¶1dissenting.
¶2I respectfully dissent. I believe the “automatic companion” rule is inconsistent with the narrow scope of the Terry exception to the warrant requirement and thus lacks constitutional muster.
¶3Warrantless searches and seizures are per se unreasonable. The burden falls on the State to show that a search and seizure is valid or that an exception to the rule foreclosing warrantless searches and seizures is *1167applicable. Dickeson v. State, 843 P.2d 606, 610-11 (Wyo.1992). The United States Supreme Court in Terry v. Ohio recognized an exception for a protective pat-down search for weapons based on specific and articulable facts from which an officer could reasonably infer a suspect is armed and dangerous. 392 U.S. 1, 27, 88 S.Ct. 1868, 1883, 20 L.Ed.2d 889 (1968). In United States v. Berryhill, the United States Court of Appeals for the Ninth Circuit expressed its view that Terry extends to an arrestee’s companions: “All companions of the arrestee within the immediate vicinity, capable of accomplishing a harmful assault on the officer, are constitutionally subjected to the cursory ‘pat-down’ reasonably necessary to give assurance that they are unarmed.” 445 F.2d 1189, 1193 (9th Cir.1971).
¶4The Supreme Court has not directly addressed the applicability of the Terry exception to a search of the companion of an arrestee. United States v. Flett, 806 F.2d 823, 826 (8th Cir.1986). However, the Court has observed that “[bjecause Terry involved an exception to the general rule requiring probable cause, [the] Court has been careful to maintain its narrow scope.” Dunaway v. New York, 442 U.S. 200, 210, 99 S.Ct. 2248, 2255, 60 L.Ed.2d 824 (1979). And the Court refused to uphold a protective frisk of a patron in a bar based only on that person’s presence during a search of the premises pursuant to a valid search warrant. Ybarra v. Illinois, 444 U.S. 85, 93, 100 S.Ct. 338, 343, 62 L.Ed.2d 238 (1979). These decisions lead me to conclude that the rule, based not on reasonable suspicion but on a person’s “unfortunate choice of associates,” impermissibly extends the Terry exception in violation of the Fourth Amendment. United States v. Bell, 762 F.2d 495, 499 (6th Cir.1985); see also Flett, 806 F.2d at 826-28.
¶5I am not persuaded otherwise by the cases the majority cites to support the adoption of the automatic companion rule. Despite the fact that several of the federal circuit eases cited Berryhill with apparent approval, none involved a situation where a search of a companion was found reasonable solely because of that person’s association with and proximity to an arrestee. Rather,- those cases involved particular, specific facts which justified the search at issue. See, e.g., United States v. Simmons, 567 F.2d 314, 318-20 (7th Cir.1977) (search of items within immediate control of a person present during custodial arrest of companion for a recent crime in which guns were used held reasonable because objective probability of danger to law enforcement existed under the circumstances); United States v. Vigo, 487 F.2d 295, 298 (2d Cir.1973) (search of a passenger’s purse proper given the fact that a loaded concealed gun had just been found on the driver); United States v. Poms, 484 F.2d 919, 921-22 (4th Cir.1973) (search of defendant’s bag justified where officers had information from reliable informant that Poms always carried a weapon in his shoulder bag, defendant identified himself as Poms and then reached for the bag).
¶6The majority argues that Perry mischarac-terized the case because there was no Terry stop involved. I agree that the initial contact with Perry began as a “first-tier” encounter, involving no coercion or detention and therefore not implicating the Fourth Amendment. See Collins v. State, 854 P.2d 688, 691-92 (Wyo.1993); United States v. Berry, 670 F.2d 583, 591 (5th Cir.1982). However, once Officer Kirby decided to conduct a pat-down search of Perry, the encounter moved into the second tier and Fourth Amendment requirements came into play. At that point the predicate to the search was a reasonable belief, based on particular facts, that Perry was armed and dangerous. Terry, 392 U.S. at 27, 88 S.Ct. at 1883; see also Collins, 854 P.2d at 695; Sibron v. New York, 392 U.S. 40, 64, 88 S.Ct. 1889, 1903, 20 L.Ed.2d 917 (1968).
¶7The automatic companion rule replaces the fine line of the Terry reasonable suspicion requirement with a broad brush, rendering virtually any search of an arrestee’s companions reasonable, regardless of the circumstances. In my view, the rule is unwarranted and unconstitutional, and I believe the court went too far in adopting it. Therefore, I dissent.