438 A.2d 872 (1982); Hartline v. State, 161 Ga. App. 847, 288 S.E.2d 902 (1982). Further, when an arrestee requests access to a specified area, a limited preventive search of the location is not an inappropriate intrusion into the arrestee's privacy. See People v. Hawkins, 88 Ill. App. 3d 178, 410 N.E.2d 309 (1980); Haltiwanger v. United States, 377 A.2d 1142 (D.C. 1977). Without such rules, the officer's discretion to maintain control over the arrestee is a concept without substance.
The majority is drawing a line between visual intrusion and physical intrusion, implying that only the first is legitimate without some exigency. This distinction may be necessary to protect privacy rights in other contexts, such as when police see, from a public vantage point, evidence inside a private home. See W. Ringel, Searches and Seizures, Arrests and Confessions § 8.2(a), at 8-8 (2d ed. 1979). But applying that distinction in the circumstances of an arrest only serves to frustrate the officer's surveillance discretion.
This decision and other recent search and seizure decisions of this court, see, e.g., State v. Ringer, 100 Wn.2d 686, 703, 674 P.2d 1240 (1983) (Dimmick, J., dissenting), severely curtail police discretion during the arrest process. If reasonably necessary police activity is invalid, what then is to guide police conduct? Under these decisions, an officer apparently must see a weapon, impending destruction of evidence, or imminent escape before being entitled to take steps to thwart what has become an exigent situation. Here, the majority, relying on hindsight analysis, seems to reject practical preventive measures in favor of police conduct which merely reacts to an incipient emergency.
I fear we are losing sight of law enforcement's purpose in the insistence on reaching a certain result. Providing clear guidance to law enforcement officials, so that the innocent will be exonerated and the guilty convicted, is our paramount concern. We are not assuring clear rules when we waffie between state and federal constitutions. Nor does *824restating the facts to provide a new focus for a case clarify the applicable legal standard.
Under federal law, the discretion exercised by the police officer in this case is legitimate. I find nothing in our state constitution that requires us to so severely restrict police discretion during an arrest. We should be protecting the constitutional right to be free of arbitrary and unreasonable police activity. We should not be prohibiting the exercise of reasonable police discretion.
I dissent.
Stafford and Dore, JJ., concur with Dimmick, J.
Reconsideration denied March 20, 1984.