RILEY, J.
. . . [I]n Arizona v. Gant, 129 S.Ct. 1710 (2009), the United States Supreme Court significantly limited the ability of law enforcement to search a vehicle incident to arrest. Specifically, the Court held that “[p]olice may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest.” Id. at 1723. “When these justifications are absent, a search of an arrestee’s vehicle will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies.” Id. at 1723-24. Further, the Court also observed that “[i]n many cases, as when a recent occupant is arrested for a traffic violation, there will be no reasonable basis to believe that the vehicle contains relevant evidence.” Id. at 1719.
. . . [W]e find that no legitimate concern for officer safety existed to justify Officer Joson’s search of Lewis’ car. Upon initiating a traffic stop of Lewis’ vehicle, Officer Joson determined that Lewis’ driver’s license was suspended and decided to arrest him for driving with a suspended license. After Lewis exited the vehicle, Officer Joson handcuffed him and advised him of his arrest. Additionally, when the Officer asked Lewis if there were any drugs or weapons on his person or in the vehicle, Lewis responded that there were no drugs in the car.
The State now seizes on this statement to claim that this was an indicator that there could possibly be a weapon in the car and therefore the Officer was rightfully concerned for his safety. While Officer Joson might have been concerned about his safety, in light of the facts, we do not believe this concern to be legitimate. Although we understand Officer Joson’s apprehension when Lewis did not respond to his question as to whether he had any weapons on his person or in his car, the passenger was allowed to remain in the car, unsupervised and unrestrained. At that point, Officer Joson, if concerned about his safety, could assume that the passenger had the ability to immediately access any weapon that might be inside the vehicle. Yet, despite this potential concern for his safety, Officer Joson “stuck [his] head” inside the driver’s side door to tell the passenger to get out of the vehicle because Lewis “was being [placed] under arrest for driving while suspended with the intent of possibly towing the vehicle.” (Transcript p. 16). Even though the record does not reveal how far the Officer leaned into the driver’s side door, it was sufficiently far to discover a semi-automatic handgun stuck between the driver’s seat and the center console. We fail to see why and whether it was necessary for Officer Joson to lean into the vehicle to speak with the passenger. Moreover, as the testimony reflects, Officer Joson did not order the passenger out of the vehicle because he feared for his safety, but rather he told her to get out of the vehicle because Lewis was being arrested and because the vehicle might get towed.
While we do not diminish an officer’s safety concern when patrolling the streets, in the case before us, Officer Joson’s actions clearly indicate that his apprehension did not rise to the level of a legitimate concern. Therefore, we conclude that the State failed to satisfy its burden of showing that the warrantless search of the vehicle and the seizure of the gun were satisfied.
We disagree with the State’s claim that our holding today might construe a bright line rule that a police officer can never lean into a vehicle or reposition himself to obtain a better vantage point under the Fourth Amendment. Rather, officers may lawfully position themselves in any manner of ways outside of the vehicle as long as they do not cross into a constitutionally protected area. As soon an officer crosses into a constitutionally protected area without the benefit of a recognized exception to the Fourth Amendment, like here, he is no longer rightfully positioned and is violating the defendant’s constitutional rights.
For similar reasons, we find that Officer Joson’s search of Lewis’ car violated Article 1, Section 11 of the Indiana Constitution. . . . .
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Here, while Officer Joson testified during the trial that he was concerned about officer safety, his actions indicated otherwise. Even though Lewis made a qualified response to Officer Joson’s question about drugs or weapons in the vehicle, the passenger was nevertheless free to remain in the vehicle while unsecured and unsupervised. Instead of exhibiting a concern for his safety when getting the passenger out of the vehicle, Officer Joson stuck his head into the driver’s side door and told the passenger to exit the car because Lewis was being arrested and the car might get towed. Based on the totality of the circumstances, we cannot conclude that the State satisfied its burden that Officer Joson’s intrusion in Lewis’ vehicle was reasonable pursuant to Article 1, Section 11 of the Indiana Constitution.
KIRSCH, J., concurring in result with separate opinion:
The record before us fails to answer each of the following questions: (1) Where was the officer when he first saw the gun? (2) How far did the officer lean into the vehicle through the open driver’s side door? (3) Why did the officer fail to take any action to determine the ownership of the car before deciding that the car would have to be towed? (4) Why it was necessary for the officer to lean into the vehicle to speak with the passenger? (5) Whether the officer placed his hand on the driver’s seat when he leaned into the car? (6) If so, whether and to what extent the officer pressed down on the driver’s seat in any way when he leaned into the vehicle; (7) Where the gun was located vis-à-vis the driver’s seat and the center console? (8) Whether the gun was in plain view? (9) Whether the gun would have been visible from outside the vehicle? (10) Finally, and perhaps most critically: If, as State contends, the warrantless search here at issue was justified because of officer safety concerns, why did the officer act contrary to those concerns and to established police safety protocols in approaching the vehicle on the side closest to traffic and in leaning into the vehicle through an open car door to confront an unknown, and potentially dangerous, passenger who may have had ready access to a gun?
In the absence of answers to the foregoing questions, the State failed to satisfy its burden of showing that the warrantless search of the vehicle and the seizure of the gun were justified.
MATHIAS, J., dissenting with separate opinion:
I respectfully dissent. I would conclude that the search of Lewis’s vehicle did not violate the Fourth Amendment of the United States Constitution or Article 1, Section 11 of the Indiana Constitution.
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Each Fourth Amendment and/or Article 1, Section 11 case is extraordinarily fact-sensitive. I can wish in 20/20 hindsight that the record was a bit more complete in explaining why Officer Joson chose to walk back to the vehicle and lean into the area of the open driver’s door to order the female passenger to exit the vehicle in preparation for the tow, rather than use the onboard public address system that is part of most every police vehicle. Similarly, I can wish that Officer Joson had been asked and fully explained on the record why he still felt concerned for his safety if he was willing to lean into the area of the open driver’s door.
The officer safety exception to the warrant requirement in the context of a motor vehicle at the side of a road will never fit within bright line rules, and I am concerned that Judge Riley’s opinion begins to take the law there. Officer Joson’s behavior, while questionable in purely logical terms, was human. He knew that there might well be a weapon in the vehicle and that there was a passenger who remained there. Under the unique facts and circumstances of this case, those two pieces of information were enough to justify the warrantless search of this particular vehicle at the side of the road.