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IN CLERKS OFFICE . . . . . COURT, STATE OF WASHINGTON

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~MAR 212013

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, Respondent, v. GREGORIO BRAVO ORTEGA AKA MARTIN DOMINGUEZ, Petitioner, ALFONSO LUPE CUEVAS AKA MARGARITO CASTENADA DELAROSA, Defendant.

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No. 85788-1

EnBanc

Filed

.MAR 21 2013

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

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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
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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
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.
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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,

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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
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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 drugtraffic 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
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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
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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,

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