The State of Washington, Respondent, v. Dennis Ray Kirwin, Petitioner, 165 Wash. 2d 818

Fairhurst, J. ¶1 —A jury convicted Dennis Ray Kirwin of unlawful possession of methamphetamine. The police found the methamphetamine in Kirwin’s truck during a warrant-less search conducted incident to the arrest of the passenger, Casey Irwin. Kirwin claims the State failed to justify the warrantless search of his truck under the search incident to arrest exception. He contends the city ordinance providing the basis for the arrest is invalid because it conflicts with state law and, therefore, rendered the arrest unlawful.

We hold Kirwin has not demonstrated the city ordinance conflicts with state law and affirm the Court of Appeals. I. FACTUAL AND PROCEDURAL HISTORY ¶2 Around 2:00 a.m. in downtown Olympia, Kirwin was driving a truck with Irwin riding in the passenger seat. From his patrol vehicle, Officer Kory Pearce observed the passenger, Irwin, discard a beer can out of the passenger side window and saw its liquid contents spill onto the sidewalk.

Officer Pearce activated his emergency lights and saw the passenger lean down as if to conceal something. ¶3 Once stopped, Irwin told Officer Pearce he threw the can out of the vehicle to avoid being caught with an open container inside of the truck. Officer Pearce arrested Irwin for littering, which is a misdemeanor under the Olympia Municipal Code (OMC) 9.40.110. After Officer Pearce secured Irwin in the patrol vehicle, he returned to the passenger side of the truck to search the area that was within Irwin’s immediate control prior to his arrest.

With Kirwin’s consent, Officer Pearce searched the locked center console of the truck where he discovered cash and a bag of a crystalline substance he suspected to contain methamphetamine. Officer Pearce placed the driver, Kirwin, under arrest for unlawful possession of a controlled substance. Officer Pearce apprised Kirwin of his Miranda rights, which Kirwin waived; he admitted the methamphetamine belonged to him. ¶4 Kirwin was charged with one count of unlawful possession of methamphetamine.

At trial, the court admitted as evidence the crystalline substance found in the truck, which was confirmed to contain methamphetamine. Kirwin’s attorney did not object to or move to suppress the evidence. A jury convicted Kirwin as charged, and he was sentenced to one year and one day. The Court of Appeals upheld the admission of the evidence based on the search incident to arrest exception to the warrant requirement. State v. Kirwin, 137 Wn. App. 387, 393, 153 P.3d 883 (2007). We granted review. State v. Kirwin, 162 Wn.2d 1013, 178 P.3d 1032 (2008). II.

ISSUE ¶5 Whether Officer Pearce conducted a proper search incident to arrest where the ordinance providing the authority for the arrest imposes a criminal sanction for littering when a nearly identical state law imposes only a civil sanction. III. ANALYSIS ¶6 Kirwin alleges the search incident to the arrest of Irwin was unconstitutional under both the Fourth Amendment and

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section 7. Although not raised at trial, Kirwin may submit for review a “ ‘manifest error affecting a constitutional right’.” State v. McFarland, 127 Wn.2d 322, 333, 899 P.2d 1251 (1995) (quoting RAP 2.5(a)(3)). Kirwin must “identify a constitutional error and show how, in the context of the trial, the alleged error actually affected [his] rights.” Id. (citing State v. Scott, 110 Wn.2d 682, 688, 757 P.2d 492 (1988)). It is proper to “preview” the merits of the constitutional argument to determine whether it is likely to succeed. State v. Walsh, 143 Wn.2d 1, 8, 17 P.3d 591 (2001) (citing State v.

WWJ Corp., 138 Wn.2d 595, 603, 980 P.2d 1257 (1999)). As a threshold matter, we address whether Kirwin has met his burden to prove a constitutional error occurred. ¶7 We presume a warrantless search violates both the Fourth Amendment to the United States Constitution and

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section 7 of the Washington State Constitution. State v. Day, 161 Wn.2d 889, 893-94, 168 P.3d 1265 (2007). The State bears the burden to prove that one of the narrowly drawn exceptions to the warrant requirement validates the warrantless search. Id.; State v. Vrieling, 144 Wn.2d 489, 492, 28 P.3d 762 (2001). One such exception is a search conducted incident to arrest. Vrieling, 144 Wn.2d at 492. The arrest must be a lawful custodial arrest to justify a warrantless search. State v. Moore, 161 Wn.2d 880, 885, 169 P.3d 469 (2007); State v. O’Neill, 148 Wn.2d 564, 585, 62 P.3d 489 (2003). An arrest provides the legal authority required by

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section 7 of the Washington State Constitution. O’Neill, 148 Wn.2d at 585. If the State obtains the evidence without the authority of law, then the evidence is not admissible in court. Day, 161 Wn.2d at 894. Kirwin’s sole challenge to the search is that Officer Pearce lacked authority of law because the ordinance under which he arrested Irwin conflicts with the state statute. Therefore, the sole issue before this court is whether the littering ordinance unconstitutionally conflicts with the littering statute. ¶8 The city ordinance and state statute prohibiting littering contain virtually identical language.

The city ordinance, however, imposes a harsher penalty for littering than does the state statute. Under OMC 9.64.010, littering is a criminal misdemeanor subjecting the violator to the possibility of time in jail and a fine. Under the state statute, littering in an amount equal to or less than one cubic foot is a class three civil infraction. RCW 70.93.060(2)(a). The maximum and default penalty for littering under state law is $50. RCW 7.80.120(l)(c). ¶9 We presume an ordinance is valid unless the challenger can prove the ordinance is unconstitutional. City of Pasco v.

Shaw, 161 Wn.2d 450, 462, 166 P.3d 1157 (2007); HJS Dev., Inc. v. Pierce County, 148 Wn.2d 451, 477, 61 P.3d 1141 (2003); Heinsma v. City of Vancouver, 144 Wn.2d 556, 561, 29 P.3d 709 (2001). An ordinance may be deemed invalid in two ways: (1) the ordinance directly conflicts with a state statute or (2) the legislature has manifested its intent to preempt the field. Heinsma, 144 Wn.2d at 561; see also Chaney v. Fetterly, 100 Wn. App. 140, 149, 995 P.2d 1284 (2000).

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section 11 of our state constitution allows local governments to create “such local police, sanitary and other regulations as are not in conflict with general laws.” A local regulation conflicts with state law where it permits what state law forbids or forbids what state law permits. Parkland Light & Water Co. v. Tacoma- Pierce County Bd. of Health, 151 Wn.2d 428, 433, 90 P.3d 37 (2004); see also City of Seattle v.

Eze, 111 Wn.2d 22, 33, 759 P.2d 366 (1988) (holding that no conflict existed between a city ordinance and state statute where “ ‘the ordinance goes farther in its prohibition — but not counter to the prohibition under the statute. The city does not attempt to authorize by this ordinance what the Legislature has forbidden; nor does it forbid what the Legislature has expressly licensed, authorized, or required’ ” (internal quotation marks omitted) (quoting City of Bellingham v. Schampera, 57 Wn.2d 106, 111, 356 P.2d 292 (1960))).

The focus of this inquiry, therefore, is on the substantive conduct proscribed by the two laws. A conflict arises when the two provisions are contradictory and cannot coexist. Parkland Light, 151 Wn.2d at 433. If an ordinance conflicts with a statute, the ordinance is invalid. Id. at 434. ¶10 An ordinance may also be invalid where the legislature has indicated its intent to preempt the field. HJS Dev., 148 Wn.2d at 477.

If the legislature is silent, the court considers both “ ‘the purposes of the statute and . . . the facts and circumstances upon which the statute was intended to operate.’ ” Heinsma, 144 Wn.2d at 561 (alteration in original) (quoting Brown v. City of Yakima, 116 Wn.2d 556, 560, 807 P.2d 353 (1991)). However, we “ ‘will not interpret a statute to deprive a municipality of the power to legislate on a particular subject unless that clearly is the legislative intent.’ ” HJS Dev., 148 Wn.2d at 480 (quoting Trimen Dev. Co. v.

King County, 124 Wn.2d 261, 270, 877 P.2d 187 (1994)); see, e.g., Schampera, 57 Wn.2d at 118 (holding an ordinance may not impose a penalty in excess of the penalties a first class city is allowed to assess under former RCW 35.22.470 (1923), repealed by Laws or 1965, Ex. Sess., ch. 116, § 9). ¶11 The ordinance and the statute at issue here prohibit the same behavior — littering. Kirwin correctly observes the ordinance designates littering as an offense subject to arrest while the state statute does not. This difference, however, does not create an impermissible direct conflict; the focus of the

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section 11 inquiry is on the conduct proscribed by the two laws (a question of substance), not their attendant punishments (a question of magnitude). The two laws coexist because, although the degree of punishment differs, their substance is nearly identical and therefore an irreconcilable conflict does not arise. Because there is no direct conflict, unless the state littering statute expresses intent to preempt local entities from either proscribing littering or setting their own degrees of punishment for littering, then the ordinance will survive scrutiny under

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section 11. ¶12 Preemption occurs “where there is express legislative intent to preempt the field or such intent appears by necessary implication.” Rabon v. City of Seattle, 135 Wn.2d 278, 289, 957 P.2d 621 (1998). There is no indication from the legislature that it intended to preempt the littering ordinance or its penalty. To the contrary, RCW 70.93.020 demonstrates the legislature’s intent not to preempt local ordinances. RCW 70.93.020 states the “intent of this

chapter is to add to and to coordinate existing recycling and litter control and removal efforts and not terminate or supplant such efforts.” (Emphasis added.) To read the state statute as establishing exclusive state authority on the proscription of littering or the punishment of littering, rather than concurrent authority, would be contrary to the clear language of the statute. ¶13 In light of these considerations, the littering ordinance neither conflicts with nor is preempted by the littering statute.

By failing to undermine the validity of the littering ordinance, Kirwin has failed to demonstrate that the arrest of Irwin under the ordinance was invalid and, by extension, the search incident to the arrest was invalid. Accordingly, Kirwin has not met his burden of showing a manifest error affecting his constitutional rights under the Fourth Amendment or

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section 7. IV. CONCLUSION ¶14 We hold Kirwin has not demonstrated any manifest constitutional error on appeal because the littering ordinance does not unconstitutionally conflict with the littering statute. We affirm the Court of Appeals. Alexander, C.J., and C. Johnson, Chambers, Owens, and J.M. Johnson, JJ., concur. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). The Fourth Amendment to the United States Constitution protects an individual from unreasonable searches and seizures by the government.

The Washington State Constitution requires authority of law before the State may intrude into the private affairs of an individual. Wash. Const, art. I, § 7. The Court of Appeals concluded Kirwin failed to meet this standard with regard to his ineffective assistance of counsel claim. Kirwin, 137 Wn. App. at 393. Although the dissent raises the issue of whether State v. Stroud, 106 Wn.2d 144, 720 P.2d 436 (1986) justifies a warrantless search of an automobile following the arrest of a passenger, Kirwin does not raise this issue and the court similarly abstains from doing so.

Here, Kirwin consented to the search of the locked center console of the truck. We do not address the issue of whether the littering statute and littering ordinance implicate a potential violation of

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section 12 of the Washington State Constitution. As Justice Madsen indicates in her concurrence, Kirwin did not raise an

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section 12 challenge, and it would be unwise to resolve the issue without the benefit of full briefing. Nothing precludes a future challenge on

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section 12 grounds to the ordinance at issue or other ordinances that impose greater penalties than essentially identical state statutes. OMC 9.40.110 provides: No person shall throw, drop, deposit, discard, or otherwise dispose of litter, as that term is defined in RCW 70.93.030(4), upon any public property within the city or upon private property within the city not owned by him or in the waters of the city whether from a vehicle or otherwise, including but not limited to any sidewalk, street, alley, highway or park, except [in areas designated for waste]. The state littering statute, RCW 70.93.060, uses nearly identical language:

(1) It is a violation of this

section to abandon a junk vehicle upon any property. In addition, no person shall throw, drop, deposit, discard, or otherwise dispose of fitter upon any public property in the state or upon private property in this state not owned by him or her or in the waters of this state whether from a vehicle or otherwise including but not limited to any public highway, public park, beach, campground, forest land, recreational area, trailer park, highway, road, street, or alley except [in areas designated for waste]. This does not mean that an ordinance’s attendant punishment can never violate

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section 11. However, it is generally more sound to analyze the issue under the preemption prong rather than the direct conflict prong. Attendant penalties will generally matter only if a state statute has disabled local entities from setting their own levels of punishment either by directly stating so in the statute or the language of the statute necessarily expresses intent to establish exclusive authority. See, e.g., City of Tacoma v. Luvene, 118 Wn.2d 826, 827 P.2d 1374 (1992) (the Uniform Controlled Substances Act, ch. 69.50 RCW, only preempted local entities from setting their own degrees of punishment for violations of the act).