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.
5 No. 85788-1