¶39 (dissenting) — The majority permits the State to search an automobile incident to the arrest of a passenger for littering, even though state law did not authorize the arrest. I disagree. The arrest of a passenger in a car does not automatically authorize the police to search a car being driven by, and belonging to, another individual. And, even if the arrest of the passenger could justify the search of the car, the arrest of the passenger here was invalid and could not be used to justify any search. The arrest was invalid because the police officer arrested the passenger under a local ordinance that imposed a significantly greater penalty than a state statute prohibiting the same conduct. Such a conflict in punishment is unconstitutional, as held under a line of cases this court has not overruled but inexplicably does not follow today. Therefore, I would hold the search was unconstitutional, suppress the evidence, and remand the case to the trial court.
¶40 A warrantless search is presumed unconstitutional. State v. Johnson, 128 Wn.2d 431, 446-47, 909 P.2d 293 (1996). “Exceptions to this requirement are narrowly drawn. The State bears a heavy burden in showing that the search falls within one of the exceptions.” State v. Jones, 146 Wn.2d 328, 335, 45 P.3d 1062 (2002) (citations omitted).
¶41 The State relies upon the search incident to arrest exception. “[A] search incident to arrest is a well-recognized exception to the warrant requirement.” Id. For the excep*838tion to apply, the search must be limited in scope to the purposes underlying the rule: maintaining officer safety and preventing destruction of evidence. Id. This court has also observed that because of the heightened privacy protection under article I, section 7 of the Washington State Constitution, “ ‘we do not believe that these exigencies always allow a search.’ ” Id. (quoting State v. Stroud, 106 Wn.2d 144, 151, 720 P.2d 436 (1986) (holding that incident to the arrest of the driver, an officer may search the passenger compartment under the driver’s immediate control)). The search must also be incident to a valid arrest. State v. Moore, 161 Wn.2d 880, 885, 169 P.3d 469 (2007). But none of these criteria was met here.
¶42 First, the search was not properly limited to the purposes underlying the Stroud rule — preserving officer safety and preventing destruction of evidence. It is important to note Dennis Kirwin was driving the car, whereas it was his passenger, Casey Irwin, upon whose arrest for littering the State attempts to justify the search of the car. The Court of Appeals has improperly extended Stroud to justify a warrantless search of an automobile following the arrest of a passenger who does not own the car. See, e.g., State v. Bello, 142 Wn. App. 930, 176 P.3d 554 (2008); State v. Hill, 68 Wn. App. 300, 842 P.2d 996 (1993); State v. Cass, 62 Wn. App. 793, 816 P.2d 57 (1991). Apparently the majority accepts this extension, without analysis and without regard to who was arrested, to opine “[a]n arrest provides the legal authority” for the warrantless search. Majority at 824 (citing State v. O’Neill, 148 Wn.2d 564, 585, 62 P.3d 489 (2003)). Moreover, we have repeatedly observed that “locked containers within a vehicle may not be searched incident to an occupant’s arrest.” Jones, 146 Wn.2d at 335 (citing State v. Fladebo, 113 Wn.2d 388, 779 P.2d 707 (1989)). Chief Justice Alexander, while serving on the Court of Appeals, very persuasively argued the arrest of a passenger is not a per se justification for a warrantless search. Cass, 62 Wn. App. at 798 (Alexander, J., dissenting). He opined the search of a vehicle following the arrest of a *839passenger is valid only where it “is to discover weapons that might be used against the officers and to prevent destruction of evidence by the arrestee of the crime for which he is arrested.” Id. at 799 (citing New York v. Belton, 453 U.S. 454, 101 S. Ct. 2860, 69 L. Ed. 2d 768 (1981)). He argued that in addition to the vehicle owner’s legitimate expectation of privacy under the heightened protection of article I, section 7,
[i]t seems obvious and almost beyond debate that the property rights of persons who are not under arrest should be accorded more sanctity than should the property rights of persons under arrest. We should be slower, therefore, to disturb the personal affairs and property rights of persons who are not under arrest.
Id. at 798-99. Therefore, to justify the search of an innocent party’s vehicle incident to another’s arrest, the search must be strictly tied to the purposes the rule was intended to serve.
¶43 But the State presents no evidence that searching Kirwin’s car was necessary to protect the officer, nor that it was necessary to prevent destruction of evidence of Irwin’s purportedly criminal act of littering. Irwin could not reach any weapons after his arrest and detention in the patrol vehicle, nor was there any indication there was any evidence of Irwin’s littering contained in the vehicle. Because the State presented no such evidence, it has failed to carry its “heavy burden in showing that the search falls within one of the exceptions.” Jones, 146 Wn.2d at 335.
¶44 Furthermore, even if the search of a vehicle could be justified by the arrest of a passenger, the search at issue was not incident to a valid arrest. The State argues, and the majority agrees, Irwin was properly arrested under an Olympia city ordinance. Majority at 826-28. The majority holds the ordinance does not conflict with a state statute on littering because the two “prohibit the same behavior— littering.” Id. at 826. Although this is undoubtedly true, this fails to properly conceive the issue.
¶45 Kirwin does not complain the two laws conflict because they prohibit different behavior, but instead he *840argues the laws conflict on the penalty for the prohibited behavior, which they clearly and directly do. The Olympia ordinance classifies littering as a misdemeanor, for which the police may arrest offenders. Olympia Mun. Code (OMC) 9.40.110(C) (“Any person violating any provisions of this section is guilty of a misdemeanor . . . .”). By contrast, the state statute provides littering in small quantities is a civil infraction for which no arrest may be made. RCW 70.93.060(2)(a) (“[I]t is a class 3 civil infraction as provided in RCW 7.80.120 for a person to litter in an amount less than or equal to one cubic foot.”). These two laws cannot be read as anything other than discordant.13 They clearly conflict on the punishment available for the act of littering. Justice Madsen argues correctly in her concurrence that under a long line of cases, if a state statute and an ordinance define the same prohibited conduct, but carry different punishments and present authorities with discretion to arrest or charge under the law imposing the greater penalty, an equal protection violation of article I, section 12 results.14 Concurrence at 828-32. “A statutory scheme per*841mitting such discretion is unconstitutional.” State v. Mason, 34 Wn. App. 514, 519, 663 P.2d 137 (1983); id. at 516-21 (analyzing disparities in penalties for prostitution under equal protection as provided by the Fourteenth Amendment to the United States Constitution; article I, section 12 of the Washington Constitution; and state preemption); see also City of Seattle v. Hogan, 53 Wn. App. 387, 766 P.2d 1134 (1989).15 Justice Madsen also points out that “[b]y making littering of the type at issue here a civil infraction, punishable by a civil fine, the legislature has chosen what penalty is to be applied.” Concurrence at 833 (analogizing to Mason, 34 Wn. App. at 521).16
¶46 Since OMC 9.40.110(C) allows arrest of a litterer and RCW 70.93.060(2)(a) does not, the statute controls and Irwin’s arrest was invalid because when a local ordinance conflicts with a state statute, the local ordinance is invalid and the statute controls.17 See Parkland Light & Water Co. v. Tacoma-Pierce County Bd. of Health, 151 Wn.2d 428, 434, 90 P.3d 37 (2004) (citing Const, art. XI, § 11).
*842¶47 Under the state statute, littering is a class 3 civil infraction punishable by a fine of up to $50. RCW 7.80-.120(l)(c). A civil infraction cannot justify an arrest; therefore Irwin’s arrest was invalid. Since Irwin’s arrest was invalid, there can be no search incident to his arrest, much less a search of the vehicle Kirwin was driving. Likewise, Kirwin’s consent to the search of the truck’s locked center console did not remedy the unconstitutionality of the search. We have said that an invalid detention vitiates consent for a search under similar circumstances. State v. Armenia, 134 Wn.2d 1, 12-13, 17-18, 948 P.2d 1280 (1997) (noting State v. Tijerina, 61 Wn. App. 626, 811 P.2d 241 (1991) (holding an invalid detention, beyond what was required for a traffic infraction, vitiated consent for a search since consent would not have been obtained otherwise)).18
¶48 Because the search of the truck Kirwin was driving was outside the scope of a legitimate search incident to arrest and was, moreover, not even incident to a valid arrest, the warrantless search was unconstitutional. The case should properly be remanded with instructions to suppress the fruit of the unconstitutional search.
¶49 I dissent.
It is important to note this case presents a different scenario than was considered in Brown v. City of Yakima, 116 Wn.2d 556, 807 P.2d 353 (1991). There the state statute provided that its prohibition represented a minimum standard that cities were free to exceed. Id. at 562. But there is no such provision in the statute at issue here.
Justice Madsen argues persuasively and extensively that the Olympia ordinance is likely invalid under the state constitution. Concurrence at 829-30, 836. “I am troubled by the majority’s unsupported narrowing of the analysis for determining conflict in laws. ... I am also troubled because there is a line of authority that casts doubt on the ordinance’s constitutionality.” Id. at 836. While I agree with this analysis, I disagree with Justice Madsen’s ultimate conclusion that because the parties did not brief this line of authority, we should disregard it and still concur with the majority’s result. Id. at 836-37. Both the Court of Appeals in its published decision and the majority here address whether the Olympia ordinance is unconstitutional. See State v. Kirwin, 137 Wn. App. 387, 395, 153 P.3d 883 (2007) (“Municipal codes often prescribe penalties greater than State law, but we do not find one case in which a court has found that this difference renders the ordinance unconstitutional.”); majority at 825-26. Furthermore, I disagree with Justice Madsen’s assertion, also advanced by the Court of Appeals, that regardless of the ordinance’s constitutionality, the arrest and the search should be upheld because the ordinance was presumptively valid in the arresting officer’s eyes. Kirwin, 137 Wn. App. at 395; concurrence at 836. Where “an arrest is based on an unconstitutional statute, a constitutional violation clearly exists because of the demonstrable absence of ‘authority of law’ to justify the search or arrest.” State v. *841Chenoweth, 160 Wn.2d 454, 472-73,158 P.3d 595 (2007) (referring to Const, art. I, § 7: “No person shall be disturbed in his private affairs . . . without authority of law”).
Both Mason, 34 Wn. App. 514, and Hogan, 53 Wn. App. 387, distinguished United States v. Batchelder, 442 U.S. 114, 99 S. Ct. 2198, 60 L. Ed. 2d 755 (1979), a case that Justice Madsen cites as possibly raising questions about their reliability. Concurrence at 831. Batchelder held a conviction under one of two overlapping statutes that authorized different maximum punishments did not violate equal protection under the Fourteenth Amendment. But in Batchelder, the laws at issue were not coextensive. See Hogan, 53 Wn. App. at 390 (citing Mason, 34 Wn. App. at 518-19, and distinguishing Batchelder, 442 U.S. 114).
See also supra note 13. In contrast, the state statute in Brown, 116 Wn.2d at 560, expressly provided cities were free to exceed its standard.
The majority also asserts, ‘We presume an ordinance is valid unless the challenger can prove the ordinance is unconstitutional.” Majority at 825 (citing among other cases Heinsma v. City of Vancouver, 144 Wn.2d 556, 561, 29 P.3d 709 (2001)). I first note that Heinsma improperly relied upon City of Bothell v. Gutschmidt, 78 Wn. App. 654, 660, 898 P.2d 864 (1995), for this incorrect assertion. In Gutschmidt the court presumed ordinances are validly enacted, not constitutional. Id. Moreover, as I have previously detailed at Island County v. State, 135 Wn.2d 141, 155-70, 955 P.2d 377 (1998) (Sanders, J„ concurring), such a presumption of constitutionality is improper, and this court should not continue to propagate this presumption without analysis.
As in Armenta, 134 Wn.2d 1, and Tijerina, 61 Wn. App. 626, Kirwin consented to the search soon after the invalid detention and without the benefit of Miranda warnings. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).