(dissenting) — I disagree with the majority’s assertion that “Stair’s arrest was based solely on the fruits of the disputed search” and that “the challenged search was not accompanied by a contemporaneous arrest.” I would affirm the trial court’s ruling that because the police had justification to arrest McKenna independent of the seized methamphetamine, the search was valid as incident to arrest. Officer Stair believed that he had three grounds for arrest: (1) possession of drug paraphernalia; (2) an outstanding arrest warrant in connection with a previous driving without an operator’s license offense; and (3) a new driving without an operator’s license offense, coupled with her previous failure to appear. Although the first ground was not valid, the second and third grounds were. I respectfully dissent.
A. Consent to Search For Weapons
The facts support the trial court’s conclusion that McKenna voluntarily consented to the officer’s search for weapons as a condition to accepting a ride home in the police car. She could have withheld consent merely by declining the ride and accepting the offer to call a taxicab.36 Instead she chose37 to ride with Officer Stair, with the understanding that she would be subject to a weapons search.
*566I agree with the majority that once Officer Stair determined McKenna had no weapons in her bag, his authority to search based upon consent ended. But during this consensual search, he found drug paraphernalia (marijuana pipe, small scale, cigarette rolling papers) in the bag into which she had placed items from her car in preparation for its impoundment. At that point, Stair planned to arrest McKenna for possession of drug paraphernalia. I agree with the majority that Stair did not plan to incarcerate McKenna for possession of drug paraphernalia because he believed the jail would refuse a nonviolent offender. But he did plan to take her into custody for transport to the jail for booking.
B. Search Incident to Arrest
Suspecting that McKenna might be in possession of drugs, presumably capable of being ingested using the paraphernalia, Stair .requested that she empty her pockets, disgorging the film canister. He opened the canister looking for drugs, found suspected methamphetamine, advised McKenna that she was under arrest for violation of the Uniform Controlled Substances Act, RCW 69.50,—posses-sion of drug paraphernalia and possession of methamphetamine, handcuffed her, and transported her to jail.
A case in point is State v. Brantigan, 59 Wn. App. 481, 798 P.2d 1176 (1990). A police officer stopped Brantigan for littering early one morning and shined a flashlight into his car. The officer observed a spoon containing liquid and white powder and a beer can fashioned into a pipe; he arrested Brantigan for possession of drug paraphernalia. During the subsequent patdown, the officer discovered two packets of suspected cocaine in Brantigan’s pocket. The officer testified that he would have released Brantigan on the paraphernalia offense had he not found the cocaine. Brantigan thus argued that the search was invalid because it was not pursuant to a custodial arrest.
Citing State v. Henneke, 78 Wn.2d 147, 149-50, 470 P.2d 176 (1970), the court reiterated that
*567the justification for allowing a warrantless search incident to arrest is to uncover fruits of the crime involved, to thwart destruction of evidence and/or to discover and seize weapons or other instruments which could be used to assault the arresting officers or to effect an escape. . . . [T]his rationale applies to arrests for misdemeanors committed in the presence of the officer and that evidence seized incident to the arrest could be used in the prosecution for a crime other than the one which engendered the original arrest.
Brantigan, 59 Wn. App. at 484.
Division One rejected Brantigan’s assertion that the element of “custody” was missing because the officer had a subjective intent to release him with a misdemeanor citation had he not discovered the cocaine. Citing State v. Brooks, 57 Wn.2d 422, 425-26, 357 P.2d 735 (1960) and People v. Simon, 45 Cal. 2d 645, 290 P.2d 531 (1955), Division One noted,
if an officer has probable cause to make an arrest based on the information available to him before he searches, there is nothing unreasonable in his conduct if he conducts the search prior to instead of after the arrest, as long as the scope of the search does not exceed that justified as incident to the arrest.
Brantigan, 59 Wn. App. at 484-85 (emphasis added). The court held: “It is irrelevant whether the formal arrest or the search precedes where probable cause exists to arrest at the time of the search. It should matter even less what the officer’s subjective state of mind is when probable cause to support a custodial arrest exists at the time of the search . . . .” Id. at 486 (emphasis added).
It was Brantigan upon which the trial court relied in denying McKenna’s motion to suppress. Accord State v. Smith, 88 Wn.2d 127, 559 P.2d 970 (1977).
“[I]f the officer is entitled to make an arrest on the basis of information available to him before he searches, and as an incident to that arrest is entitled to make a reasonable search of the person arrested . . . there is nothing unreasonable in his conduct if he makes the search before instead of after the arrest.”
*568Brooks, 57 Wn.2d at 425 (quoting Simon, 290 P.2d at 533).
I agree with the trial court that the search of McKenna’s jacket pocket and canister were valid as incident to a lawful arrest because the officers had authority to arrest McKenna on her outstanding warrant. Moreover, Stair “absolutely” believed he had probable cause to arrest McKenna on three grounds: (1) on the warrant; (2) for driving without a license, coupled with other facts;38 and (3) for possession of “drug paraphernalia that [might have been] used to ingest drugs.” At the point he found the drug paraphernalia, Stair “made a decision to place her in custody and take her to the . . . Kelso police station, despite the fact that she would not have been booked into the jail . . . .’’Not only did Officer Stair intend to take McKenna into custody before finding the drugs, even if he had not so intended, his state of mind was irrelevant under Brantigan, so long as he had lawful authority, as he did here, under the outstanding arrest warrant.
Even if Stair was mistaken in his belief that he had probable cause to arrest for possession of drug paraphernalia, such mistake did not render his search unlawful. If an officer believes he has probable cause to arrest for one crime, but in fact does not, the arrest is still valid as long as there existed probable cause to arrest for another crime. State v. Huff, 64 Wn. App. 641, 646, 826 P.2d 698 (1992). “[A]n arrest supported by probable cause is not made unlawful by an officer’s subjective reliance on ... an offense different from the one for which probable cause exists.” Huff, 64 Wn. App. at 646 (citations omitted).
I would affirm the trial court’s Conclusion of Law 8 that Stair’s mistaken reliance on probable cause to arrest McKenna for paraphernalia possession does not automatically invalidate the search incident to arrest. I would also affirm *569the trial court’s Conclusion of Law 7 that “Stair’s search of the plastic film canister is legally justifiable solely upon the basis that it constituted a valid search incident to an arrest of the defendant’s person that Officer Stair could have made on the outstanding Longview Municipal Court Warrant pursuant to State v. Bran[t]igan . . .
I agree with the trial court and disagree with the majority: There is justification for McKenna’s arrest on grounds other than the fruits of the search. See Rawlings v. Kentucky, 448 U.S. 98, 100 S. Ct. 2556, 65 L. Ed. 2d 633 (1980) (where formal arrest followed quickly on the heels of the challenged search, it is not important which came first, so long as the fruits were not necessary to support probable cause). Even if Stair did not have probable cause to arrest McKenna for possession of paraphernalia,39 he had alternate, independent, valid grounds for arrest—driving without a valid license, a misdemeanor under RCW 46.20.021(1), and the outstanding arrest warrant. Stair was “entitled to make an arrest on the basis of information available to him[,]” namely the arrest warrant or the *570license violation, before he began the search. See Brooks, 57 Wn.2d at 425. Because Stair had probable cause and authority to arrest McKenna before the search, the search was valid as incident to her “contemporaneous” arrest.
This case is distinguishable from State v. Carner, 28 Wn. App. 439, 624 P.2d 204 (1981). In Carner we found the search of a juvenile defendant, after officers decided to release him to his mother, could not be justified as incident to arrest. We stated:
The crucial finding is that before Officer Bens conducted the challenged search, the officers had determined that the defendant would not be detained, but released to his mother .... There was no danger of weapons, or that he might possess evidence relevant to the crime for which he was arrested. The further danger that the defendant might possess items which would aid in his escape or carry contraband or drugs to his jailmates would exist only if the police intended to detain him. Once the administrative decision was made to release him without further detention, these dangers ceased to exist and gave the police no reasonable basis for a detailed body search ....
. . . We conclude the trial court was correct in determining that once defendant’s juvenile status was determined and a decision to release him made, any further intrusion on the privacy of his person in addition to those already made was unreasonable and not necessitated by any exigencies which further detention might have required.
Carner, 28 Wn. App. at 445 (citations omitted).40
Here, although McKenna’s initial detention had ended, Stair’s search of her bag was a consensual precondition to her ride home in the police car. Moreover, in Garner there was no second and independent basis for arrest, as there was here with McKenna’s outstanding arrest warrant and *571operator’s license violation. As explained above, although search of the film canister exceeded the scope of the consensual weapons search, it was nevertheless valid as incident to a warrant-authorized arrest or an arrest based on probable cause independent of and before the search which revealed the methamphetamine.
Several cases from other jurisdictions have reached the same conclusion under similar circumstances. In State v. Valdez, 5 Neb. App. 506, 562 N.W.2d 64 (1997), police officers searched a residence pursuant to a valid search warrant. The court upheld a prearrest search of Valdez’s person as incident to arrest.
It has been held that a search incident to an arrest can be made prior to an arrest as long as probable cause for the arrest exists prior to the search. State v. Twohig, 238 Neb. 92, 469 N.W.2d 344 (1991); State v. Roach, 234 Neb. 620, 452 N.W.2d 262 (1990). It does not matter that a defendant is not formally placed under arrest until after a search, so long as the fruits of the search are not necessary to support the cause to arrest. [Roach, 452 N.W.2d 262],
Valdez, 562 N.W.2d at 74 (emphasis added).
In Valdez the supporting search warrant affidavit provided sufficient probable cause to arrest, independent of the cocaine found in Valdez’s pocket. Similarly, McKenna’s arrest warrant provided alternative authority for her arrest, independent of and prior to discovery of methamphetamine in her pocket. Valdez, 562 N.W.2d at 74-75. Just as the court in Valdez found the search of Valdez to be incident to arrest, the officer’s search of McKenna should be similarly characterized as a valid search incident to arrest.
In another case, Hoag v. State, 791 S.W.2d 342 (Tex. Crim. App. 1990), the defendant challenged the seizure of a baggy of cocaine found on his person. Before seizing the baggy, the officers had run a warrant check and discovered that Hoag had an outstanding arrest warrant. The court found that the seizure was legal based on the baggy’s appearance and the officers’ knowledge of high narcotic activ*572ity at the location. The court determined that, alternatively, Hoag could have been arrested on the warrant, booked, and searched; thus the baggy inevitably would have been discovered.41 Hoag, 791 S.W.2d at 344-45.42 See also United States v. Green, 111 F.3d 515 (7th Cir.) (discovery of an outstanding warrant removed the taint of an illegal stop, and therefore made what might have been an illegal search a valid search incident to arrest), cert. denied, 522 U.S. 973, 118 S. Ct. 427, 139 L. Ed. 2d 328 (1997); Ruffin v. State, 201 Ga. App. 792, 412 S.E.2d 850 (1991) (discovery of outstanding arrest warrant attenuated the connection between the illegal stop and the search incident to arrest); State v. Cook, 530 N.W.2d 728 (Iowa 1995) (statute allowing officer to issue citation in lieu of arrest does not affect officer’s authority to conduct an otherwise lawful search of person incident to citation for failure to wear a seat belt).
Perhaps the closest case in point is the Second Circuit Court of Appeals decision in United States v. Ricard, 563 F.2d 45 (2d Cir. 1977). Police stopped Ricard’s car for speeding. As he reached into his pocket for identification, the officer observed a tin foil packet. With no previous suspicion that Ricard was involved in illegal drugs, the officer became suspicious, removed the packet from Ricard’s pocket, opened the packet, and found a white powder, later identified as cocaine. The officer then arrested Ricard for drug possession and took him to the police station. There it was discovered that Ricard was also in possession of stolen money orders. The court found that there was sufficient cause for the officer to seize the packet of cocaine as a product of a valid search incident to an arrest for speeding, an arrestable offense under New Jersey law; it was irrelevant that the officer had chosen not to arrest Ricard for speeding:
*573[T]he fact that Kelleher had cause to arrest appellant for speeding, even if he initially determined not to do so, was a sufficient predicate for a full search. United States v. Jenkins, 496 F.2d 57, 72-73 (2d. Cir. 1974) . . . United States v. Riggs, 474 F.2d 699, 702 (2d Cir. [1973]) .... As Judge Mansfield stated in Jenkins,
“The mere fact that the trooper reversed the procedure, conducting the search before the arrest, did not render it illegal as long as probable cause to arrest existed at the time of the search .... Any other holding would, without rational basis, exalt form over substance.”
Ricard, 563 F.2d at 49 (emphasis added) (alteration in original).43 As William B. Ringel summarizes Ricard, “if the statutory authority exists for a custodial arrest, it is not important whether the officer actually makes a decision to take the arrestee into custody before conducting the search. As long as the officer could have taken the arrestee into custody, the search is permissible.” 1 William B. Ringel, Searches and Seizures, Arrests and Confessions, “Custodial” Arrests, § 12.3(b), at 12-12 (1979) (emphasis added).
In short, as explained by Justice Harlan in his concurring opinion in Sibron v. New York, 392 U.S. 40, 76, 88 S. Ct. 1889, 20 L. Ed. 2d 917 (1968),
If the prosecution shows probable cause to arrest prior to a search of a man’s person, it has met its total burden. There is no case in which a defendant may validly say, “Although the officer had a right to arrest me at the moment when he seized me and searched my person, the search is invalid because he did not in fact arrest me until afterwards.”
Sibron, 392 U.S. at 77.
As further explained in Rawlings,
Where the formal arrest followed quickly on the heels of the challenged search of petitioner’s person, we do not believe it *574particularly important that the search preceded the arrest rather than vice versa [so long as the fruits of the search were not necessary to support probable cause to arrest].
Rawlings, 448 U.S. at 111 (citations omitted). See 3 Wayne R. LaFave, Search and Seizure, § 5.4(a), at 154-55 (3d ed 1996).
LaFave urges that
At a minimum, Cupp[44] should be applied so as to permit, when there are grounds upon which a formal arrest could have been made, a more extensive search for any evidence reasonably believed to be in the possession of the suspect which might be unavailable later .... [I]t is to be doubted that Cupp must be limited to situations where the evidence is literally “highly evanescent”; [citing as illustrative, Franklin v. State, 18 Md. App. 651, 308 A.2d 752 (1973).]
Id. at 157-58 (footnote omitted).
I would follow LaFave, Ricard, Brantigan, and the cases that they cite. I would hold that McKenna’s outstanding arrest warrant and/or driving without a license provided independent probable cause to support Officer Stair’s search incident to his contemporaneous arrest of McKenna and seizure of the methamphetamine, regardless of his subjective belief about whether he could legally arrest for possession of drug paraphernalia and regardless of the timing of his formally placing McKenna under arrest. I would affirm.
It is irrelevant that there was no written police department policy requiring a weapons search of a passenger prior to transport in a police vehicle. Such a search is prudent police practice, always undertaken by Officer Stair.
McKenna argues that by towing her car, the police put her in a coercive situation in which she had no choice but to accept the ride. McKenna placed herself in the situation by driving without a license, in a vehicle without valid registration and insurance. Allowing McKenna or her unlicensed passenger to drive home would have broken the law. We note that McKenna’s outstanding arrest warrant was for a previous incident of driving without a license.
See State v. Watson, 56 Wn. App. 665, 784 P. 2d 1294 (1990) (although driving without a valid license is not by itself grounds for custodial arrest, it can be if other circumstances were present). Here such other circumstances included the arrest warrant for the same offense; an additional arrest warrant for McKenna’s passenger, who also lacked a valid license; no automobile insurance; the presence of drug paraphernalis in her possession.
See State v. Lowrimore, 67 Wn. App. 949, 959-60, 841 P.2d 779 (1992):
Once the officer found the drug paraphernalia in the purse, he had probable cause to arrest for violation of RCW 69.50.412. RCW 69.50.412 does not, ipso facto, make possession of drug paraphernalia a crime. The statute does, however, criminalize the use of drug paraphernalia to, inter alia, “ingest, inhale, or otherwise introduce” a controlled substance into the body .... Former distinctions and uncertainties as to the scope of a search incident to arrest of various containers such as purses, briefcases and backpacks once they were in the officer’s control, have been eliminated by State v. Smith, 119 Wn.2d 675, 681, 835 P.2d 1025 (1992), in which the court stated the rule as follows:
An object is, therefore, within the control of an arrestee for the purposes of a search incident to an arrest as long as the object was within the arrestee’s reach immediately prior to, or at the moment of, the arrest.
No exigent circumstances are required for such search, nor is the subjective intent of the officer controlling. If, as a matter of fact, there were grounds justifying the search, the evidence need not be suppressed because the officer was unclear or even acted on an incorrect basis. Under the circumstances, it is also immaterial whether the search took place immediately before the arrest or immediately following the arrest. Accordingly, the search of the pouch was justified as incident to the arrest of Lowrimore for possession of drug paraphernalia in what, at that point, became a criminal investigation.
(Footnotes omitted.)
We also noted that the final search was motivated, not by standard police procedures, but by the officer’s anger at Camer’s comments. Carner, 28 Wn. App. at 445-46.
Here, it was Officer Coulter, not Officer Stair, who made the initial stop and the initial determination to release McKenna.
In Hoag, the court based its decision on the fact that Hoag would, have been arrested on the warrant anyway. Here, the officer intended to take McKenna into custody to be processed at the jail, even though the jail probably would not have kept her incarcerated because it lacked space for nonviolent offenders.
The “noncustodial arrest” cases cited by the majority in note 25 are inapposite; the cases cited in note 27 are distinguishable because they do not involve independent valid alternative bases for arrest, such as the arrest warrant here; nor do they involve nonarrest related transport in a police vehicle.
Cupp v. Murphy, 412 U.S. 291, 93 S. Ct. 2000, 36 L. Ed. 2d (1973).