dissenting with separate opinion.
I respectfully dissent from the majority's conclusion that the warrantless protective search was permissible under the Fourth Amendment and the evidence discovered pursuant to the search was properly admitted.
It is well established that when a search is conducted without a warrant, the State has the burden of proving that an exeeption to the warrant requirement existed at the time of the search. Malone v. State, 882 N.E.2d 784, 786 (Ind.Ct.App.2008). One such exception is that a police officer may briefly detain a person for investigatory purposes without a warrant or probable cause if, based upon specific and articulable facts together with rational inferences from those facts, the official intrusion is reasonably warranted, and the officer has reasonable suspicion that erim-inal activity may be afoot. Washington v. State, 922 N.E.2d 109, 111 (Ind.Ct.App.2010). In addition to detainment, Terry permits a reasonable search for weapons for the protection of the police officer, where the officer has reason to belief that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime. Malone, 882 N.E.2d at 786-87 (citing Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)).
However, in its recent decision of Arizona v. Gant, - U.S. -, 129 S.Ct. 1710, 1723-24, 173 L.Ed.2d 485 (2009), the United States Supreme Court significantly limited the ability of law enforcement to search a vehicle and brought the nature of a vehicle search back to its original limited rationale:
Police may search a vehicle incident to a recent occupant's arrest only if the ar-restee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest. When these justifications are absent, a search of an arres-tee's vehicle will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies.
In Gant, Gant and his two passengers had been removed from his car, handcuffed, and placed in separate police cars. Id. The Supreme Court held that concern for officer safety could not justify searching Gant's car because no suspect could have accessed any weapon that might be in his car. Id.
Here, the officers conducted a warrant-less search of Parish's car after a traffic stop based on the officers' belief that Parish was the suspect in several shootings and was armed. While exiting his car, Parish did not make any furtive movements and appeared to be cooperative with the officers' orders. After searching the vehicle and a locked glove box, the officers discovered a revolver, a small scale, and marijuana. Nevertheless, despite the presence of a weapon, the officers simply issued a citation and let him go. -
While we are dealing here with a traffic stop, rather than an arrest, the fact remains that Parish, like Gant, was removed from his car and handcuffed. Accordingly, because Parish no longer posed a threat, the officers cannot justify a search of his *354car based on a concern for officer safety. The justification of the search diminishes even more in light of the fact that the officers released Parish after the search. A more prudent course of action for the officers would have been to take Parish into custody as a "suspect in several shootings" and then request a search warrant for his car. See Op. p. 350.
As such, pursuant to the directives in Gant, I would grant Parish's motion to suppress the evidence of the illegal search and remand for a new trial.