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01       ctiiEFM:JP-                                            ·SUpreme ci:iu~
     N THE SUPREME COURT OF THE STATE OF WASHINGTON


    STATE OF WASHINGTON,                       )
                                               )
                 Respondent,                   )             No. 90598-3
                                               )
    v.                                         )               En Bane
                                               )
    MARK TRACY MECHAM,                         )
                                               )   Filed     JUN 1 :.~ 2016
                 Petitioner.                   )
                                               )



         WIGGINS, J.-Officer Scott Campbell made a traffic stop of petitioner Mark

Tracy Mecham and observed signs that Mecham might have been driving while

intoxicated. Officer Campbell asked Mecham to perform field sobriety tests (FSTs),

which would have involved Officer Campbell's observing Mecham's eye movements

and ability to walk a straight line and stand on one leg. Mecham refused, and his

 refusal was used against him at trial. Mecham contends that his right to be free from

 unreasonable searches was violated when the State introduced evidence of his

 refusal to submit to the FSTs.    We hold that Mecham's rights were not violated

 because an FST is not a search under our state and federal constitutions and Mecham

 had no constitutional right to refuse to perform the FSTs. Accordingly, we affirm the

 Court of Appeals, but on different grounds.
State v. Mecham (Mark Tracy), No. 90598-3



                                            FACTS

    I.   Factual history

         In 2011, Officer Campbell observed Mecham driving in King County. While at a

stoplight, Officer Campbell ran a random license check on Mecham's vehicle and

discovered an outstanding warrant. He then turned on his emergency lights, and

Mecham pulled over by turning into a parking lot. The stop was purely for the

outstanding warrant; Officer Campbell did not notice anything unsafe about the

manner in which Mecham was driving.

         As Officer Campbell approached Mecham's vehicle, he noticed that Mecham

had already begun to exit his vehicle. Officer Campbell instructed Mecham to remain

seated and asked him for identification. After Mecham confirmed his identity, Officer

Campbell ordered him from his vehicle, placed him in handcuffs, arrested him, and

read him his Miranda 1 rights from a department issued card.

         Following arrest, Officer Campbell smelled intoxicants on Mecham's breath and

noticed that Mecham's movements were sluggish and that his speech was slurred and

repetitive. He also observed an open beer can with a straw behind the passenger seat

of Mecham's vehicle. Believing that Mecham was intoxicated, Officer Campbell asked

Mecham if he would consent to perform FSTs in order to determine whether he was,

in fact, intoxicated.

         An FST is an officer's observations of a suspect driver's physical actions. The

standard FST includes three components. First, in the horizontal gaze nystagmus test,



1   Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).


                                               2
State   v. Mecham (Mark Tracy), No. 90598-3


the suspect driver must follow a moving object with the eyes while the officer looks for

involuntary eye movements. Second, in the walk-and-turn test, the suspect driver

must take several heel-to-toe steps in a line. The third test requires the suspect driver

to stand on one leg while counting out loud. These tests are specifically designed to

provide statistically valid and reliable indications of a driver's blood alcohol content

and "are usable only for a sobriety determination." Heinemann v. Whitman County,

105 Wn.2d 796, 808, 718 P.2d 789 (1986); see also State v. Quaale, 182 Wn.2d 191,

198, 340 P.3d 213 (2014) (horizontal gaze nystagmus test "merely shows physical

signs consistent With ingestion of intoxicants"); U.S. Dep't of Transp., Nat' I Highway

Traffic Safety Admin., Development of a Standardized Field Sobriety Test (SFST)

Training Management System 1-12 (Nov. 2001)       (DOT~HS-809-400).


         Officer Campbell told Mecham that the FSTs were voluntary, and Mecham

declined to perform the test.

         Officer Campbell then transported Mecham to a King County booking facility to

process him on the outstanding warrant. At the booking facility, Mecham spoke with

an attorney. Officer Campbell then asked Mecham to submit to a breath tesU This

time Mecham was informed that while he had the right to refuse, his license would be

revoked or suspended and that his refusal could be used against him in a criminal

trial. Mecham signed a form stating that he understood the consequences of refusing

to submit to a breath test. Officer Campbell repeated that the breath test was voluntary


2The State introduced evidence and argued that Mecham refused to submit to a breath
analysis. Breath analysis is governed by Washington's implied consent statute, RCW
46.20.308.



                                              3
State v. Mecham (Mark Tracy), No. 90598-3



and asked Mecham      wheth~r   he would agree to take the breath test. Mecham

responded that his attorney advised him not to answer any further questions. Officer

Campbell asked Mecham a second and third time to take the breath test, and Mecham

refused based on his attorney's advice.

       Following this exchange, Officer Campbell spoke with Officer Darrell Moore, a

drug recognition expert. With Officer Moore's help, Officer Campbell drafted an

application for-and received-a search warrant authorizing a blood draw to test

Mecham's blood alcohol content (BAC). Officer Campbell transported Mecham to

Overlake Hospital, and the blood draw was completed just short of three hours after

Mecham's initial arrest. A forensic toxicologist analyzed the blood and reported that

Mecham's BAC was .05 grams per 100 milliliters (g/1 00 ml). This toxicologist testified

that given the passage of time and the rate at which alcohol is metabolized, Mecham's

BAC was likely .065 g/1 00 ml within two hours after he stopped driving and possibly

as high as .08 g/1 00 mi. The State charged Mecham with one count of felony driving

under the influence (DUI).

 II.   Procedural history

       At trial, Mecham stipulated that Officer Campbell made a lawful stop and a

lawful arrest. He also stipulated that at the time of his arrest, he had previously been

convicted of 4 or more prior offenses within 10 years, making this a felony DUI. RCW

46.61.5055(14 )(a).

       Mecham made several motions to exclude his refusal to perform an FST from

evidence. The trial court denied these motions, ruling that even if an FST was a




                                            4
State   v. Mecham (Mark Tracy), No. 90598-3


search, the search was supported by probable cause. The trial court also rejected

defense counsel's proposed jury instruction that read:

               Evidence has been submitted that Mr. Mecham refused to
        participate in voluntary field sobriety tests. This was admitted.to explain
        the chain of events in this case.

                 Every person suspected of driving under the influence has the
         right to refuse voluntary field sobriety tests. This evidence was admitted
         to explain the chain of events in this case. You may not consider this
         evidence for any other purpose. You shall[ 3l use the fact Mr. Mecham
         refused to participate in voluntary field sobriety tests to infer guilt or to
         prejudice him in any way. Any discussion of the evidence during your
         deliberation must be consistent with this instruction.

         The State elicited testimony throughout the trial that Mecham refused to

perform an FST.           It relied on this evidence in its closing argument, arguing that

Mecham refused to take tl1e tests because he was guilty and because he was trying

to frustrate the investigation. The jury found Mecham guilty of felony DUI.

         Mecham timely appealed, asserting that an FST constitutes an unreasonable

search under the Fourth Amendment to the United States Constitution and article I,

section 7 of the Washington Constitution. As a result, he argues, the State improperly

penalized him for exercising his constitutional right to refuse consent to an FST by

commenting on his refusal at trial. The Court of Appeals, Division One, affirmed his

conviction. State    v.   Mecham, 181 Wn. App. 932, 954, 331 P.3d 80, review granted,

.181 Wn.2d 1014, 337 P.3d 325 (2014). In a unanimous published opinion, the Court

of Appeals rejected his argument, assuming arguendo that an FST was a search but


3 It appears the word "not" may have been inadvertently omitted in this sentence (i.e., "You
shall [not] use the fact Mr. Mecham refused to participate in voluntary field sobriety tests to
infer guilt or to prejudice him in any way.").



                                                5
State   v.   Mecham (Mark Tracy), No. 90598-3



holding that Officer Campbell's request for Mecham to perform the FST was justified

under the Terri stop exception to the warrant requirement. 5 /d. The court further held

that the State did not impermissibly comment on Mecham's refusal because Mecham

did not have a constitutional right to refuse the test. /d. at 946.

             The Court of Appeals denied Mecham's motion for reconsideration but withdrew

its decision and modified its opinion in ways that are unrelated to his appeal. Mecham

filed a petition for review, and the State cross appealed pursuant to RAP 13.7(b),

arguing that we should consider alternative arguments for affirmance that the Court

of Appeals did not address. We granted both Mecham's petition for review and the

State's request to review alternative issues for affirmance.

                                            ANALYSIS

             The basic issue before us is whether the State may introduce evidence at trial

of a defendant's refusal to perform an FST. We conclude that the State may offer

evidence of such a refusal because FSTs are not searches under the Washington or

federal constitutions, and a defendant thus has no constitutional right to refuse to

perform FSTs.




4 Terry v. Ohio, 392 U.S. 1, 9, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). Washington courts
recognize the Terry stop exception under article I, section 7 of the Washington Constitution.
State v. Setterstrom, 163 Wn.2d 621,626, 183 P.3d 1075 (2008).

5 The  Court of Appeals also rejected Mecham's argument that the "to convict" instruction given
at his felony DUI trial violated his constitutional right to a jury trial and that the certification of
mailing on the license revocation order constitutes testimonial hearsay, the admission of
which violated his constitutional right to confront the witnesses against him. Mecham, 181
Wn. App. at ~48, 952. Mecham did not pursue these issues in this court.




                                                  6
State v. Mecham (Mark Tracy), No. 90598-3



      There is no legal obligation in Washington to submit to FSTs. City of Seattle v.

Stalsbroten, 138 Wn.2d 227, 237, 978 P.2d 1-059 (1999) (citing City of Seattle v.

Personeus, 63 Wn. App. 461, 465, 819 P.2d 821 (1991 )). Instead, a defendant's right

to refuse to participate in an FST is rooted in the common law. 6 However, the absence

of a statutory right of refusal has no effect on the admissibility of refusal testimony in

the context of FSTs-the admissibility rests on whether constitutional privileges apply.

/d. at 236-37.

       Prosecutors may not comment on a refusal to waive a constitutional right. See

Schneckloth v. Bustamante, 412 U.S. 218, 228, 93 S. Ct. 2041, 36 L. Ed. 2d 854

(1973) (consent to waive a constitutional right may not be coerced, either explicitly or

implicitly); United States v. Prescott, 581 F.2d 1343, 1351 (9th Cir. 1978) (evidence of

defendant's refusal to consent to warrantless search violates Fourth Amendment and

article I, section 7); State v. Jones, 168 Wn.2d 713, 725, 230 P.3d 576 (2010)

(prosecutor's comment on refusal to provide a DNA (deoxyribonucleic acid) sample

and exercise of right to remain silent violate Fifth and Fourth Amendment rights (U.S.

CONST. amends. IV, V)). However, the State may admit evidence that a defendant is

asserting a nonconstitutional right as evidence of consciousness of guilt at trial. State

v. Nordlund, 113 Wn. App. 171, 188,53 P.3d 520 (2002).


6 This contrasts with the implied consent statute for breath analysis. RCW 46.20.308. Under
that statute, suspect drivers are told that they retain an absolute statutory right to refuse to
submit to the breath test. RCW 46.20.308(2). However, refusal to submit to the test triggers
a series of penalties: drivers are informed that their license will be revoked or suspended, and
they are informed that their refusal may be used against them in a criminal trial. RCW
46.20.308(2)(C;l)-(b ).




                                               7
State v. Mecham (Mark Tracy), No. 90598-3



      Since the State cannot comment on a defendant's refusal to waive a

constitutional right, the dispositive issue is whether a defendant has a constitutional

right to refuse to perform an FST. This is a question of first impression for this court,?

Both Washington's constitution and the federal constitution bestow a right to be free

from unlawful' searches and seizures. WASH CONST. art. I, § 7; U.S. CONST. amend.

IV. Mecham argues that FSTs are searches subject to these constitutional provisions

because they reveal private information that is not voluntarily exposed to the public

view. We reject this argument because FSTs reveal only some physical characteristics

associated with inebriation, none of which is substantially different from the

characteristics a person would observe from simple observation of the defendant.

These characteristics are not analogous to the types of information that we have

previously accorded protection under article I, section 7. We therefore hold that while

a field sobriety test is a seizure, it is not a search either under article I, section 7 of the

Washington Constitution or under the Fourth Amendment to the United States

Constitution.

       Since Mecham's refusal to perform an FST was not an exercise of a

constitutional right, the trial court properly permitted the prosecutor to introduce

evidence of the defendant's refusal at trial and comment on that refusal during closing

argument.


7 We previously suggested that the seizure incident to an FST was lawful under Terry.
Heinemann, 105 Wn.2d at 809. Though Heinemann held that "the seizure and questioning
were reasonable under the Fourth Amendment and [Wash.] Const. art. I,§ 7," id., we did not
provide any analysis for this holding. Additionally, the opinion did not consider whether an
FST could also involve a search.



                                               8
State v. Mecham (Mark Tracy), No. 90598-3


     I.   Standard of review

          We review constitutional issues de novo. State      v.   Gresham, 173 Wn.2d 405,

419, 269 P.3d 207 (2012). When a trial court denies a motion to suppress, we also.

review that court's conclusions of law de novo. State v. Winterstein, 167 Wn.2d 620,

628, 220 P.3d 1226 (2009).

 II.      A field sobriety test is a seizure

          A person is "seized" within the meaning of the Fourth Amendment and his

private affairs disturbed under article I, section 7 "'only when, by means of physical

force or a show of authority, his freedom of movement is restrained .... There is a

"seizure" when, in view of all the circumstances surrounding the incident, a

reasonable person would have believed that he was not free to leave."' State                 v.
Young, 135 Wn.2d 498, 510, 957 P.2d 681 (1998) (alteration in original) (quoting State

v.    Stroud, 30 Wn. App. 392, 394-95, 634 P.2d 316 (1981 )).

          As set forth in Terry, a traffic stop is a seizure for the purposes of constitutional

analysis-it is analogous to a brief investigative detention and must be based on

reasonable suspicion. State       v.   Ladson, 138 Wn.2d 343, 350, 979 P.2d 833 (1999). An

officer has the authority to conduct a brief, investigative detention that is reasonably

related to the purposes of the stop provided that the amount of physical intrusion and

the length of time a detainee is stopped are limited. State        v.   Wheeler, 108 Wn.2d 230,

235, 737 P.2d 1005 (1987). The length of this Terry stop may change: officers may

reasonably extend the length of the stop if their suspicions are either confirmed or




                                                 9
State v. Mecham (Mark Tracy), No. 90598-3


further aroused. 8 State v. Acrey, 148 Wn.2d 738, 747, 64 P.3d 594 (2003). Terry stops

must be analyzed on a case-by-case basis. United States         v. Mendenhall, 446 U.S.

544, 561, 100 S. Ct. 1870, 64 L. Ed. 2d 497 (1980) (Powell, J., concurring).

      There is no question that the initial traffic stop was supported by reasonable

suspicion; Officer Campbell stopped Mecham in order to investigate an outstanding

warrant. However, an FST encompasses not only the initial seizure when the vehicle

is stopped, but also the additional seizure during administration of the test itself: when

an officer administers an FST, the suspect driver is not free to return to the vehicle

and drive away. This additional seizure implicates article I, section 7 and must itself

be supported by authority of law.

       Officer Campbell's request that Mecham perform an FST was a constitutional

seizure under Terry. Mecham's conduct during this traffic stop gave rise to Officer

Campbell's reasonable suspicion that Mecham was driving under the influence.

Officer Campbell smelled intoxicants on Mecham's breath and noticed that Mecham's

movements were sluggish and that his speech was slurred and repetitive. Officer

Campbell also observed an open beer can with a straw behind the passenger's seat

of Mecham's vehicle. These factors, taken together, provided Officer Campbell with

reasonable suspicion that Mecham was intoxicated. Officer Campbell's request that

Mecham perform FSTs was supported by his reasonable suspicion that Mecham was

driving a vehicle while intoxicated. However, here the lawful Terry stop transformed


8This does not give officers the opportunity to pursue a separate criminal investigation for
which they do not have reasonable suspicion. Rodriguez v. United States, 575 U.S. _ , 135
S. Ct. 1609, 1616-17, 191 L. Ed. 2d 492 (2015).



                                            10
State v. Mecham (Mark Tracy), No. 90598-3



into an actual arrest. Terry does not guide our analysis of the investigatory procedures

taken postarrest.

      The issue before us is whether Officer Campbell's arrest somehow terminated

his lawful authority to administer an FST to Mecham. Mecham does not challenge the

lawfulness of his seizure, and we have long recognized the propriety of a seizure to

perform an FST. See Heinemann, 105 Wn.2d at 809 (seizure and questioning in FSTs

permissible under Fourth Amendment and article I, section 7). Numerous other states

hold that an FST is a lawful seizure when the officer
                                                  ,,  has a reasonable suspicion that

an individual is driving under the influence of drugs or alcohol and the detention is

limited in scope and duration to assessing a driver's intoxication. See, e.g., State v.

Wyatt, 67 Haw. 293, 305, 687 P.2d 544 (1984) (FSTs are seizures, not searches,

despite officer's direction for defendant to execute a physical routine for the purpose

of gathering evidence of criminal activity); State v. Bernokeits, 423 N.J. Super. 365,

374, 32 A. 3d 1152 (2011) (FST is a reasonable seizure); State v. Little, 468 A.2d 615,

617-18 (Me. 1983) (same). Recognizing that authority of law authorized the FST

prearrest, we hold that Campbell had authority of law for the FST postarrest.

       One of the dissents concludes that "the vast majority of courts that have

addressed the issue" conclude that an FST is a search, citing 16 cases in a footnote

and concluding that "11 treat an FST as a search for purposes of the Fourth

Amendment analysis adopted in Terry . ... " Dissent at 1-2 & n.1 (Gordon McCloud,

J.) (citations omitted). The dissent neglects to mention, however, that only 2 of the

cited cases assert that probable cause must support an FST. See State v. Nagel, 320

Or. 24, 31-35, 880 P.2d 451 (1994 ); People v. Carlson, 677 P.2d 310, 316-17 (Colo.


                                            11
State v. Mecham (Mark Tracy), No. 90598-3



1984). One of the cases cited for the proposition that an FST is a search, in fact, holds

that an FST is not a search at all. See Galimba   v. Municipality of Anchorage, 19 P.3d
609, 612 (Alaska Ct. App. 2001) ("[W]hile breath tests are generally considered

searches for constitutional purposes, typical field sobriety tests, including the HGN,

are not. Our discussions in McCormick, Grier, and Ramo v. Anchorage confirm that,

in Alaska, police do not need probable cause sufficient for an arrest before requesting

typical field sobriety tests." (emphasis added) (footnote omitted)). Another case cited,

State v. Golden, never once mentions the word "search" and instead analyzes FSTs

as lawful seizures. See 171 Ga. App. 27, 30, 318 S.E.2d 693 (1984). The remaining

cases conclude that an FST is a search, but break from Washington law by permitting

a "search" on less than probable cause. See, e.g., State     v. Lamme, 19 Conn. App.
594, 600-01, 563 A.2d 1372 (1989) (rejecting probable cause standard and holding

that roadside sobriety tests may be justified by reasonable suspicion), aff'd, 216 Conn.

172 (1990); State   v. Royer, 276 Neb. 173, 179, 753 N.W.2d 333 (2008) (field sobriety

test is a reasonable search).

       We agree with the states holding that an FST is a lawful seizure and reject the

analysis of states permitting a "reasonable search" on less than probable cause.

Accord State v. Morse, 156 Wn.2d 1, 9, 123 P.3d 832 (2005) (article I, section 7 is

unconcerned with the reasonableness of the search); see also Missouri        v. McNeely,
_U.S._, 133 S. Ct. 1552, 1565, 185 L. Ed.2d 696 (2013) ('"No one can seriously

dispute the magnitude of the drunken driving problem or the States' interest in

eradicating it.' ... But the general importance of the government's interest in this area

does not justify departing from the warrant requirement" (quoting Mich. Dep't of State


                                            12
State v. Mecham (Mark Tracy), No. 90598-3



Police v. Sitz, 496 U.S. 444, 451, 110 S. Ct. 2481, 110 L. Ed. 2d 412 (1990))). We hold

that an FST constitutes a seizure, but that the seizure is lawful when supported by a

reasonable suspicion of driving under the influence.

Ill.     A field sobriety test is not a search under article I, section 7

          Having concluded that an FST is a seizure, we turn to whether an FST is a

search under article I, section 7 of the Washington Constitution or the Fourth

Amendment to the United States Constitution. This is a question of first impression for

this court, and there are no Washington cases on point.

          In the absence of controlling case law, we ask first whether FSTs invade

constitutionally protected privacy interests. We then examine prior cases to determine

if FSTs invade the privacy interests at issue in those cases.

       A. General expectations of privacy

          "No person shall be disturbed in his private affairs, or his home invaded, without

authority of law." WASH. CONST. art. I,§ 7. Article I, section 7 encompasses the privacy

expectations protected by the Fourth Amendment and in some cases may provide

greater protection than the Fourth Amendment because its protections are not

confined to the subjective privacy expectations of citizens. State v. Myrick, 102 Wn.2d

506, 510-11, 688 P.2d 151 (1984). Under article I, section 7, "a search occurs when

the government disturbs 'those privacy interests which citizens of this state have held,

and should be entitled to hold, safe from government trespass absent a warrant."'

State v. Hinton, 179 Wn.2d 862, 868, 319 P.3d 9 (2014) (emphasis added) (quoting

Myrick, 102 Wn.2d at 511 ). In determining whether a privacy interest exists, the court

considers both the historical protection afforded to the interest asserted and "the


                                               13
State   v. Mecham (Mark Tracy), No. 90598-3


nature and extent of the information which may be obtained as a result of the

governmental conduct." State v. Miles, 160 Wn.2d 236, 244, 156 P.3d 864 (2007). We

also
 .   consider laws supporting the interest asserted, including statutes and. analogous

case law. State v. Athan, 160 Wn.2d 354, 366, 158 P.3d 27 (2007). Finally, we look to

the reasonableness of the interest asserted. !d. (voluntary exposure to the public can

negate an asserted privacy interest); State v. Day, 161 Wn.2d 889, 894, 168 P.3d

1265 (2007) (evidence in open or plain view will not be excluded).

         As discussed above, FSTs require a detainee to perform three activities:

visually follow a moving object while the officer looks for involuntary eye movements,

walk heel to toe in a line, and stand on one leg while counting out loud. None of these

activities is private in nature. Indeed, they are all physical characteristics that any

observer might see upon casual observation of a person under the influence of drugs

or alcohol. FSTs thus do not invade a person's reasonable expectations of privacy.

   B. No search or seizure of any object, document, or electronic data

         In assessing whether an FST is a search, we consider three factors: the

historical protection afforded to the interest asserted, the nature and extent of the

information revealed, and analogous case law. McKinney, 148 Wn.2d at 27-29. A field

sobriety test is not a search in the classic sense: an FST is not a search of a person

or place for a physical object such as contraband or other physical evidence. No

documents, books, or papers are seized in an FST. Although not dispositive, the

absence of a tangible seizure distinguishes FSTs from many traditional searches.

         FSTs also do not reveal information analogous to private electronic information

such as cell phone records or pen registers. Ct. Hinton, 179 Wn.2d at 869 (text


                                              14
State v. Mecham (Mark Tracy), No. 90598-3



messages reveal "a 'wealth of detail about [a person's] familial, political, professional,

religious, and sexual associations."' (alteration in original) (quoting United States v.

Jones,_ U.S._, 132 S. Ct. 945, 955, 181 L. Ed. 2d 9'11 (2012) (Sotomayor, J.,

concurring)); State v. Gunwa/1, 106 Wn.2d 54, 69, 720 P.2d 808 (1986) (article I,

section 7 protects privacy interests implicated in telephone records and pen registers).

Instead, FSTs are an officer's observations of a suspect driver's actions that are

designed to assist an officer in observing physical characteristics associated with

inebriation. Such observations do not reveal anything like the sensitive information

contained in a person's electronic communication records.

    C. Publicly observable physical characteristics
       The information revealed from FSTs is not significantly different from the

information that is revealed from ordinary observation of a suspect driver's demeanor

and gait. We have never considered these physical observations to constitute a

search under the Fourth Amendment or under article I, section 7. Individuals do not

have a privacy interest in physical characteristics that are regularly exposed to the

public. See Athan, 160 Wn.2d at 374 (citing United States v. Mara, 410 U.S. 19, 21,

93 S. Ct. 774, 35 L. Ed. 2d 99 (1973)); see also Justice Charles W. Johnson & Justice

Debra L. Stephens, Survey of Washington Search and Seizure Law: 2013 Update, 36

SEATTLE U. L. REV. 1581, 1596 (2013) (no privacy interest attaches to one's

personality, appearance, or behavior). 9


9 A than and the cases relied on in the Survey of Washington Search and Seizure Law: 2013
Update analyze this issue under .the Fourth Amendment rather than conducting an
independent analysis under article I, section 7. Regardless, Mecham does not challenge this



                                            15
State   v. Mecham (Mark Tracy), No. 90598-3


        The fact that some of these physical observations are made because an FST

requires a suspect driver to move according to a prescribed physical routine does not

transform the officer's observations into a search. We have long recognized that

officers may direct an individual's movement or activities to obtain information about

their physical characteristics pursuant to a lawful seizure. Indeed, officers in

Washington may lawfully seize individuals and require them to participate in showups

or lineups, provided the amount of physical intrusion and the length of time a detainee

is stopped are limited. Wheeler, 108 Wn.2d at 235-37 (showup permissible seizure

where officers seized individual matching description of person suspected of

residential burglary, handcuffed him, placed him in a patrol car, and transported him

to be identified by a witness); see also State v. Dolesha/1, 53 Wn. App. 69, 72, 765

P.2d 344 (1988) (where suspect was already properly under arrest for separate

offense, police may require the suspect to appear in lineup "for unrelated crimes for

which there rnay not be probable cause to arrest").

         Detainees may also be required to provide handwriting samples or voice

exemplars; none of these activities are searches despite the fact that they are

obtained as the result of activity that is compelled by an investigating officer. See State

v.   Collins, 152 Wn. App. 429, 439-40, 216 P.3d 463 (2009) (directive to provide a voice

sample does not infringe on a privacy interest (citing United States      v.   Dionisio, 41 0

U.S. 1, 14, 93 S. Ct. 764, 35 L. Ed. 2d 67 (1973))); Mara, 410 U.S. at 21-22 (directive



general proposition under either the Fourth Amendment or under article I, section 7. He
instead asserts that FST tests reveal additional hidden information that, like DNA or a
urinalysis, is not regularly exposed to the public.



                                              16
State v. Mecham (Mark Tracy), No. 90598-3



to produce handwriting sample does not infringe on privacy interest). During a lawful

seizure-such as a traffic stop-officers have the authority to order suspects to

produce identification, to step out of and away from their vehicles, and to perform

other limited movements. See, e.g., State v. O'Neill, 148 Wn.2d 564, 582, 62 P.3d 489

(2003) (during seizure, officer may require driver to exit vehicle "'regardless of whether

the driver is suspected of being armed or dangerous or whether the offense under

investigation is a serious one"' (quoting Justice Charles W. Johnson, Survey of

Washington Search and Seizure Law: 1998 Update, 22 SEATTLE U. L. REV. 337, 461

(1998))). Each of these orders enables the officer to observe the suspect's

psychological condition and physical capabilities that they may not have exposed to

the public without the officer's direction-producing identification may even provide

the officer with probable cause to arrest a suspect of a crime. But none of these

activities are searches.

   D. Privacy interest in bodily fluids and internal bodily functions

       Field sobriety tests are also distinguishable from activities that infringe on one's

privacy interest in one's internal bodily functions. An FST does not invade or penetrate

an individual's bodily integrity as does a blood draw or a breath test. Nor are the tests

as intrusive as the collection of urine, historically a private activity performed without

public observation. See Skinner v. Ry. Labor Execs. Ass'n, 489 U.S. 602, 617, 109 S.

Ct. 1402, 103 L. Ed. 2d 639 (1989). FSTs merely involve watching, walking, standing,

and speaking.

       Individuals have a constitutionally protected interest in the privacy of their

internal bodily functions and fluids. York v. Wahkiakum Sch. Dist. No. 200, 163 Wn.2d


                                            17
State   v. Mecham (Mark Tracy), No. 90598-3


297, 308, 178 P.3d 995 (2008). We have held that the State infringes on this interest

when it takes someone's blood, DNA, urine, or breath. See, e.g., State v. Garcia-

Salgado, 170 Wn.2d 176, 184, 240 P.3d 153 (201 0) (DNA, blood, and breath tests are

searches); York, 163 Wn.2d at 308 (urinalysis); Robinson v. City of Seattle, 102 Wn.

App. 795, 819-22, 10 P.3d 452 (2000) (urinalysis). These activities infringe on a

person's privacy interests on multiple levels: the physical intrusion associated with

drawing blood and urine or of extracting "deep lung" breath intrudes on an individual's

privacy; and the chemical analysis associated with these tests provide a wealth of

private medical information that,· as the United States Supreme Court has held,

infringes on the reasonable expectations of privacy. Skinner, 489 U.S. at 616-17.

         Mecham analogizes the FST to DNA testing or to a urinalysis and argues that

field sobriety testing is a search because it is a test designed to "increase the amount

and kind of observable information." 10 He acknowledges that information about

balance and coordination may be readily accessible to the public but asserts the field

sobriety testing elicits additional information about a suspect driver's medical

conditions, psychological condition, and physical capabilities "that [the] defendant

would not have exposed to the public without the officer's direction." Nagel, 320 Or. at

31. But the information revealed by FSTs does not differ significantly from the

information that is revealed from ordinary observation of a suspect driver's demeanor



10 Mecham's argument relies heavily on the reasoning of the supreme courts of Oregon and
Colorado, each holding that an FST is a search. See Nagel, 320 Or. at 31-36; People v.
Carlson, 677 P.2d 310, 316-1"1 (Colo. 1984). We find no support for concluding that FSTs are
searches in the language of article I, section 7 or in our prior cases and respectfully disagree
with the Supreme Courts of Oregon and Colorado.



                                               18
State   v.   Mecham (Mark Tracy), No. 90598-3


and gait. Furthermore, as discussed in Section III.D ofthis opinion, supra, the fact that

these characteristics are observed as the result of compelled action means that they
                               .                                 .
are performed pursuant to seizure-but it does not transform the activity into a search.

             Field sobriety tests also provide far less private medical information than that

revealed by the chemical testing of blood or urine. These tests are short in duration

and limited in purpose. FSTs "are usable only for a sobriety determination."

Heinemann, 105 Wn.2d at 808; see also Athan, 160 Wn.2d at 367-68 (finding no

privacy interest in DNA evidence when evidence was used solely for the purpose of

identification, despite the fact that DNA can potentially reveal personal, medical

information). We acknowledge that an officer may also make incidental observations

about the suspect's physical capabilities, psychological condition, or education. Again,

this information is substantially similar to information already available to the officer

during the normal course of a lawful investigation. An investigating officer is already

able to draw inferences about an individual's physical abilities, coordination,

education, and other inferences through observation and questioning associated with

a seizure. That these observations are made as the result of a prescribed routine does

not transform the activity to a search.

    E. Devices enhancing sensory perception
             Nor are FSTs analogous to the use of technology that enhances officers'

sensory perception, such as infrared imaging or vehicle-tracking devices.

             We recognize that law enforcement's use of sensory enhancing devices to

enhance their observation of suspect's activities implicates article I, section 7. See

State v. Young, 123 Wn.2d 173, 183-84, 867 P.2d 593 (1994) (use of infrared to detect


                                                 19
State v. Mecham (Mark Tracy), No. 90598-3



heat signatures associated with marijuana grow operation is a search); State v.

Jackson, 150 Wn.2d 251, 261-64, 76 P.3d 217 (2003) (GPS (global positioning

system) attached to a car to monitor movement is a search). However, not all

technology or techniques used to augment an officer's unaided observation of a

suspect transforms that observation into a search. Officers may use flashlights or

binoculars, and may even conduct aerial flyovers of a suspect's property to aid their

observation without infringing on a suspect's article I, section 7 rights. See, e.g.,

Myrick, 102 Wn.2d at 514 (aerial surveillance is not a search). In determining what

constitutes a search, we consider whether the technology is generally available to the

public as well as theamount of information revealed by the use of that technology.

See, e.g., Jackson, 150 Wn.2d at 262 (noting GPS tracking can "reveal preferences,

alignments, associations, personal ails and foibles" of the driver based on the

locations visited).

       To the extent that an FST is analogous to any investigative device, the test is

probably most similar to a limited canine sniff for contraband. See State   v.   Hartzell,

156 Wn. App. 918, 929-30, 237 P.3d 928 (201 0) (canine sniff outside of car window is

not a search because suspects have no reasonable expectation of privacy in air

outside a car window). Like a canine sniff, an FST reveals only a limited amount of

information-and the information an FST reveals pertains only to the physical

characteristics that any member of the public could perceive by simply observing the

suspect's demeanor and gait. We therefore reject the analogy to the use of sensory

enhancing devices.




                                            20
State v. Mecham (Mark Tracy), No. 90598-3



     F. FSTs are not searches under article I, section 7

        We hold that a field sobriety test is a seizure but not a search under article I,

section 7 of the Washington Constitution. FSTs merely require an officer to examine

the eyes, the speech, and the ability of a suspect driver to execute a prescribed

routine. The information revealed from this procedure is not analogous to the types of

information that we have previously afforded protection under article I, section 7.

These tests are not a physical search, nor are they analogous to a search of a tangible

object such as a person's garbage. The information revealed and the level of intrusion

are distinct from the taking of bodily fluids, and FSTs do not reveal information

analogous to private electronic information such as cell phone records or pen

registers. Instead, a field sobriety test is a limited intrusion that reveals some physical

characteristics associated with inebriation. This information is revealed during the

officer's investigation pursuant to a seizure; an FST is a seizure but it is not a search

under article I, section 7. 11

        Justice Gordon McCloud's dissent ignores this rich body of case law we have

developed when considering seizures of objects, documents, electronic data, publicly

observable physical characteristics, bodily fluids, internal bodily functions, and

devices enhancing sensory perception. See Athan, 160 Wn.2d at 366 ("In determining

if an interest constitutes a 'private affair,' we look at the historical treatment of the

interest being asserted, analogous case law, and statutes and laws supporting the


11 Because we hold that a field sobriety test is not a search we do not consider the State's
alternative argument in its answer to petition for review that the FST was lawful pursuant to
an exception to the warrant requirement.



                                             21
State v. Mecham (Mark Tracy), No. 90598-3


interest asserted."). As a result, this dissent departs from prior precedent and relies

instead on a manual for training police officers for the theory that certain organic

injuries or conditions can result in symptoms similar to those disclosed by an FST,

which constitutes an invasion of privacy. Dissent at 3-4 (Gordon McCloud, J.). But we

rejected a similar argument in Athan; when the American Civil Liberties Union (ACLU)

argued that an envelope should not have been tested for DNA without a warrant

because DNA can reveal private information, we held, "While this may be true in some

circumstances, the State's use of Athan's DNA here was narrowly limited to

identification purposes .... The State used the sample for identification purposes only,

not for purposes that raise the concerns advanced by the ACLU." Athan, 160 Wn.2d

at 368. The failure of the dissent even to acknowledge these prior decisions supports

our conclusion that an FST is not a "private affair" under article I, section 7.

IV.    Fourth Amendment analysis

       Having concluded that an FST is not a search under article I, section 7, we must

also analyze whether the test is a search under the Fourth Amendment. To determine

whether a search has taken place under the Fourth Amendment we consider whether

the defendant possessed a "reasonable expectation of privacy." Katz       v. United States,
389 U.S. 347, 360, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967) (Harlan, J., concurring). A

search also occurs whenever "'the Government obtains information by physically

intruding' on persons." Florida v. Jardines, _U.S._, 133 S. Ct. 1409, 1414, 185 L.

Ed. 2d 495 (2013) (quoting Jones, 132 S. Ct. at 950 n.3).

       The parties do not distinguish their Fourth Amendment arguments from their

arguments under article I, section 7. We therefore hold that field sobriety testing is not


                                            22
State v. Mecham (Mark Tracy), No. 90598-3



a search under the Fourth Amendment for the same reasons that it is not a search

under article I, section 7: the test reveals only a series of physical characteristics

associated with inebriation. These observations are not substantially different from

simple, unaided observation of a defendant.

 V.    Refusal testimony

       Mecham argues that the State may not comment on his decision not to consent

to a field sobriety test. Washington citizens enjoy the right to refuse consent to a

warrantless search without penalty; comments during trial on the exercise of that right

violate the Fourth Amendment and article I, section 7. See Jones, 168 Wn.2d at 725;

State v. Gauthier, 174 Wn. App. 257, 267, 298 P.3d 126 (2013); see also Prescott,

581 F.2d at 1351. However, the State may introduce evidence that the defendant is

asserting a nonconstitutional right as evidence of consciousness of guilt at trial. See

Nordlund, 113 Wn. App. at 188; see also Neville v. South Dakota, 459 U.S. 553, 565,

103 S. Ct. 916, 74 L. Ed. 2d 748 (1983); Stalsbroten, 138 Wn.2d at 235-37 (using

evidence of refusal to take a blood alcohol test permissible because "there is no

constitutional right not to take the test"). Because we hold that Mecham did not have

a constitutional right to refuse the FSTs, we also hold that the State did not violate his

constitutional rights when it presented evidence against him at trial of his refusal to

consent.

 VI.   Response to dissenting opinions

       This case has spawned a partial concurrence and two dissenting opinions,

each on different and incompatible grounds.




                                            23
State v. Mecham (Mark Tracy), No. 90598-3



      The partial concurrence agrees that an FST is a seizure and not a search.

Partial concurrence at 1. The opinion further agrees that an FST is a permissible

seizure under Terry when the officer has a reasonable suspicion of impaired driving.

/d. However, the partial concurrence goes on to conclude that the State no longer has

authority of law to conduct an FST following an arrest because the justifications for

investigating a crime evaporate when a suspect is arrested for a separate crime. See

id. at 3-4. The partial concurrence bases this conclusion on the theory that continued

investigations under Terry must be related to justification for the initial seizure, and

once a suspect is under arrest for an unrelated crime, an FST's only purpose is to

gather evidence of a crime-thus transforming the FST into a search. /d. Accordingly,

reasons the opinion, once Mecham was arrested and safely detained, Officer

Campbell could no longer perform an FST. ld at 4.

      The reasoning of the partial concurrence misapprehends the scope of a Terry

stop, which allows for the detection and prevention of crime, as the Terry court

explained. One government interest in Terry stops is "effective crime prevention and

detection; it is this interest which underlies the recognition that a police officer may in

appropriate circumstances and in an appropriate manner approach a person for

purposes of investigating possibly criminal behavior even though there is no probable

cause to make an arrest." Terry, 392 U.S. at 22. After Officer Campbell arrested and

detained Mecham, he was legally authorized under the principles of Terry to continue

his investigation of Mecham's intoxication.

       The partial concurrence leads to the ironic result that a police officer can ask a

citizen encountered on the street to submit to an FST but cannot ask an arrested


                                            24
State v. Mecham (Mark Tracy), No. 90598-3



suspect to submit to an FST. To the contrary, after arresting a suspect, the police are

authorized to investigate crimes for which their suspicion is aroused and preserve

evidence. Cf. State v. Byrd, 178 Wn.2d 611, 618, 310 P.3d 793 (2013) (custodial arrest

provides "authority of law" under article I, section 7 to search arrestee because arrest

"always implicate[s] Chimefl1 21 concerns for officer safety and evidence preservation"

(emphasis added)). Indeed, we have recognized that officers can continue to compel

individuals to engage in activities that are otherwise recognized as seizures following

arrest for unrelated crimes without infringing on their privacy interests. For example,

"[c]ompelling a person to appear in a physical lineup constitutes a "seizure" regulated

by the Fourth Amendment." In reArmed Robbery, 99 Wn.2d 106, 108-09, 659 P.2d

1092 (1983). Police may require a suspect already under arrest for one crime to

appear in a lineup for unrelated crimes without infringing on the suspect's privacy

interests. Dolesha/1, 53 Wn. App. at 72; accord People         v.   Hodge, 186 Colo. 189, 526

P.2d 309 (1974); People      v.   Hall, 396 Mich. 650, 242 N.W.2d 377 (1976).

         Finally, the partial concurrence is contrary to Mecham's own argument.

Mecham acknowledges that he was under arrest, and he does not challenge the

lawfulness of the seizure. His briefing properly recognizes that Terry separately

authorizes "a brief investigative detention and a frisk for weapons that may harm the

officer"-he argues only that neither Terry nor any other exception to the warrant

requirement authorized an evidentiary search. Suppl. Br. of Pet'r at 19-20. However,

an FST is not an evidentiary search; it is a "brief investigative detention"-also known



12   Chime/ v. California, 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969).


                                                25
State   v. Mecham (Mark Tracy), No. 90598-3


as a "Terry investigative stop"-that "allows an officer to briefly stop and detain a

person without a warrant when the officer reasonably suspects that the person is

engaged in criminal conduct." 13 State     v.   Doughty, 170 Wn.2d 57, 67, 239 P.3d 573

(201 0) (Fairhurst, J., dissenting) (footnote omitted). Campbell's authority for this

investigation did not disappear upon Mecham's arrest.

         Justice Gordon McCloud's dissent argues that an FST is a search, a position

adopted by neither the partial concurrence nor the other dissent. See discussion supra

pp. 12-13. We thoroughly address and reject this argument in Part Ill of this opinion,

supra.

         The second dissent relies on an argument not adopted by either the other

dissent or the partial concurrence-that the State may never use evidence of a refusal

to consent to a police officer's request when the officer tells the suspect driver that

consent is voluntary but fails to tell the driver that refusal may be used as evidence of

consciousness of guilt. Dissent (Johnson, J.) at 1. This dissent explicitly grounds its

argument in policy, arguing fairness and notions of justice. However, the United States

Supreme Court has rejected this argument, holding that FSTs do not implicate the

Fifth Amendment. See Neville, 459 U.S. at 565 ("[W]e do not think it fundamentally

unfair for South Dakota to use the refusal to take the [FST] as evidence of guilt, even

though respondent was not specifically warned that his refusal could be used against

him at trial."); see also Stalsbroten, 138 Wn.2d at 235-36. Though this dissent does


13 Officers conducting a lawful brief investigative detention may not search an individual based
merely on their reasonable suspicion of criminal activity. Under Terry, officers may conduct a
limited frisk for weapons only if the officer has a reasonable concern for danger and the search
is limited in scope to finding weapons. Setterstrom, 163 Wn.2d at 626.


                                                26
State   v. Mecham (Mark Tracy), No. 90598-3


not address these cases, which were acknowledged and briefed by the parties, we

agree with their reasoning and hold in part V of this opinion, supra, that the State is

prohibited only from presenting evidence that the defendant refused to waive a

constitutional right. Accord Nordlund, 113 Wn. App. at 188.

         For these reasons, we decline to adopt the reasoning of the partial concurrence

or the two dissents.

                                     CONCLUSION

         We hold that a field sobriety test is a seizure that may be justified under the

doctrine of Terry. Therefore, Mecham did not have a constitutional right to refuse the

FSTs and the trial court properly admitted evidence of Mecham's refusal as evidence

of consciousness of guilt against him at trial. We also hold that an FST is not a search

under our state and federal constitutions and therefore need not consider the State's

request to decide alternative issues that were brought up on appeal but not addressed

below.

         We affirm the Court of Appeals but depart from its reasoning for the reasons

expressed in this opinion.




                                              27
State v. Mecham (Mark Tracy), No. 90598-3




      WE CONCUR.




             /          -
-··--~-;~...._-




                                            28
State v. Mecham, No. 90598-3
(Fairhurst, J., concurring in part and dissenting in part)




                                            No. 90598-3

       FAIRHURST, J. (concurring in part and dissenting in part)-I agree with the

lead opinion that field sobriety tests (FSTs) as they are normally used-either (1)

following a traffic stop based on evidence of impaired driving or (2) following a stop

for an unrelated offense where the officer immediately discovers signs of

impairment but the suspect is not yet under arrest-are seizures that may be justified

under Terry. 1 However, the manner in which Officer Scott Campbell utilized the

FSTs in the present case exceeded the constraints imposed by Terry and our

interpretation of Terry, and amounted to a search for evidence that required a warrant

or a warrant exception. This being so, Mark Tracy Mecham had a constitutional right

to refuse to submit to the FSTs, and the State should have been precluded from

offering evidence of the refusal against him at trial.


       Under Terry, a law enforcement officer may briefly detain a suspect based on

a reasonable suspicion that criminal activity is afoot. See State v. Duncan, 146 Wn.2d

 166, 172, 43 P .3d 513 (2002) ("Terry requires a reasonable, articulable suspicion,


       1
        Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
                                               1
State v. Mecham, No. 90598-3
(Fairhurst, J., concurring in part and dissenting in part)


based on specific, objective facts, that the person seized has committed or is about

to commit a crime." (emphasis omitted) (citing Terry, 392 U.S. at 21)). "[A] traffic

stop is a 'seizure' for the purpose of constitutional analysis, no matter how brief."

State v. Ladson, 138 Wn.2d 343, 350, 979 P.2d 833 (1999) (citing Delaware v.

Prouse, 440 U.S. 648,653,99 S. Ct. 1391, 59 L. Ed. 2d 660 (1979); Whren v. United

States, 517 U.S. 806, 809-10, 116 S. Ct. 1769, 135 L. Ed. 2d 89 (1996); City of

Seattle v. Mesiani, 110 Wn.2d 454, 460, 755 P.2d 775 (1988) (Dolliver, J.,

concurring)). We have extended Terry to traffic infractions "'due to the law

enforcement exigency created by the ready mobility of vehicles and governmental

interests in ensuring safe travel, as evidenced in the broad regulation of most forms

of transportation."' State v. Day, 161 Wn.2d 889, 897, 168 P.3d 1265 (2007)

(quoting State v. Johnson, 128 Wn.2d 431, 454, 909 P.2d 293 (1996)). However,

traffic stops under Terry are "permissible only if ( 1) 'the officer's action was

justified at its inception,' and (2) 'it was reasonably related in scope to the

circumstances which justified the interference in the first place."' Ladson, 13 8

Wn.2d at 350 (quoting Terry, 392 U.S. at 20). A law enforcement officer may extend

a Terry stop to continue investigating a potential crime if the officer's suspicions are

either confirmed or further aroused. See State v. Acrey, 148 Wn.2d 738, 747, 64 P.3d

594 (2003).


                                            2
State v. Mecham, No. 90598-3
(Fairhurst, J., concurring in part and dissenting in part)


      I disagree with the lead opinion that under the facts of this case, the FSTs were

merely a seizure. I arrive at this conclusion because the reasonable suspicion needed

to justify an officer's continued investigation under Terry must arise at the inception

of the contact and the continued seizure must be tied to the justification underlying

that initial contact. See Ladson, 138 Wn.2d at 350; Florida v. Royer, 460 U.S. 491,

500, 103 S. Ct. 1319,75 L. Ed. 2d 229 (1983) ("The scope ofthe detention must be

carefully tailored to its underlying justification.").

       In the present case, the Terry stop was not "carefully tailored to its underlying

justification" because justification for the initial seizure (the outstanding warrant)

was wholly unrelated to the justification for the FSTs. More importantly, Officer

Campbell did not discover the justification for the FSTs until after Mecham was

already under formal arrest, a point the lead opinion acknowledges but does not

address. See lead opinion at 2 ("Following arrest, Officer Campbell smelled

intoxicants on Mecham's breath and noticed that Mecham's movements were

sluggish and that his speech was slurred and repetitive." (emphasis added)). Thus,

the Terry analysis, if applicable at all, must begin anew at the time the officer formed

his suspicion that Mecham was intoxicated. Even here, under normal circumstances,

I believe there would be sufficient facts to justify an extension of the traffic stop

under Terry. However, the situation presents a unique problem because Mecham


                                             3
State v. Mecham, No. 90598-3
(Fairhurst, J., concurring in part and dissenting in part)


was formally arrested for a different offense both when the officer formed his

suspicion that Mecham was driving impaired as well as when the officer requested

that Mecham perform the FSTs.

       We have been clear that "Terry does not authorize a search for evidence of a

crime." Day, 161 Wn.2d at 895. Therefore, while Terry could have been used to

extend the traffic stop in order to confirm or dispel Officer Campbell's suspicions

after the traffic stop but prior to arrest, Terry is simply inapplicable following arrest.

I can find no authority that justifies expanding Terry from a '"brief investigative

detention"' to a doctrine that permits law enforcement to redetain someone who has

already been arrested for an unrelated offense. Lead opinion at 26 (quoting Suppl.

Br. ofPet'r at 19). Officer Campbell's sole purpose in seeking to compel Mecham

to perform FSTs, postarrest, was to gather evidence of Mecham's guilt for driving

under the influence. This being so, under both the Fourth Amendment to the United

States Constitution and article I, section 7 to the Washington Constitution, Officer

Campbell needed a warrant, or an exception to the warrant requirement, in order to

compel Mecham to perform the FSTs. See Ladson, 138 Wn.2d at 347-51. Because

Officer Campbell had neither, Mecham had a constitutional right to refuse the search

 for evidence and the State should have been precluded from introducing evidence of

the refusal at trial.


                                            4
State v. Mecham, No. 90598-3
(Fairhurst, J., concurring in part and dissenting in part)


       Terry operates as one of only a few '"jealously and carefully drawn"'

exceptions to the warrant requirement. See id. at 349 (internal quotation marks

omitted) (quoting State v. Houser, 95 Wn.2d 143, 149, 622 P.2d 1218 (1980)).

Although I agree with the lead opinion that under different circumstances FSTs

constitute only a seizure, we should refrain from expanding the brief investigative

Terry stop to cover individuals already under formal arrest for unrelated offenses.

       Accordingly, I concur in part and dissent in part.




                                            5
State v. Mecham, No. 90598-3
(Fairhurst, J., concurring in part and dissenting in part)




                                            6
State v. Mecham (Mark Tracy)




                                          No. 90598-3

       JOHNSON, J. (dissenting)--The lead opinion overcomplicates and confuses

the issue this case presents. In doing so, the lead opinion loses track of the

fundamental nature of what this case concerns--that is, a citizen's right to choose

to do something or not. The officer here requested that the defendant perform

specific voluntary actions, which the defendant chose not to do. For the principles

of voluntariness or consent to have any meaning, the only conclusion flowing from

this choice is simply that-a choice was made. No evidentiary relevance should

flow from this choice. The conviction should be reversed and the case remanded

for a new trial. 1

       The lead opinion goes offtrack by relying mostly, if not exclusively, on

cases challenging the admissibility of evidence of field sobriety tests (FSTs) where

the tests were performed and the results were admitted as substantive evidence of

guilt. The evidence was challenged on appeal. The essence of the reasoning of

---------
       1
           Whether exercise of the right to choose is characterized as· a privacy right, a due process
right, or, as here-where the officer expressly tells the defendant the field sobriety tests are
consensual---a fundamental fairness issue, the basic underlying principle is the same: that is, absent
governmental authority to intrude, a person has a fundamental right to choose to be left alone.
State v. Mecham (Mark Tracy), No. 90598-3
(Johnson, J., dissenting) .


these cases is that, since the 'tests are voluntary, when a person consents to

performing the tests, he or she is bound to that choice, good or bad. Moreover, no

logical or legal sense exists for those cases to even analyze consent and uphold the

admissibility of eyidence at trial outside the context of a "search." Those cases

have little, if any, relevance here except the recognition that a person possesses the

right to choose and that when valid consent to a search exists, the results are

admissible.

       Underscoring the consensual nature of this request is, unlike the statutory

requirement established under our implied consent statutes and laws here, where an

officer asks a person to perform the FSTs, no warnings, statutory or otherwise, are

required advising the person of the consequences of refusal. Perhaps the statute

could be revised to include FSTs and consequences of refusal, but the legislature

has not acted to do so. That should logically mean that a person retains the

fundamental right to choose. 2




       2  One of the more significant strains of the right of privacy concerns the right of an
individual to make personal decisions about his or her life free from government control. The
right to choose flows from respect for personal dignity and allows an individual to define his or
her own life. See Olmstead v. United States, 277 U.S. 438, 478, 48 S. Ct. 564, 72 L. Ed. 944
(1928) (Brandeis, J., dissenting) ("[The makers of our Constitution] conferred, as against the
[g]overnment, the right to be let alone-the most comprehensive of rights and the right most
valued by civilized men.").

                                                 2
State v. Mecham (Mark Tracy), No. 90598-3
(Johnson, J., dissenting)


       Remarkably, and without citing any relevant case authority, the lead opinion

concludes this evidence is admissible to establish consciousness of guilt, 3 which is

what was argued by the State at trial. The lead opinion cites State v. Nordlund, 113

Wn. App. 171, 188, 53 P.3d 520 (2002), for this principle. But Nordlund involved

a defendant's refusal to supply hair samples required by a valid court order.

       What the lead opinion fails to acknowledge is that implicit in Nordlund,

absent the authority of the court order, a person retains the right to choose to

refuse. This principle was correctly recognized and analyzed by the court in State

v. Gauthier, 174 Wn. App. 257, 298 P.3d 126 (2013), where the court reversed a

conviction in which the prosecutor had improperly used at trial evidence that the

defendant had refused consent to a warrantless search of his DNA

(deoxyribonucleic acid). The exercise of the right to choose is not consciousness of

guilt--the only consciousness the cases establish is a person made the conscious

decision to choose.

       Finally, the lead opinion erroneously reasons that the defendant's interests

emanate from the common law, not constitutional principles, and are therefore not

protected from comment or use against the defendant at trial. This conclusion,

which seems to be at the core of the lead opinion's analysis, makes no sense from



       3
         The original application of the "consciousness of guilt" doctrine was narrowly applied to
the idea of flight from circumstances. See Alberty v. United States, 162 U.S. 499, 16 S. Ct. 864, 40
L. Ed. 1051 (1896).

                                                 3
State v. Mecham (Mark Tracy), No. 90598-3
(Johnson, J., dissenting).


an overall constitutional perspective. It should make no difference whether a

principle is recognized as a privacy interest under article I, section 7 of the

Washington Constitution, 4 a right of an accused under article I, section 9, 5 or more

generally under article I, section 30 or article I, section 32, 6 or elsewhere under the

common law, the principles and protections remain.

        Especially important to cases like this one are facts such as that Mark Mecham

was already under arrest and the officer was not engaging in a casual conversation

concerning sports or the weather but was asking Mecham to voluntarily perform

"tests'j specifically designed and intended to elicit incriminating evidence. Under

these circumstances, the choice in exercising the right to refuse consent should be

recognized and protected. Fundamental principles of fairness arise where an officer

misleads a person into making a choice only to result in the choice being used against

them.

        The constitution and the rights and principles are not foreign or divorced from

the common law, as the lead opinion evidently believes. The constitution reflects

and is founded on basic rights in existence at its adoption from the common law. The


        4
         "No person shall be disturbed in his private affairs, or his home invaded, without
authority of law."

        5
         "No person shall be compelled in any criminal case to give evidence against himself, or
be twice put in jeopardy for the same offense."

        6
         "A frequent recurrence to fundamental principles is essential to the security of individual
right and the perpetuity of free government."

                                                  4
State v. Mecham (Mark Tracy), No. 90598-3
(Johnson, J., dissenting)


conviction should be reversed and the matter remanded for a new trial.




                                            5
State v. Mecham (Mark Tracy), No. 90598-3
(Gordon McCloud, J., Dissenting)




                                    No. 90598-3

      GORDON McCLOUD, J. (dissenting)-! agree with the lead opinion that a

field sobriety test (PST) is a seizure, under article I, section 7 of the Washington

Constitution, to the extent that "when an officer administers an PST, the suspect

driver is not free to return to the vehicle and drive away." Lead opinion at 9-10

(citing State v. Young, 135 Wn.2d 498, 510,957 P.2d 681 (1998)). And I agree that

a warrantless PST must therefore be predicated, in the first instance, on an officer's

reasonable suspicion that criminal activity is afoot. Lead Opinion at 10; State v.

Gatewood, 163 Wn.2d 534, 539, 182 P.3d 426 (2008) ('"Terry [v. Ohio, 392 U.S. 1,

88 S. Ct. 1868,20 L. Ed. 2d 889 (1968),] requires a reasonable, articulable suspicion,

based on specific, objective facts, that the person seized has committed or is about

to commit a crime."' (emphasis in original) (quoting State v. Duncan, 146 Wn.2d

166, 172,43 P.3d 513 (2002))).

      But I disagree with the lead opinion's conclusion that an PST is not a search

under the Fourth Amendment to the United States Constitution or under article I,



                                            1
State v. Mecham (Mark Tracy), No. 90598-3
(Gordon McCloud, J., Dissenting)


section 7 of the Washington Constitution. Like the vast majority of courts that have

addressed the issue, I conclude that an FST is a search for purposes of constitutional

analysis. 1


       1
         I am aware of 17 cases that squarely address the question of whether police officers
may compel a subject to submit to an PST absent a warrant or probable cause. State v.
Royer, 276 Neb. 173, 179, 753 N.W.2d 333 (2008); Galimba v. Mun. of Anchorage, 19
P.3d 609,612 (Alaska Ct. App. 2001); People v. Rizzo, 243 Mich. App. 151, 161,622 N.W.
2d 319 (2000); State v. Ferreira, 133 Idaho 474, 480, 988 P.2d 700 (1999); Commonwealth
v. Blais, 428 Mass. 294, 701 N.E.2d 314 (1998); Hulse v. State, 289 Mont. 1, 19-20, 961
P.2d 75 (1998); State v. Taylor, 648 So. 2d 701 (Fla. 1995); State v. Nagel, 320 Or. 24, 34-
37, 880 P.2d 451 (1994); State v. Lamme, 19 Conn. App. 594, 600, 563 A.2d 1372 (1989),
ajf'd, 216 Conn. 172, 579 A.2d 484 (1990); State v. Gray, 150 Vt. 184, 190-91, 522 A.2d
1190 (1988); Dixon v. State, 103 Nev. 272, 273-74, 737 P.2d 1162 (1987); State v. Superior
Court, 149 Ariz. 269, 274, 718 P.2d 171 (1986); State v. Stevens, 394 N.W.2d 388, 391
(Iowa 1986); State v. Golden, 171 Ga. App. 27, 30, 318 S.E.2d 693 (1984); People v.
Carlson, 677 P.2d 310, 316-17 (Colo. 1984); State v. Wyatt, 67 Haw. 293, 304-05, 687
P.2d 544 (1984); State v. Little, 468 A.2d 615 (Me. 1983). Of these 16, 11 treat an PST as
a search for purposes of the Fourth Amendment analysis adopted in Terry, 392 U.S. at 30-
31: Royer, 276 Neb. at 179; Galimba, 19 P.3d at 612; Rizzo, 243 Mich. App. at 161;
Ferreira, 133 Idaho at 480; Blais, 428 Mass. 294; Hulse, 289 Mont. at 19-20; Nagel, 320
Or. at 34-37; Lamme, 19 Conn. App. 594; Dixon, 103 Nev. at 273-74; Superior Court, 149
Ariz. at 274; Golden, 171 Ga. App. at 30; and Carlson, 677 P.2d at 316-17. The lead
opinion points out that only 2 of these cases (Nagel and Carlson) hold that an PST must be
supported by probable cause. Lead opinion at 12. That is true, but it is irrelevant to the
question of whether an PST is a search for purposes of the Terry analysis. Under Terry,
searches may proceed on less than probable cause, but they are nonetheless limited in ways
that mere seizures are not. See Section II.A. below. The lead opinion also asserts that one
of the cases cited above-Galimba, 19 P.3d at 612-expressly holds that FSTs are not
searches for purposes of the Terry analysis. Lead opinion at 12. I disagree. Galimba, 19
P.3d at 612 ("assuming (without deciding) that field sobriety tests are a form of a Terry
search[;] the tests in this case were justified"). Finally, the lead opinion asserts that another
case-Golden, 171 Ga. App. at 30-treats FSTs as seizures because it "never once
mentions the word 'search."' Lead opinion at 12. But the court in Golden upheld the PST
 under Terry only because the PST was justified by "the enormous danger to the public
 created by the presence of drunk drivers on the roadways." 171 Ga. App. at 30. Danger
to the public is irrelevant under Terry unless the intrusion at issue is a search. See Section
 II.A. below. Thus, the Golden court treated FSTs as searches.
                                                2
State v. Mecham (Mark Tracy), No. 90598-3
(Gordon McCloud, J., Dissenting)


      Having reached that conclusion, I next address whether such a search is

constitutionally permissible. The answer depends on the facts: if such an PST search

is reasonable to protect officer or public safety, then it is constitutionally permissible

under Terry, but if such an PST search does not further any legitimate, immediate

safety need, then it is constitutionally impermissible under Terry. In this case,

Mecham was already handcuffed, removed from his car, and placed under arrest for

a separate and unrelated crime before the FSTs were requested. Thus, officer and

public safety were fully protected at that point; the FSTs would have served only an

evidence-gathering purpose, not the safety purpose of getting a potentially

dangerous driver off the road. Because the State has not shown that the Terry safety

exception or any other exceptions to the warrant requirement applied in this case, I

dissent.

       I.     A Field Sobriety Test Is a Search under Both the Fourth Amendment to
              the United States Constitution and Article I, Section 7 of the
              Washington Constitution
       As the lead opinion correctly observes, a search occurs for purposes of article

I, section 7 "when the government disturbs 'those privacy interests which citizens of

this state have held, and should be entitled to hold, safe from governmental trespass

absent a warrant."'     State v. Hinton, 179 Wn.2d 862, 868, 319 P.3d 9 (2014)

(emphasis omitted) (quoting State v. Myrick, 102 Wn.2d 506, 511, 688 P.2d 151


                                             3
State v. Mecham (Mark Tracy), No. 90598-3
(Gordon McCloud, J., Dissenting)


(1984)). The lead opinion holds that FSTs are not searches under this standard

because they reveal only "physical characteristics that any observer might see upon

casual observation of a person under the influence of drugs or alcohol." Lead

opinion at 14.

      I disagree. An FST can reveal information about a person's body and medical

history that are unquestionably private in nature.       According to the National

Highway Traffic Safety Administration (NHTSA), in addition to possible

inebriation, FSTs can reveal a head injury, neurological disorder, brain tumors or

damage, and some inner ear diseases.        Int'l Ass'n of Chiefs of Police & NHTSA,

DWI Detection and Standardized Field Sobriety Testing, March 2013 Edition,

Participant Guide at 13, 16, www.wsp.wa.gov/breathtest/docs/dre/manuals/SFST_

basic'-dwidetect/2013/student_mar_2013_SFSTbasic.pdf [https://perma.cc./H9HR-

A78U]. These conditions are not necessarily observable in the subject's normal

public behavior; they may well be revealed only by the special maneuvers the subject

is directed to perform during the FST. Indeed, if an FST did not reveal information

beyond what is readily observable by the general public, there would be no need to

administer it in the first place. I therefore conclude that FSTs are searches under

article I, section 7 of our state constitution.




                                             4
State v. Mecham (Mark Tracy), No. 90598-3
(Gordon McCloud, J., Dissenting)


      I also conclude that FSTs are searches under the Fourth Amendment to the

United States Constitution. In addition to revealing sensitive personal information,

an FST is at least as "annoying" and publicly "humiliating" as the limited frisk for

weapons at issue in Terry. 392 U.S. at 24-25 ("Even a limited search of the outer

clothing for weapons constitutes a severe, though brief, intrusion upon cherished

personal security, and it must surely be an annoying, frightening, and perhaps

humiliating experience.")        These aspects of the Terry frisk-as much as any

potential for a pat down to reveal sensitive personal information-were crucial to

the Court's decision that the Fourth Amendment limits officer conduct during an

investigative detention. !d. at 16-17. And they led the Court to "emphatically reject"

the argument that a Terry frisk is not a "'search' ... within the meaning of the

Constitution":

       [I]t is simply fantastic to urge that [a pat down] performed in public by
       a policeman while the citizen stands helpless, perhaps facing a wall
       with his hands raised, is a "petty indignity." It is a serious intrusion
       upon the sanctity of the person, which may inflict great indignity and
       arouse strong resentment, and it is not to be undertaken lightly.
Jd. (footnotes omitted).

       Field sobriety tests implicate similar concerns. 2 Accordingly, they should

trigger similar constitutional protections.


       2   See Carlson, 677 P.2d at 317 ("Indeed, in some respects, roadside sobriety testing
might be considered more invasive of privacy interests than chemical testing. The latter is
                                               5
State v. Mecham (Mark Tracy), No. 90598-3
(Gordon McCloud, J., Dissenting)


      II.    In this Case, No Exception to the Warrant Requirement Justified the
             Officer's Request That Mecham Submit to a Field Sobriety Test
      Because an PST is a search, for purposes of constitutional analysis, Mecham

had an absolute constitutional right to refuse to perform any FSTs unless an

exception to the warrant requirement applied. See lead opinion at 8 (if defendant

has a constitutional right to refuse participation in an PST, then State may not admit

refusal evidence at trial). In this case, the State argues that two different exceptions

applied. First, it argues that the warrantless FSTs were a Terry stop; second, it argues

that the warrantless FSTs were a search incident to arrest. Given the peculiar facts

of this particular case, both arguments fail.

             A. The warrantless field sobriety test in this case was not permissible
                 as a Terry search
       In the context of a Terry stop-an investigative detention predicated on

reasonable suspicion that criminal activity is afoot-the Fourth Amendment permits

only a "limited search" of the suspect's "outer clothing" for weapons. Terry, 392

U.S. at 30-31. This search is not necessarily permitted in every Terry stop; instead,

an officer may conduct this "limited search" only ifhe or she has a "reasonable fear"




usually performed in the relatively obscure setting of a station house or hospital, while
roadside sobriety testing will often take place on or near a public street with the suspect
exposed to the full view of motorists, pedestrians, or anyone else who happens to be in the
area.''); see also Nagel, 320 Or. at 34-35 ("the tests require defendant to perform certain
maneuvers that are not regularly performed in public" (emphasis added)).
                                            6
State v. Mecham (Mark Tracy), No. 90598-3
(Gordon McCloud, J., Dissenting)


that the suspect is armed and dangerous. !d. An officer may not conduct a Terry

search for purely evidentiary purposes-that is strictly barred by the Fourth

Amendment. I d.

      While the search approved in Terry was a pat down of the suspect's "outer

clothing," id., the United States Supreme Court has since defined permissible Terry

searches more abstractly as "protective search[es] ... 'limited to that which is

necessary for the discovery of weapons which might be used to harm the officer or

others nearby."' Minnesota v. Dickerson, 508 U.S. 366, 373, 113 S. Ct. 2130, 124

L. Ed. 2d 334 (1993) (quoting Terry, 392 U.S. at 26 (citing Michigan v. Long, 463

U.S. 1032, 1049, 1052 n.16, 103 S. Ct. 3469, 77 L. Ed 2d 1201 (1983))); Ybarra v.

Illinois, 444 U.S. 85, 93-94, 100 S. Ct. 338, 62 L. Ed. 2d 238 (1979). Using this

definition, the Court has approved, under Terry, a comprehensive search of the

passenger compartment of a suspect's car after officers saw a knife sitting on one of

the floorboards. Long, 463 U.S. at 1050-51. This court has reached a similar

conclusion under article I, section 7. In State v. Kennedy, we held that when an

officer has reason to suspect that a weapon is concealed in the front seat of a

suspect's car, searching that front seat is "similar to a Terry frisk" and therefore




                                            7
State v. Mecham (Mark Tracy), No. 90598-3
(Gordon McCloud, J., Dissenting)


"reasonable" under our state constitution.         107 Wn.2d 1, 12-13, 726 P.2d 445

(1986). 3

       In this case, the Court of Appeals held that even if an FST is a search under

the state and federal constitutions, it is analogous to a Terry frisk and is permissible

without a warrant if"the degree of intrusion [is] appropriate to ... [the defendant's]

probable dangerousness." State v. Mecham, 181 Wn. App. 932, 941, 331 P.3d 80,

review granted, 181 Wn.2d 1014, 337 P.3d 325 (2014). In other words, the Court


       3
          The lead opinion mistakenly asserts that Washington's constitution (article I,
section 7) is always '"unconcerned with the reasonableness of the search"' in question.
Lead opinion at 12. On the contrary, whether "reasonableness" factors into our state
constitutional analysis depends on the government's justification for the search. Where an
officer asserts only a "reasonable [but erroneous] good faith belief' that he or she had
permission to conduct a warrantless search, we depart from Fourth Amendment analysis
and hold that the reasonableness of the officer's belief is irrelevant. State v. Morse, 156
Wn.2d 1, 9, 123 P.3d 832 (2005); see also State v. Eisfeldt, 163 Wn.2d 628, 634-635, 638,
185 P.3d 580 (2008) (declining to adopt any "private search doctrine" on the basis that
"article I, section 7 is unconcerned with the reasonableness of the search"). But in the
context of Terry searches, this court applies the same basic analysis, under article I, section
7, that the United States Supreme Court applies tmder the Fourth Amendment-an analysis
that asks whether a search was reasonable. Cf Michigan v. Long, 463 U.S. 1032, 1051,
103 S. Ct. 3469, 77 L. Ed 2d 1201 (1983) ("[i]n evaluating the validity of an officer's
investigative or protective conduct under Terry, the '[t]ouchstone of our analysis ... is
always the reasonableness in all circumstances of the particular governmental invasion of
a citizen's personal security"' (second and third alterations in original) (internal quotation
marks omitted) (quoting Pennsylvania v. Mimms, 434 U.S. 106, 108-09.98 S. Ct. 330,54
L. Ed. 331 (1977))); State v. Kennedy, 107 Wn.2d 1, 12-13, 726 P.2d 445 (1986) (search·
of front seat of suspect's car was "similar to a Terry frisk" and therefore "reasonable" under
article I, section 7); State v. Horrace, 144 Wn.2d 386, 394, 28 P.3d 753 (2001) (quoting
Terry and embracing its search analysis as consistent with article I, section 7 protections:
"to justify the intrusion of a limited pat-down search, 'the police officer must be able to
point to specific and articulable facts which ... reasonably warrant that intrusion"').


                                              8
State v. Mecham (Mark Tracy), No. 90598-3
(Gordon McCloud, J., Dissenting)


of Appeals reasoned that a drunk driver behind the wheel is like a concealed weapon,

for which an officer may conduct a limited search during a Terry stop. The court

further held that the balance of interests justified the search in this case: "The

attendant intrusion was ... appropriate given [the officer's] training and Mecham's

evident intoxication ... [the] request for Mecham to perform a field sobriety test

was justified under the Terry stop exception to the warrant requirement." Id. at 945.

      In the usual case, the Court of Appeals' conclusion may well be correct.

Indeed, nearly every jurisdiction that has addressed the issue has approved

warrantless FSTs under Terry. 4

      But this case is different. In this case, the subject of the FST, Mecham, posed

absolutely no risk to public safety: he was already handcuffed and under arrest when

the officer asked him to perform the tests and therefore presented no possibility of

returning to his car to drive drunk. Lead opinion at 2.

       Under those circumstances, an FST serves no public safety function. Instead,

it serves only to reveal evidence that may be used against the subject in a criminal

prosecution. Such purely evidentiary searches are absolutely prohibited under Terry,



       4E.g., Royer, 276 Neb. at 179; Galimba, 19 P.3d at 612; Rizzo, 243 Mich. App. at
161; Ferreira, 133 Idaho at 480; Blais, 428 Mass. 294; Hulse, 289 Mont. at 19-20; Taylor,
648 So. 2d 701; Lamme, 19 Conn. App. at 600; Gray, 150 Vt. at 190-91; Dixon, 103 Nev.
at 273-274; Superior Court, 149 Ariz. at 274; Stevens, 394 N.W.2d at 391; Golden, 171
Ga. App. at 30; Wyatt, 67 Haw. at 304-05; Little, 468 A.2d 615.
                                            9
State v. Mecham (Mark Tracy), No. 90598-3
(Gordon McCloud, J., Dissenting)


as even the State appears to concede. 392 U.S. at 30-31; Ybarra, 444 U.S. at 93-94;

see State's Suppl. Br. at 14-15 (arguing that it does not matter that the FST served

purely evidentiary purposes in this case because the FST was not a search). In fact,

even the lead opinion concedes this legal point. Lead opinion at 26 n.13 ("Officers

conducting a lawful brief investigative detention may not search an individual based

merely on their reasonable suspicion of criminal activity. Under Terry, officers may

conduct a limited frisk for weapons only if the officer has a reasonable concern for

danger and the search is limited in scope to finding weapons. [State v.] Setterstrom,

163 Wn.2d [621 ,] 626[, 183 P.3d 1075 (2008)].")

      The FST in this case was a purely evidentiary search prohibited under Terry.

Thus, Terry's exception to the warrant requirement did not apply.

             B. The warrantless field sobriety test in this case was not permissible
                as a search incident to arrest
       The State also argues that because Mecham was under arrest when the officer

asked him to perform the FSTs, the FSTs were a valid "intrusion incident to arrest."

Suppl. Br. of Resp't at 19. It cites this court's decision in State v. Byrd, which

reasoned that "[t]he authority to search an arrestee's person and personal effects

flows from the authority of a custodial arrest itself." 178 Wn.2d 611, 618, 310 P .3d

793 (2013) (citing United States v. Robinson, 414 U.S. 218, 232, 94 S. Ct. 467, 38

L. Ed. 2d 427 (1973)). The State argues that, excluding certain extremely invasive

                                            10
State v. Mecham (Mark Tracy), No. 90598-3
(Gordon McCloud, J., Dissenting)


searches, "the full search of a person under lawful arrest is per se reasonable." Suppl.

Br. ofResp't at 20 & n.4 (citing Robinson, 414 U.S. at 235).

      This argument is meritless. Officers may always search an arrestee's person

incident to arrest, but that is because certain "exigencies are presumed when an

officer searches an arrestee's person." Byrd, 178 Wn.2d at 620 (emphasis omitted).

Specifically, it is presumed that the arrestee may be concealing a weapon or

destructible evidence-these are the only two "exigencies" that can justify a search

incident to arrest. Id. at 617-18.

       Mecham's possible intoxication is neither a weapon endangering officer

safety nor evidence that Mecham might have destroyed. Thus, an FST-a search

that served only to uncover this intoxication--does not fall within the search incident

to arrest exception.

                                     CONCLUSION

       Mecham posed no risk to public safety once he was placed under arrest, so the

FST at issue in this case was a purely evidentiary search. That search was therefore

unconstitutional. As all parties and the lead opinion agree, a person has a right to

refuse an unconstitutional search and the prosecution "may not comment on a refusal




                                            11
State v. Mecham (Mark Tracy), No. 90598-3
(Gordon McCloud, J., Dissenting)


to waive a constitutional right." Lead opinion at 7. 5 Accordingly, I would reverse

the Court of Appeals and hold that evidence of Mecham's refusal was improperly

admitted at trial. I therefore respectfully dissent.




       5
           Since the State commented on this defendant's right to refuse to waive a
constitutional right, I do not analyze the lawfulness of a comment on a defendant's refusal
to waive a "common law" right, as the lead opinion calls the right to refuse FSTs. Lead
opinion at 7. I note, however, that the lead opinion errs in citing State v. Nordlund, 113
Wn. App. 171, 188, 53 P.3d 520 (2002), for the supposed rule that "the State may admit
evidence that a defendant is asserting a nonconstitutional right as evidence of
consciousness of guilt." Lead opinion at 7. Nordlund actually held that the State has a
right to argue consciousness of guilt when the defendant fails to comply with a lawful court
order (in that case, an order to supply hair samples). 113 Wn. App. at 188. It does not
address a defendant's refusal to comply with an unlawful order, even one that is unlawful
only under the common law. I also note that the arresting officer here specifically told
Mecham that the FSTs were "voluntary." Lead opinion at 3. To the extent that Mecham
reasonably relied on this statement when he declined to perform the tests, then, regardless
of the source of the right to refuse, estoppel principles arguably bar the State from using
that decision against Mecham at trial. See, e.g., State v. Minor, 162 Wn.2d 796, 800-01,
 804, 174 P.3d 1162 (2008) (conviction for unlawful possession of a firearm reversed
because prior court's failure to properly fill out order affirmatively "misled [defendant]
 into believing he could possess firearms"); United States v. Pa. Indus. Chern. Corp., 411
U.S. 655, 659, 93 S. Ct. 1804, 36 L. Ed. 2d 567 (1973) (corporate defendant's conviction
reversed so that trial court could consider whether defendant reasonably relied on United
 States Army Corps of Engineers' regulations to conclude that its conduct did not violate
 statute).
                                             12
State v. Mecham (Mark Tracy), No. 90598-3
(Gordon McCloud, J., Dissenting)




                                            13
