State v. Mecham

380 P.3d 414, 186 Wash. 2d 128

Opinions

[As amended by order of the Supreme Court September 6, 2016.]

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.

FACTS

I. Factual history

¶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 Miranda¹ rights from a department issued card.

¶7 Following arrest, Officer Campbell smelled intoxicants on Mecham’s breath and noticed that Mecham’s move- merits were sluggish and that his speech was slurred and repetitive. He also observed an open beer can with a straw behind the passenger seat of Mecham’s vehicle. Believing that Mecham was intoxicated, Officer Campbell asked Mecham if he would consent to perform FSTs in order to determine whether he was, in fact, intoxicated.

¶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 (BAC) 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.² This time Mecham was informed that while he had the right to refuse, his license would be revoked or suspended and that his refusal could be used against him in a criminal trial. Mecham signed a form stating that he understood the consequences of refusing to submit to a breath test. Officer Campbell repeated that the breath test was voluntary and asked Mecham whether he would agree to take the breath test. Mecham responded that his attorney advised him not to answer any further questions. Officer Campbell asked Mecham a second and third time to take the breath test, and Mecham refused based on his attorney’s advice.

¶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 BAC. Officer Campbell transported Mecham to Overlake Hospital Medical Center, 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 0.05 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 0.065 g/100 ml within two hours after he stopped driving and possibly as high as 0.08 g/100 ml. The State charged Mecham with one count of felony driving under the influence (DUI).

II. Procedural history

¶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 four 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:

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

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

¶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 Terry4 stop exception to the warrant requirement.⁵ Id. The court further held that the State did not impermissibly comment on Mecham’s refusal because Mecham did not have a constitutional right to refuse the test. Id. at 946.

¶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.

ANALYSIS

¶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.⁶ However, the absence of a statutory right of refusal has no effect on the admissibility of refusal testimony in the context of FSTs—the admissibility rests on whether constitutional privileges apply Id. at 236-37.

¶19 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 Fourth and Fifth 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.⁷ Both Washington’s constitution and the federal constitution bestow a right to be free from unlawful searches and seizures. Wash Const. art. I, § 7; U.S. Const. amend. IV. Mecham argues that FSTs are searches subject to these constitutional provisions because they reveal private information that is not voluntarily exposed to the public view. We reject this argument because FSTs reveal only some physical characteristics associated with inebriation, none of which is substantially different from the characteristics a person would observe from simple observation of the defendant. These characteristics are not analogous to the types of information that we have previously accorded protection under article I, section 7. We therefore hold that while a field sobriety test is a seizure, it is not a search either under article I, section 7 of the Washington Constitution or under the Fourth Amendment to the United States Constitution.

¶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.

I. Standard of review

¶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).

II. A field sobriety test is a seizure

¶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 limited. State v. Wheeler, 108 Wn.2d 230, 235, 737 P.2d 1005 (1987). The length of this Terry stop may change: officers may reasonably extend the length of the stop if their suspicions are either confirmed or further aroused.⁸ State v. Acrey, 148 Wn.2d 738, 747, 64 P.3d 594 (2003). Terry stops must be analyzed on a case-by-case basis. United States v. Mendenhall, 446 U.S. 544, 561, 100 S. Ct. 1870, 64 L. Ed. 2d 497 (1980) (Powell, J., concurring).

¶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 Wn.2d at 809 (seizure and questioning in FSTs permissible under Fourth Amendment and article I, section 7). Numerous other states hold that an FST is a lawful seizure when the officer has a reasonable suspicion that an individual is driving under the influence of drugs or alcohol and the detention is limited in scope and duration to assessing a driver’s intoxication. See, e.g., State v. Wyatt, 67 Haw. 293, 305, 687 P.2d 544 (1984) (FSTs are seizures, not searches, despite officer’s direction for defendant to execute a physical routine for the purpose of gathering evidence of criminal activity); State v. Bernokeits, 423 N.J. Super. 365, 374, 32 A.3d 1152 (2011) (FST is a reasonable seizure); State v. Little, 468 A.2d 615, 617-18 (Me. 1983) (same). Recognizing that authority of law authorized the FST prearrest, we hold that Campbell had authority of law for the FST postarrest.

¶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 17 cases in a footnote and concluding that “12 treat an FST as a search for purposes of the Fourth Amendment analysis adopted in Terry . . . .” Dissent at 160-61 & n.1 (Gordon McCloud, J.) (citations omitted). This 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 [v. Municipality of Anchorage, 999 P.2d 155 (Alaska Ct. App. 2000)], [State v.] Grier[, 791 P.2d 627 (Alaska Ct. App. 1990)] and Romo v. [Municipality of] Anchorage[, 697 P.2d 1065 (Alaska Ct. App. 1985)] confirm that, in Alaska, police do not need probable cause sufficient for an arrest before requesting typical field sobriety tests.” (emphasis added) (footnote omitted)). Another case cited, State v. Golden, never once mentions the word “search” and instead analyzes FSTs as lawful seizures. See 171 Ga. App. 27, 30, 318 S.E.2d 693 (1984). The remaining cases conclude that an FST is a search, but break from Washington law by permitting a “search” on less than probable cause. See, e.g., State v. Lamme, 19 Conn. App. 594, 600-01, 563 A.2d 1372 (1989) (rejecting probable cause standard and holding that roadside sobriety tests may be justified by reasonable suspicion), aff’d, 216 Conn. 172, 579 A.2d 484 (1990); State v. Royer, 276 Neb. 173, 179, 753 N.W.2d 333 (2008) (field sobriety test is a reasonable search).

¶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, 569 U.S. 141, 160, 133 S. Ct. 1552, 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.

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

¶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.

A. General expectations of privacy

¶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 Wn.2d at 511). In determining whether a privacy interest exists, the court considers both the historical protection afforded to the interest asserted and “the 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 con sider 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 might see upon casual observation of a person under the influence of drugs or alcohol. FSTs thus do not invade a person’s reasonable expectations of privacy.

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

¶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. State v. McKinney, 148 Wn.2d 20, 27-29, 60 P.3d 46 (2002). 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 Wn.2d at 869 (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, 565 U.S. 400, 415, 132 S. Ct. 945, 181 L. Ed. 2d 911 (2012) (Sotomayor, J., concurring)); State v. Gunwall, 106 Wn.2d , 720 P.2d 808 (1986) (article I, section 7 protects privacy interests implicated in telephone records and pen registers). Instead, FSTs are an officer’s observations of a suspect driver’s actions that are designed to assist an officer in observing physical characteristics associated with inebriation. Such observations do not reveal anything like the sensitive information contained in a person’s electronic communication records.

C. Publicly observable physical characteristics

¶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 Wn.2d at 374 (citing United States v. Mara, 410 U.S. 19, 21, 93 S. Ct. 774, 35 L. Ed. 2d 99 (1973)); see also Justice Charles W. Johnson & Justice Debra L. Stephens, Survey of Washington Search and Seizure Law: 2013 Update, 36 Seattle U. L. Rev. 1581, 1596 (2013) (no privacy interest attaches to one’s personality, appearance, or behavior).⁹

¶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 his or her physical characteristics pursuant to a lawful seizure. In deed, officers in Washington may lawfully seize individuals and require them to participate in showups or lineups, provided the amount of physical intrusion and the length of time a detainee is stopped are limited. Wheeler, 108 Wn.2d at 235-37 (showup permissible seizure where officers seized individual matching description of person suspected of residential burglary, handcuffed him, placed him in a patrol car, and transported him to be identified by a witness); see also State v. 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 voice exemplars; none of these activities are searches despite the fact that they are obtained as the result of activity that is compelled by an investigating officer. See State v. Collins, 152 Wn. App. 429, 439-40, 216 P.3d 463 (2009) (directive to provide a voice sample does not infringe on a privacy interest (citing United States v. Dionisio, 410 U.S. 1, 14, 93 S. Ct. 764, 35 L. Ed. 2d 67 (1973))); Mara, 410 U.S. at 21-22 (directive to produce handwriting sample does not infringe on privacy interest). During a lawful seizure— such as a traffic stop—officers have the authority to order suspects to produce identification, to step out of and away from their vehicles, and to perform other limited movements. See, e.g., State v. O’Neill, 148 Wn.2d 564, 582, 62 P.3d 489 (2003) (during seizure, officer may require driver to exit vehicle “ ‘regardless of whether the driver is suspected of being armed or dangerous or whether the offense under investigation is a serious one’ ” (quoting Justice Charles W. Johnson, Survey of Washington Search and Seizure Law: 1998 Update, 22 Seattle U. L. Rev. 337, 461 (1998))). Each of these orders enables the officer to observe the suspect’s psychological condition and physical capabilities that he or she may not have exposed to the public without the officer’s direction—producing identification may even provide the officer with probable cause to arrest a suspect of a crime. But none of these activities are searches.

D. Privacy interest in bodily fluids and internal bodily functions

¶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) (plurality opinion). We have held that the State infringes on this interest when it tests 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 Wn.2d at 308 (urinalysis); Robinson v. City of Seattle, 102 Wn. App. 795, 819-22, 10 P.3d 452 (2000) (urinalysis). These activities infringe on a person’s privacy interests on multiple levels: the physical intrusion associated with drawing blood and urine or of extracting “deep lung” breath intrudes on an individual’s privacy; and the chemical analysis associated with these tests provide a wealth of private medical information that, as the United States Supreme Court has held, infringes on the reasonable expectations of privacy. Skinner, 489 U.S. at 616-17.

¶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.”¹⁰ He acknowledges that information about balance and coordination may be readily accessible to the public but asserts the field sobriety testing elicits additional information about a suspect driver’s medical conditions, psychological condition, and physical capabilities “that [the] defendant would not have exposed to the public without the officer’s direction.” Nagel, 320 Or. at 31. But the information revealed by FSTs does not differ significantly from the information that is revealed from ordinary observation of a suspect driver’s demeanor and gait. Furthermore, as discussed in Section III.C of this opinion, supra, the fact that these characteristics are observed as the result of compelled action means that they are performed pursuant to seizure—but it does not transform the activity into a search.

¶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 Wn.2d at 808; see also Athan, 160 Wn.2d at 367-68 (finding no privacy interest in DNA evidence when evidence was used solely for the purpose of identification, despite the fact that DNA can potentially reveal personal, medical information). We acknowledge that an officer may also make incidental observations about the suspect’s physical capabilities, psychological condition, or education. Again, this information is substantially similar to information already available to the officer during the normal course of a lawful investigation. An investigating officer is already able to draw inferences about an individual’s physical abilities, coordination, education, and other inferences through observation and questioning associated with a seizure. That these observa tions are made as the result of a prescribed routine does not transform the activity to a search.

E. Devices enhancing sensory perception

¶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 suspects’ 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 Wn.2d at 514 (aerial surveillance is not a search). In determining what constitutes a search, we consider whether the technology is generally available to the public as well as the amount of information revealed by the use of that technology. See, e.g., Jackson, 150 Wn.2d at 262 (noting GPS tracking can “reveal preferences, alignments, associations, personal ails and foibles” of the driver based on the locations visited).

¶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 re veals 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.

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

¶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 reveals some physical characteristics associated with inebriation. This information is revealed during the officer’s investigation pursuant to a seizure; an FST is a seizure, but it is not a search under article I, section 7.¹¹

¶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 Wn.2d at 366 (“In determining if an interest constitutes a ‘private affair,’ we look at the historical treatment of the interest being asserted, analogous case law, and statutes and laws supporting the interest asserted.”). As a result, this dissent departs from prior prec edent 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 162 (Gordon McCloud, J.). But we rejected a similar argument in Athan; when the American Civil Liberties Union (ACLU) argued that an envelope should not have been tested for DNA without a warrant because DNA can reveal private information, we held, “While this may be true in some circumstances, the State’s use of Athan’s DNA here was narrowly limited to identification purposes .... The State used the sample for identification purposes only, not for purposes that raise the concerns advanced by the ACLU.” Athan, 160 Wn.2d at 368. The failure of the dissent even to acknowledge these prior decisions supports our conclusion that an FST is not a “private affair” under article I, section 7.

IV. Fourth Amendment analysis

¶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, 569 U.S. 1, 5, 133 S. Ct. 1409, 185 L. Ed. 2d 495 (2013) (quoting Jones, 565 U.S. at 406 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.

V. Refusal testimony

¶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 warrant-less search without penalty; comments during trial on the exercise of that right violate the Fourth Amendment and article I, section 7. See Jones, 168 Wn.2d at 725; State v. Gauthier, 174 Wn. App. 257, 267, 298 P.3d 126 (2013); see also Prescott, 581 F.2d at 1351. However, the State may introduce evidence that the defendant is asserting a non-constitutional right as evidence of consciousness of guilt at trial. See Nordlund, 113 Wn. App. at 188; see also South Dakota v. Neville, 459 U.S. 553, 565, 103 S. Ct. 916, 74 L. Ed. 2d 748 (1983); Stalsbroten, 138 Wn.2d at 235-37 (using evidence of refusal to take a blood alcohol test permissible because “there is no constitutional right not to take the .. . test”)- Because we hold that Mecham did not have a constitutional right to refuse the FSTs, we also hold that the State did not violate his constitutional rights when it presented evidence against him at trial of his refusal to consent.

VI. Response to dissenting opinions

¶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 154. 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 155. 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 155-56.

¶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. 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[12] concerns for officer safety and evidence preservation” (emphasis added)). Indeed, we have recognized that officers can continue to compel individuals to engage in activities that are otherwise recognized as sei zures following arrest for unrelated crimes without infringing on their privacy interests. For example, “[c]ompelling a person to appear in a physical lineup constitutes a ‘seizure’ regulated by the Fourth Amendment.” In re Armed Robbery, 99 Wn.2d 106, 108-09, 659 P.2d 1092 (1983). Police may require a suspect already under arrest for one crime to appear in a lineup for unrelated crimes without infringing on the suspect’s privacy interests. Doleshall, 53 Wn. App. at 72; accord People v. Hodge, 186 Colo. 189, 526 P.2d 309 (1974); People v. Hall, 396 Mich. 650, 242 N.W.2d 377 (1976).

¶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.”¹³ State v. Doughty, 170 Wn.2d 57, 67, 239 P.3d 573 (2010) (Fairhurst, J., dissenting) (footnote omitted). Campbell’s authority for this investigation did not disappear upon Mecham’s arrest.

¶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. 141-42. 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 157. This dissent explicitly grounds its argument in policy, arguing fairness and notions of justice. However, the United States Supreme Court has rejected this argument, holding that FSTs do not implicate the Fifth Amendment. See Neville, 459 U.S. at 565 (“[W]e do not think it fundamentally unfair for South Dakota to use the refusal to take the [FST] as evidence of guilt, even though respondent was not specifically warned that his refusal could be used against him at trial.”); see also Stalsbroten, 138 Wn.2d at 235-36. Though this dissent does not address these cases, which were acknowledged and briefed by the parties, we agree with their reasoning and hold in part V of this opinion, supra, that the State is prohibited only from presenting evidence that the defendant refused to waive a constitutional right. Accord Nordlund, 113 Wn. App. at 188.

¶58 For these reasons, we decline to adopt the reasoning of the partial concurrence or the two dissents.

CONCLUSION

¶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 would also hold that an FST is not a search under our state and federal constitutions and therefore need not consider the State’s request to decide alternative issues that were brought up on appeal but not addressed below.

¶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.

Madsen, C.J., and González and Yu, JJ., concur.

Footnotes

1

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

2

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

3

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

4

Terry, 392 U.S. at 9. Washington courts recognize the Teny stop exception under article I, section 7 of the Washington Constitution. State v. Setterstrom, 163 Wn.2d 621, 626, 183 P.3d 1075 (2008).

5

The Court of Appeals also rejected Mecham’s argument that the “to convict’’ instruction given at his felony DUI trial violated his constitutional right to a jury trial and that the certification of mailing on the license revocation order constitutes testimonial hearsay, the admission of which violated his constitutional right to confront the witnesses against him. Mecham, 181 Wn. App. at 948, 952. Mecham did not pursue these issues in this court.

6

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

7

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

8

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

9

Athan and the cases relied on in the Survey of Washington Search and Seizure Law: 2013 Update analyze this issue under the Fourth Amendment rather than conducting an independent analysis under article I, section 7. Regardless, Mecham does not challenge this general proposition under either the Fourth Amendment or under article I, section 7. He instead asserts that FSTs reveal additional hidden information that, like DNA or a urinalysis, is not regularly exposed to the public.

10

Mecham’s argument relies heavily on the reasoning of the Supreme Courts of Oregon and Colorado, each holding that an PST is a search. See Nagel, 320 Or. at 31-36; Carlson, 677 P.2d at 316-17. We find no support for concluding that FSTs are searches in the language of article I, section 7 or in our prior cases and respectfully disagree with the Supreme Courts of Oregon and Colorado.

11

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

12

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

13

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