(dissenting) — There is no dispute as to the facts; therefore, we review de novo the trial court’s conclusion of law as to the validity of the search of Leonard Radka’s car. State v. Mendez, 137 Wn.2d 208, 214, 970 P.2d 722 (1999). Before searching Mr. Radka’s car, Deputy *51Ronald Nye announced to Mr. Radka that he was under arrest for driving with his license suspended as is authorized under RCW 10.31.100(3)(e). Before searching Mr. Radka’s car, Deputy Nye then physically placed Mr. Radka in the back of his patrol car. “At that point, a reasonable person in [Mr. Radka’s] position would not believe himself free to leave.” State v. O’Neill, 148 Wn.2d 564, 582, 62 P.3d 489 (2003). The deputy’s unspoken subjective plan is irrelevant, as is whether or not Mr. Radka retained his cell phone or was handcuffed when locked in the patrol car. Our framework is objective. State v. Mennegar, 114 Wn.2d 304, 310-11, 787 P.2d 1347 (1990). We should reject Mr. Radka’s suggestion to engage in a speculative analysis based upon an officer’s subjective thought processes.
In my view, Mr. Radka was objectively seized and under custodial arrest when the search occurred. Thus, the trial court erred as a matter of law in concluding the search was not incident to a custodial arrest. Deputy Nye both announced Mr. Radka’s arrest and placed Mr. Radka in locked physical custody in his patrol car before the search. As reasoned in O’Neill, “it is the arrest. . . that constitutes the necessary authority of law for a search incident to arrest.” O’Neill, 148 Wn.2d at 585-86.
Field officers routinely make arrest and release decisions in a variety of circumstances, a process we should not discourage. Deputy Nye’s subjective planning to release Mr. Radka rather than book him after custodial arrest is irrelevant. See State v. O’Neill, 110 Wn. App. 604, 609, 43 P.3d 522 (2002) (booking policy release decisions are irrelevant if search is conducted incident to prior lawful custodial arrest). Equally, if Mr. Radka might have been released had he contacted someone to drive him home matters not. RCW 46.64.015(2) does not limit an officer’s authority to initiate a custodial arrest for the offenses enumerated in RCW 10.31.100(3) and then search incident to that arrest, even if booking might not follow after investigation. O’Neill, 110 Wn. App. at 609.
*52Finally, State v. McKenna, 91 Wn. App. 554, 958 P.2d 1017 (1998) is distinguishable because there the arresting officer had cited and released McKenna before the search took place. Here, objectively, Deputy Nye never released Mr. Radka after his custodial arrest, and merely formulated an unspoken, subjective release plan based upon undisclosed considerations.
I would reverse. Accordingly, I respectfully dissent.