IN THE SUPREME COURT OF THE STATE OF WASHINGTON                                                                                                       
STATE OF WASHINGTON,                             )                                                                                                    
               Respondent,                       ) No. 65475-1                                                                                        
          v.                                     ) En Banc                                                                                            
KEVIN YOUNG,                                     )                                                                                                    
                                                 ) Filed June 11, 1998                                                                                
               Petitioner.                       )                                                                                                    
     TALMADGE, J. -- We are asked in this case to determine if a police                                                                               
action constituted a disturbance of a person's private affairs without                                                                                
lawful authority under article I, section 7 of the Washington Constitution.                                                                           
We hold the test for a disturbance of a person's private affairs under                                                                                
article I, section 7 is a purely objective one, looking to the actions of                                                                             
the law enforcement officer, thus rejecting the test for a seizure under                                                                              
the Fourth Amendment articulated by the United States Supreme Court in                                                                                
California v. Hodari D., 499 U.S. 621, 111 S. Ct. 1547, 113 L. Ed. 2d 690                                                                             
(1991).  Applying our objective test, we hold, under the totality of the                                                                              
circumstances here, the officer did not disturb Young's private affairs and                                                                           
affirm the decision of the Court of Appeals. 


     Was Young "disturbed in his private affairs . . . without authority of                                                                           
law" under article I, section 7 of the Washington Constitution when the                                                                               
police approached him at night in a patrol car while he was on a public                                                                               
street, shining a spotlight on him?


     Deputy Sheriff Robert Carpenter, who had been a patrol officer for                                                                               
nearly all of his 12 years of service with the Pierce County Sheriff, was                                                                             
assigned to the Lakewood precinct and University Place.1  On August 24,                                                                               
1994, he was working a swing shift in an area (Tillicum, McChord gate area,                                                                           
Ponder's Corner, and the south end of South Tacoma Way) considered to have                                                                            
a high incidence of narcotics activity.  He said during the summer of 1994,                                                                           
the incidence of open narcotics activity in that area was so high, he made                                                                            
at least two or three narcotics arrests during every shift, predominantly                                                                             
for possession or sale of crack cocaine and methamphetamine.

     At 9:40 p.m., Carpenter was on Lincoln Avenue in the vicinity of the                                                                             
McChord Air Force Base gate.  He spotted Kevin Young standing on the corner                                                                           
of Lincoln and Chicago, talking to a young woman, but did not observe                                                                                 
anything relating to Young that aroused his suspicions.  Carpenter                                                                                    
testified he did not recognize Young, and, because he tries to get to know                                                                            
the people in his area of responsibility, he stopped his patrol car, exited                                                                           
the vehicle, and talked to Young.  He asked how Young was doing, learned                                                                              
Young's name was Kevin Young, and returned to his patrol car.  He testified                                                                           
he did not recall any other details of his conversation with Young.  He did                                                                           
not search Young, or ask to search him.  He described the meeting as a                                                                                
social contact. 

     After Carpenter returned to his car, he drove off northbound on                                                                                  
Lincoln, down a hill.  He stopped his car and radioed for a criminal                                                                                  
history records check on Kevin Young.  Carpenter asked for the criminal                                                                               
records check because he did not know Young and because the area had a high                                                                           
incidence of narcotics activity.  The check revealed Young had a very                                                                                 
extensive background in narcotics sales with prior narcotics arrests.

     By this time, Carpenter had parked a half block downhill on Lincoln,                                                                             
away from Young.  After he received the criminal history information, he                                                                              
resumed driving.  While looking in his rear view mirror, Carpenter saw                                                                                
Young out in the middle of the street, apparently watching to see where                                                                               
Carpenter was driving -- "it appeared to me that he was looking to see if I                                                                           
was leaving the area."  Report of Proceedings at 12, 14.  Because Carpenter                                                                           
had proceeded down Lincoln, the crest of the hill would have prevented him                                                                            
from seeing Young had Young not mounted the crest in an apparent attempt to                                                                           
see where Carpenter had gone.

     Carpenter then turned his vehicle around and, at a normal speed,                                                                                 
headed back up Lincoln toward Young.  Young, walking at a fast pace, began                                                                            
moving toward a bushy area near an apartment complex.  Carpenter then                                                                                 
speeded up.  As Carpenter drove up the hill, he shined the patrol vehicle                                                                             
spotlight on Young when Young was about three or four feet from a tree.  He                                                                           
saw Young walk behind the tree, crouch down, and toss something about the                                                                             
size of a small package into the area near the tree.  Young continued                                                                                 
walking, now away from the tree, and at a very fast pace.  After he was                                                                               
away from the tree, he "stopped running" and began walking.  Report of                                                                                
Proceedings at 12.

     Carpenter drove to the opposite side of the street, stopped his patrol                                                                           
car close to the tree, and exited the vehicle.  He asked Young to stop.                                                                               
Then he retrieved the object he saw Young dispose of behind the tree.                                                                                 
Carpenter described the object as half a Coke can with a charred bottom,                                                                              
containing a rock-like substance that appeared to be crack cocaine.

     In answering the question as to why he stopped Young after he had seen                                                                           
Young dispose of the package, Carpenter said:  "I believed he was trying to                                                                           
dispose of some type of contraband, narcotics or something, that he didn't                                                                            
want me to find on his possession at the time, and I believed that his                                                                                
actions were suspicious enough for me to check and see what that was."                                                                                
Report of Proceedings at 17.  After retrieving the can, he arrested Young                                                                             
for possession of a controlled substance.  Carpenter testified Young was                                                                              
not free to leave after he told him to stop, but he did not direct Young to                                                                           
stop at any time other than the single instance after he saw him throw the                                                                            
object behind the tree.

     The State charged Young with unlawful manufacturing of an imitation                                                                              
controlled substance, pursuant to RCW 69.52.030(1).2  Young moved to                                                                                  
suppress the evidence, consisting of the half Coke can and its contents,                                                                              
pursuant to CrR 3.6.  At the conclusion of the hearing, the trial court                                                                               
granted Young's motion to suppress:

          The defendant is deemed to have been seized at the point the                                                                                
     deputy illuminated the defendant with the spotlight.  At that                                                                                    
     point, the deputy had no reasonable articulable suspicion to                                                                                     
     believe the defendant was involved in criminal activity, and                                                                                     
     therefore was not entitled to detain him.  Any evidence                                                                                          
     discovered as a result of such detention is inadmissible.                                                                                        
Clerk's Papers at 33.  The trial court entered findings of fact and                                                                                   
conclusions of law on the suppression.  As a result of the suppression of                                                                             
the evidence, the State moved for an order of dismissal without prejudice,                                                                            
and the trial court granted the motion.

     The State appealed.  Division Two reversed the trial court in a                                                                                  
published opinion.  State v. Young, 86 Wn. App. 194, 935 P.2d 1372 (1997).                                                                            
The Court of Appeals held Young was not seized within the meaning of the                                                                              
Fourth Amendment when Carpenter shone the spotlight on him, citing Hodari                                                                             
D.3  The Court of Appeals applied the analysis of Hodari D. to Wash. Const.                                                                           
art. I, sec. 7 as well.  On Young's petition, we granted review.


     This case presents an important issue of search and seizure law.  The                                                                            
Court of Appeals, holding California v. Hodari D., 499 U.S. 621, 111 S. Ct.                                                                           
1547, 113 L. Ed. 2d 690 (1991), comports with article I, section 7, found                                                                             
no seizure occurred.  Young, 86 Wn. App. at 203.  We must decide first                                                                                
whether the Fourth Amendment analysis in Hodari D. is consistent with                                                                                 
article I, section 7 of the Washington Constitution. 

 A.  The Hodari D. Test for "Seizure"
     The United States Supreme Court held in Hodari D. that a seizure                                                                                 
within the meaning of the Fourth Amendment is a mixed objective/subjective                                                                            
test.  In that case, an officer driving an unmarked patrol car in a high-                                                                             
crime area of Oakland, California, encountered four or five youths on the                                                                             
street.  When the youths saw the patrol car approach, they apparently                                                                                 
panicked and took flight.  Hodari D., 499 U.S. at 622-23.  Suspicious, the                                                                            
police gave chase.  One of the youths, Hodari, discarded what appeared to                                                                             
be a small rock moments before an officer tackled him.  The officer                                                                                   
recovered the rock, which was later identified as crack cocaine.  Id. at                                                                              

     The juvenile court denied Hodari's motion to suppress the evidence.                                                                              
The California Court of Appeal reversed, holding Hodari had been "seized"                                                                             
when he saw the officer running toward him.  The court found the seizure                                                                              
unreasonable, and suppressed the evidence as the fruit of the illegal                                                                                 
seizure.  Id.

     The United States Supreme Court addressed only the issue of whether a                                                                            
seizure of Hodari had occurred before or after the physical apprehension by                                                                           
the officer.  If no seizure occurred before Hodari discarded the cocaine,                                                                             
that is, if no seizure occurred simply as a result of the officer's running                                                                           
toward Hodari, then Hodari simply abandoned the contraband, the police                                                                                
lawfully recovered it, and it was not the fruit of an illegal seizure.  On                                                                            
the other hand, if the fact of the officer's running toward Hodari in and                                                                             
of itself constituted a seizure, then it was unreasonable and in violation                                                                            
of the Fourth Amendment because Hodari's behavior did not give the officers                                                                           
probable cause to detain him; all he had done was run from the approaching                                                                            
patrol car. 

     The Supreme Court in Hodari D. formulated the question narrowly:  can                                                                            
a seizure occur even though the subject does not yield?  The Court held in                                                                            
the negative.  Id. at 626.  Citing Terry v. Ohio, 392 U.S. 1, 19 n.16, 88                                                                             
S. Ct. 1868, 20 L. Ed. 2d 889 (1968), the Court identified two ways in                                                                                
which a seizure may occur:  a seizure occurs "when the officer, by means of                                                                           
physical force or a show of authority, has in some way restrained the                                                                                 
liberty of the citizen."  In Hodari D., as in the present case, there was                                                                             
no application of physical force at the time both defendants assert the                                                                               
seizure occurred, so the threshold question in both cases is whether the                                                                              
actions of the officer constituted a show of authority that in some way                                                                               
restrained the liberty of the citizen.

     Hodari D. held there can also be no seizure until the citizen has                                                                                
yielded to the show of authority.  Hodari D., 499 U.S. at 626.  Thus, if                                                                              
the suspect runs away, he or she has not yielded to authority, and there                                                                              
has been no seizure.  If the suspect yields to the show of authority by                                                                               
standing his or her ground, then a seizure is deemed to have occurred.                                                                                
Hodari D. introduced a subjective element into the definition of a Fourth                                                                             
Amendment seizure:  the action of the subject, either to disregard the show                                                                           
of authority or to yield to it, determines the seizure question.  The Court                                                                           
based its analysis in some measure on Proverbs 28:1:  "The wicked flee when                                                                           
no man pursueth."

     In reaching its conclusion, the Court had to explain its earlier                                                                                 
holding in United States v. Mendenhall, 446 U.S. 544, 554, 100 S. Ct. 1870,                                                                           
64 L. Ed. 2d 497 (1980), where the Court said:  "{A} person has been                                                                                  
`seized' within the meaning of the Fourth Amendment only if, in view of all                                                                           
the circumstances surrounding the incident, a reasonable person would have                                                                            
believed that he was not free to leave."  Under the Mendenhall formulation,                                                                           
the test is objective, not subjective.  The Hodari D. Court concluded                                                                                 
Mendenhall is not in conflict because Mendenhall says 

     a person has been seized "only if," not that he has been seized                                                                                  
     "whenever"; it states a necessary, but not a sufficient,                                                                                         
     condition for seizure -- or, more precisely, for seizure effected                                                                                
     through a "show of authority."  Mendenhall establishes that the                                                                                  
     test for existence of a "show of authority" is an objective one:                                                                                 
     not whether the citizen perceived that he was being ordered to                                                                                   
     restrict his movement, but whether the officer's words and                                                                                       
     actions would have conveyed that to a reasonable person.                                                                                         
Hodari D., 499 U.S. at 628.  Thus, the Mendenhall test is only a first,                                                                               
necessary step in the determination of a seizure.  Hodari D. added an                                                                                 
additional prong to the test:  not only must a reasonable person believe                                                                              
the show of authority requires him or her to yield, but the person involved                                                                           
must in fact yield to the show of authority in order for a seizure to                                                                                 
exist.  Only if both prongs are met does a seizure occur.  See also Florida                                                                           
v. Bostick, 501 U.S. 429, 439, 111 S. Ct. 2382, 115 L. Ed. 2d 389 (1991)                                                                              
(court must determine whether police conduct would have communicated to a                                                                             
reasonable person that the person was not free to terminate the encounter).

     This analysis has been severely criticized.4  "The Hodari D. decision                                                                            
represents a revision of the United States Supreme Court's definition of                                                                              
seizure . . . as well as a departure from that Court's precedent."                                                                                    
Commonwealth v. Stoute, 422 Mass. 782, 665 N.E.2d 93, 96 (1996) (citation                                                                             
omitted).  Hodari D. may permit the police to "sanitize an unlawful,                                                                                  
suspicionless `encounter' by construing the subject's non-cooperation as                                                                              
`suspicious' or `flight' and then claiming `probable cause' to arrest."                                                                               
State v. Quino, 74 Haw. 161, 840 P.2d 358, 366 (1992), cert. denied, 507                                                                              
U.S. 1031, 113 S. Ct. 1849, 123 L. Ed. 2d 472 (1993) (Levinson, J.,                                                                                   
concurring).5  Plainly, the Court's Hodari D. test shifted the Fourth                                                                                 
Amendment focus in large measure from the reasonableness of police conduct                                                                            
to the person's subjective reaction to police conduct. 

     Similarly, critics note Fourth Amendment protections should not depend                                                                           
on a citizen's subjective state of mind.  Under Hodari D., the moment at                                                                              
which seizure occurs is "governed by the citizen's reaction, rather than                                                                              
the officer's conduct."  Hodari D., 499 U.S. at 643 (Stevens, J.,                                                                                     
dissenting).  Justice Stevens thought the Fourth Amendment would be better                                                                            
served by adherence to the rule that allowed the police to know in advance                                                                            
whether their contemplated conduct would implicate the Fourth Amendment,                                                                              
rather than depend on the citizen's reaction to that conduct.  Id. at 643-                                                                            

     Because Hodari D. raised the bar for those asserting a seizure, and                                                                              
substantially changed preexisting Supreme Court law, several states have                                                                              
rejected Hodari D., preferring to analyze seizure issues under their own                                                                              

     In summary, Hodari D. is a departure from previous Supreme Court cases                                                                           
on the definition of seizure under the Fourth Amendment.  Hodari D. added a                                                                           
subjective test to seizure law:  absent physical force, no seizure occurs                                                                             
unless the citizen decides to yield to the show of authority. 

B.   Gunwall Analysis of Disturbance of Private Affairs Under Article I,                                                                              
     Section 7                                                                                                                                        
     In State v. Gunwall, 106 Wn.2d 54, 58, 720 P.2d 808, 76 A.L.R. 4th 517                                                                           
(1986), we adopted six criteria to employ in determining whether Wash.                                                                                
Const. art I, sec. 7 provides greater protection to Washington citizens                                                                               
than the Fourth Amendment:  (1) the textual language; (2) differences in                                                                              
the texts; (3) constitutional history; (4) preexisting state law;                                                                                     
(5) structural differences; and (6) matters of state or local concern.

     As we noted in State v. Young, 123 Wn.2d 173, 179-80, 867 P.2d 593                                                                               
(1994), examination of the first, second, third, and fifth criteria all                                                                               
lead to the conclusion that article I, section 7 provides greater                                                                                     
protection of privacy than the Fourth Amendment.  Thus, it is not necessary                                                                           
to reexamine those criteria here.  State v. Boland, 115 Wn.2d 571, 576, 800                                                                           
P.2d 1112 (1990).  Likewise, because state "law enforcement measures are a                                                                            
matter of local concern," Young, 123 Wn.2d at 180, it is not necessary to                                                                             
analyze the sixth criterion.  Only the fourth criterion, preexisting state                                                                            
law, warrants examination in this case. 

     No Washington case has discussed whether Hodari D. comports with                                                                                 
Washington law.  The Court of Appeals in this case simply adopted Hodari D.                                                                           
without substantial discussion.7  Previous Washington cases adopted the                                                                               
Mendenhall test of a seizure to analyze a disturbance of a person's private                                                                           
affairs under article I, section 7:

     A person is "seized" within the meaning of the Fourth Amendment                                                                                  
     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                                                                                  
State v. Stroud, 30 Wn. App. 392, 394-95, 634 P.2d 316 (1981) (footnote                                                                               
omitted) (citing United States v. Mendenhall, 446 U.S. 544, 554, 100 S. Ct.                                                                           
1870, 64 L. Ed. 2d (1980)), review denied, 96 Wn.2d 1025 (1982); accord                                                                               
State v. Thorn, 129 Wn.2d 347, 351-52, 917 P.2d 108 (1996).

     Washington search and seizure law stemming from Terry and proceeding                                                                             
through Mendenhall is well-established.  Were we to adopt Hodari D. and its                                                                           
new definition of seizure for a disturbance of private affairs under                                                                                  
article I, section 7, we would be departing from our precedents and the                                                                               
greater protection of privacy afforded Washington citizens under article I,                                                                           
section 7 of the Washington Constitution.  Given the erosion of privacy the                                                                           
Hodari D. decision entails, we adhere to our established jurisprudence and                                                                            
reject application of the test for a seizure articulated in Hodari D. to a                                                                            
disturbance of private affairs under article I, section 7.

D.   Article I, Section 7 in this Case 

     Like those asserting a seizure under the Fourth Amendment, State v.                                                                              
Thorn, 129 Wn.2d 347, 354, 917 P.2d 108 (1996), Young has the burden of                                                                               
proving a disturbance of his private affairs under article I, section 7.                                                                              
Young maintains being illuminated with the police car spotlight constituted                                                                           
a seizure.  Further, because the seizure was without probable cause, the                                                                              
subsequent recovery of the imitation controlled substance was unlawful, and                                                                           
the evidence of it should be suppressed.  Because the police did not apply                                                                            
physical force to Young, the seizure question becomes, was the illumination                                                                           
by the spotlight such a show of authority that a reasonable person would                                                                              
have believed he or she was not free to leave.  That Young actually did                                                                               
leave makes no difference; the test is objective.

     Young asserts he "had a privacy interest in being free to move about                                                                             
in a public place without being accosted by the police."  Supplemental Br.                                                                            
of Pet'r at 6.  As noted above, however, the police are permitted to engage                                                                           
persons in conversation and ask for identification even in the absence of                                                                             
an articulable suspicion of wrongdoing.  The amicus brief the Washington                                                                              
Association of Criminal Defense Lawyers and American Civil Liberties Union                                                                            
jointly filed goes too far in asserting, "This Court, under Article I sec.                                                                            
7, cannot allow police this unfettered discretion to direct their power                                                                               
towards a person who is doing nothing more than exercising his right to                                                                               
walk down the street unhindered by government authority."  Amicus Br. at                                                                              
12.  Article I, section 7 does not forbid social contacts between police                                                                              
and citizens:  "{A} police officer's conduct in engaging a defendant in                                                                               
conversation in a public place and asking for identification does not,                                                                                
alone, raise the encounter to an investigative detention."  State v.                                                                                  
Armenta, 134 Wn.2d 1, 11, 948 P.2d 1280 (1997).

     This view comports with the Supreme Court's statement in Mendenhall                                                                              
that "not every encounter between a police officer and a citizen is an                                                                                
intrusion requiring an objective justification."  Mendenhall, 446 U.S. at                                                                             
553.  The Mendenhall Court also said, "Moreover, characterizing every                                                                                 
street encounter between a citizen and the police as a `seizure,' while not                                                                           
enhancing any interest secured by the Fourth Amendment, would impose wholly                                                                           
unrealistic restrictions upon a wide variety of legitimate law enforcement                                                                            
practices."  Id. at 554.  Thus, it is well-established that "{e}ffective                                                                              
law enforcement techniques not only require passive police observation, but                                                                           
also necessitate their interaction with citizens on the streets."  Tucker,                                                                            
642 A.2d at 406 (police are more than "mere spectators") (quoting People v.                                                                           
Mamon, 435 Mich. 1, 457 N.W.2d 623, 628 (1990)).  In Thorn, for example, a                                                                            
law enforcement officer, armed and in full uniform, who asked the defendant                                                                           
in a parked car at night "Where's the pipe?" did not seize the defendant.                                                                             
The question Young raises is whether illumination with a police car                                                                                   
spotlight transcends a permissible interaction between the police and a                                                                               
citizen and rises to the level of a seizure.

     Young cites no cases to support his position.  He simply argues the                                                                              
shining of the spotlight was an intrusion into his protected privacy                                                                                  
interests.  Supplemental Br. of Pet'r at 6-9.  The State cites Mendenhall                                                                             
for a list of examples of a show of authority: 

     Examples of circumstance that might indicate a seizure, even                                                                                     
     where the person did not attempt to leave, would be the                                                                                          
     threatening presence of several officers, the display of a weapon                                                                                
     by an officer, some physical touching of the person of the                                                                                       
     citizen, or the use of language or tone of voice indicating that                                                                                 
     compliance with the officer's request might be compelled. . . .                                                                                  
     In the absence of some such evidence, otherwise inoffensive                                                                                      
     contact between a member of the public and the police cannot, as                                                                                 
     a matter of law, amount to a seizure of that person.                                                                                             
Mendenhall, 446 U.S. at 554-55 (citations omitted).

     When Carpenter completed his social contact with Young, he had no                                                                                
knowledge of Young's criminal history.  He drove down the street and                                                                                  
determined from a criminal history records check, that Young had a                                                                                    
substantial history of police contacts for drug-related incidents.  This                                                                              
new information raised his concern about Young.  Carpenter then noticed                                                                               
Young peering down the street in an apparent attempt to see where the                                                                                 
deputy was, behavior suggesting Young was checking to see if "the coast was                                                                           
clear."  These two new facts motivated Carpenter to turn his vehicle around                                                                           
and proceed back toward Young.  These events occurred in an area known for                                                                            
high drug-related activity.  Based on the totality of the circumstances,                                                                              
the deputy acted reasonably in seeking to renew his contact with Young.

     The shining of the spotlight in this case does not rise to the level                                                                             
of intrusiveness discussed in Mendenhall.  Carpenter did not have his siren                                                                           
or emergency lights on.  No weapon was drawn.  The police car did not come                                                                            
screeching to a halt near Young.  Young was on a public street in public                                                                              
view.  The shining of the light on him revealed only what was already in                                                                              
plain view, Young's person, and not anything he wished to keep private.                                                                               
The deputy did not see the contraband until Young disposed of it.  "In                                                                                
Young, this court explained that `what is voluntarily exposed to the                                                                                  
general public' is not considered part of a person's private affairs."                                                                                
State v. Goucher, 124 Wn.2d 778, 784, 881 P.2d 210 (1994) (quoting Young,                                                                             
123 Wn.2d at 182).8  The illumination by the spotlight did not amount to                                                                              
such a show of authority a reasonable person would have believed he or she                                                                            
was not free to leave, not free simply to keep on walking or continue with                                                                            
whatever activity he or she was then engaged in, until some positive                                                                                  
command from Carpenter issued.  To rule as Young requests that the shining                                                                            
of a spotlight was, in effect, a per se violation of article I, section 7                                                                             
would call into question legitimate police patrol functions at night where                                                                            
the spotlight is a necessary tool to illuminate a scene.  Mere illumination                                                                           
alone, without additional indicia of authority, does not violate the                                                                                  
Washington Constitution.  There was no disturbance of private affairs under                                                                           
article I, section 7 here.


     Hodari D. and Young's position represent polar extremes for analysis                                                                             
of the facts of this case.  Under Hodari D., there was no seizure under the                                                                           
Fourth Amendment because Young did not yield when the spotlight illuminated                                                                           
him.  Absent a seizure, Young's discarding the contraband was voluntary and                                                                           
the deputy's recovery of it, lawful.  Under Young's interpretation of                                                                                 
article I, section 7, all intrusions by the police of someone in a public                                                                             
place are proscribed as disturbances of a citizen's private affiars.  We                                                                              
reject both views.

     We reject the introduction of Hodari D. and its mixed                                                                                            
subjective/objective test into article I, section 7 jurisprudence because                                                                             
of the drastic change it makes in seizure law.  Taking into account whether                                                                           
the citizen yields to the show of authority improperly changes the focus of                                                                           
the seizure inquiry from the conduct of the police to the state of mind of                                                                            
the citizen.  Article I, section 7 sets a higher standard for protection of                                                                           
privacy than the Fourth Amendment, and plainly prevents the erosion of                                                                                
privacy Hodari D. mandates.

     However, there was no violation of Young's privacy in this case                                                                                  
because, under the totality of these circumstances, the deputy's actions                                                                              
did not constitute such a show of authority that a reasonable person would                                                                            
not believe himself free to leave.  The spotlight alone, without additional                                                                           
indicia of authority, did not violate article I, section 7.  The spotlight                                                                            
did not illuminate anything Young sought to keep private.  He was in the                                                                              
open on a public street.  The spotlight did not reveal the contraband he                                                                              
had concealed on his person. 

     We affirm the Court of Appeals' reversal of the trial court's order                                                                              
suppressing the evidence of the imitation controlled substance.                                                                                       
WE CONCUR:                                                                                                                                            

     1 The facts are all taken from Carpenter's suppression hearing                                                                                   
testimony.  He was the only witness at the hearing.

     2 RCW 69.52.030(1) provides:  "It is unlawful for any person to                                                                                  
manufacture, distribute, or possess with intent to distribute, an imitation                                                                           
controlled substance.  Any person who violates this subsection shall, upon                                                                            
conviction, be guilty of a class C felony."  The Legislature enacted                                                                                  
Chapter 69.52, Imitation Controlled Substances, in 1982, in response to the                                                                           
"growing number of injuries and deaths" stemming from imitation controlled                                                                            
substances.  RCW 69.52.010.

     3 Young did not argue the Fourth Amendment in his Petition for Review                                                                            
or his supplemental brief.  Accordingly, we do not address that issue.

     4 See 4 Wayne R. LaFave, Search and Seizure:  A Treatise on the Fourth                                                                           
Amendment  9.3(d), at 125 (3d ed. 1996) (result in Hodari D. is                                                                                       
"incorrect"); Ronald L. Bacigal, The Right of the People to Be Secure, 82                                                                             
Ky. L.J. 145 (1993/94); Bruce A. Green, "Power, Not Reason":  Justice                                                                                 
Marshall's Valedictory and the Fourth Amendment in the Supreme Court's 1990                                                                           
Term, 70 N.C. L. Rev. 373 (1992); Thomas K. Clancy, The Future of Fourth                                                                              
Amendment Seizure Analysis After Hodari D. and Bostick, 28 Am. Crim. L.                                                                               
Rev. 799 (1991). 

     5 See State v. Nettles, 70 Wn. App. 706, 855 P.2d 699 (1993), review                                                                             
denied, 123 Wn.2d 1010, 869 P.2d 1085 (1994) (Baker, J., dissenting):                                                                                 
		 The defendant was walking on a city sidewalk on an early summer                                                                                  
	evening.  He had his hands in his pockets.  A uniformed officer turned on                                                                             
	her yellow wig-wag lights, stopped her patrol car near him, and asked him                                                                             
	and his companion to step over to her car.  The defendant turned toward                                                                               
	her; his companion continued slowly walking away. 

		 The officer had been responding to a radio dispatch to "check for                                                                                
	narcotics activity" at a nearby intersection.  Her suspicions were aroused                                                                            
	because three men, including the defendant, split up and began walking when                                                                           
	they saw her police car go by.                                                                                                                        
Id. at 713 (emphasis added).  What did not even arise to the level of the                                                                             
officer's hunch of unlawful behavior suddenly ripened into a suspicion by                                                                             
the subjects' flight. 

     6 State v. Oquendo, 223 Conn. 635, 613 A.2d 1300, 1309-10 (1992)                                                                                 
(Hodari D. does not comport with Connecticut's common law of arrest); State                                                                           
v. Quino, 74 Haw. 161, 840 P.2d 358, 362 (1992) (rejecting Hodari D. and                                                                              
adhering to Mendenhall as providing greater protection under Hawaii                                                                                   
constitution), cert. denied, 507 U.S. 1031, 113 S. Ct. 1849, 123 L. Ed. 2d                                                                            
472 (1993); State v. Tucker, 626 So. 2d 707, 712 (La. 1993) (Hodari D.                                                                                
offers less privacy protection than Louisiana constitution requires); In re                                                                           
Welfare of E.D.J., 502 N.W.2d 779, 781 (Minn. 1993) (refusing to depart                                                                               
from court's pre-Hodari approach); State v. Tucker, 136 N.J. 158, 642 A.2d                                                                            
401, 405 (1994) (refusing to make "radical" change in New Jersey seizure                                                                              
law adoption of Hodari D. would require); People v. Madera, 153 Misc. 2d                                                                              
366, 580 N.Y.S.2d 984 (1992), aff'd on other grounds, 82 N.Y.2d 775, 604                                                                              
N.Y.S.2d 538, 624 N.E.2d 675 (1993); Commonwealth v. Matos, 543 Pa. 449,                                                                              
672 A.2d 769, 773-74 (1996) (adhering to Mendenhall approach adopted by                                                                               
Pennsylvania in 1977 case).                                                                                                                           
     Cases following Hodari D. include:  Gibbons v. State, 676 So. 2d 956                                                                             
(Ala. Crim. App. 1995); Perez v. State, 620 So. 2d 1256, 1258 (Fla. 1993)                                                                             
(Florida constitution specifically prohibits court from finding greater                                                                               
protections in Florida constitution than those in Fourth Amendment); State                                                                            
v. Agundis, 127 Idaho 587, 903 P.2d 752, 757 (App. 1995) (even though Idaho                                                                           
constitution offers greater privacy protection than Fourth Amendment,                                                                                 
Hodari D. complies with Idaho constitution); Tom v. Voida, 654 N.E.2d 776                                                                             
(Ind. App. 1995); Brummell v. State, 112 Md. App. 426, 685 A.2d 835 (1996);                                                                           
Harper v. State, 635 So. 2d 864, 867 (Miss. 1994) (Hodari D. comports with                                                                            
preexisting Mississippi law).  In one case that applied the Hodari D.                                                                                 
standard, State v. Cronin, 2 Neb. App. 368, 509 N.W.2d 673, 676 (1993), the                                                                           
court noted, "Nebraska has neither an explicit constitutional right of                                                                                
privacy nor a history of affording individuals greater rights than are                                                                                
afforded by the federal Constitution." 

     7 Hodari D. has received scant attention in Washington courts.                                                                                   
Justice Alexander cited it in his dissent without discussion in State v.                                                                              
Thorn, 129 Wn.2d 347, 356, 917 P.2d 108 (1996) (Alexander, J., dissenting).                                                                           
Division Two employed the Hodari D. definition of seizure in State v.                                                                                 
Perea, 85 Wn. App. 339, 344, 932 P.2d 1258 (1997), without discussion.                                                                                
Division Three cited Hodari D. in State v. Gleason, 70 Wn. App. 13, 16, 851                                                                           
P.2d 731 (1993), but only as support for the Mendenhall objective test.                                                                               
Judge Baker mentioned Hodari D. in a footnote to his dissent in State v.                                                                              
Nettles, 70 Wn. App. 706, 714 n.1, 855 P.2d 699 (1995).

     8 This is consistent with our holding in State v. Rose, 128 Wn.2d 388,                                                                           
909 P.2d 280 (1996), a search case, wherein we held illumination of the                                                                               
interior of a mobile home by a flashlight at night satisfied the open view                                                                            
	In accord with the reasoning in Dunn, Lee, and other cases cited above, we                                                                            
	hold that the fact that a flashlight is used does not transform an                                                                                    
	observation which would fall within the open view doctrine during daylight                                                                            
	into an impermissible search simply because darkness falls.  One who leaves                                                                           
	contraband in plain sight, visible through an unobstructed window to anyone                                                                           
	standing on the front porch of his residence, does not have a reasonable                                                                              
	expectation of privacy in the visible area.

		 Nor is the mere use of a flashlight an intrusive method of viewing.  A                                                                           
	flashlight is an exceedingly common device; few homes or boats are without                                                                            
	one.  It is not a unique, invasive device used by police officers to invade                                                                           
	the privacy of citizens, and is far different from the device at issue in                                                                             
	State v. Young, 123 Wn.2d 173, 182-83, 867 P.2d 593 (1994).  In Young, we                                                                             
	held that use of an infrared device to detect heat patterns in the home,                                                                              
	which could not be detected by the naked eye or other senses, and which                                                                               
	could in effect enable the officer to "see through the walls" of the home,                                                                            
	was a particularly intrusive method of viewing which went well beyond mere                                                                            
	enhancement of normal senses.  A flashlight, in contrast, does not enable                                                                             
	an officer to see within the walls or through drawn drapes.  Instead, it is                                                                           
	a device commonly used by people in this state, and, in fact, would be an                                                                             
	expected device for someone to use approaching a mobile home in a rural                                                                               
	area at dusk or after nightfall. 

		 Officer Dekofski looked through an unobstructed window to the left of                                                                            
	the front door while lawfully standing on the front porch.  Rose simply did                                                                           
	not have an expectation of privacy in what could be seen through that                                                                                 
	window in natural light, and the fortuity that darkness fell before Officer                                                                           
	Dekofski could investigate the report of criminal activity does not change                                                                            
	that fact.  There was no Fourth Amendment violation as a result of the                                                                                
	officer's observations through the unobstructed window while using a                                                                                  
Rose, 128 Wn.2d at 398-99.  

ALEXANDER, J. (concurring in part, dissenting in part) -- I concur with the majority's rejection of the test that was articulated in California v. Hodari D., 499 U.S. 621, 111 S. Ct. 1547, 113 L. Ed. 2d 690 (1991), for determining whether a seizure has occurred. I entirely agree with the majority's view that we should preserve the objective test for a disturbance of private affairs that has long been a part of this court's jurisprudence. I part company, though, with the majority in its conclusion that Young was not seized or disturbed in his private affairs when he was illuminated by the police car spotlight. Although the majority correctly observes that not every encounter between a police officer and a citizen is a seizure or a disturbance of private affairs, the spotlighting of Young was such an intrusion. I reach that conclusion because, in my view, a reasonable person in Young's position would not have believed that he was free to leave once he fell under the beam of the police spotlight. In rejecting this view, the majority makes much of the fact that "{t}he spotlight did not illuminate anything Young sought to keep private," and that Young was "in the open on a public street." Majority op. at 21. That begs the question because, as the majority concedes, the issue is whether Young was seized and thereby disturbed in his private affairs. One is seized when a show of authority by an officer of the law would cause a reasonable person to believe he was not free to leave. State v. Thorn, 129 Wn.2d 347, 352, 917 P.2d 108 (1996) (citing Florida v. Bostick, 501 U.S. 429, 436, 111 S. Ct. 2382, 115 L. Ed. 2d 389 (1991)). The majority's conclusion that the spotlighting was not such a show of authority does not hold up under these facts. Significantly, Deputy Sheriff Carpenter had just spoken to Young a few minutes before the spotlighting took place and had chosen to drive away from what he described as "social contact." Majority op. at 3. Nevertheless, after learning that Young had a criminal record, the deputy turned his vehicle around and headed back toward Young. As the deputy did so, he observed Young walking toward an apartment complex. This caused the deputy to increase the speed of his automobile and shine its spotlight on Young. The deputy gave no explanation for doing so and made no attempt to justify this action. Because the earlier contact with Young had been uneventful, and Young did not do anything between the time of that contact and the time the spotlight was shined on him that was unlawful or even suspicious, shining the light on Young was saying, in essence, STOP. This, in my view, was an unjustified intrusion into Young's private affairs. This is a case of first impression. The cases that are closest factually to the present one are previous holdings by courts in this state that "{a} seizure occurs when police officers pull up to a parked vehicle and activate their emergency lights." State v. Markgraf, 59 Wn. App. 509, 511, 798 P.2d 1180 (1990) (citing State v. DeArman, 54 Wn. App. 621, 624, 774 P.2d 1247 (1989)); see also State v. Stroud, 30 Wn. App. 392, 396, 634 P.2d 316 (1981), review denied, 96 Wn.2d 1025 (1982).1 The rule set forth in those cases seems pertinent here because it has been applied even where a parked vehicle was not pulled over by the police officer, nor detained while in the process of leaving. See Stroud, 30 Wn. App. at 393. As a result, the message sent by the police lights was not necessarily obvious and yet a seizure was held to have occurred. Indeed, the person seized by the display of lights in Stroud was not even in the driver's seat, but rather was "a mere passenger." Stroud, 30 Wn. App. at 396. Moreover, in Stroud, unlike here, there had been no prior interaction between the officers and the person seized to make the subsequent seizure even more apparent. Still, the use of the lights was held to have "constituted a show of authority sufficient to convey to any reasonable person that voluntary departure from the scene was not a realistic alternative." Stroud, 30 Wn. App. at 396. Similarly, here, even accepting as true Deputy Sheriff Carpenter's characterization of his initial contact with Young as a mere "social contact," it would have been quite clear to Young that their second interaction was actually serious business. Under these circumstances, the searchlight shining upon Young sent a message no less unmistakable than that sent by flashing lights to occupants of parked cars. In short, the combination of the second encounter following the first resulted in a show of authority constituting a seizure. Yet, under the permissive approach that the majority is adopting here, "it will be advantageous to the police to place a seizure at the latest possible moment so as to be able to use any earlier-revealed incriminating evidence as part of the basis for the Terry stop." 4 Wayne R. LaFave, Search and Seizure sec. 9.3(d), at 130 (3d ed. 1996). This is because the bar for what actually constitutes a "seizure" is being set so high that its purposes can now be accomplished by other means and without reasonable and articulable suspicion. Accordingly, then, the majority's acknowledgment of the "greater protection of privacy afforded Washington citizens under article I, section 7" becomes empty rhetoric. Majority op. at 14. I am not suggesting, as the majority suggests Young is, that there is a disturbance of private affairs every time someone is illuminated by a police spotlight. There are, of course, many legitimate uses of a spotlight and there are undoubtedly instances where a person illuminated by such a light could not reasonably contend that he was seized. One of the legitimate uses of the light, of course, is to impart to an individual that the officer wants him to stop where he is. In such cases, though, the officer must possess information that would lead a reasonable person to believe that there is a substantial probability that criminal conduct has or is about to occur. Prior to the spotlight being shone here, there was no basis for such a belief. The seizure or intrusion was, therefore, unjustified. I would affirm the trial court's order suppressing evidence. FOOTNOTE 1 The State inexplicably cites these cases in support of the proposition that flashing police lights upon "moving" cars constitutes a seizure, even while it quotes language from Stroud noting that a "parked car" was involved. Br. of Appellant at 5 (quoting Stroud, 30 Wn. App. at 396). It then cites three cases from other states, completely ignoring Washington case law to the contrary, to support its proposition that "flashing lights upon an already parked car may not constitute a seizure." Br. of Appellant at 5-6.