         Fl L E
          IN CLERKS OFFICE
 . . . . . COURT, STATE OF WASHINGTON

      ~MAR 212013
fliood_~~-

                  IN THE SUPREME COURT OF THE STATE OF WASHINGTON


   STATE OF WASHINGTON,                       )
                                              )
                                Respondent,   )    No. 85788-1
                                              )
             v.                               )
                                              )
   GREGORIO BRAVO ORTEGA                      )
   AKA MARTIN DOMINGUEZ,                      )
                                              )    EnBanc
                                Petitioner,   )
                                              )
   ALFONSO LUPE CUEVAS                        )
   AKA MARGARITO CASTENADA                    )
   DELAROSA,                                  )
                                              )
                                                                 .MAR 21 2013
                                Defendant.    )    Filed
                                              )


             GONZALEZ, J.-This case asks us to decide whether an officer has lawful

   authority to arrest a gross misdemeanor suspect based only on the observations of

    another officer and whether an officer who directs an arrest from a remote location is

    an "arresting officer." Unless a statutory exception applies, an officer may arrest a

    misdemeanor suspect without a warrant only if the officer was present when the

    misdemeanor was committed. Here, a police officer positioned on the second floor of

    a building observed Gregorio Ortega commit acts that gave the officer probable cause
85788-1


to believe he was engaged in drug-traffic loitering, a gross misdemeanor. The

observing officer maintained radio contact with fellow officers, described Ortega's

activities to them, and instructed them to arrest Ortega. One of the other officers

arrested Ortega and searched him incident to that arrest, finding crack cocaine and

cash.

        The trial court denied Ortega's motion to suppress the evidence, and he was

convicted of possession of cocaine with intent to deliver. The Court of Appeals

affirmed the conviction. We reverse the Court of Appeals. The officer who arrested

Ortega was not present when the gross misdemeanor occurred, and the record does not

support a finding that the officer who observed the offense was an "arresting officer."

Ortega's arrest was unlawful. But for the unlawful arrest, there would have been no

search, and the evidence found incident to that arrest should have been suppressed.

                                           I. FACTS

          In response to reports of suspected drug activity, officers from the Seattle

Police Department investigated the Belltown neighborhood of Seattle. Officer Chad

McLaughlin was positioned on the second floor of a building, observing the street

below. Officers David Hockett and Anthony Gaedke were in patrol cars nearby and

awaited instructions from Officer McLaughlin.

          From his position on the second floor, Officer McLaughlin saw Ortega and

another man attempt to make contact with passersby. Officer McLaughlin saw Ortega

appear to make three drug transactions, but he did not see what, if anything, was

                                               2
85788-1


exchanged during the suspected transactions. The officer believed he had probable

cause to arrest Ortega for drug-traffic loitering. "A person is guilty of drug-traffic

loitering if he or she remains in a public place and intentionally solicits, induces,

entices, or procures another to engage in unlawful conduct contrary to Chapter 69.50,

Chapter 69.41, or Chapter 69.52, Revised Code of Washington." SEATTLE

MUNICIPAL CODE 12A.20.050(B). Drug traffic loitering is a gross misdemeanor. 1 Id.

at subsec. (E).

       Officer McLaughlin maintained radio contact with Officers Hockett and

Gaedke, informing them of the facts establishing probable cause to arrest the suspects

for drug-traffic loitering. Out of Officer McLaughlin's view, Officer Hockett made

contact with Ortega, placed him in handcuffs, and arrested him. Officer Hockett then

searched Ortega incident to arrest and found crack cocaine and $780 in his pockets.

At some point after the arrest and search, Officer McLaughlin confirmed that Officer

Hockett had arrested the correct suspect. 2

       The State charged Ortega with felony possession of cocaine with intent to

deliver. The trial court denied Ortega's CrR 3.6 pretrial motion to suppress the

evidence found during the search incident to arrest. A jury found Ortega guilty of

possession of cocaine with intent to deliver. Ortega appealed, and the Court of

1
   The State argued below that Officer McLaughlin had probable cause to arrest Ortega for a
felony, but it does not renew that argument before this court.
2
   Officers McLaughlin and Gaedke testified that Officer McLaughlin confirmed that the other
officers had arrested the correct suspects at the scene of arrest. Officer Hockett could not recall
whether that confirmation occurred at the scene or later at the police precinct. The State agrees,
however, that the confirmation did not occur until after the arrest had taken place.
                                                3
85788-1


Appeals affirmed his conviction. State v. Ortega, 159 Wn. App. 889, 248 P.3d 1062

(2011). We granted review. State v. Ortega, 171 Wn.2d 1031, 257 P.3d 665 (2011).

                                 II. STANDARD OF REVIEW

      We review de novo conclusions of law from an order pertaining to the

suppression of evidence. State v. Duncan, 146 Wn.2d 166, 171, 43 P.3d 513 (2002).

                                         III. ANALYSIS

      Ortega asserts that his arrest and the related search violated his rights under

article I, section 7 of the Washington State Constitution. Our state constitution

provides greater protection to individuals from warrantless searches and seizures than

does the United States Constitution. State v. Walker, 157 Wn.2d 307, 313, 138 P.3d

113 (2006). Article I, section 7 provides, "No person shall be disturbed in his private

affairs, or his home invaded, without authority of law." A warrantless search is per se

unreasonable and its fruits will be suppressed unless it falls within one of the carefully

drawn and jealously guarded exceptions to the warrant requirement. State v. Afana,

169 Wn.2d 169, 176-77, 233 P.3d 879 (2010); State v. Patton, 167 Wn.2d 379, 386,

219 P .3d 651 (2009). The State bears a heavy burden in showing that a warrantless

search falls within one of the exceptions. State v. Jones, 146 Wn.2d 328, 335, 45 P.3d

1062 (2002).

          The relevant exception here is for a search incident to arrest. A lawful

custodial arrest is a condition precedent to a search incident to arrest. State v. 0 'Neill,



                                              4
85788-1


148 Wn.2d 564, 585, 62 P.3d 489 (2003). Thus, the issue of whether Officer Hockett

had lawful authority to search Ortega turns on whether Ortega was lawfully arrested.

   1. The Presence Requirement

        Ortega asserts that he was unlawfully arrested in violation of the presence

requirement. Under the common law, an officer was permitted to arrest a suspect for

a misdemeanor without a warrant only if the offense was committed in the officer's

presence. State ex rel. McDonaldv. Whatcom County Dist. Court, 92 Wn.2d 35, 37,

593 P.2d 546 (1979). The presence requirement "is satisfied whenever the officer

directly perceives facts permitting a reasonable inference that a misdemeanor is being

committed." Charles W. Johnson, Survey of Washington Search and Seizure Law:

2005 Update, 28 SEATTLE U. L. REV. 467, 592 (2005) (citing City of Snohomish v.

Swoboda, 1 Wn. App. 292,295,461 P.2d 546 (1969)). RCW 10.31.100 codifies and

amends this common law rule, providing that an officer may arrest a suspect for

specific, enumerated misdemeanors and gross misdemeanors committed outside of the

officer's presence. See Walker, 157 Wn.2d at 310. The exceptions include

misdemeanors or gross misdemeanors involving physical harm or threats of harm to

any person or property, possession or use of cannabis, criminal trespass, violation of

protection orders, domestic violence, and indecent exposure. RCW 10.31.1 00(1 )-

(10).

          The presence requirement under RCW 10.31.100 is unambiguous. "When

statutory language is unambiguous, we look only to that language to determine the

                                             5
85788-1


legislative intent without considering outside sources." State v. Delgado, 148 Wn.2d

723, 727, 63 P.3d 792 (2003). The statute states, "A police officer may arrest a person

without a warrant for committing a misdemeanor or gross misdemeanor only when the

offense is committed in the presence of the officer .... " RCW 10 .31.1 00 (emphasis

added). Under the plain language of the statute, only an officer who is present during

the offense may arrest a suspect for a misdemeanor or a gross misdemeanor. Officer

Hockett was not present when Ortega committed the acts that established probable

cause to arrest him for drug-traffic loitering, and RCW 10.31.100 does not except

drug-traffic loitering from the presence requirement. Thus, Officer Hockett lacked

lawful authority to arrest Ortega.

      Moreover, the statute includes a specific instance when an officer may rely on

the direction of another officer in making an arrest, which does not apply to drug-

traffic loitering. Under the exception, if a traffic infraction is committed in the

presence of an officer, that officer may ask another officer to arrest the driver. RCW

10.31.1 00( 6) ("The request by the witnessing officer shall give an officer the authority

to take appropriate action under the laws of the state of Washington."). Neither the

general presence requirement nor the other exceptions to that rule expressly allow an

officer to rely on the request of a witnessing officer in arresting a misdemeanor or

gross misdemeanor suspect. The doctrine of expressio unius est exclusio alterius ("to

express or include one thing implies the exclusion of the other," Black's Law

Dictionary 661 (9th ed. 2009)) supports our finding that the express authority to rely

                                             6
85788-1


on the request of another officer in making an arrest for a traffic infraction indicates

that such authority does not extend to other nonfelony offenses. See Staats v. Brown,

139 Wn.2d 757, 768 n.3, 991 P.2d 615 (2000) (finding that the exceptions to the

presence requirement under RCW 10.31.100 are exclusive).

       The State argues that the common law presence rule does not prohibit teams of

officers from making arrests based on shared information. Therefore, the State

contends that the legislature's codification of the common law rule under RCW

10.31.100 does not prohibit such arrests either. Assuming, arguendo, that the

common law presence requirement did not prohibit an officer from arresting a

misdemeanor suspect based solely on the request of another officer who witnessed the

offense, the statutory presence requirement abrogated that authority. A statute

abrogates the common law when "'the provisions of a ... statute are so inconsistent

with and repugnant to the prior common law that both cannot simultaneously be in

force.'" Potter v. Wash. State Patrol, 165 Wn.2d 67, 77, 196 P.3d 691 (2008)

(alteration in original) (quoting State ex rei. Madden v. Pub. Util. Dist. No. 1 of

Douglas County, 83 Wn.2d 219, 222, 517 P.2d 585 (1973)). An officer cannot be

authorized to "arrest a person without a warrant for committing a misdemeanor or

gross misdemeanor only when the offense is committed in the presence of the officer,"

RCW 10.31.100 (emphasis added), and yet also be allowed to arrest a suspect at the

request of another officer. Moreover, the exception under RCW 10.31.1 00( 6), which

expressly allows an officer to rely on another officer's request to arrest a driver for a

                                             7
85788-1


traffic infraction, would be unnecessary if an officer were permitted to arrest a suspect

of any nonfelony offense at the request of an officer who witnessed the misconduct.

       Furthermore, although the state of the law prior to the adoption of a statute

must be considered when construing the legislative intent, "where, as here, a statute is

plain and unambiguous, it must be construed in conformity to its obvious meaning

without regard to the previous state of the common law." Pub. Uti!. Dist. No. 1, 83

Wn.2d at 222. Thus, even if Ortega's arrest would have been valid under the common

law presence requirement, the unambiguous language of the statute removed that

possibility.

       If the time has come to allow a misdemeanor arrest by an officer who did not

personally witness any misconduct, that development must start with the legislature.

The legislature has already shown its willingness to adapt the presence requirement to

meet modern circumstances by adding exceptions to the presence requirement to

"address social problems either not recognized or not present during common law ...

." Walker, 157 Wn.2d at 316-17. For example, after we found in State v. Hornaday,

105 Wn.2d 120, 713 P.2d 71 (1986), that an officer could not validly arrest an

intoxicated minor for possessing or consuming alcohol when the misdemeanor

conduct did not occur in the officer's presence, the legislature responded by amending

RCW 10.31.1 00(1) to explicitly include the minor in possession statute. Walker, 157

Wn.2d at 315 (citing LAWS OF 1987, ch. 154, § 1). We are now confronted by the

similar question of whether the reliability of modern police law enforcement methods

                                            8
85788-1


justifies expanding the presence requirement beyond the terms ofRCW 10.31.100.

We find that this question is appropriate for the legislature. See McDonald, 92 Wn.2d

at 38; see also Hornaday, 105 Wn.2d at 130.

   2. The Fellow Officer Rule

      The State also argues that under the fellow officer rule, Officer Hockett had

lawful authority to arrest Ortega based on Officer McLaughlin's observations. The

fellow officer rule, also known as the police team rule, allows a court to consider the

cumulative knowledge of police officers in determining whether there was probable

cause to arrest a suspect. 2 WAYNE R. LAFAVE, SEARCH AND SEIZURE: A TREATISE

ON THE FOURTH AMENDMENT § 3.5(b), at 337-39 (5th ed. 2012); see Whiteley v.

Warden, Wyo. State Penitentiary, 401 U.S. 560, 568, 91 S. Ct. 1031, 28 L. Ed. 2d 306

(1971). The Court of Appeals has adopted the fellow officer rule in the felony

context. State v. Mance, 82 Wn. App. 539, 542, 918 P.2d 527 (1996); State v. White,

76 Wn. App. 801, 805, 888 P.2d 169 (1995), aff'd, 129 Wn.2d 105, 915 P.2d 1099

(1996); State v. Maesse, 29 Wn. App. 642, 647, 629 P.2d 1349 (1981). This court has

discussed the fellow officer rule but never expressly adopted it. State v. Gaddy, 152

Wn.2d 64,70-71,93 P.3d 872 (2004) (declining to apply the fellow officer rule to

permit an arrest based on information disseminated by a nonpolice agency).

          The State argues that the fellow officer rule applies to warrantless misdemeanor

and gross misdemeanor arrests. See J. Terry Roach, Comment, The Presence

Requirement and the "Police-Team" Rule in Arrest for Misdemeanors, 26 WASI-L &

                                              9
85788-1


LEE L. REv. 119 (1969). As discussed above, however, such an interpretation

conflicts with the plain language ofRCW 10.31.100. RCW 10.31.100 gives lawful

authority to make a warrantless arrest of a misdemeanor suspect only if the arresting

officer was present during the offense.

      We recognize that published Washington appellate opinions have expressed

differing views regarding the application of the fellow officer rule to misdemeanors.

In Torrey v. City of Tukwila, 76 Wn. App. 32, 882 P.2d 799 (1994), although the

Court of Appeals ultimately found that a violation of the presence requirement under

state law could not support the appellants' federal civil claims, it also noted that the

fellow officer rule would apply to misdemeanor arrests. !d. at 39. Additionally, in his

concurring and dissenting opinion to Staats v. Brown, 139 Wn.2d at 791, Justice

Talmadge noted that the fish and wildlife officer was entitled to rely on information

provided by a wildlife agent to support his probable cause determination that the

defendant had committed a misdemeanor. Based on the plain language ofRCW

10.31.1 00, we hold that the fellow officer rule does not apply to misdemeanors. To

the extent Torrey is inconsistent, it is disapproved.
                              11
   3. The Definition of an Arresting Officer"

          The Court of Appeals held that only an officer who observed a misdemeanor

may arrest a suspect without a warrant, but in this case it found that the observing

officer's "continuous contact rendered him a participant in the arrest." Ortega, 159

Wn. App. at 898. The court essentially found that Officer McLaughlin, the officer

                                             10
85788-1


watching from the second floor of a building, was an "arresting officer" under RCW

10.31.100 because he "viewed the conduct, directed the arrest, kept the suspects and

officers in view, and proceeded immediately to the location of the arrest to confirm

that the arresting officers had stopped the correct suspects." !d. We disagree.

      Although we have not had occasion to define the term "arresting officer," it is

useful to consider the actions that constitute an "arrest." "'An arrest takes place when

a duly authorized officer of the law manifests an intent to take a person into custody

and actually seizes or detains such person."' Patton, 167 Wn.2d at 387 (quoting 12

ROYCE A. FERGUSON, JR., WASHINGTON PRACTICE: CRIMINAL PRACTICE AND

PROCEDURE§ 3104, at 741 (3d ed. 2004)). The inquiry is whether a reasonable

person under the circumstances would consider himself or herself under arrest. State

v. Reichenbach, 153 Wn.2d 126, 135, 101 P.3d 80 (2004). Examples of conduct that

would cause a reasonable person to believe he or she was under arrest include

handcuffing the suspect, placing the suspect in a patrol vehicle for transport, and

telling the suspect that he or she is under arrest. State v. Radka, 120 Wn. App. 43, 49-

50, 83 P.3d 1038 (2004).

          We also consider how other states have defined the term "arresting officer." In

State v. Stauffer, 266 N.C. 358, 145 S.E.2d 917, 917 (1966), an officer observed the

defendant driving erratically and requested assistance. The officer approached the

stopped vehicle as a second officer arrived, and the second officer alone spoke with

the defendant prior to the arrest. !d. The second officer concluded that the defendant

                                             11
85788-1


was intoxicated, told the defendant that he was under arrest, and escorted him to the

police station. !d. At the police station, the officer who first observed the defendant's

behavior administered a breathalyzer test. !d. Applying a statute that prohibited an

arresting officer from administering the test of a suspect's blood alcohol level, the

court held that "[a]n officer, who is present at the scene of the arrest for the purpose of

assisting in it, if necessary, is an 'arresting officer' within the meaning of this statute

even though a different officer actually places his hand upon the defendant and

informs him that he is under arrest." !d. at 918. The court found that the first officer

was an "arresting officer" and that the trial court erred by allowing him to testify as to

the defendant's breath test results. !d.

          Similarly, in State v. Roberts, 261 Neb. 403, 623 N.W.2d 298, 304 (2001), the

court considered whether an officer who did not actually arrest a suspect was

nevertheless an "arresting officer" with authority to conduct a search incident to

arrest. The officer entered the apartment at the same time as other officers, informed

the officer who completed the arrest that there was an outstanding warrant for the

arrestee, and was present in the room when the arrest took place. !d. The court found

that the officer at issue was an arresting officer at the scene. !d.

          On the other hand, in Arndt v. Department of Motor Vehicles, 270 Neb. 172,

699 N.W.2d 39 (2005), the court found that an officer who arrived at the scene after

an arrest had taken place was not an arresting officer. An officer stopped the vehicle

driven by the defendant and conducted field sobriety tests and a preliminary breath

                                              12
85788-1


test. Id. at 41. Concluding that the defendant was intoxicated, the officer placed him

under arrest. Id. Another officer was called to transport the defendant to jail, and the

first officer informed the second officer of the details of the traffic stop. I d. The

second officer transported the defendant to jail and completed a report that was

statutorily required to be completed by the arresting officer. Id. Referring to the same

standard adopted in Stauffer, the court found that the second officer was not an

"arresting officer." Id. at 43. The second officer was not present when the defendant

was taken into custody, and it was the first officer who stopped the defendant,

observed that he was intoxicated, conducted field sobriety tests, and placed him under

arrest. Id. The second officer's "limited participation [did] not establish that he was

'present at the scene of the arrest for purposes of assisting in it.'" Id. (quoting

Connelly v. Dep't of Motor Vehicles, 9 Neb. App. 708,713-14,618 N.W.2d 715

(2000)).

       We decline to adopt a rigid definition of "arresting officer" at this time, but the

facts in this case do not support finding that Officer McLaughlin was an arresting

officer. Officer McLaughlin described the suspects and informed the other officers

that he had probable cause to arrest, but it is Officer Hockett's conduct that would

have caused a reasonable person to believe he or she was under arrest, as that term is

defined in our case law. See Patton, 167 Wn.2d at 387. Officer Hockett approached

Ortega, handcuffed him, and placed him under arrest. Although Officer

McLaughlin's conduct was vital to apprehending Ortega, it is undisputed that he did

                                             13
85788-1


not arrive at the scene of the arrest or have any contact with Ortega until after the

arrest and search had taken place.

       Contrary to the State's argument, we do not find that upholding the presence

rule in this case will result in absurd consequences. See State v. Watson, 146 Wn.2d

947, 955,51 P.3d 66 (2002) ("We will 'avoid a literal reading of a statute if it would

result in unlikely, absurd, or strained consequences."' (internal quotSttion marks

omitted) (quoting State ex rel. Royal v. Yakima County Comm 'rs, 123 Wn.2d 451,

462, 869 P.2d 56 (1994))). Simply because an officer is not present during the

commission of a misdemeanor, and therefore may not arrest the suspect, does not

mean that the officer is powerless to enforce the law. An officer who did not witness

a misdemeanor may still stop and detain a person reasonably suspected of criminal

activity. Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868,20 L. Ed. 2d 889 (1968); see also

Duncan, 146 Wn.2d at 172. In this case, assuming Officer Hockett reasonably

suspected that Ortega had committed a criminal act, he could have detained Ortega

until Officer McLaughlin arrived to make the arrest. Alternatively, if Officer Hockett

lacked even reasonable suspicion of illegal activity, he could have made contact with

Ortega and attempted to establish probable cause. See, e.g., State v. Belanger, 36 Wn.

App. 818, 821,677 P.2d 781 (1984) (finding that the officer at first lacked a well-

founded suspicion of criminal activity to justify detaining the defendant, but "he did

have the limited right and duty to approach and inquire about what appeared to be

suspicious circumstances").

                                             14
85788-1


      Moreover, to the extent that a strict interpretation of the presence requirement

hinders modern law enforcement practices, it is important to note that Officer

McLaughlin only established probable cause to believe Ortega committed a

misdemeanor. "The right to protect against unwarranted police interference is more

pronounced in the case of misdemeanors because such crimes generally pose less

threat to society than do felonies." Hornaday, 105 Wn.2d at 130. If Ortega's conduct

had established probable cause to believe he had committed a felony, Officer Hockett

would have had lawful authority to arrest Ortega based on Officer McLaughlin's

observations. RCW 10.31.100 ("A police officer having probable cause to believe

that a person has committed or is committing a felony shall have the authority to

arrest the person without a warrant.").

                                    IV. CONCLUSION

      The officer who arrested Ortega for the gross misdemeanor of drug-traffic

loitering was not "present" during the commission of the offense, and the officer who

observed Ortega's conduct was not an "arresting officer" for purposes of the presence

requirement under RCW 10.31.100. The arrest was unlawful. Therefore, the search

incident to that arrest violated article I, section 7 of the Washington State

Constitution. We suppress the evidence found in the search incident to that arrest,

reverse the conviction, and remand for further proceedings.




                                            15
No. 85788-1




WE CONCUR:




              -·




                   16
State v. Ortega (Gregorio)




                                        No. 85788-1


       MADSEN, C.J. (concurring)-Reluctantly, I concur in the majority opinion. My

reluctance does not stem from the majority's analysis ofRCW 10.31.100 and what it

requires for a warrantless arrest for a misdemeanor, but rather from the fact that the

statute precludes an arrest under the circumstances here. This result does not accord with

the policy underscoring the general rule that a warrantless arrest can be made for a

misdemeanor but only if it occurs in the presence of the officer. It also bars the use of an

effective law enforcement tool, useful in urban areas, where offenses like the one here are

common but rarely occur within the presence of the arresting officer.

                                         Discussion

       RCW 10.31.100 does not permit the warrantless search that occurred here, as the

majority holds. The statute states the general rule that "[a] police officer may arrest a

person without a warrant for committing a misdemeanor or gross misdemeanor only

when the offense is committed in the presence of the officer." RCW 10.31.100

(emphasis added). While the offense was committed in the presence of the officer who

viewed it from a second floor window in a nearby building and who almost immediately

appeared on the scene, another officer acted at the direction of the first to carry out the
No. 85788-1


formality of the arrest. Thus, the officer who made the arrest was not "the" officer in

whose presence the offense was committed.

       Unfortunately, the statutory codification of the common law rule does not carry

out the purpose ofthe rule. As we have noted, RCW 10.31.100 does not alter the basic

common law rule, but rather enumerates exceptions to the general common law. State v.

Walker, 157 Wn.2d 307,317, 138 P.3d 113 (2006). The historical basis ofthe common

law "in the presence" requirement is the balancing of the public need for certain and

immediate arrests of criminal suspects and public safety concerns against the requirement

of the magistrate's oversight needed to protect against mistaken arrests with their impact

on privacy interests. Walker, 157 Wn.2d at 316 (citing United States v. Watson, 423 U.S.

411, 442, 96 S. Ct. 820, 46 L. Ed. 2d 598 (1976) (Marshall, J., dissenting); Carroll v.

United States, 267 U.S. 132, 157, 45 S. Ct. 280, 69 L. Ed. 543 (1925)).

       The potential for mistakes is appreciably higher when an officer relies on

nonpolice sources and accordingly the need for the neutral magistrate is greater.

Commenting on the "presence" requirement, an expert commentator has stated that

"[a]lthough the proposition is not carefully developed in the cases generally, it may be

said that courts are reluctant to permit reliance upon non-police sources, apparently on

the ground that such sources should ordinarily be 'tested out' by submitting the

information to a magistrate." 3 WAYNE R. LAFAVE, SEARCH AND SEIZURE: A TREATISE

ON THE FOURTH AMENDMENT,§ 5.l(c), at 40 (5th ed. 2012).




                                             2
No. 85788-1


      When the offense is committed in the presence of an officer, the concerns that

underscore the common law rule are not implicated. There is no reliance on nonpolice

sources involved and the subsequent arrest by a second officer does not involve the risks

of mistaken arrest that arise when nonpolice sources are relied upon. 1 Rather, a single

officer using his own senses makes all of the observations and gathers all the information

comprising probable cause for an arrest. See LAFAVE, supra, § 5.1 (c), at 34-3 5

("[p ]resence is most commonly thought of as the state of being in view, and thus it seems

beyond question that a misdemeanor seen by the officer has occurred in his presence

[and] [t]his is true even when the offense has been seen only with the aid of a telescope or

binoculars"). Indeed, there is no question but that if the officer had run down the stairs,

out of the building, and carried out the arrest without the aid of any other officer, the

arrest would be a lawful arrest of a suspect committing a misdemeanor offense in the

presence of the officer.

       But under the circumstances here, the physical, and in this case basically

mechanical, act of placing the suspect under arrest vitiates what otherwise would be a

permissible warrantless arrest for a misdemeanor committed in the presence of the

officer. In light of the way that RCW 10.31.100 is worded, this is the correct result, but it

requires us to disregard the facts that the radio contact between the officer who observed

the defendant's conduct served to convey to the second officer that the first officer had

established probable cause for the arrest, the second officer added no information and

1
 Nor do the circumstances implicate the fellow officer rule, on which the State relies here,
because that rule applies when the combined knowledge of two officers together forms the
necessary probable cause to arrest.
                                                3
No. 85788-1


simply carried out the first officer's instruction to arrest, and the first officer was

immediately on the scene to confirm that the suspect was the individual he had seen, thus

eliminating any possibility whatsoever of a mistake.

      The kind of team surveillance and undercover work carried out in this case is
                                                      ,,
undoubtedly an otherwise effective tool for law enforcement to counter sometimes near-

epidemic drug transactions, particularly in urban areas. It is also a more cost-effective

enforcement mechanism than is required either by placing more individual officers in

places where potential drug transactions can be witnessed or by seeking an arrest warrant

in the case of gross misdemeanor drug offenses.

       The legislature can provide a means for law enforcement agencies to utilize such

team strategies for arresting misdemeanants who traffic in illegal drugs. The legislature

could amend the statute to provide that a law enforcement officer can arrest a person

without a warrant in response to a request from another officer in whose presence the

misdemeanor drug offense was committed. It has already enacted similar legislation

when it expanded the common law to authorize an arrest on request of another officer in

whose presence a traffic infraction has been committed. RCW 10.31.1 00( 6).

        Thus, if the legislature believes that a valuable tool is unavailable to law

enforcement because of the plain language of RCW 10.31.1 00, it can readily remedy the

problem by amending the statute. No harm to the policies underlying warrantless

misdemeanor arrests would result because such arrests do not depend upon information

obtained from nonpolice sources. Such an amendment would also bring Washington into



                                                4
No. 85788-1


line with state laws that already permit this team enforcement approach with regard to

misdemeanors. See, e.g., Brown v. State, 442 N.E.2d 1109, 1115 (Ind. 1982); Robinson

v. State, 4 Md. App. 515, 243 A.2d 879 (1968); State v. Chambers, 207 Neb. 611, 299

N.W.2d 780 (1980); State v. Standish, 116 N.H. 483, 363 A.2d 404 (1976); State v. Lyon,

103 N.M. 305,706 P.2d 516, 519-20 (Ct. App. 1985); State v. Ash, 12 S.W.3d 800

(Tenn. Crim. App. 1999).

       I concur in the majority opinion. I write separately to convey my concerns that the

result here is unlikely to be what the legislature intends and to encourage the legislature

to consider an amendment to the statute if this is the case.




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