(dissenting)—Officer Tucker entered a 2-office suite located in a small shopping center on the invitation of Armstrong, the defendant's live-in girl friend and business partner. On entering the outer office, Tucker saw the *745defendant. At that juncture the officer had probable cause to believe the defendant had committed at least three felonies. He immediately arrested him. Having made a lawful arrest, the officer made a search incident to the arrest.
Defendant does not claim his arrest was illegal nor did he make any objection to the search of his inner office. The majority reasons that the officer had a duty to inquire whether defendant consented to the search. In view of the fact that the articles were seized in defendant's office pursuant to a search triggered by a lawful arrest, we need inquire no further.1 would affirm all counts.
Facts
Leach was amorously involved with Cindy Armstrong, who called herself Cindy Leach. They considered themselves common law husband and wife.
The couple moved from several states to avoid numerous warrants issued for Leach's arrest for indecent exposure charges. Defendant also had prior convictions for forgery and burglary. In May 1986, defendant fled from criminal charges in Vermont and came to Seattle to start a travel agency. Armstrong followed. Apart from a brief period when Armstrong fled to a battered woman's shelter, they lived together.
In June 1986, defendant leased commercial space, for his business, in an office complex in Renton, Washington. Armstrong had her own key to the office. She performed clerical work and maintained a desk in the suite. The travel agency's business cards identified the owners of the agency as "Duncan and Cynthia Leach," a name which Armstrong sometimes used, considering herself Leach's common law wife.
*746After Leach moved into the building, three of his commercial neighbors were burglarized, the C.J. Nagel Insurance Agency, SPA Fitness, Inc. and The American Hot Airlines, between July 9, 1986 and July 11, 1986. The three businesses were entered without permission and various items and cash were taken. Specifically, a notary stamp, rubber stamps and a box of copier paper were taken from Nagel's agency. A 3M copying machine was taken from Fitness, Inc. One hundred fifty dollars in cash was taken from American Hot Airlines. All three offices apparently were entered with a key as there was no evidence of forced entry. On July 15, 1986, defendant made a report to the authorities claiming that his TTY machine and cash had been stolen. He also filed a claim with his insurance company for the claimed stolen property. A few days later, the TTY machine mysteriously reappeared in the defendant's office, but he did not advise his insurance company of its return.
On July 24, 1986, Armstrong called Detective Tucker of the King County Police Department. Armstrong advised that Leach was responsible for the office burglaries. Armstrong then met with Tucker and gave him a notary stamp and two rubber stamps bearing the name of C.J. Nagel. She claimed these items were taken from defendant's apartment and had been stolen from the C.J. Nagel Insurance Agency. She told Tucker there were other stolen items in the office. She advised that the defendant had confessed to her about burglarizing the three offices in the complex with a master key in his possession. The next day, Cindy signed the following statement setting forth in detail the defendant's admission of the three burglaries.
My husband [defendant] and I moved from Vermont in April/ May because he was going to jail for a "L & L" [Lewd and Lascivious] charge. We started a travel agency in Renton at 14410 S.E. Petrovitsky, #200. Over the last couple of weeks, he has entered neighboring businesses, taking money and various items. He used a master key. He brought home a notary seal and two rubber signature stamps that came from C. J. Nagel Insurance. ... He also has been writing several checks on closed accounts. He has a copy machine in our office that he *747said came from the Health Club as part of an agreement so he wouldn't sue them for making too much noise. To cover up these burglaries and to make some insurance money, he reported a theft at our office, too. He is claiming this through State Farm; Lance Leonard is the agent.
This statement is true and accurate to the best of my knowledge.
/s/ Cynthia L. Leach
Clerk's Papers, at 24.
On July 25, 1986, Armstrong signed a consent to search the travel agency office. Thereafter, Armstrong accompanied Tucker and another officer to the travel agency at approximately 1:00 p.m. The door was locked. Using Armstrong's key, Tucker and Armstrong entered the office, which consisted of two rooms, one behind the other. Sitting in plain view in the front office was the 3M copy machine which Tucker recognized as being similar to one reported stolen from SPA Fitness, Inc. Leach was on the floor in the rear room. Detective Tucker identified himself and advised defendant he was under arrest for burglary. Detective Tucker handcuffed defendant, placed him on the sofa and. then searched the office. The defendant did not object to the search. Tucker located a box of copier paper in a cabinet and blank checks from C.J. Nagel Insurance Agency in defendant's desk. Tucker also found the TTY machine which Leach had reported stolen in the burglary of his own office. Tucker also seized a locked file box and Leach's personal briefcase, but these items were not opened. Following Leach's arrest, a master key to the office complex was found among his personal effects. The manager of the complex stated that Leach was not authorized to have a master key.
The defendant was charged with three counts of burglary in the second degree and one count of attempted theft in the second degree. At trial, defendant agreed to proceed on the basis of stipulated police reports, plus his own testimony. The trial court found the defendant's testimony unbelievable and found him guilty as charged on all four counts.
*748Search Incident to a Lawful Arrest
It is well settled that a search and seizure without a warrant is constitutionally valid under the fourth amendment to the United States Constitution and article 1, section 7 of the Washington State Constitution, if incidental to a lawful arrest. State v. Patterson, 112 Wn.2d 731, 735, 774 P.2d 10 (1989). Recently in State v. Stroud, 106 Wn.2d 144, 152, 720 P.2d 436 (1986), we held that potential danger to officers and destructibility of evidence outweigh privacy interests protected by the Fourth Amendment and Const, art. 1, § 7, and warrant a bright-line rule permitting limited searches even without exigent circumstances.
In Stroud, the defendants were lawfully arrested outside their vehicle. After the defendants were handcuffed and placed in the patrol car, the officers searched the entire passenger compartment, including the unlocked glove compartment and an unzipped luggage bag. The defendants moved to suppress the seized evidence, as it was seized in a warrantless search at a time when the officers were not in danger and there was no chance that the evidence would be destroyed. We rejected this argument stating at page 152:
To weigh the actual exigent circumstances against the actual privacy interests on a case-by-case basis would create too difficult a rule to allow for both effective police enforcement and also protection of individual rights. However, a reasonable balance can be struck. During the arrest process, including the time immediately subsequent to the suspect's being arrested, handcuffed, and placed in a patrol car, officers should be allowed to search the passenger compartment of a vehicle for weapons or destructible evidence. However, if the officers encounter a locked container or locked glove compartment, they may not unlock and search either container without obtaining a warrant.
Here the police had probable cause to effect a lawful arrest, with Armstrong's statement and the stolen items turned over to police prior to entry into the agency office. They had every reason to believe that defendant had committed at least three felonies. Probable cause is based upon the totality of facts and circumstances known to the arresting officer. State v. Scott, 93 Wn.2d 7, 10-11, 604 P.2d 943, *749cert. denied, 446 U.S. 920 (1980). Finally, they knew that two outstanding warrants, one from Vermont and one from Wyoming, existed for the defendant.
The police, upon entering the agency, lawfully arrested Leach for the burglaries. During the time immediately subsequent to Leach being arrested and handcuffed, the police were allowed to make a search incident to the arrest. No consent was needed from Leach.
Consent
The majority holds "the police must obtain the consent of a cohabitant who is present and able to object in order to effect a valid warrantless search." Majority, at 736. First the search was made pursuant to a lawful arrest. There is no contention that Leach's arrest wasn't lawful. For argument sake, however, let's assume it was illegal. The rule espoused in the cases relied on by the majority is not triggered until the defendant objects to the search. Only when the defendant objects does the third party's consent become invalid. See United States v. Impink, 728 F.2d 1228 (9th Cir. 1984) ("Where a suspect is present and objecting to a search, implied consent by a third party with an inferior privacy interest is ineffective.'1) (Italics mine.) Impink, at 1234.
Important to a resolution of this consent issue is an understanding of what Impink and other cases relied upon by the majority did not address. None of these cases addressed the situation where the defendant was present and not objecting. Instead, they all deal with situations where the defendant was present and objecting. Here the defendant did not object. Nonetheless the majority relies on these cases to invariably hold that the police must obtain defendant's consent. The majority gives no rationale or reasoning for imposing this new burden upon the police, nor from departing from the cases it relies upon.
Further, in Washington, we have upheld consensual searches where the consenting occupant had joint control of *750the premises searched, and voluntarily allowed police officers into the premises. See, e.g., State v. Vaster, 24 Wn. App. 405, 408-09, 601 P.2d 1292 (1979) (defendant present and objecting); State v. Porter, 5 Wn. App. 460, 463, 488 P.2d 773 (1971) (defendant on premises); State v. Jeffries, 105 Wn.2d 398, 414, 717 P.2d 722, cert. denied, 479 U.S. 922 (1986); State v. Gillespie, 18 Wn. App. 313, 316, 569 P.2d 1174 (1977), review denied, 89 Wn.2d 1019 (1978); State v. Breckenridge, 4 Wn. App. 328, 330, 481 P.2d 26 (1971) (search consented to by occupier of house upheld). See generally 3 W. LaFave, Search and Seizure § 8.4(a) (2d ed. 1987). Our courts have previously held that when two persons have equal right to the use or occupancy of the premises, either one can authorize a search; the evidence produced in a search authorized by one may be used to support a charge against the other. State v. Bellows, 72 Wn.2d 264, 268, 432 P.2d 654 (1967).
Here we are required to consider the evidence in a light most favorable to the State. The police officer's entry was expressly consented to by the joint tenant and partner. The defendant did not object to the search. It is not incumbent upon the police to seek defendant's consent to make a search after he already had been lawfully arrested..
Search warrant requirements exist in order to protect a person's privacy. The majority's cases on privacy all involve occupants' homes or apartments. In Lawton v. State, 320 So. 2d 463 (Fla. Dist. Ct. App. 1975), it was defendant's ápartment that the police searched over defendant's objections. Again in United States v. Impink, 728 F.2d 1228 (9th Cir. 1984), the police searched the defendant's house.
Here the search occurred in a commercial office, not in a private home or apartment. There can be no comparable right of privacy in a commercial establishment where landlords and cleaning personnel have master keys. In these situations, an individual's expectation of privacy is not justified. Consequently, a commercial tenant does not have the same expectation of privacy regarding his business as he does with respect to his home. This diminished expectation *751of privacy in commercial offices should not be allowed to vitiate the consent of one who has common authority over the business premises.
Harmless Error
The "validity" of the search is a nonissue as there was substantial evidence, independent of the property seized in the search, to sustain the defendant’s convictions for the four crimes.
An error of constitutional magnitude is prejudicial unless this court can say beyond a reasonable doubt that the error did not contribute to the guilty verdict or that the untainted evidence is so overwhelming it necessarily leads to guilt. State v. Acosta, 101 Wn.2d 612, 683 P.2d 1069 (1984). The following items were seized in the search: TTY machine, a box of copier paper, a stack of insurance checks, a copy of the lease, miscellaneous paperwork and keys. In addition, Tucker seized a locked file box and closed personal briefcase which were not searched. Clerk's Papers, at 27. Even if these items are suppressed there is substantial independent evidence to sustain Leach's convictions on all four counts.
Count 1
The Burglary of C.J. Nagel Insurance
The C.J. Nagel Insurance Agency reported that someone entered its office without force, although it was locked, and removed the notary stamp, several rubber stamps and a box of copy machine paper. Prior to the search, Cindy Armstrong delivered to the police a notary stamp and rubber stamps bearing the name of C.J. Nagel Insurance Agency. Armstrong, in a sworn statement, said that these items came from defendant's apartment and, furthermore, that the defendant admitted having a copy of the master key which he used to enter the other offices in his complex. When defendant was searched, the key was found in his personal effects. This evidence is substantial and supports the trial judge's conviction on count 1.
*752Count 2 SPA Fitness
With respect to count 2, which concerns the stolen 3M brand copying machine taken from the office of SPA Fitness, Inc., the copy machine was in plain view of the arresting officers, as soon as they walked into the office at the invitation of Armstrong, before the search was commenced. A defendant's spouse having equal right to occupation of the premises may consent to entry of the premises. State v. Hartnell, 15 Wn. App. 410, 417, 550 P.2d 63, review denied, 87 Wn.2d 1010 (1976). Recovering the stolen 3M copying machine in defendant's office supports the defendant's conviction on count 2.
Count 3
American Hot Airlines
American Hot Airlines reported that someone entered its locked office without permission and removed $150. There was no cash seized in the search of defendant's office. Because there was no evidence from American Hot Airlines seized during the search, the articles seized could not have affected the guilty verdict on this count.
Count 4
False Insurance Claim
With respect to count 4, defendant was charged with second degree theft for filing a false insurance claim for the TTY machine. Armstrong, before the search, told officers the defendant had told her that he had falsely reported to the police and to his insurance agent that the travel agency office had been burglarized. An investigation revealed the defendant had reported the burglary to the police and filed a claim with his insurance agent for the TTY machine. Defendant testified at trial that he filed an insurance claim for his missing TTY machine, but failed to withdraw the claim when the TTY machine mysteriously reappeared the following week. Defendant's admission to Armstrong and *753testimony corroborated the police investigation. Defendant’s own testimony is enough to sustain his conviction on count 4.
Conclusion
When Detective Tucker entered the subject office at the invitation of Armstrong's live-in girl friend and business partner, he looked in the inner office and immediately identified the defendant. At that juncture, he had substantial evidence in his possession to establish probable cause that defendant had committed a number of felonies. He then arrested Leach and made a search incident to the arrest. Defendant made no objection to the search and the defendant here makes no contention that the arrest was illegal or that the officer couldn't make a search incident to the lawful arrest. Even if the items seized were suppressed, there is sufficient other evidence obtained prior to the search to sustain the convictions. Finally, the majority's cases on privacy all involve occupants' homes or apartments. There can be no comparable right of privacy in a commercial establishment where landlords and cleaning personnel have access to the premises.
I would affirm on all counts.
Callow, C.J., and Andersen and Durham, JJ., concur with Dore, J.
The State defended the denial of suppression by asserting the "consent exception" to the requirement of a search warrant and did not argue that the search of the office could be justified as incident to the arrest. Nevertheless, this court may affirm if the trial court's judgment is sustainable on any theory. LaMon v. Butler, 110 Wn.2d 216, 223, 751 P.2d 842 (1988), aff'd, 112 Wn.2d 193, 770 P.2d 1027 (1989).