Supreme Court of the State of Washington                                                                                          
                            Opinion Information Sheet                                                                                                 
Docket Number:       66318-1                                                                                                                          
Title of Case:       State of Washington                                                                                                              
                     Efrain Mendez                                                                                                                    
File Date:           01/28/99                                                                                                                         
Oral Argument Date:  09/23/98                                                                                                                         
                                SOURCE OF APPEAL                                                                                                      
Appeal from Superior Court,                                                                                                                           
            Yakima County;                                                                                                                            
            Honorable Michael E. Schwab, Judge.                                                                                                       
Authored by Philip A. Talmadge                                                                                                                        
Concurring: Barbara Durham                                                                                                                            
            James M. Dolliver                                                                                                                         
            Charles Z. Smith                                                                                                                          
            Richard P. Guy                                                                                                                            
            Charles W. Johnson                                                                                                                        
            Barbara A. Madsen                                                                                                                         
            Gerry L. Alexander                                                                                                                        
            Richard B. Sanders                                                                                                                        
                                COUNSEL OF RECORD                                                                                                     
Counsel for Petitioner(s)                                                                                                                             
            Hugh M. Spall Jr.                                                                                                                         
            109 E 3rd  Ste 4                                                                                                                          
            P O Box 831                                                                                                                               
            Ellensburg, WA  98926-0831                                                                                                                
Counsel for Respondent(s)                                                                                                                             
            Lauri M. Boyd                                                                                                                             
            Yakima Co Crths-Appel Div                                                                                                                 
            128 N 2nd St Ste 211                                                                                                                      
            Yakima, WA  98901-2631                                                                                                                    
IN THE SUPREME COURT OF THE STATE OF WASHINGTON                                                                                                       
STATE OF WASHINGTON,                             )                                                                                                    
               Respondent,                       ) NO. 66318-1                                                                                        
          v.                                     ) En Banc                                                                                            
EFRAIN MENDEZ,                                   )                                                                                                    
               Petitioner.                       ) Filed January 28, 1999                                                                             
     TALMADGE, J. -- In a case where police officers had probable cause to                                                                            
detain a driver of an automobile for a traffic infraction, we must decide                                                                             
the scope of the officers' authority over the passengers of that                                                                                      
automobile.  Under art. I, sec. 7 of the Washington Constitution with its                                                                             
more extensive protection of private affairs than the federal constitution,                                                                           
we hold an officer has the authority to order the driver of a vehicle                                                                                 
detained for a traffic infraction to remain in the vehicle or to leave the                                                                            
vehicle in furtherance of the officers' need to control the scene of the                                                                              
traffic stop.  With respect to the passengers, however, an officer must                                                                               
have an articulable rationale predicated upon safety considerations to                                                                                
order the passengers out of the car or to remain in the car. 

     Under the facts of this case where the officers could articulate no                                                                              
reason for ordering Mendez, a passenger, to remain in the vehicle during                                                                              
the traffic stop, we hold the evidence generated from Mendez's detention                                                                              
and search should have been suppressed.  We reverse the judgment of the                                                                               
trial court and the order denying the motion to suppress, and remand the                                                                              
case to the trial court for proceedings consistent with this opinion.                                                                                 


     Does Wash. Const. art. I, sec. 7 permit the police to detain a                                                                                   
passenger in an automobile at the scene of a traffic infraction if the                                                                                
passenger wishes to depart, the police lack reasonable suspicion the person                                                                           
is engaged in criminal activity, and the person poses no apparent danger to                                                                           
the officer?  


     On February 6, 1996, at approximately 12:50 in the afternoon, one of                                                                             
two Yakima police officers in a patrol car on routine patrol observed a                                                                               
vehicle fail to stop at a stop sign.  The officers activated the patrol                                                                               
car's overhead lights, and stopped the car that ran the stop sign.  Both                                                                              
officers exited the patrol car and approached the stopped vehicle.  Efrain                                                                            
Mendez, 16, was a passenger in the front seat of the stopped vehicle.  Both                                                                           
he and the driver got out of the vehicle as soon as it came to a stop.  Both 
officers testified Mendez then began walking away.  One of the officers told 
Mendez to get back into the vehicle, but Mendez turned, fumbled with his shirt
and reached inside his clothes more than once, and continued walking away.  
He then ran, even after a subsequent command to return to the vehicle. 

     Officer Hartman chased Mendez on foot, caught him, and placed him                                                                                
under arrest.  Although the trial court described the chase as "brief,"                                                                               
Hartman testified: 

	He ran south through Lions Park, and then he crossed eastbound across Fifth                                                                           
	Avenue, and then he went south to Tieton, and then when he went east on                                                                               
	Tieton towards Fourth Avenue I lost sight of him behind the credit union                                                                              
	building.  I was about a -- I was back at Pine, so I just paralleled him                                                                              
	east on Pine, and picked him up again over by the trolley barns.                                                                                      
Report of Proceedings at 10.  Upon arresting Mendez, the officer searched                                                                             
him and found a pipe the officer believed was used to smoke marijuana. 

     The Yakima County Prosecutor charged Mendez with violation of RCW                                                                                
9A.76.020(1), obstructing a public servant, alleging he did knowingly hinder,
delay, obstruct, a public servant, in the discharge of his/her official powers
and duties as a police officer, to-wit:  ran from officers during a traffic stop.                                                                                                                  
Clerk's Papers at 2.1  Count II of the information charged Mendez with                                                                                
possession of drug paraphernalia. 

     Mendez moved to suppress evidence of the marijuana pipe.  The juvenile                                                                           
division of the trial court combined the motion to suppress with a bench                                                                              
trial on the merits on the same day.  The court commissioner, the Honorable                                                                           
Michael E. Schwab, denied the motion to suppress and found Mendez guilty of                                                                           
both counts, concluding as a matter of law: 

	Efrain Mendez hindered, delayed and obstructed the officers in their                                                                                  
	investigation of the traffic stop by running away from the scene.  Mendez'                                                                            
	actions in reaching inside his clothing and disobeying the officer's                                                                                  
	commands to stop were also specific, articulable facts which properly                                                                                 
	aroused the officers' suspicion and distracted their traffic stop.                                                                                    

Clerk's Papers at 11.  Mendez appealed his adjudication from juvenile court                                                                           
and the Court of Appeals affirmed the judgment, adopting the rationale of                                                                             
the United States Supreme Court in Pennsylvania v. Mimms, 434 U.S. 106, 98                                                                            
S. Ct. 330, 54 L. Ed. 2d 331 (1977), and Maryland v. Wilson, 519 U.S. 408,                                                                            
117 S. Ct. 882, 137 L. Ed. 2d 41 (1997), that ordering a passenger to stay                                                                            
in a vehicle was a de minimis intrusion under the Fourth Amendment.  Judge                                                                            
Schultheis dissented, believing such an order must comply with the                                                                                    
standards of Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889                                                                              
(1968), and the order did not do so here.  State v. Mendez, 88 Wn. App.                                                                               
785, 947 P.2d 256 (1997).  Mendez sought review by this Court, which we                                                                               


     We review findings of fact on a motion to suppress under the                                                                                     
substantial evidence standard.  State v. Hill, 123 Wn.2d 641, 647, 870 P.2d                                                                           
313 (1994).  Substantial evidence is evidence sufficient to persuade a fair-                                                                          
minded, rational person of the truth of the finding.  Id. at 644.  We                                                                                 
review conclusions of law in an order pertaining to suppression of evidence                                                                           
de novo.  State v. Johnson, 128 Wn.2d 431, 443, 909 P.2d 293 (1996).


     The United States Supreme Court has developed a strong policy in its                                                                             
Fourth Amendment jurisprudence conferring considerable authority upon                                                                                 
police officers at the scene of a traffic stop.  In Pennsylvania v. Mimms,                                                                            
434 U.S. 106, 98 S. Ct. 330, 54 L. Ed. 2d 331 (1977), the United States                                                                               
Supreme Court approved of a police order to the driver of a car stopped for                                                                           
a traffic infraction to get out of the car.  Balancing the public interest                                                                            
-- in this case, officer safety -- against "the individual's right to                                                                                 
personal security free from arbitrary interference by law officers," the                                                                              
Court held the intrusion into the driver's right to privacy was "de                                                                                   
minimis."  Not only is this not a serious intrusion on the sanctity of the                                                                            
person, the Court held, but it "hardly rises to the level of a 'petty                                                                                 
indignity.' "  Id. at 109, 111.  The Mimms holding thus allows a limited                                                                              
police intrusion into a person's freedom from interference in order to                                                                                
preserve officer safety even in the absence of circumstances that would                                                                               
justify an investigatory Terry stop.  As the Ohio Supreme Court put it: 

		 Mimms merely dispenses with the requirement that the police officer                                                                              
	possess reasonable suspicion of criminal activity {the Terry standard}                                                                                
	before the officer may order the driver out of an already lawfully stopped                                                                            
	vehicle.  Accordingly, the ordering of defendant to get out of his car was                                                                            
	proper even if the officers were unable to articulate a reasonable                                                                                    
	suspicion which prompted this action. 

	. . .  It is so minimal and insignificant an intrusion that the Mimms                                                                           
	court refused to apply the requirements for an investigatory stop.  Unlike                                                                            
	an investigatory stop, where the police officer involved "must be able to                                                                             
	point to specific and articulable facts which, taken together with rational                                                                           
	inferences from those facts, reasonably warrant that intrusion," Terry v.                                                                             
	Ohio (1968), 392 U.S. 1, 21, 88 S. Ct. 1868, 1880, 20 L. Ed. 2d 889, 906, a                                                                           
	Mimms order does not have to be justified by any constitutional quantum of                                                                            
State v. Evans, 67 Ohio St. 3d 405, 618 N.E.2d 162, 166 (1993), cert.                                                                                 
denied, 510 U.S. 1166, 114 S. Ct. 1195, 127 L. Ed. 2d 544 (1994). 

     Just last year, the United States Supreme Court extended the Mimms                                                                               
holding to include passengers as well as drivers in Maryland v. Wilson, 519                                                                           
U.S. 408, 117 S. Ct. 882, 137 L. Ed. 2d 41 (1997) (police officer may order                                                                           
passenger of lawfully stopped vehicle to exit for safety purposes).                                                                                   
Numerous courts have followed Wilson.3 

     The State argues we should now extend Wilson and hold that after a                                                                               
valid traffic stop an officer may, for the purpose of officer safety, order                                                                           
a passenger to remain inside the stopped vehicle even in the absence of                                                                               
factors justifying a Terry stop.  Mendez correctly argues Wilson expressly                                                                            
did not consider the validity of an order to remain inside a vehicle.                                                                                 
Wilson, 117 S. Ct. at 886 n.3.  He also argues his situation was different                                                                            
from Wilson because he was leaving the scene and neither did anything to                                                                              
arouse suspicion nor constituted a threat to officer safety. 

     But we do not resolve this case on Fourth Amendment principles,                                                                                  
believing we should first attempt to resolve the case on the principles of                                                                            
Wash. Const. art. I, sec. 7.  State v. Hendrickson, 129 Wn.2d 61, 69, 917                                                                             
P.2d 563 (1996); State v. Johnson, 128 Wn.2d 431, 909 P.2d 293 (1996);                                                                                
State v. Young, 123 Wn.2d 173, 178-79, 867 P.2d 593 (1994).

B.   ARTICLE I, sec. 7 ANALYSIS   

     After we granted the petition for review in this case, the State filed                                                                           
a motion asking us to strike Mendez's argument regarding art. I, sec. 7                                                                               
because it was not raised in the Court of Appeals.  The State also asserted                                                                           
that because Mendez failed to discuss the six independent state                                                                                       
constitutional analysis factors set forth in State v. Gunwall, 106 Wn.2d                                                                              
54, 720 P.2d 808, 76 A.L.R. 4th 517 (1986), we should not reach the State                                                                             
constitutional issue.  We disagree.  Mendez articulated the pertinent                                                                                 
Gunwall factors in his petition for review.  We deny the State's motion                                                                               
because Mendez raised the Gunwall factors, albeit late in the appellate                                                                               
process, and the core issue is not new; only the application of the State                                                                             
constitution to these facts is new.  Given the preeminence of our State                                                                               
constitution in matters of privacy, there is no valid reason why we should                                                                            
not first consider art. I, sec. 7.  Hendrickson, 129 Wn.2d at 70 n.1. 

     We have previously held the first, second, third, fifth and sixth                                                                                
Gunwall criteria all lead to the conclusion art. I, sec. 7 provides greater                                                                           
protection to privacy than the Fourth Amendment.  Only the fourth Gunwall                                                                             
factor -- preexisting state law -- needs to be addressed here.  State v.                                                                              
Young, 135 Wn.2d 498, 509, 957 P.2d 681 (1998).  

     Moreover, by analogy, we have often indicated art. I, sec. 7 provides                                                                            
greater protection against warrantless searches of automobiles than the                                                                               
Fourth Amendment.  Hendrickson, 129 Wn.2d at 70 n.1 (and cases cited                                                                                  

     We have addressed the specific question of whether an officer can                                                                                
order a driver to leave the vehicle pursuant to a legitimate traffic stop.                                                                            
We adopted the holding of Mimms in State v. Kennedy, 107 Wn.2d 1, 8, 726                                                                              
P.2d 445 (1986), without extensive discussion of any art. I, sec. 7                                                                                   
implications.  See also State v. Sykes, 27 Wn. App. 111, 116, 615 P.2d 1345                                                                           
(1980); State v. Belieu, 112 Wn.2d 587, 594-95, 773 P.2d 46 (1989).  No                                                                               
Washington court has specifically discussed whether Mimms comports with the                                                                           
greater privacy protections of art. I, sec. 7.  Compare State v. Landry,                                                                              
588 So. 2d 345, 346 (La. 1991) (adopting Mimms rationale for both driver                                                                              
and passengers); People v. Harmelin, 176 Mich. App. 524, 440 N.W.2d 75,                                                                               
(1989), aff'd, 501 U.S. 957, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (1991)                                                                                
(Mimms does not offend greater privacy rights in Michigan constitution);                                                                              
State v. Arthur, 149 N.J. 1, 16, 691 A.2d 808 (1997) (same for New Jersey                                                                             
constitution); Commonwealth v. Rodriguez, 695 A.2d 864, 870 (Pa. Super. Ct.                                                                           
1997) (same for Pennsylvania constitution), with State v. Kim, 68 Haw. 286,                                                                           
711 P.2d 1291, 1294 (1985) (rejecting Mimms pursuant to Hawaii constitution                                                                           
and requiring Terry stop justifications to order driver from car).

     No Washington case has addressed the corollary question of whether an                                                                            
officer with probable cause to detain a driver for a traffic infraction may                                                                           
order a passenger to get out of the vehicle or remain in the vehicle.  But                                                                            
our prior cases have indicated that art. I, sec. 7 affords law enforcement                                                                            
officers more limited authority over vehicle passengers.  In State v.                                                                                 
Larson, 93 Wn.2d 638, 642, 611 P.2d 771 (1980), a case involving both the                                                                             
Fourth Amendment and art. I, sec. 7, we said:  "{A} stop based on a parking                                                                           
violation committed by the driver does not reasonably provide an officer                                                                              
with grounds to require identification of individuals in the car other than                                                                           
the driver, unless other circumstances give the police independent cause to                                                                           
question passengers."  (Emphasis omitted.)  See also State v. Broadnax, 98                                                                            
Wn.2d 289, 295-96, 654 P.2d 96 (1982) (mere presence of defendant at                                                                                  
suspect's home being searched pursuant to search warrant did not justify                                                                              
frisk of his person), abrogated on other grounds by Minnesota v. Dickerson,                                                                           
508 U.S. 366, 113 S. Ct. 2130, 124 L. Ed. 2d 334 (1993).  Except in unusual                                                                           
circumstances, there will obviously be no probable cause to believe the                                                                               
passenger, as well as the driver, was responsible for the traffic                                                                                     
infraction.  No such circumstances appear in this case. 

     Mendez argues we should consider various traffic statutes in                                                                                     
determining preexisting Washington law for purposes of our Gunwall                                                                                    
analysis.  He is correct in asserting that certain statutes provide for                                                                               
significant protections to automobile drivers.  See, e.g., RCW 46.64.015                                                                              
(forbidding detention for issuing a traffic citation to last no more than a                                                                           
reasonable amount of time).  We would be oblivious to actual events,                                                                                  
however, were we say this is the only possible view of traffic laws.  When                                                                            
we interpreted RCW 46.61.021 in State v. Rife, 133 Wn.2d 140, 943 P.2d 266                                                                            
(1997), to forbid warrants checks in traffic stops, the Legislature acted                                                                             
with uncharacteristic dispatch in a special legislative session to amend                                                                              
the statute to permit what we had deemed forbidden.  Laws of 1997, Sp.                                                                                
Sess., ch. 1, sec. 1.  The amended statute became effective only three                                                                                
weeks after we issued Rife.  Demonstrably, statutes can be ephemeral and                                                                              
are therefore not particularly helpful to Mendez's position.  Immutable                                                                               
constitutional principles provide more sturdy support. 

     In summary, preexisting Washington law indicates a general preference                                                                            
for greater privacy for automobiles and a greater protection for passengers                                                                           
than the Fourth Amendment, but Washington cases have adopted Mimms  to                                                                                
analyze the authority of officers to order a vehicle's driver out of the                                                                              
car.  Also, our statutes on traffic stops are not helpful for our Gunwall                                                                             

     Our analysis under art. I, sec. 7 requires us to determine "whether                                                                              
the State unreasonably intruded into the defendant's 'private affairs.' "                                                                             
State v. Myrick, 102 Wn.2d 506, 510, 688 P.2d 151 (1984).  "The analysis                                                                              
under article I, sec. 7 focuses, not on a defendant's actual or subjective                                                                            
expectation of privacy but, as we have previously established, on those                                                                               
privacy interests Washington citizens held in the past and are entitled to                                                                            
hold in the future."  State v. White, 135 Wn.2d 761, 768, 958 P.2d 982                                                                                
(1998).  Our task is to balance these privacy interests against concerns                                                                              
for officer safety during traffic stops.  Plainly, in any traffic stop,                                                                               
concerns about officer safety and control of the situation are entirely                                                                               
relevant.  See Wilson, 117 S. Ct. at 885 (statistics detailing assaults on                                                                            
officers during traffic stops).  We can envision numerous factual                                                                                     
scenarios, only slightly different from the present case, with a high                                                                                 
potential for the situation spinning out of control and officer safety                                                                                
being jeopardized.4 

     With these matters in mind, we conclude Washington's constitutional                                                                              
policy of greater protection to the privacy of individuals in automobiles                                                                             
than the Fourth Amendment provides must carry the day.  We fashion rules                                                                              
here to meet that State constitutional standard.  Where the officer has                                                                               
probable cause to stop a car for a traffic infraction, the officer may, 
incident to such stop, take whatever steps necessary to control the scene,
including ordering the driver to stay in the vehicle or exit it, as circumstances
warrant.  This is a de minimis intrusion upon the driver's privacy under art. 
I, sec. 7. See Kennedy, 107 Wn.2d at 9. 

     However, with regard to passengers, we decline to adopt such a bright                                                                            
line, categorical rule.  A police officer should be able to control the                                                                               
scene and ensure his or her own safety, but this must be done with due                                                                                
regard to the privacy interests of the passenger, who was not stopped on                                                                              
the basis of probable cause by the police.  An officer must therefore be                                                                              
able to articulate an objective rationale predicated specifically on safety                                                                           
concerns, for officers, vehicle occupants, or other citizens, for ordering                                                                            
a passenger to stay in the vehicle or to exit the vehicle to satisfy art.                                                                             
I, sec. 7.  This articulated objective rationale prevents groundless police                                                                           
intrusions on passenger privacy.  But to the extent such an objective                                                                                 
rationale exists, the intrusion on the passenger is de minimis in light of                                                                            
the larger need to protect officers and to prevent the scene of a traffic                                                                             
stop from descending into a chaotic and dangerous situation for the                                                                                   
officer, the vehicle occupants, and nearby citizens. 

     To satisfy this objective rationale, we do not mean that an officer                                                                              
must meet Terry's standard of reasonable suspicion of criminal activity.                                                                              
Terry must be met if the purpose of the officer's interaction with the                                                                                
passenger is investigatory.

For purposes of controlling the scene of the traffic stop and to preserve                                                                             
safety there, we apply the standard of an objective rationale.  Factors                                                                               
warranting an officer's direction to a passenger at a traffic stop may                                                                                
include the following:  the number of officers, the number of vehicle                                                                                 
occupants, the behavior of the occupants, the time of day, the location of                                                                            
the stop, traffic at the scene, affected citizens, or officer knowledge of                                                                            
the occupants.  These factors are not meant to be exclusive; nor do we hold                                                                           
that any one factor, taken alone, automatically justifies an officer's                                                                                
direction to a passenger at a traffic stop.  The inquiry into the presence                                                                            
or absence of an objective rationale requires consideration of the                                                                                    
circumstances present at the scene of the traffic stop.5


     The trial court held, "The traffic stop of the Mendez vehicle                                                                                    
constituted a seizure of the vehicle and all of its passengers."                                                                                      
Conclusion of Law No. 4 (Clerk's Papers at 11).  Mendez assigned error to                                                                             
this conclusion of law, Br. of Appellant at 1, but then presented no                                                                                  
argument directly on this point.  Mendez did argue he was entitled to walk                                                                            
away from the vehicle after it was stopped, Br. of Appellant at 10, but did                                                                           
not explain why he should have been able to do so after being seized, as                                                                              
the trial court concluded he had been by the traffic stop.  In any event,                                                                             
the trial court's conclusion Mendez was seized by the traffic stop is                                                                                 
clearly wrong. 

     "{W}henever a police officer accosts an individual and restrains his                                                                             
freedom to walk away, he has 'seized' that person."  Terry v. Ohio, 392                                                                               
U.S. 1,16, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).  We recently affirmed                                                                             
the following rule stemming from Terry:  " '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 leave.' "                                                                             
State v. Young, 135 Wn.2d 498, 510, 957 P.2d 681 (1998) (quoting 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 497 (1980).  

     Stopping the car in which Mendez was a passenger did not effect a                                                                                
seizure of Mendez or the other passengers.  While the operator of a vehicle                                                                           
is seized when a police authority signals the operator to stop after a                                                                                
traffic infraction, the privacy rights of passengers in that stopped                                                                                  
vehicle  are not diminished by the stop.  "There is probable cause to                                                                                 
believe that the driver has committed a minor vehicular offense, but there                                                                            
is no such reason to stop or detain the passengers."  Maryland v. Wilson,                                                                             
519 U.S. 408, 117 S. Ct. 882, 886, 137 L. Ed. 2d 41 (1997).

     The police did seize Mendez, but not by stopping the vehicle.  Mendez                                                                            
exited the stopped car and began immediately walking away before Officer                                                                              
Hensley ordered him to stay in or return to the car.  Officer Hartman                                                                                 
testified, "We had barely even time to stop our car, and two people were                                                                              
out of the car."  Report of Proceedings at 31.  Thus, the seizure of Mendez                                                                           
occurred when Officer Hensley first uttered the command for him to get back                                                                           
into the car.  As soon as Hensley gave the command, Mendez was no longer                                                                              
free to leave; he was seized. 

     To justify a Terry stop under the Fourth Amendment and art. I, sec. 7,                                                                           
a police officer must be able to "point to specific and articulable facts                                                                             
which, taken together with rational inferences from those facts, reasonably                                                                           
warrant that intrusion."  Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 20                                                                           
L. Ed. 2d 889 (1968); State v. Armenta, 134 Wn.2d 1, 20, 948 P.2d 1280                                                                                
(1997).  The level of articulable suspicion necessary to support an                                                                                   
investigative detention is "a substantial possibility that criminal conduct                                                                           
has occurred or is about to occur."  State v. Kennedy, 107 Wn.2d 1, 6, 726                                                                            
P.2d 445 (1986).  Probable cause is not required for a Terry stop because a                                                                           
stop is significantly less intrusive than an arrest.  Id.; Brown v. Texas,                                                                            
443 U.S. 47, 50, 99 S. Ct. 2637, 61 L. Ed. 2d 357 (1979) (same).

     The trial court concluded there was substantial evidence to justify a                                                                            
Terry stop: 

	Efrain Mendez hindered, delayed and obstructed the officers in their                                                                                  
	investigation of the traffic stop by running away from the scene.  Mendez'                                                                            
	actions in reaching inside his clothing and disobeying the officer's                                                                                  
	commands to stop were also specific, articulable facts which properly                                                                                 
	aroused the officers' suspicion and distracted their traffic stop.                                                                                    

Clerk's Papers at 11.  Flight from officers where the officers have grounds                                                                           
for a Terry stop and a refusal to halt at their order may constitute                                                                                  
obstruction of a public servant under former RCW 9A.76.020.  State v.                                                                                 
Little, 116 Wn.2d 488, 496, 806 P.2d 749 (1991) (Seattle police had                                                                                   
agreement with public housing agency management to investigate trespassers                                                                            
on grounds of public housing complex; complex had reported chronic trespass                                                                           
problem and officers received report of juveniles loitering on complex                                                                                
premises; juvenile properly convicted of obstruction when he fled after                                                                               
uniformed officer identified himself and sought to stop juvenile pursuant                                                                             
to Terry).  See also State v. Graham, 130 Wn.2d 711, 927 P.2d 227 (1996)                                                                              
(flight from police officers acting as a private security may be                                                                                      
obstruction of a public servant). But flight alone may not be enough to                                                                               
justify a Terry stop.6 

     We hold the trial court erred in finding the stop of Mendez satisfied                                                                            
Terry.  We further hold the officers did not meet the objective rationale                                                                             
test under art. I, sec. 7 we have articulated in this case that would allow                                                                           
them to order Mendez back into the vehicle.  Officer Hartman testified he                                                                             
had no suspicions Mendez had engaged or was about to engage in criminal                                                                               
conduct.  Neither officer testified that Mendez's actions in reaching                                                                                 
inside his clothing aroused any suspicion.  Besides, Mendez did not reach                                                                             
inside his clothing until after he had been seized by Officer Hensley's                                                                               
command to return to the car.  "Obviously, once an individual is 'seized,'                                                                            
no subsequent events or circumstances can retroactively justify the                                                                                   
'seizure.' "  State v. Stinnett, 104 Nev. 398, 760 P.2d 124, 126 (1988).

     Substantial evidence is lacking to support the conclusion Mendez                                                                                 
hindered, delayed, or obstructed the officers.  Officer Hartman was rather                                                                            
vague when asked about the basis for the decision to order Mendez back into                                                                           
the vehicle: 

	Well, I felt he was putting us both at risk.  I've had previous experiences                                                                           
	where people that have run from cars, there's been guns found in cars,                                                                                
	people have had warrants.  And what we wanted to do was contact the driver.                                                                           
	And I felt he put us at unnecessary risk by running, putting us in that                                                                               

Report of Proceedings at 30.  Officer Hensley was clearer in positively                                                                               
denying Mendez posed any risk by running, but he, too, could not justify                                                                              
the order to require Mendez to stay in the car: 

	The only thing that would maybe be a hindrance would be, I was also                                                                                   
	listening on the portable radio to Officer Hartman while he was in foot                                                                               
	pursuit, to see if he had apprehended -- which direction of travel he was                                                                             
	going, if anyone was coming to help him.  So, maybe my attention wasn't                                                                               
	fully focused on the driver as it should have been.  Or the other occupants                                                                           
	of the vehicle. . . .                                                                                                                                 

	Q.   {by Mendez on cross-examination} Had Officer Hartman not given chase,                                                                            
	and specifically had the respondent simply walked away and kept on walking,                                                                           
	and Officer Hartman had stayed with you, can you describe in what way you                                                                             
	would have been hindered in going through the process that you described                                                                              
	with the driver? . . .                                                                                                                                

	A.   I don't know that I would have -- if -- I don't know that there would                                                                            
	have been any hindrance.                                                                                                                              
Report of Proceedings at 52.  The officers' testimony does not provide                                                                                
substantial evidence to support the trial court's conclusion that "Efrain                                                                             
Mendez hindered, delayed and obstructed the officers in their investigation                                                                           
of the traffic stop by running away from the scene" because they could not                                                                            
articulate a reason for requiring Mendez to stay in the vehicle under the                                                                             
limited standard we set forth here for traffic stop scenes or the standard                                                                            
of Terry. 

     But, even after observing "there is no evidence in this record that                                                                              
{Mendez} posed any real danger to the police," the Court of Appeals                                                                                   
concluded the police constitutionally ordered Mendez to return to the car,                                                                            
holding "the benefit of increased police protection outweighs the intrusion                                                                           
to passengers."  Mendez, 88 Wn. App. at 792.  We disagree. 

     The situation may well have been different had Mendez remained                                                                                   
standing by the passenger side door, had he behaved in any way the police                                                                             
viewed as threatening or potentially dangerous, or had the scene at the                                                                               
traffic stop required him to stay in the vehicle.  But Mendez was already                                                                             
walking away when he was told to stop.  The officers were present in this                                                                             
instance in broad daylight in Yakima.  No specific safety concerns were                                                                               
present at the scene.  They had control of the situation as the driver                                                                                
remained where he was directed.  The other passengers remained in the                                                                                 
vehicle.  Mendez had not committed a crime.  Without more, and in view of                                                                             
the officers' testimony that Mendez did not do anything to make them                                                                                  
fearful for their safety except run away, we cannot conclude, as the Court                                                                            
of Appeals did, that "increased police protection" justified the seizure                                                                              
and subsequent arrest of Mendez.  The officers, the trial court, and the                                                                              
Court of Appeals were unable to articulate an objective safety rationale                                                                              
under art. I, sec. 7 of the officers ordering Mendez back into the vehicle                                                                            
or a basis for a Terry stop. 


     Mendez was a passenger in a vehicle involved in a legitimate traffic                                                                             
stop.  After a police cruiser had made the vehicle stop for investigation                                                                             
of a traffic infraction, Mendez exited and began walking away.  The police                                                                            
ordered him to stop.  Mendez kept walking and eventually began running                                                                                
away.  The police caught him, searched him incident to the arrest, and                                                                                
found a marijuana pipe.

     The police were unable to articulate facts that reasonably suggested a                                                                           
problematic situation at the scene of the traffic stop that warranted                                                                                 
stopping Mendez from leaving.  Neither officer expressed concerns for their                                                                           
safety from the fleeing Mendez.  The police had no probable cause to                                                                                  
suspect Mendez of having committed a crime or any expectation he was about                                                                            
to commit a crime. 

     The trial court should have suppressed the evidence of the marijuana                                                                             
pipe the police found on Mendez in the search incident to his arrest                                                                                  
because the arrest was unconstitutional under art. I, sec. 7.  We reverse                                                                             
the judgment against Mendez and the order denying suppression of the                                                                                  
evidence, and remand the case to the trial court for proceedings consistent                                                                           
with this opinion.                                                                                                                                    

     1 The statute provides, "(1) A person is guilty of obstructing a law                                                                             
enforcement officer if the person willfully hinders, delays, or obstructs                                                                             
any law enforcement officer in the discharge of his or her official powers                                                                            
or duties." 

     2 We note at the outset this case is distinguishable from three other                                                                            
cases we heard this term, State v. Parker, No. 66147-2; State v. Jines, No.                                                                           
66522-2; and State v. Hunnel, No. 66523-1.  In those cases, officers had                                                                              
lawfully arrested an occupant of a vehicle.  Safety concerns and concerns                                                                             
for the destruction or hiding of evidence are different when an arrest has                                                                            
occurred as compared to the present situation, a noncriminal traffic stop.                                                                            
See Knowles v. Iowa, No. 97-7597, 1998 WL 840933, *3 (U.S. Dec. 8, 1998)                                                                              
(same).  The driver of the vehicle in which Mendez was a passenger was                                                                                
stopped for running a stop sign.  Such an infraction is not a criminal                                                                                
offense.  RCW 46.63.020; City of Bremerton v. Spears, 134 Wn.2d 141, 151,                                                                             
949 P.2d 347 (1998) (Legislature has decriminalized many minor traffic                                                                                
offenses, citing RCW 46.63.020). 

     3 See, e.g., United States. v. Coleman, 148 F.3d 897 (8th Cir.), cert.                                                                           
denied, 119 S. Ct. 228 (1998); People v. Gonzalez, 294 Ill. App. 3d 205,                                                                              
689 N.E.2d 1187, 1191, 228 Ill. Dec. 766, appeal allowed, 177 Ill. 2d 576,                                                                            
698 N.E.2d 545, 232 Ill. Dec. 454 (1998); People v. Robinson, 74 N.Y.2d                                                                               
773, 543 N.E.2d 733, 733-34, cert. denied, 493 U.S. 966, 110 S. Ct. 411,                                                                              
107 L. Ed. 2d 376 (1989); State v. Shepard, 955 P.2d 352, 356 (Utah Ct.                                                                               
App. 1998); Harris v. Commonwealth, 27 Va. App. 554, 500 S.E.2d 257 (1998).                                                                           
But see State v. Morton, 151 Or. App. 734, 951 P.2d 179 (1997) (officer may                                                                           
not ask passenger to leave stopped vehicle if officer has no safety                                                                                   

     4 Instead of a daylight stop in downtown Yakima of the car by two                                                                                
officers, a stop of a car at night in a more isolated location would be                                                                               
more menacing to a lone officer if all four passengers exited the vehicle                                                                             
on his approach.  Moreover, additional factors comprising the totality of                                                                             
the circumstances, such as the time of day, location, that the officers                                                                               
might have been responding to call for help in the neighborhood all might                                                                             
be factors added to running away that might justify a Terry stop.                                                                                     
"{D}eliberately furtive actions and flight at the approach of strangers or                                                                            
law officers are strong indicia of mens rea, and when coupled with specific                                                                           
knowledge on the part of the officer relating the suspect to the evidence                                                                             
of crime, they are proper factors to be considered in the decision to make                                                                            
an arrest."  Sibron v. New York, 392 U.S. 40, 66-67, 88 S. Ct. 1889, 20 L.                                                                            
Ed. 2d 917 (1968).  See also State v. Little, 116 Wn.2d 488, 806 P.2d 749                                                                             
(1991); State v. Graham, 130 Wn.2d 711, 927 P.2d 227 (1996). 

     5 The New Jersey Supreme Court had adopted a similar rule for ordering                                                                           
passengers to exit a stopped vehicle.  Relying on the reasoning in Mimms,                                                                             
the court in State v. Smith, 134 N.J. 599, 637 A.2d 158, 167 (1994), said:                                                                            
	To support an order to a passenger to alight from a vehicle stopped                                                                              
	for a traffic violation, therefore, the officer need not point to specific                                                                            
	facts that occupants are "armed and dangerous."  Rather, the officer need                                                                             
	only point to some fact or facts in the totality of the circumstances that                                                                            
	would create in a police officer a heightened awareness of danger that                                                                                
	would warrant an objectively reasonable officer in securing the scene in a                                                                            
	more effective manner by ordering the passenger to alight from the car.                                                                               
An application of this rule appears in a subsequent New Jersey case, State                                                                            
v. Smith, 306 N.J. Super. 370, 703 A.2d 954 (1997).  There, two troopers                                                                              
stopped a vehicle they observed veering across lanes at least six times                                                                               
within a mile.  One trooper approached the car from the passenger side and                                                                            
observed a plastic bag protruding from the passenger's right front pocket                                                                             
that appeared to contain marijuana.  He also smelled alcohol in the car.                                                                              
The other trooper ordered the driver out of the car and ordered the                                                                                   
passenger to keep his hands on the dashboard.  Despite that order, one                                                                                
trooper observed the passenger move his hands from the dashboard and out of                                                                           
sight.  The trooper immediately went to the passenger side of the car and                                                                             
observed two packages wrapped in duct tape between the passenger's legs.                                                                              
Suspecting cocaine, the troopers arrested both passenger and driver.                                                                                  
Citing the earlier Smith case, the court held the order for the passenger                                                                             
to keep his hands on the dashboard was "a valid measure to protect the                                                                                
trooper's safety, especially in light of his strong suspicion of narcotics                                                                            
in the car."  Smith, 703 A.2d at 959.  This case illustrates the necessity                                                                            
for an objective rationale before an officer may intrude on the privacy                                                                               
interests of a passenger in a vehicle stopped for a noncriminal traffic                                                                               

     6 Although "{f}light is an element of probable cause," State v.                                                                                  
Baxter, 68 Wn.2d 416, 421-22, 413 P.2d 638 (1966), "a suspect's leaving at                                                                            
the time that a police cruiser arrives does not necessarily lead to the                                                                               
conclusion that it is reasonable to suspect that person of a crime."  State                                                                           
v. Larson, 93 Wn.2d 638, 645, 611 P.2d 771 (1980).  See State v. Thompson,                                                                            
93 Wn.2d 838, 841, 613 P.2d 525 (1980) (hurried walking away without even                                                                             
looking back not enough to create reasonable suspicion of criminal                                                                                    
conduct); State v. Walker, 66 Wn. App. 622, 629, 834 P.2d 41 (1992)                                                                                   
("flight alone" not enough to justify Terry stop).