WIGGINS, J.
¶ 1 Officer Scott Campbell made a traffic stop of petitioner Mark Tracy Mecham and observed signs that Mecham might have been driving while intoxicated. Officer Campbell asked Mecham to perform field sobriety tests (FSTs), which would have involved Officer Campbell's observing Mecham's eye movements and ability to walk a straight line and stand on one leg. Mecham refused, and his refusal was used against him at trial. Mecham contends that his right to be free from unreasonable searches was violated when the State introduced evidence of his refusal to submit to the FSTs.
¶ 2 Four justices — Chief Justice Madsen and Justices González, Yu, and this author — would hold that an FST is not a search under our state and federal constitutions and Mecham had no constitutional right to refuse to perform the FSTs. One justice (Fairhurst, J.) would hold that FSTs as they are normally used — either (1) following a traffic stop based on evidence of impaired driving or (2) following a stop for an unrelated offense where the officer immediately discovers signs of impairment but the suspect is not yet under arrest — are seizures that may be justified under Terry v. Ohio, 392 U.S. 1, 9, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). See partial concurrence of Fairhurst, J. Accordingly, five justices hold that an FST is a seizure but not a search so long as the suspect has not already been arrested for an unrelated offense and the seizure is justified under Terry.
¶ 3 Justice Fairhurst, in her partial concurrence, however, agrees with the four dissenting justices that Mecham's conviction must be reversed because under these facts, Mecham had a constitutional right to refuse to submit to the FSTs. Two dissenting justices — Justices Gordon McCloud and Stephens — would hold that an FST is a search for purposes of constitutional analysis and that Mecham's conviction must be reversed. See dissent (Gordon McCloud, J.). Two dissenting justices — Justices Johnson and Owens — do not address whether an FST is a search but would hold that Mecham's conviction must be reversed because his refusal to perform the FST was erroneously used against him at trial. See dissent (Johnson, J.).
¶ 4 Five justices agree that Mecham's conviction must be reversed, and therefore the Court of Appeals decision and Mecham's conviction are reversed and the matter is remanded for a new trial and further proceedings.
¶ 5 In 2011, Officer Campbell observed Mecham driving in King County. While at a stoplight, Officer Campbell ran a random license check on Mecham's vehicle and discovered an outstanding warrant. He then turned on his emergency lights, and Mecham pulled over by turning into a parking lot. The stop was purely for the outstanding warrant; Officer Campbell did not notice anything unsafe about the manner in which Mecham was driving.
¶ 6 As Officer Campbell approached Mecham's vehicle, he noticed that Mecham had already begun to exit his vehicle. Officer Campbell instructed Mecham to remain seated and asked him for identification. After Mecham confirmed his identity, Officer Campbell ordered him from his vehicle, placed him in handcuffs, arrested him, and read him his Miranda
¶ 7 Following arrest, Officer Campbell smelled intoxicants on Mecham's breath and noticed that Mecham's movements were sluggish and that his speech was slurred and repetitive. He also observed an open beer can with a straw behind the passenger seat of Mecham's vehicle. Believing that Mecham was intoxicated, Officer Campbell asked Mecham if he would consent to perform FSTs in
¶ 8 An FST is an officer's observations of a suspect driver's physical actions. The standard FST includes three components. First, in the horizontal gaze nystagmus test, the suspect driver must follow a moving object with the eyes while the officer looks for involuntary eye movements. Second, in the walk-and-turn test, the suspect driver must take several heel-to-toe steps in a line. The third test requires the suspect driver to stand on one leg while counting out loud. These tests are specifically designed to provide statistically valid and reliable indications of a driver's blood alcohol content and "are usable only for a sobriety determination." Heinemann v. Whitman County, 105 Wn.2d 796, 808, 718 P.2d 789 (1986); see also State v. Quaale, 182 Wn.2d 191, 198, 340 P.3d 213 (2014) (horizontal gaze nystagmus test "merely shows physical signs consistent with ingestion of intoxicants"); U.S. Dep't of Transp., Nat'l Highway Traffic Safety Admin., Development of a Standardized Field Sobriety Test (SFST) Training Management System 1-12 (Nov. 2001) (DOT-HS-809-400).
¶ 9 Officer Campbell told Mecham that the FSTs were voluntary, and Mecham declined to perform the test.
¶ 10 Officer Campbell then transported Mecham to a King County booking facility to process him on the outstanding warrant. At the booking facility, Mecham spoke with an attorney. Officer Campbell then asked Mecham to submit to a breath test.
¶ 11 Following this exchange, Officer Campbell spoke with Officer Darrell Moore, a drug recognition expert. With Officer Moore's help, Officer Campbell drafted an application for — and received — a search warrant authorizing a blood draw to test Mecham's blood alcohol content (BAC). Officer Campbell transported Mecham to Overlake Hospital, and the blood draw was completed just short of three hours after Mecham's initial arrest. A forensic toxicologist analyzed the blood and reported that Mecham's BAC was .05 grams per 100 milliliters (g/100 ml). This toxicologist testified that given the passage of time and the rate at which alcohol is metabolized, Mecham's BAC was likely .065 g/100 ml within two hours after he stopped driving and possibly as high as .08 g/100 ml. The State charged Mecham with one count of felony driving under the influence (DUI).
¶ 12 At trial, Mecham stipulated that Officer Campbell made a lawful stop and a lawful arrest. He also stipulated that at the time of his arrest, he had previously been convicted of 4 or more prior offenses within 10 years, making this a felony DUI. RCW 46.61.5055(14)(a).
¶ 13 Mecham made several motions to exclude his refusal to perform an FST from evidence. The trial court denied these motions, ruling that even if an FST was a search, the search was supported by probable cause. The trial court also rejected defense counsel's proposed jury instruction that read:
¶ 14 The State elicited testimony throughout the trial that Mecham refused to perform an FST. It relied on this evidence in its closing argument, arguing that Mecham refused to take the tests because he was guilty and because he was trying to frustrate the investigation. The jury found Mecham guilty of felony DUI.
¶ 15 Mecham timely appealed, asserting that an FST constitutes an unreasonable search under the Fourth Amendment to the United States Constitution and article I, section 7 of the Washington Constitution. As a result, he argues, the State improperly penalized him for exercising his constitutional right to refuse consent to an FST by commenting on his refusal at trial. The Court of Appeals, Division One, affirmed his conviction. State v. Mecham, 181 Wn.App. 932, 954, 331 P.3d 80, review granted, 181 Wn.2d 1014, 337 P.3d 325 (2014). In a unanimous published opinion, the Court of Appeals rejected his argument, assuming arguendo that an FST was a search but holding that Officer Campbell's request for Mecham to perform the FST was justified under the Terry
¶ 16 The Court of Appeals denied Mecham's motion for reconsideration but withdrew its decision and modified its opinion in ways that are unrelated to his appeal. Mecham filed a petition for review, and the State cross appealed pursuant to RAP 13.7(b), arguing that we should consider alternative arguments for affirmance that the Court of Appeals did not address. We granted both Mecham's petition for review and the State's request to review alternative issues for affirmance.
¶ 17 The basic issue before us is whether the State may introduce evidence at trial of a defendant's refusal to perform an FST. The four justices signing this lead opinion would hold that the State may offer evidence of such a refusal because FSTs are not searches under the Washington or federal constitutions, and a defendant thus has no constitutional right to refuse to perform FSTs.
¶ 18 There is no legal obligation in Washington to submit to FSTs. City of Seattle v. Stalsbroten, 138 Wn.2d 227, 237, 978 P.2d 1059 (1999) (citing City of Seattle v. Personeus, 63 Wn.App. 461, 465, 819 P.2d 821 (1991)). Instead, a defendant's right to refuse to participate in an FST is rooted in the common law.
¶ 9 Prosecutors may not comment on a refusal to waive a constitutional right. See Schneckloth v. Bustamonte, 412 U.S. 218, 228, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973) (consent to waive a constitutional right may not be coerced, either explicitly or implicitly); United States v. Prescott, 581 F.2d 1343, 1351 (9th Cir. 1978) (evidence of defendant's refusal to consent to warrantless search violates Fourth Amendment and article I, section 7); State v. Jones, 168 Wn.2d 713, 725, 230 P.3d 576 (2010) (prosecutor's comment on refusal to provide a DNA (deoxyribonucleic acid) sample and exercise of right to remain silent violate Fifth and Fourth Amendment rights (U.S. CONST. amends. IV, V)). However, the State may admit evidence that a defendant is asserting a nonconstitutional right as evidence of consciousness of guilt at trial. State v. Nordlund, 113 Wn.App. 171, 188, 53 P.3d 520 (2002).
¶ 20 Since the State cannot comment on a defendant's refusal to waive a constitutional right, the dispositive issue is whether a defendant has a constitutional right to refuse to perform an FST. This is a question of first impression for this court.
¶ 21 Since Mecham's refusal to perform an FST was not an exercise of a constitutional right, the four justices signing this opinion would hold that the trial court properly permitted the prosecutor to introduce evidence of the defendant's refusal at trial and comment on that refusal during closing argument.
¶ 22 We review constitutional issues de novo. State v. Gresham, 173 Wn.2d 405, 419, 269 P.3d 207 (2012). When a trial court denies a motion to suppress, we also, review that court's conclusions of law de novo. State v. Winterstein, 167 Wn.2d 620, 628, 220 P.3d 1226 (2009).
¶ 23 A person is "seized" within the meaning of the Fourth Amendment and his private affairs disturbed under article I, section 7 "`only when, by means of physical force or a show of authority, his freedom of movement is restrained.... There is a "seizure" when, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.'" State v. Young, 135 Wn.2d 498, 510, 957 P.2d 681 (1998) (alteration in original) (quoting State v. Stroud, 30 Wn.App. 392, 394-95, 634 P.2d 316 (1981)).
¶ 24 As set forth in Terry, a traffic stop is a seizure for the purposes of constitutional analysis — it is analogous to a brief investigative detention and must be based on reasonable suspicion. State v. Ladson, 138 Wn.2d 343, 350, 979 P.2d 833 (1999). An officer has the authority to conduct a brief, investigative detention that is reasonably related to the purposes of the stop provided that the amount of physical intrusion and the length of time a detainee is stopped are
¶ 25 There is no question that the initial traffic stop was supported by reasonable suspicion; Officer Campbell stopped Mecham in order to investigate an outstanding warrant. However, an FST encompasses not only the initial seizure when the vehicle is stopped, but also the additional seizure during administration of the test itself: when an officer administers an FST, the suspect driver is not free to return to the vehicle and drive away. This additional seizure implicates article I, section 7 and must itself be supported by authority of law.
¶ 26 Officer Campbell's request that Mecham perform an FST was a constitutional seizure under Terry. Mecham's conduct during this traffic stop gave rise to Officer Campbell's reasonable suspicion that Mecham was driving under the influence. Officer Campbell smelled intoxicants on Mecham's breath and noticed that Mecham's movements were sluggish and that his speech was slurred and repetitive. Officer Campbell also observed an open beer can with a straw behind the passenger's seat of Mecham's vehicle. These factors, taken together, provided Officer Campbell with reasonable suspicion that Mecham was intoxicated. Officer Campbell's request that Mecham perform FSTs was supported by his reasonable suspicion that Mecham was driving a vehicle while intoxicated. However, here the lawful Terry stop transformed into an actual arrest. Terry does not guide our analysis of the investigatory procedures taken postarrest.
¶ 27 The issue before us is whether Officer Campbell's arrest somehow terminated his lawful authority to administer an FST to Mecham. Mecham does not challenge the lawfulness of his seizure, and we have long recognized the propriety of a seizure to perform an FST. See Heinemann, 105 Wash.2d at 809, 718 P.2d 789 (seizure and questioning in FSTs permissible under Fourth Amendment and article I, section 7). Numerous other states hold that an FST is a lawful seizure when the officer has a reasonable suspicion that an individual is driving under the influence of drugs or alcohol and the detention is limited in scope and duration to assessing a driver's intoxication. See, e.g., State v. Wyatt, 67 Haw. 293, 305, 687 P.2d 544 (1984) (FSTs are seizures, not searches, despite officer's direction for defendant to execute a physical routine for the purpose of gathering evidence of criminal activity); State v. Bernokeits, 423 N.J.Super. 365, 374, 32 A.3d 1152 (2011) (FST is a reasonable seizure); State v. Little, 468 A.2d 615, 617-18 (Me. 1983) (same). Recognizing that authority of law authorized the FST prearrest, we hold that Campbell had authority of law for the FST postarrest.
¶ 28 One of the dissents concludes that "the vast majority of courts that have addressed the issue" conclude that an FST is a search, citing 16 cases in a footnote and concluding that "11 treat an FST as a search for purposes of the Fourth Amendment analysis adopted in Terry. ..." Dissent at 434 & n.1 (Gordon McCloud, J.) (citations omitted). The dissent neglects to mention, however, that only 2 of the cited cases assert that probable cause must support an FST. See State v. Nagel, 320 Or. 24, 31-35, 880 P.2d 451 (1994); People v. Carlson, 677 P.2d 310, 316-17 (Colo. 1984). One of the cases cited for the proposition that an FST is a search, in fact, holds that an FST is not a search at all. See Galimba v. Municipality of Anchorage, 19 P.3d 609, 612 (Alaska Ct. App. 2001) ("[W]hile breath tests are generally considered searches for constitutional purposes, typical field sobriety tests, including the HGN, are not. Our discussions in McCormick,
¶ 29 We agree with the states holding that an FST is a lawful seizure and reject the analysis of states permitting a "reasonable search" on less than probable cause. Accord State v. Morse, 156 Wn.2d 1, 9, 123 P.3d 832 (2005) (article I, section 7 is unconcerned with the reasonableness of the search); see also Missouri v. McNeely, ___ U.S. ___, 133 S.Ct. 1552, 1565, 185 L.Ed.2d 696 (2013) ("`No one can seriously dispute the magnitude of the drunken driving problem or the States' interest in eradicating it.'... But the general importance of the government's interest in this area does not justify departing from the warrant requirement" (quoting Mich. Dep't of State Police v. Sitz, 496 U.S. 444, 451, 110 S.Ct. 2481, 110 L.Ed.2d 412 (1990))). We hold that an FST constitutes a seizure, but that the seizure is lawful when supported by a reasonable suspicion of driving under the influence.
¶ 30 Having concluded that an FST is a seizure, we turn to whether an FST is a search under article I, section 7 of the Washington Constitution or the Fourth Amendment to the United States Constitution. This is a question of first impression for this court, and there are no Washington cases on point.
¶ 31 In the absence of controlling case law, we ask first whether FSTs invade constitutionally protected privacy interests. We then examine prior cases to determine if FSTs invade the privacy interests at issue in those cases.
¶ 32 "No person shall be disturbed in his private affairs, or his home invaded, without authority of law." WASH. CONST. art. I, § 7. Article I, section 7 encompasses the privacy expectations protected by the Fourth Amendment and in some cases may provide greater protection than the Fourth Amendment because its protections are not confined to the subjective privacy expectations of citizens. State v. Myrick, 102 Wn.2d 506, 510-11, 688 P.2d 151 (1984). Under article I, section 7, "a search occurs when the government disturbs `those privacy interests which citizens of this state have held, and should be entitled to hold, safe from government trespass absent a warrant." State v. Hinton, 179 Wn.2d 862, 868, 319 P.3d 9 (2014) (emphasis added) (quoting Myrick, 102 Wash.2d at 511, 688 P.2d 151). In determining whether a privacy interest exists, the court considers both the historical protection afforded to the interest asserted and "the nature and extent of the information which may be obtained as a result of the governmental conduct." State v. Miles, 160 Wn.2d 236, 244, 156 P.3d 864 (2007). We also consider laws supporting the interest asserted, including statutes and analogous case law. State v. Athan, 160 Wn.2d 354, 366, 158 P.3d 27 (2007). Finally, we look to the reasonableness of the interest asserted. Id. (voluntary exposure to the public can negate an asserted privacy interest); State v. Day, 161 Wn.2d 889, 894, 168 P.3d 1265 (2007) (evidence in open or plain view will not be excluded).
¶ 33 As discussed above, FSTs require a detainee to perform three activities: visually follow a moving object while the officer looks for involuntary eye movements, walk heel to toe in a line, and stand on one leg while counting out loud. None of these activities is private in nature. Indeed, they are all physical characteristics that any observer
¶ 34 In assessing whether an FST is a search, we consider three factors: the historical protection afforded to the interest asserted, the nature and extent of the information revealed, and analogous case law. McKinney, 148 Wash.2d at 27-29, 60 P.3d 46. A field sobriety test is not a search in the classic sense: an FST is not a search of a person or place for a physical object such as contraband or other physical evidence. No documents, books, or papers are seized in an FST. Although not dispositive, the absence of a tangible seizure distinguishes FSTs from many traditional searches.
¶ 35 FSTs also do not reveal information analogous to private electronic information such as cell phone records or pen registers. Cf. Hinton, 179 Wash.2d at 869, 319 P.3d 9 (text messages reveal "a `wealth of detail about [a person's] familial, political, professional, religious, and sexual associations.'" (alteration in original) (quoting United States v. Jones, ___ U.S. ___, 132 S.Ct. 945, 955, 181 L.Ed.2d 911 (2012) (Sotomayor, J., concurring)); State v. Gunwall, 106 Wn.2d 54, 69, 720 P.2d 808 (1986) (article I, section 7 protects privacy interests implicated in telephone records and pen registers)). Instead, FSTs are an officer's observations of a suspect driver's actions that are designed to assist an officer in observing physical characteristics associated with inebriation. Such observations do not reveal anything like the sensitive information contained in a person's electronic communication records.
¶ 36 The information revealed from FSTs is not significantly different from the information that is revealed from ordinary observation of a suspect driver's demeanor and gait. We have never considered these physical observations to constitute a search under the Fourth Amendment or under article I, section 7. Individuals do not have a privacy interest in physical characteristics that are regularly exposed to the public. See Athan, 160 Wash.2d at 374, 158 P.3d 27 (citing United States v. Mara, 410 U.S. 19, 21, 93 S.Ct. 774, 35 L.Ed.2d 99 (1973)); see also Justice Charles W. Johnson & Justice Debra L. Stephens, Survey of Washington Search and Seizure Law: 2013 Update, 36 SEATTLE U. L. REV. 1581, 1596 (2013) (no privacy interest attaches to one's personality, appearance, or behavior).
¶ 37 The fact that some of these physical observations are made because an FST requires a suspect driver to move according to a prescribed physical routine does not transform the officer's observations into a search. We have long recognized that officers may direct an individual's movement or activities to obtain information about their physical characteristics pursuant to a lawful seizure. Indeed, officers in Washington may lawfully seize individuals and require them to participate in showups or lineups, provided the amount of physical intrusion and the length of time a detainee is stopped are limited. Wheeler, 108 Wash.2d at 235-37, 737 P.2d 1005 (showup permissible seizure where officers seized individual matching description of person suspected of residential burglary, handcuffed him, placed him in a patrol car, and transported him to be identified by a witness); see also State v. Doleshall, 53 Wn.App. 69, 72, 765 P.2d 344 (1988) (where suspect was already properly under arrest for separate offense, police may require the suspect to appear in lineup "for unrelated crimes for which there may not be probable cause to arrest").
¶ 38 Detainees may also be required to provide handwriting samples or
¶ 39 Field sobriety tests are also distinguishable from activities that infringe on one's privacy interest in one's internal bodily functions. An FST does not invade or penetrate an individual's bodily integrity as does a blood draw or a breath test. Nor are the tests as intrusive as the collection of urine, historically a private activity performed without public observation. See Skinner v. Ry. Labor Execs. Ass'n, 489 U.S. 602, 617, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989). FSTs merely involve watching, walking, standing, and speaking.
¶ 40 Individuals have a constitutionally protected interest in the privacy of their internal bodily functions and fluids. York v. Wahkiakum Sch. Dist. No. 200, 163 Wn.2d 297, 308, 178 P.3d 995 (2008). We have held that the State infringes on this interest when it takes someone's blood, DNA, urine, or breath. See, e.g., State v. Garcia-Salgado, 170 Wn.2d 176, 184, 240 P.3d 153 (2010) (DNA, blood, and breath tests are searches); York, 163 Wash.2d at 308, 178 P.3d 995 (urinalysis); Robinson v. City of Seattle, 102 Wn.App. 795, 819-22, 10 P.3d 452 (2000) (urinalysis). These activities infringe on a person's privacy interests on multiple levels: the physical intrusion associated with drawing blood and urine or of extracting "deep lung" breath intrudes on an individual's privacy; and the chemical analysis associated with these tests provide a wealth of private medical information that, as the United States Supreme Court has held, infringes on the reasonable expectations of privacy. Skinner, 489 U.S. at 616-17, 109 S.Ct. 1402.
¶ 41 Mecham analogizes the FST to DNA testing or to a urinalysis and argues that field sobriety testing is a search because it is a test designed to "increase the amount and kind of observable information."
¶ 42 Field sobriety tests also provide far less private medical information than that revealed by the chemical testing of blood or urine. These tests are short in duration and limited in purpose. FSTs "are usable only for a sobriety determination." Heinemann, 105 Wash.2d at 808, 718 P.2d 789; see also Athan, 160 Wash.2d at 367-68, 158 P.3d 27 (finding no privacy interest in DNA evidence when evidence was used solely for the purpose of identification, despite the fact that DNA can potentially reveal personal, medical information). We acknowledge that an officer may also make incidental observations about the suspect's physical capabilities, psychological condition, or education. Again, this information is substantially similar to information already available to the officer during the normal course of a lawful investigation. An investigating officer is already able to draw inferences about an individual's physical abilities, coordination, education, and other inferences through observation and questioning associated with a seizure. That these observations are made as the result of a prescribed routine does not transform the activity to a search.
¶ 43 Nor are FSTs analogous to the use of technology that enhances officers' sensory perception, such as infrared imaging or vehicle-tracking devices.
¶ 44 We recognize that law enforcement's use of sensory enhancing devices to enhance their observation of suspect's activities implicates article I, section 7. See State v. Young, 123 Wn.2d 173, 183-84, 867 P.2d 593 (1994) (use of infrared to detect heat signatures associated with marijuana grow operation is a search); State v. Jackson, 150 Wn.2d 251, 261-64, 76 P.3d 217 (2003) (GPS (global positioning system) attached to a car to monitor movement is a search). However, not all technology or techniques used to augment an officer's unaided observation of a suspect transforms that observation into a search. Officers may use flashlights or binoculars, and may even conduct aerial flyovers of a suspect's property to aid their observation without infringing on a suspect's article I, section 7 rights. See, e.g., Myrick, 102 Wash.2d at 514, 688 P.2d 151 (aerial surveillance is not a search). In determining what constitutes a search, we consider whether the technology is generally available to the public as well as the amount of information revealed by the use of that technology. See, e.g., Jackson, 150 Wash.2d at 262, 76 P.3d 217 (noting GPS tracking can "reveal preferences, alignments, associations, personal ails and foibles" of the driver based on the locations visited).
¶ 45 To the extent that an FST is analogous to any investigative device, the test is probably most similar to a limited canine sniff for contraband. See State v. Hartzell, 156 Wn.App. 918, 929-30, 237 P.3d 928 (2010) (canine sniff outside of car window is not a search because suspects have no reasonable expectation of privacy in air outside a car window). Like a canine sniff, an FST reveals only a limited amount of information — and the information an FST reveals pertains only to the physical characteristics that any member of the public could perceive by simply observing the suspect's demeanor and gait. We therefore reject the analogy to the use of sensory enhancing devices.
¶ 46 We conclude that a field sobriety test is a seizure but not a search under article I, section 7 of the Washington Constitution. FSTs merely require an officer to examine the eyes, the speech, and the ability of a suspect driver to execute a prescribed routine. The information revealed from this procedure is not analogous to the types of information that we have previously afforded protection under article I, section 7. These tests are not a physical search, nor are they analogous to a search of a tangible object such as a person's garbage. The information revealed and the level of intrusion are distinct from the taking of bodily fluids, and FSTs do not reveal information analogous to private electronic information such as cell phone records or pen registers. Instead, a field sobriety test is a limited intrusion that
¶ 47 Justice Gordon McCloud's dissent ignores this rich body of case law we have developed when considering seizures of objects, documents, electronic data, publicly observable physical characteristics, bodily fluids, internal bodily functions, and devices enhancing sensory perception. See Athan, 160 Wash.2d at 366, 158 P.3d 27 ("In determining if an interest constitutes a `private affair,' we look at the historical treatment of the interest being asserted, analogous case law, and statutes and laws supporting the interest asserted."). As a result, this dissent departs from prior precedent and relies instead on a manual for training police officers for the theory that certain organic injuries or conditions can result in symptoms similar to those disclosed by an FST, which constitutes an invasion of privacy. Dissent at 433-35 (Gordon McCloud, J.). But we rejected a similar argument in Athan; when the American Civil Liberties Union (ACLU) argued that an envelope should not have been tested for DNA without a warrant because DNA can reveal private information, we held, "While this may be true in some circumstances, the State's use of Athan's DNA here was narrowly limited to identification purposes.... The State used the sample for identification purposes only, not for purposes that raise the concerns advanced by the ACLU." Athan, 160 Wash.2d at 368, 158 P.3d 27. The failure of the dissent even to acknowledge these prior decisions supports our conclusion that an FST is not a "private affair" under article I, section 7.
¶ 48 Having concluded that an FST is not a search under article I, section 7, we must also analyze whether the test is a search under the Fourth Amendment. To determine whether a search has taken place under the Fourth Amendment we consider whether the defendant possessed a "reasonable expectation of privacy." Katz v. United States, 389 U.S. 347, 360, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring). A search also occurs whenever "`the Government obtains information by physically intruding' on persons." Florida v. Jardines, ___ U.S. ___, 133 S.Ct. 1409, 1414, 185 L.Ed.2d 495 (2013) (quoting Jones, 132 S.Ct. at 950 n.3).
¶ 49 The parties do not distinguish their Fourth Amendment arguments from their arguments under article I, section 7. We therefore hold that field sobriety testing is not a search under the Fourth Amendment for the same reasons that it is not a search under article I, section 7: the test reveals only a series of physical characteristics associated with inebriation. These observations are not substantially different from simple, unaided observation of a defendant.
¶ 50 Mecham argues that the State may not comment on his decision not to consent to a field sobriety test. Washington citizens enjoy the right to refuse consent to a warrantless search without penalty; comments during trial on the exercise of that right violate the Fourth Amendment and article I, section 7. See Jones, 168 Wash.2d at 725, 230 P.3d 576; State v. Gauthier, 174 Wn.App. 257, 267, 298 P.3d 126 (2013); see also Prescott, 581 F.2d at 1351. However, the State may introduce evidence that the defendant is asserting a nonconstitutional right as evidence of consciousness of guilt at trial. See Nordlund, 113 Wash.App. at 188, 53 P.3d 520; see also South Dakota v. Neville, 459 U.S. 553, 565, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983); Stalsbroten, 138 Wash.2d at 235-37, 978 P.2d 1059 (using evidence of refusal to take a blood alcohol test permissible because "there is no constitutional right not to take the test"). Because we hold that Mecham did not have a constitutional right to refuse the FSTs, we also hold that the State did not violate his constitutional rights when it presented
¶ 51 This case has spawned a partial concurrence and two dissenting opinions, each on different and incompatible grounds.
¶ 52 The partial concurrence agrees that an FST is a seizure and not a search. Partial concurrence at 430-31. The opinion further agrees that an FST is a permissible seizure under Terry when the officer has a reasonable suspicion of impaired driving. Id. However, the partial concurrence goes on to conclude that the State no longer has authority of law to conduct an FST following an arrest because the justifications for investigating a crime evaporate when a suspect is arrested for a separate crime. See id. at 431-32. The partial concurrence bases this conclusion on the theory that continued investigations under Terry must be related to justification for the initial seizure, and once a suspect is under arrest for an unrelated crime, an FST's only purpose is to gather evidence of a crime — thus transforming the FST into a search. Id. Accordingly, reasons the opinion, once Mecham was arrested and safely detained, Officer Campbell could no longer perform an FST. Id. at 431-32.
¶ 53 The reasoning of the partial concurrence misapprehends the scope of a Terry stop, which allows for the detection and prevention of crime, as the Terry court explained. One government interest in Terry stops is "effective crime prevention and detection; it is this interest which underlies the recognition that a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest." Terry, 392 U.S. at 22, 88 S.Ct. 1868. After Officer Campbell arrested and detained Mecham, he was legally authorized under the principles of Terry to continue his investigation of Mecham's intoxication.
¶ 54 The partial concurrence leads to the ironic result that a police officer can ask a citizen encountered on the street to submit to an FST but cannot ask an arrested suspect to submit to an FST. To the contrary, after arresting a suspect, the police are authorized to investigate crimes for which their suspicion is aroused and preserve evidence. Cf. State v. Byrd, 178 Wn.2d 611, 618, 310 P.3d 793 (2013) (custodial arrest provides "authority of law" under article I, section 7 to search arrestee because arrest "always implicate[s] Chimel[
¶ 55 Finally, the partial concurrence is contrary to Mecham's own argument. Mecham acknowledges that he was under arrest, and he does not challenge the lawfulness of the seizure. His briefing properly recognizes that Terry separately authorizes "a brief investigative detention and a frisk for weapons that may harm the officer" — he argues only that neither Terry nor any other exception to the warrant requirement authorized an evidentiary search. Suppl. Br. of Pet'r at 19-20. However, an FST is not an evidentiary search; it is a "brief investigative detention" — also known as a "Terry investigative stop" — that "allows an officer to briefly stop and detain a person without a warrant when the officer reasonably suspects that the person is engaged in criminal conduct."
¶ 56 Justice Gordon McCloud's dissent argues that an FST is a search, a position adopted by neither the partial concurrence nor the other dissent. See discussion supra pp. 12-13. We thoroughly address and reject this argument in Part III of this opinion, supra.
¶ 57 The second dissent relies on an argument not adopted by either the other dissent or the partial concurrence — that the State may never use evidence of a refusal to consent to a police officer's request when the officer tells the suspect driver that consent is voluntary but fails to tell the driver that refusal may be used as evidence of consciousness of guilt. Dissent (Johnson, J.) at 432. This dissent explicitly grounds its argument in policy, arguing fairness and notions of justice. However, the United States Supreme Court has rejected this argument, holding that FSTs do not implicate the Fifth Amendment. See Neville, 459 U.S. at 565, 103 S.Ct. 916 ("[W]e do not think it fundamentally unfair for South Dakota to use the refusal to take the [FST] as evidence of guilt, even though respondent was not specifically warned that his refusal could be used against him at trial."); see also Stalsbroten, 138 Wash.2d at 235-36, 978 P.2d 1059. Though this dissent does not address these cases, which were acknowledged and briefed by the parties, we agree with their reasoning and hold in part V of this opinion, supra, that the State is prohibited only from presenting evidence that the defendant refused to waive a constitutional right. Accord Nordlund, 113 Wash.App. at 188, 53 P.3d 520.
¶ 58 For these reasons, we decline to adopt the reasoning of the partial concurrence or the two dissents.
¶ 59 We would hold that a field sobriety test is a seizure that may be justified under the doctrine of Terry. Therefore, Mecham did not have a constitutional right to refuse the FSTs and the trial court properly admitted evidence of Mecham's refusal as evidence of consciousness of guilt against him at trial. We also would hold that an FST is not a search under our state and federal constitutions and therefore need not consider the State's request to decide alternative issues that were brought up on appeal but not addressed below.
¶ 60 Our opinion notwithstanding, five justices of this court reverse the Court of Appeals, reverse Mecham's conviction, and remand for a new trial and further proceedings.
WE CONCUR.
Madsen, J.
González, J.
Yu, J.
FAIRHURST, J. (concurring in part and dissenting in part).
¶ 61 I agree with the lead opinion that field sobriety tests (FSTs) as they are normally used — either (1) following a traffic stop based on evidence of impaired driving or (2) following a stop for an unrelated offense where the officer immediately discovers signs of impairment but the suspect is not yet under arrest — are seizures that may be justified under Terry.
¶ 63 I disagree with the lead opinion that under the facts of this case, the FSTs were merely a seizure. I arrive at this conclusion because the reasonable suspicion needed to justify an officer's continued investigation under Terry must arise at the inception of the contact and the continued seizure must be tied to the justification underlying that initial contact. See Ladson, 138 Wash.2d at 350, 979 P.2d 833; Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) ("The scope of the detention must be carefully tailored to its underlying justification.").
¶ 64 In the present case, the Terry stop was not "carefully tailored to its underlying justification" because justification for the initial seizure (the outstanding warrant) was wholly unrelated to the justification for the FSTs. More importantly, Officer Campbell did not discover the justification for the FSTs until after Mecham was already under formal arrest, a point the lead opinion acknowledges but does not address. See lead opinion at 419 ("Following arrest, Officer Campbell smelled intoxicants on Mecham's breath and noticed that Mecham's movements were sluggish and that his speech was slurred and repetitive." (emphasis added)). Thus, the Terry analysis, if applicable at all, must begin anew at the time the officer formed his suspicion that Mecham was intoxicated. Even here, under normal circumstances, I believe there would be sufficient facts to justify an extension of the traffic stop under Terry. However, the situation presents a unique problem because Mecham was formally arrested for a different offense both when the officer formed his suspicion that Mecham was driving impaired as well as when the officer requested that Mecham perform the FSTs.
¶ 65 We have been clear that "Terry does not authorize a search for evidence of a crime." Day, 161 Wash.2d at 895, 168 P.3d 1265. Therefore, while Terry could have been used to extend the traffic stop in order to confirm or dispel Officer Campbell's suspicions after the traffic stop but prior to arrest, Terry is simply inapplicable following arrest. I can find no authority that justifies expanding Terry from a "`brief investigative detention'" to a doctrine that permits law enforcement to redetain someone who has already been arrested for an unrelated offense. Lead opinion at 430 (quoting Suppl. Br. of Pet'r at 19). Officer Campbell's sole purpose in seeking to compel Mecham to perform FSTs, postarrest, was to gather evidence of Mecham's guilt for driving under the influence. This being so, under both the Fourth Amendment to the United States Constitution and article I, section 7 to the Washington Constitution, Officer Campbell
¶ 66 Terry operates as one of only a few "`jealously and carefully drawn'" exceptions to the warrant requirement. See id. at 349, 979 P.2d 833 (internal quotation marks omitted) (quoting State v. Houser, 95 Wn.2d 143, 149, 622 P.2d 1218 (1980)). Although I agree with the lead opinion that under different circumstances FSTs constitute only a seizure, we should refrain from expanding the brief investigative Terry stop to cover individuals already under formal arrest for unrelated offenses.
¶ 67 Accordingly, I concur in part and dissent in part.
JOHNSON, J. (dissenting).
¶ 68 The lead opinion overcomplicates and confuses the issue this case presents. In doing so, the lead opinion loses track of the fundamental nature of what this case concerns — that is, a citizen's right to choose to do something or not. The officer here requested that the defendant perform specific voluntary actions, which the defendant chose not to do. For the principles of voluntariness or consent to have any meaning, the only conclusion flowing from this choice is simply that — a choice was made. No evidentiary relevance should flow from this choice. The conviction should be reversed and the case remanded for a new trial.
¶ 69 The lead opinion goes off track by relying mostly, if not exclusively, on cases challenging the admissibility of evidence of field sobriety tests (FSTs) where the tests were performed and the results were admitted as substantive evidence of guilt. The evidence was challenged on appeal. The essence of the reasoning of these cases is that, since the tests are voluntary, when a person consents to performing the tests, he or she is bound to that choice, good or bad. Moreover, no logical or legal sense exists for those cases to even analyze consent and uphold the admissibility of evidence at trial outside the context of a "search." Those cases have little, if any, relevance here except the recognition that a person possesses the right to choose and that when valid consent to a search exists, the results are admissible.
¶ 70 Underscoring the consensual nature of this request is, unlike the statutory requirement established under our implied consent statutes and laws here, where an officer asks a person to perform the FSTs, no warnings, statutory or otherwise, are required advising the person of the consequences of refusal. Perhaps the statute could be revised to include FSTs and consequences of refusal, but the legislature has not acted to do so. That should logically mean that a person retains the fundamental right to choose.
¶ 71 Remarkably, and without citing any relevant case authority, the lead opinion concludes this evidence is admissible to establish consciousness of guilt,
¶ 72 What the lead opinion fails to acknowledge is that implicit in Nordlund, absent the authority of the court order, a person retains the right to choose to refuse. This principle was correctly recognized and analyzed by the court in State v. Gauthier, 174 Wn.App. 257, 298 P.3d 126 (2013), where the court reversed a conviction in which the prosecutor had improperly used at trial evidence that the defendant had refused consent to a warrantless search of his DNA (deoxyribonucleic acid). The exercise of the right to choose is not consciousness of guilt — the only consciousness the cases establish is a person made the conscious decision to choose.
¶ 73 Finally, the lead opinion erroneously reasons that the defendant's interests emanate from the common law, not constitutional principles, and are therefore not protected from comment or use against the defendant at trial. This conclusion, which seems to be at the core of the lead opinion's analysis, makes no sense from an overall constitutional perspective. It should make no difference whether a principle is recognized as a privacy interest under article I, section 7 of the Washington Constitution,
¶ 74 Especially important to cases like this one are facts such as that Mark Mecham was already under arrest and the officer was not engaging in a casual conversation concerning sports or the weather but was asking Mecham to voluntarily perform "tests" specifically designed and intended to elicit incriminating evidence. Under these circumstances, the choice in exercising the right to refuse consent should be recognized and protected. Fundamental principles of fairness arise where an officer misleads a person into making a choice only to result in the choice being used against them.
¶ 75 The constitution and the rights and principles are not foreign or divorced from the common law, as the lead opinion evidently believes. The constitution reflects and is founded on basic rights in existence at its adoption from the common law. The conviction should be reversed and the matter remanded for a new trial.
GORDON McCLOUD, J. (dissenting).
¶ 76 I agree with the lead opinion that a field sobriety test (FST) is a seizure, under article I, section 7 of the Washington Constitution, to the extent that "when an officer administers an FST, the suspect driver is not free to return to the vehicle and drive away." Lead opinion at 423 (citing State v. Young, 135 Wn.2d 498, 510, 957 P.2d 681 (1998)). And I agree that a warrantless FST must therefore be predicated, in the first instance, on an officer's reasonable suspicion that criminal activity is afoot. Lead Opinion at 423; State v. Gatewood, 163 Wn.2d 534, 539, 182 P.3d 426 (2008) ("Terry [v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968),] requires a reasonable, articulable suspicion, based on specific, objective facts, that the person seized has committed or is about to commit a crime.'" (emphasis in original) (quoting State v. Duncan, 146 Wn.2d 166, 172, 43 P.3d 513 (2002))).
¶ 77 But I disagree with the lead opinion's conclusion that an FST is not a search under the Fourth Amendment to the United States Constitution or under article I, section 7 of the Washington Constitution. Like the vast majority of courts that have addressed the issue, I conclude that an FST is a search for purposes of constitutional analysis.
¶ 78 Having reached that conclusion, I next address whether such a search is constitutionally
¶ 79 As the lead opinion correctly observes, a search occurs for purposes of article I, section 7 "when the government disturbs `those privacy interests which citizens of this state have held, and should be entitled to hold, safe from governmental trespass absent a warrant.'" State v. Hinton, 179 Wn.2d 862, 868, 319 P.3d 9 (2014) (emphasis omitted) (quoting State v. Myrick, 102 Wn.2d 506, 511, 688 P.2d 151 (1984)). The lead opinion holds that FSTs are not searches under this standard because they reveal only "physical characteristics that any observer might see upon casual observation of a person under the influence of drugs or alcohol." Lead opinion at 425.
¶ 80 I disagree. An FST can reveal information about a person's body and medical history that are unquestionably private in nature. According to the National Highway Traffic Safety Administration (NHTSA), in addition to possible inebriation, FSTs can reveal a head injury, neurological disorder, brain tumors or damage, and some inner ear diseases. Int'l Ass'n of Chiefs of Police & NHTSA, DWI Detection and Standardized Field Sobriety Testing, March 2013 Edition, Participant Guide at 13, 16, www.wsp.wa.gov/breathtest/docs/dre/manuals/SFST_basic_dwidetect/2013/student_mar_2013_SFSTbasic.pdf [https://perma.cc./H9HRA78U].
¶ 81 I also conclude that FSTs are searches under the Fourth Amendment to the United States Constitution. In addition to revealing sensitive personal information, an FST is at least as "annoying" and publicly "humiliating" as the limited frisk for weapons at issue in Terry. 392 U.S. at 24-25, 88 S.Ct. 1868 ("Even a limited search of the outer clothing for weapons constitutes a severe, though brief, intrusion upon cherished personal security, and it must surely be an annoying, frightening, and perhaps humiliating experience.") These aspects of the Terry frisk — as much as any potential for a pat down to reveal sensitive personal information — were crucial to the Court's decision that the Fourth Amendment limits officer conduct during an investigative detention. Id. at 16-17, 88 S.Ct. 1868. And they led the Court to "emphatically reject" the argument that a Terry frisk is not a "`search' ... within the meaning of the Constitution":
Id. (footnotes omitted).
¶ 82 Field sobriety tests implicate similar concerns.
¶ 83 Because an FST is a search, for purposes of constitutional analysis, Mecham had an absolute constitutional right to refuse to perform any FSTs unless an exception to the warrant requirement applied. See lead opinion at 422 (if defendant has a constitutional right to refuse participation in an FST, then State may not admit refusal evidence at trial). In this case, the State argues that two different exceptions applied. First, it argues that the warrantless FSTs were a Terry stop; second, it argues that the warrantless FSTs were a search incident to arrest. Given the peculiar facts of this particular case, both arguments fail.
¶ 84 In the context of a Terry stop — an investigative detention predicated on reasonable suspicion that criminal activity is afoot — the Fourth Amendment permits only a "limited search" of the suspect's "outer clothing" for weapons, Terry, 392 U.S. at 30-31, 88 S.Ct. 1868. This search is not necessarily permitted in every Terry stop; instead, an officer may conduct this "limited search" only if he or she has a "reasonable fear" that the suspect is armed and dangerous. Id. An officer may not conduct a Terry search for purely evidentiary purposes — that is strictly barred by the Fourth Amendment. Id.
¶ 85 While the search approved in Terry was a pat down of the suspect's "outer clothing," id. the United States Supreme Court has since defined permissible Terry searches more abstractly as "protective search[es] ... `limited to that which is necessary for the
¶ 86 In this case, the Court of Appeals held that even if an FST is a search under the state and federal constitutions, it is analogous to a Terry frisk and is permissible without a warrant if "the degree of intrusion [is] appropriate to ... [the defendant's] probable dangerousness." State v. Mecham, 181 Wn.App. 932, 941, 331 P.3d 80, review granted, 181 Wn.2d 1014, 337 P.3d 325 (2014). In other words, the Court of Appeals reasoned that a drunk driver behind the wheel is like a concealed weapon, for which an officer may conduct a limited search during a Terry stop. The court further held that the balance of interests justified the search in this case: "The attendant intrusion was... appropriate given [the officer's] training and Mecham's evident intoxication ... [the] request for Mecham to perform a field sobriety test was justified under the Terry stop exception to the warrant requirement." Id. at 945, 331 P.3d 80.
¶ 87 In the usual case, the Court of Appeals' conclusion may well be correct. Indeed, nearly every jurisdiction that has addressed the issue has approved warrantless FSTs under Terry.
¶ 88 But this case is different. In this case, the subject of the FST, Mecham, posed absolutely no risk to public safety: he was already handcuffed and under arrest when the officer asked him to perform the tests and therefore presented no possibility of returning to his car to drive drunk. Lead opinion at 419-20.
¶ 90 The FST in this case was a purely evidentiary search prohibited under Terry. Thus, Terry's exception to the warrant requirement did not apply.
¶ 91 The State also argues that because Mecham was under arrest when the officer asked him to perform the FSTs, the FSTs were a valid "intrusion incident to arrest." Suppl. Br. of Resp't at 19. It cites this court's decision in State v. Byrd, which reasoned that "[t]he authority to search an arrestee's person and personal effects flows from the authority of a custodial arrest itself." 178 Wn.2d 611, 618, 310 P.3d 793 (2013) (citing United States v. Robinson, 414 U.S. 218, 232, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973)). The State argues that, excluding certain extremely invasive searches, "the full search of a person under lawful arrest is per se reasonable." Suppl. Br. of Resp't at 20 & n.4 (citing Robinson, 414 U.S. at 235, 94 S.Ct. 467).
¶ 92 This argument is meritless. Officers may always search an arrestee's person incident to arrest, but that is because certain "exigencies are presumed when an officer searches an arrestee's person." Byrd, 178 Wash.2d at 620, 310 P.3d 793 (emphasis omitted). Specifically, it is presumed that the arrestee may be concealing a weapon or destructible evidence — these are the only two "exigencies" that can justify a search incident to arrest. Id. at 617-18, 310 P.3d 793.
¶ 93 Mecham's possible intoxication is neither a weapon endangering officer safety nor evidence that Mecham might have destroyed. Thus, an FST — a search that served only to uncover this intoxication — does not fall within the search incident to arrest exception.
¶ 94 Mecham posed no risk to public safety once he was placed under arrest, so the FST at issue in this case was a purely evidentiary search. That search was therefore unconstitutional. As all parties and the lead opinion agree, a person has a right to refuse an unconstitutional search and the prosecution "may not comment on a refusal to waive a constitutional right." Lead opinion at 422.
Stephens, J.
