¶24 (dissenting) — Because Joseph J. Chesley challenged only the sufficiency of probable cause for his arrest, he has failed to preserve his challenge to the scope of the vehicle search incident to his lawful arrest. State v. Millan, 151 Wn. App. 492, 212 P.3d 603 (2009), review granted, 168 Wn.2d 1005 (2010); State v. Donohoe, 39 Wn. App. 778, 782 n.5, 695 P.2d 150 (“Because a defendant can receive complete constitutional protection against the use of illegally obtained evidence through superior court suppression hearing procedures, and because the rights afforded by these constitutional provisions are not ‘trial rights’ or part of the ‘truth-finding function’, they can be waived.”), review denied, 103 Wn.2d 1032 (1985). To the extent that the majority reviews the record and determines facts necessary to resolve issues never presented to the court whose decision is being reviewed, it exceeds the scope of its appellate review authority. See Millan, 151 Wn. App. at 502. Accordingly, I respectfully dissent.
¶25 In this case, the law enforcement officers clearly acted in accord with state and federal law when they arrested Chesley after he had committed a crime in their presence and when they secured evidence lying in open view at the crime scene. In particular, the officers’ actions fall squarely within the established exception to the warrant requirement permitting an officer to conduct a vehicle *48search incident to a lawful arrest when it is “ ‘reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.’ ” Arizona v. Gant, 556 U.S. 332, 129 S. Ct. 1710, 1719, 173 L. Ed. 2d 485 (2009) (quoting Thornton v. United States, 541 U.S. 615, 632, 124 S. Ct. 2127, 158 L. Ed. 2d 905 (2004) (Scalia, J., concurring in judgment)).
¶26 Thurston County law enforcement officers had set out “bait cars” that would send a silent alarm when someone tried to steal the car or its contents. When Chesley punched through the bait car’s door lock, he triggered the bait car’s silent alarm. Police responded and saw Chesley standing next to the damaged vehicle. Chesley tried to escape by jumping into his car, which was parked next to the bait car. Police arrested Chesley and his companions and seized the burglary tools they saw through the windows of Chesley’s car. Simply stated, the police did not violate either the Fourth Amendment of the federal constitution nor article I, section 7 of the Washington State Constitution when they caught Chesley and his friends in the act of attempting to steal the bait car or its contents.
¶27 Recent federal and state Supreme Court opinions limiting the scope of the vehicle search incident to arrest warrant exception do not prohibit police from arresting persons caught in the act of committing a crime, nor do they relieve police of the responsibility to secure evidence of that crime5 that is lying in open view on the floor of the criminal’s car at the time of the arrest. Because the Thurston County law enforcement officers properly searched Chesley’s vehicle incident to his lawful arrest, I would affirm. Alternatively, because as an appellate court we lack authority to hold a suppression hearing on a record of a proceeding during *49which the issue of unlawful search and seizure was not presented for review, I would remand.
See Arizona v. Youngblood, 488 U.S. 51, 109 S. Ct. 333, 102 L. Ed. 2d 281 (1988) (law enforcement officers may offend due process by failing to collect and preserve potentially useful evidence in bad faith); see also State v. Wittenbarger, 124 Wn.2d 467, 477, 880 P.2d 517 (1994) (State violates a defendant’s due process rights by failing to preserve “potentially useful” evidence while acting in bad faith or by failing to preserve “materially exculpatory evidence” regardless of whether acting in bad faith (citing Youngblood, 488 U.S. at 58)).