STATE v. O'NEIL

KENNEDY, J.

A police officer approached a parked car in the parking lot of a closed supermarket in the early-morning hours, and asked the man sitting in the driver's seat for identification. The man, who police later determined to be Matthew Glynn O'Neill, claimed he had no identification, admitted that he had been driving on a suspended driver's license, and gave the officer a false name. Suspecting that O'Neill was not who he claimed to be, the officer then asked him to step out of the car for a pat-down search for identification. As O'Neill was stepping out of the car, the officer saw on the floorboard of the car a spoon containing a granular substance, which the officer, based on training and experience, immediately recognized as narcotics paraphernalia, i.e., a `cook spoon.' The officer searched the car, discovered a baggie filled with cocaine and arrested the man. Based on State v. Markgraf, 59 Wn. App. 509, 513-14, 798 P.2d 1180 (1990), the trial court concluded that the officer's initial request for identification — which the officer made absent any articulable suspicion that O'Neill was involved in criminal activity — violated article 1, section 7 of the Washington Constitution. As a result, the court suppressed the cocaine as fruit of the poisonous tree. The State appeals this ruling, arguing that the trial court misinterpreted Markgraf. We conclude that the trial court properly interpreted Markgraf, but contrary to the ruling in that case, we hold that the officer did not seize O'Neill merely by asking him for identification. A seizure did occur when the officer asked O'Neill to step out of the car for a pat-down search for identification. This seizure was reasonable because of the nexus with the admitted criminal activity of driving on a suspended license and the need to properly identify O'Neill; moreover the officer had probable cause to arrest O'Neill for driving on a suspended license. When O'Neill stepped out of the car, the officer saw the cook spoon in plain view and immediately recognized the incriminating nature of this evidence. Objectively measured, the officer had probable cause to arrest O'Neill at that point for possession of a controlled substance, i.e., the residue on the spoon. Although the officer did not place O'Neill under formal arrest until after the search of the vehicle, the arrest and search were reasonably contemporaneous. Thus, the search did not violate article 1, section 7 of the Washington Constitution, because it was incident to arrest. We therefore reverse the trial court's order suppressing the cocaine.

FACTS

At approximately 1:15 a.m. on June 7, 1999, Bellingham Police Sergeant Terry West drove by a closed supermarket that had been the target of recent burglaries and noticed a car with fogged windows parked in the supermarket's parking lot near a telephone booth. He pulled up approximately six to eight feet behind the car, illuminated it with a spotlight, and entered the car's license plate number into the police computer. After learning that the car recently had been involved in two drug offenses, Sergeant West approached the car but did not activate his emergency lights and did not draw his weapon. Sergeant West asked the man in the driver's seat of the car what he was doing parked at a closed business at that hour of the morning. The man, who police later learned was Matthew Glynn O'Neill, told Sergeant West that he had driven the car from Birch Bay and stopped to use the nearby payphone to call a friend. O'Neill explained that he was still there because his car would not start.

After approximately one minute of conversation with O'Neill, Sergeant West concluded that `[t]here was nothing to indicate that a crime was going on.' Nevertheless, Sergeant West asked O'Neill for identification. O'Neill informed Sergeant West that he had none, and admitted that he had been driving on a suspended driver's license. At Sergeant West's request, O'Neill attempted to start the car, albeit unsuccessfully. O'Neill then told Sergeant West that his name was Harold Macomber, the man to whom the car was registered. At this point, Sergeant West believed `that there was a possibility that [he] was dealing with somebody who was not who he said he was[,]' and was `concerned he wasn't getting a straight story.' He therefore asked O'Neill to step out of the car for a pat-down search for identification. As O'Neill got out of the car, Sergeant West saw on the car's floorboard a spoon containing a granular substance, which he immediately recognized — based on his narcotics training and more than 20 years of experience as a police officer — to be a `cook spoon for narcotics.' Sergeant West asked O'Neill if he could search the car. O'Neill initially refused and told Sergeant West that he would have to get a warrant. Sergeant West responded that he could arrest O'Neill for possession of drug paraphernalia and then conduct a search incident to that arrest. O'Neill continued to insist, for a while, that the officer needed a warrant to search the vehicle, but he ultimately consented, and Sergeant West searched the car, discovering a crack pipe and a baggie filled with cocaine. He arrested O'Neill for unlawful possession of cocaine and the State charged him accordingly.

Before trial, O'Neill filed a motion to suppress `all evidence gathered as a result of the illegal stop of Mr. O'Neill' under article 1, section 7 of the Washington Constitution. After hearing testimony from Sergeant West and O'Neill, the trial court concluded that Sergeant West had the right under his community caretaking function to make reasonable investigation of the circumstances of O'Neill being parked in front of the closed store late at night, but that Sergeant West `had no probable cause to believe that [O'Neill] had committed any crime' and `had no reasonable suspicion that any criminal activity was taking place' until O'Neill admitted that he had been driving on a suspended driver's license. Because Sergeant West requested identification before O'Neill made this admission, the trial court reluctantly concluded that Sergeant West's request violated article 1, section 7 of the Washington Constitution. The trial court explained that this conclusion was required by State v. Markgraf, 59 Wn. App. 509, 513-14, 798 P.2d 1180 (1990), a case in which Division Three of this court held that a police officer performing his community caretaking duties was prohibited from requesting identification where no caretaking was needed, no investigation was in progress and no crime had been reported:

Markgraf appears to be authority for the principle that no further inquiry or request to see a driver[']s license is allowed, and that any evidence which is thereafter discovered is inadmissible and should be suppressed.

While that is the law as stated by Division III of the Court of Appeals, a thorough analysis of our state constitution is lacking [in the Markgraf opinion] to support the decision reached. The result of Markgraf is that in the absence of probable cause or articulable facts supporting a reasonable suspicion, a police officer in this state may not simply ask a citizen a question, and if an incriminating answer is given to the question then suppression must follow. Suppose an officer was to walk up to a citizen who under the facts is not seized, and without suspicion asks[,] `do you know who robbed the bank?' If in response the citizen were to reply `I did,' then a strict reading of Markgraf would result in a suppression of the evidence. That should not be the law.

. . . .

. . . But this court is bound by the Markgraf holding. This court invites the state to appeal this decision so that the appellate court in this division can have an opportunity to decide whether or not this division will follow the Markgraf holding. Unless Division I reaches a result contrary to Division III, the holding of Division III is binding on this court.

Clerk's Papers at 18-20. As a result, the trial court suppressed `the evidence obtained by Law Enforcement . . . following Sergeant West's request for identification from O'Neill[.]' Clerk's Papers at 102. The trial court also ruled that the search of the vehicle could not be upheld on the basis of consent, O'Neill having acquiesced to the officer's authority only after considerable argument over whether the officer needed a search warrant; therefore the consent was not voluntary. The State appeals these rulings.

DISCUSSION

The State contends that Sergeant West's request for identification and his subsequent search of O'Neill's vehicle did not violate article 1, section 7 of the Washington Constitution; thus, the trial court erred by suppressing the cocaine that Sergeant West subsequently seized from the car as fruit of the poisonous tree. O'Neill contends that even Sergeant West's questions regarding why O'Neill was parked in front of the closed store constituted an unreasonable intrusion into O'Neill's private affairs, contrary to the trial court's determination. See State v. Bobic, 140 Wn.2d 250, 257, 996 P.2d 610 (2000) (explaining that a respondent may challenge a trial court's findings without filing a cross-appeal if the respondent is not seeking affirmative relief). He urges this court to affirm the trial court's suppression of the cocaine because the officer had no right, under the community caretaking function, to question his presence in the parking lot, but should that argument fail, to affirm on the alternative reasoning that the initial request for identification constituted an unconstitutional seizure.

Article 1, section 7 of the Washington Constitution states that `[n]o person shall be disturbed in his private affairs, or his home invaded, without authority of law.' This provision prohibits unreasonable searches and seizures. State v. Davis, 86 Wn. App. 414, 420, 937 P.2d 1110 (1997). Indeed, when `an unconstitutional search or seizure occurs, all subsequently uncovered evidence becomes fruit of the poisonous tree and must be suppressed.' State v. Ladson, 138 Wn.2d 343, 359, 979 P.2d 833 (1999).

The test for whether a seizure has occurred `under article 1, section 7 is a purely objective one, looking to the actions of the law enforcement officer[.]' State v. Young, 135 Wn.2d 498, 501, 957 P.2d 681 (1998). The person asserting a seizure under article 1, section 7 of the Washington Constitution has the burden of proving a disturbance of his or her private affairs. Id. "The resolution by a trial court of differing accounts of the circumstances surrounding the encounter are factual findings entitled to great deference,' but `the ultimate determination of whether those facts constitute a seizure is one of law and is reviewed de novo." State v. Armenta, 134 Wn.2d 1, 9, 948 P.2d 1280 (1997) (quoting State v. Thorn, 129 Wn.2d 347, 351, 917 P.2d 108 (1996)). `There is a seizure when, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he [or she] was not free to leave.' Young, 135 Wn.2d at 510 (citation omitted).

"As a general rule, warrantless searches and seizures are per se unreasonable." State v. Hendrickson, 129 Wn.2d 61, 70, 917 P.2d 563 (1996) (citation omitted). Warrantless searches and seizures may, however, be reasonable under `a few `jealously and carefully drawn' exceptions[.]' Ladson, 138 Wn.2d at 349 (citation omitted). The State bears the burden of showing that a warrantless search falls under an established exception. State v. Johnson, 128 Wn.2d 431, 451, 909 P.2d 293 (1996).

One of these exceptions occurs when an officer approaches and questions a person as part of the officer's community caretaking function. State v. Coyne, 99 Wn. App. 566, 573, 995 P.2d 78 (2000); State v. Reid, 98 Wn. App. 152, 158, 988 P.2d 1038 (1999). `The community caretaking function exception recognizes that a person may encounter police officers in situations involving not only emergency aid, but also involving a routine check on health and safety.' State v. Kinzy, 141 Wn.2d 373, 387, 5 P.3d 668 (2000). `Whether a given stop [under the community caretaking function] is unreasonable `depends on a balance between the public interest and the individual's right to personal security free from arbitrary interference by law officers." State v. Chisholm, 39 Wn. App. 864, 866, 696 P.2d 41 (1985) (citations omitted). In the absence of a seizure, the individual's interest in being free from police intrusion is minimal. Kinzy, 141 Wn.2d at 387 (citing Markgraf, 59 Wn. App. at 512). Another exception to the general rule that warrantless searches are per se unreasonable occurs when an officer conducts a Terry stop by seizing an individual based on specific and articulable facts giving rise to a reasonable suspicion that there is criminal activity afoot. State v. White, 97 Wn.2d 92, 105, 640 P.2d 1061 (1982). Yet another exception is the `plain view' doctrine, which allows the police to seize evidence if (1) they have a prior justification for the intrusion; (2) they inadvertently discover the incriminating evidence; and (3) they immediately recognize the incriminating character of the evidence seized. State v. Bustamante-Davila, 138 Wn.2d 964, 982, 983 P.2d 590 (1999). And yet another exception to the general rule that warrantless searches are per se unreasonable occurs when an officer conducts a search incident to arrest. State v. Harrell, 83 Wn. App. 393, 400, 923 P.2d 698 (1996). Such a search is `based upon the need to prevent destruction of evidence and the need to locate weapons in the possession of the arrested person.' Johnson, 128 Wn.2d at 447 (citation omitted). A search can be incident to arrest only when the search and arrest are reasonably contemporaneous — when they are, it does not matter which comes first. State v. McKenna, 91 Wn. App. 554, 560, 958 P.2d 1017 (1998) (citing, inter alia, Rawlings v. Kentucky, 448 U.S. 98, 111, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980); State v. Smith, 88 Wn.2d 127, 138, 559 P.2d 970 (1977)). But the officer must have probable cause to arrest before commencing the search, i.e., the arrest cannot be justified by the fruits of the search. McKenna, 91 Wn. App. at 560 (citing, inter alia, Smith v. Ohio, 494 U.S. 541, 543, 110 S.Ct. 1288, 108 L.Ed.2d 464 (1990).

Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

A. Initial Contact

The trial court found that Sergeant West approached and questioned O'Neill because the officer became suspicious when he noticed O'Neill's car in the supermarket's parking lot in the early morning hours. The record reflects that Sergeant West knew that the supermarket had been closed for more than an hour; knew that the supermarket had been the target of recent burglaries, knew before making contact with the driver that the car had been involved in drug offenses; observed fogged windows indicating that someone had been in the car for some time; did not activate his emergency lights or draw his weapon; and did not block O'Neill's access out of the parking lot.

As an initial matter, after balancing the public interest in having police perform services in addition to traditional enforcement of penal and regulatory laws against O'Neill's right to proceed about his business unfettered by arbitrary interference by law officers, we conclude, as did the trial court, that Sergeant West's initial contact with O'Neill was a reasonable exercise of his community caretaking function. See Chisholm, 39 Wn. App. at 866; cf. Kinzy, 141 Wn.2d at 388-89 (pre-seizure encounter with underage girl after 10 p.m. on a school night was a reasonable exercise of community caretaking function where girl was in a high narcotics trafficking area in company of several persons, including one adult male known by officers to be associated with narcotics). The hour was late and the fact that the car had fogged windows indicated that it was occupied and had been parked for a considerable period of time in front of a business that had been closed for more than an hour. That Sergeant West knew, by the time he contacted O'Neill, that the supermarket had been burglarized recently and that the car had been involved in drug offenses does not alter this conclusion. Moreover, following the purely objective test set forth by our Supreme Court, Sergeant West's actions, to this point, would not lead a reasonable person to believe that he or she was not free to leave. See Young, 135 Wn.2d at 501; see also id. at 514 (concluding that the shining of a spotlight alone, `without additional indicia of authority,' does not constitute a seizure). Thus, O'Neill failed to sustain his burden of proving a disturbance of his private affairs. Accordingly, we conclude that Sergeant West's initial contact with O'Neill did not constitute a seizure of his person under article 1, section 7 of the Washington Constitution.

B. Request for Identification

As discussed above, the trial court felt constrained to follow State v. Markgraf, 59 Wn. App. 509, 798 P.2d 1180 (1990), and concluded, based on that case, that Sergeant West's request for identification violated article 1, section 7 of the Washington Constitution. In Markgraf, police officers responded to a tip that there was a woman in a parked car who might be in trouble. Id. at 510. The officers pulled alongside the parked car and shined an alley light on the car. Id. Although the officers did not see a woman in the car, one officer asked the man sitting in the driver's seat what he was doing. Id. The man, who police later learned was Marty Dean Markgraf, responded that he was looking at the lights. Id. `Based solely upon [Markgraf's] dazed expression, [the officer] left his patrol car, walked alongside the driver's door and asked the driver for identification.' Id. At this time, the officer observed drug paraphernalia in the driver's lap, including a syringe partially full of coffee-colored liquid. Id. at 511. The officer confiscated the syringe, ordered Markgraf out of the car and advised him of his rights. Id. Following a consent search of the car, the officer discovered more drug paraphernalia, including a spoon found on the seat where Markgraf had been sitting. Id. The State charged Markgraf with unlawful possession of cocaine. Id. at 510. Markgraf moved to suppress the drug paraphernalia and cocaine, but the trial court denied this motion and Markgraf was ultimately convicted. Id. at 510-11.

On appeal, Division Three of this court concluded that the initial contact to determine whether the occupants of the car were experiencing any trouble was reasonable under the officers' community caretaking function. Id. at 512. But the court concluded that the officers' request for identification was not reasonable because the reason for the stop had been satisfied and no caretaking was needed. Id. at 513-14. Accordingly, the appellate court concluded that the trial court erred by denying Markgraf's motion to suppress the evidence subsequently seized. Id. at 514. Thus, the Markgraf opinion stands for the proposition that the community caretaking exception must be so gingerly applied that the intrusion must cease immediately once the person contacted denies a need for assistance, and that the officer may not intrude further by requesting identification without the reasonable suspicion required to conduct a Terry stop. Id. at 513-14.

Although the State argues otherwise, the salient facts in the present case are indistinguishable from the facts in Markgraf; thus, the trial court reached the conclusion required by Markgraf. We, however, respectfully disagree with the Markgraf holding and decline to follow it. The Markgraf court did not have the benefit of our Supreme Court's subsequent discussion in Armenta, 134 Wn.2d at 11, regarding police questioning with respect to identity. In that case, our Supreme Court explained that a `police officer's conduct in engaging a defendant in conversation in a public place and asking for identification does not, alone, raise the encounter to an investigative detention.' Id.

Under Armenta, we conclude that Sergeant West's encounter with O'Neill in the present case did not rise to the level of a seizure when he asked O'Neill for identification. Sergeant West's request for identification, therefore, did not violate article 1, section 7 of the Washington Constitution.

C. Pat-Down Search for Identification

In the course of informing Sergeant West that he had no identification, O'Neill admitted that he had been driving on a suspended driver's license, and gave Sergeant West a false name. Any police officer having probable cause to believe that a person has violated the `driving while license suspended or revoked' statute has the authority to arrest the person, even if the offense is not committed in the officer's presence. RCW 10.31.100(3)(e); see also RCW 46.20.342. Thus, at the moment O'Neill admitted that he had driven on a suspended license, Sergeant West had probable cause to arrest him. Although Sergeant West ultimately elected not to arrest O'Neill for this violation, he asked O'Neill to step out of the car for a pat-down search for identification because he suspected that O'Neill was not who he said he was. At this point, Sergeant West was no longer performing his community caretaking responsibilities.

Moreover, a reasonable person in O'Neill's position would not believe that he or she was free to leave, upon being asked to step from the vehicle for a pat-down search. See Young, 135 Wn.2d at 510. Thus, O'Neill was seized when Sergeant West asked him to step out of the car for a pat-down search. We must determine whether Sergeant West's pat-down search of O'Neill was reasonable under article 1, section 7 of the Washington Constitution.

Our Supreme Court has held that a detention and vehicle search are not reasonable where `the officer has no hope of discovering information regarding the criminal activity that the officer suspects has occurred or is about to occur[.]' Armenta, 134 Wn.2d at 16. But such a search and seizure is reasonable if there is a nexus between the criminal activity and something the officer hopes to seize in a search. Id. at 15-16. In this case, there is no indication in the record that Sergeant West suspected any criminal activity other than O'Neill's admission of driving while his license was suspended, when he requested the pat-down search. In fact, Sergeant West confirmed O'Neill's explanation for being in the parking lot when he observed that the car would not start. Nonetheless, there is a nexus between the information that Sergeant West hoped to discover in the pat-down search for identification, i.e., O'Neill's true identity, and his admitted criminal activity, i.e., driving with a suspended driver's license. Sergeant West's pat-down search for identification was, therefore, reasonable and did not violate article 1, section 7 of the Washington Constitution.

D. Search of the Car

As discussed above, Sergeant West was justified in asking O'Neill to step out of the car for a pat-down search for identification. When O'Neill opened the car door, Sergeant West inadvertently saw in plain view on the car's floorboard a spoon containing a granular substance, which the officer immediately recognized as a `cook spoon for narcotics.' At this point, Sergeant West had the authority to seize this evidence under the `plain view' doctrine. See Bustamante-Davila, 138 Wn.2d at 982. See also RCW 69.50.505(a)(6) and (b)(1) (drug paraphernalia is subject to seizure without process if the seizure is incident to arrest); RCW 69.50.412(1) (the use of drug paraphernalia to prepare, contain, ingest, inhale or inject a controlled substance is a misdemeanor); RCW 69.50.102(b) (in determining whether an object is drug paraphernalia, the court or other authority should consider, inter alia, the existence of any residue of controlled substances on the object); State v. Williams, 62 Wn. App. 748, 753, 815 P.2d 825 (1991) (existence of residue of controlled substances on an object will support an inference that the object is drug paraphernalia).

The record reflects that Sergeant West believed that he had authority to arrest O'Neill for possession of drug paraphernalia, and so informed O'Neill. Mere possession of drug paraphernalia is not a crime under state law; however use of drug paraphernalia is a misdemeanor under RCW 69.50.412(1). State v. McKenna, 91 Wn. App. at 563 (citing RCW 69.50.412(1) and State v. Lowrimore, 67 Wn. App. 949, 959, 841 P.2d 779 (1992)). The State argues that Sergeant West had authority to arrest O'Neill for use of drug paraphernalia. The State apparently bases this argument on the assumption that the misdemeanor of use of drug paraphernalia was being committed in the officer's presence, based on the residue in the cook spoon.

Under RCW 10.31.100 a police officer may arrest a person without a warrant for committing a misdemeanor or gross misdemeanor only when the offense is committed in the officer's presence, except as provided in the ten subsections of the statute — none of which relates to use of drug paraphernalia as such. The State cites no authority for the proposition that a person commits the misdemeanor of use of drug paraphernalia in the presence of a police officer when the physical evidence would seem to indicate only that the drug paraphernalia had been used at some earlier time, but was not being used when the officer arrived at the scene of the arrest. The State's reliance on State v. Brantigan, 59 Wn. App. 481, 798 P.2d 1176 (1990), is misplaced. There, the defendant conceded that possession of drug paraphernalia would justify a custodial arrest, without distinguishing between mere possession and use. Id. at 483. Although the evidence in that case probably would have supported an inference of use of drug paraphernalia in the presence of the officer, id., the issue was not briefed or decided by the Brantigan court.

State v. Lowrimore, 67 Wn. App. at 959 and n. 10 does not provide authority for this proposition. There, the court held that possession of marijuana pipes coupled with bizarre behavior on the part of the defendant gave rise to probable cause to arrest for violation of RCW 69.50.412(1) — because RCW 10.31.100(1) authorizes arrest without a warrant when officer has probable cause to believe a person has committed a misdemeanor or gross misdemeanor involving the use of possession of cannabis, even though such use or possession did not occur in the officer's presence. RCW 10.31.100(1) does not, on its face, apply to offenses involving the use of controlled substances other than cannabis, nor to misdemeanor use of drug paraphernalia relating to controlled substances other than cannabis.

But we need not decide, in this case, whether the evidence would support an inference of use of drug paraphernalia in the presence of the officer so as to allow a misdemeanor arrest without a warrant, because the record reflects that the officer saw residue on the cook spoon. There is no minimum amount of narcotic drug that must be possessed in order to sustain a felony conviction. Williams, 62 Wn. App. at 751 (citing State v. Larkins, 79 Wn.2d 392, 394, 486 P.2d 95 (1971) (construing former statute prohibiting illegal possession of a narcotic drug, RCW 69.33.230)). Officer West had probable cause to arrest O'Neill for felony possession of a controlled substance based on the residue on the cook spoon — indeed, it was the presence of the residue on the spoon that enabled the officer, based on his training and experience, to recognize the spoon as a cook spoon for narcotics.

We deem it immaterial that the officer apparently believed that mere possession of drug paraphernalia, as opposed to its use, is a crime, or whether the presence of the residue on the spoon gave rise to an inference that the misdemeanor of use of drug paraphernalia was occurring in the officer's presence thereby justifying a custodial arrest, because the officer had probable cause to make a felony arrest when he observed the residue on the cook spoon. Cf. State v. Harrell, 83 Wn. App. 393, 401, 923 P.2d 698 (1996) (although officer conducting search did not subjectively consider defendant under arrest when he detained him, search for explosive device nevertheless a valid search incident to arrest because probable cause to arrest defendant for possession of explosive device existed when the officer conducted the search). Probable cause is an objective inquiry. It exists where facts and circumstances within knowledge of the police are sufficient to warrant a person of reasonable caution in a belief that an offense has been committed. Id. at 399-400. Probable cause does not require proof of guilt beyond a reasonable doubt. State v. Bellows, 72 Wn.2d 264, 432 P.2d 654 (1967). The same facts and circumstances that caused Officer West to recognize the spoon containing residue as a cook spoon for narcotics would warrant a person of reasonable caution in the belief that the residue contained a controlled substance, the possession of which is a felony in this state. We hold that an arresting officer's mistaken belief that he or she has authority to arrest for mere possession of drug paraphernalia does not invalidate an otherwise lawful search incident to arrest where probable cause exists to make a felony arrest for possession of a controlled substance, based on facts and circumstances within the arresting officer's knowledge that would warrant a person of reasonable caution to believe that the defendant has committed the latter offense.

The only remaining question is whether the search of the vehicle that revealed the baggie of cocaine was a search incident to arrest, in that the officer had not yet placed O'Neill under formal arrest when he searched the vehicle. A police officer may conduct a warrantless search incident to arrest as long as probable cause to arrest exists at the time of the search. Harrell, 83 Wn. App. at 400. Indeed, an officer's subjective intent or policy on whether to arrest for a certain offense is irrelevant `as long as the fruits of the search are not claimed as necessary to support probable cause for the arrest.' Brantigan, 59 Wn. App. at 486; accord State v. Thomas, 89 Wn. App. 774, 777, 950 P.2d 498, review denied, 135 Wn.2d 1015 (1998). This is because the `reasons which justify a search incident to arrest — to protect the officer and preserve possible evidence — continue to exist whether or not the defendant is going to be released without an arrest.' Id. at 777. But see McKenna, 91 Wn. App. at 564 (`An otherwise lawful custodial arrest will support a search incident to it, provided that the evidence does not show an unconditional decision to release prior to the officer's making the search.').

Here, Officer West had probable cause to arrest O'Neill for driving on a suspended license. The officer reasonably requested to perform a pat-down search for identification. In the course of that, the officer saw the cook spoon containing residue, in plain view. This gave rise to probable cause to arrest for felony possession of a controlled substance. Although the officer told O'Neill that he could arrest him for possession of drug paraphernalia if O'Neill did not consent to a search of the vehicle, and then search incident to arrest, and although the officer ultimately never arrested O'Neill for driving on a suspended license, there is no evidence in the record that the officer made an unequivocal decision to release O'Neill either as a result of driving on a suspended license or for any offense related to the cook spoon, before conducting the search of the vehicle.

An officer may lawfully perform a search incident to a lawful arrest, without additional cause. The arrest need not precede the search so long as it is reasonably contemporaneous with the search. McKenna, 91 Wn. App. at 559-60. `The officer must have probable cause to arrest before commencing the search, which is also to say that the arrest cannot be justified by the fruits of the search.' Id. at 560 (citations omitted). Sergeant West had probable cause to arrest O'Neill before he searched the car, based on the residue on the cook spoon that was in plain view on the car's floorboard; thus, objectively viewed, probable cause for the arrest was not based upon the fruits of the subsequent car search. Accordingly, we hold that the search of the car was reasonable under article 1, section 7 of the Washington Constitution as a search incident to arrest.

This ruling makes it unnecessary for us to address the State's contentions that the trial court erred by refusing to uphold the search on the basis of consent and that the baggie of cocaine would have been inevitably discovered in any event. In passing, we note that neither contention appears to have merit. The trial court's ruling that O'Neill's consent was not freely and voluntarily given is supported by substantial evidence. The inevitable discovery doctrine is seldom an `easy out' for the prosecution.

In sum, we conclude that the trial court erred by granting O'Neill's motion to suppress. Accordingly, we reverse and remand for further proceedings consistent with this opinion.