(concurring) — I agree with the majority that the State has made a prima facie case on each of the crimes with which Chief Groom is charged, and that the Court of Appeals correctly remanded all charges for trial. I disagree, however, that RCW 10.79.045 criminalizes any constitutionally impermissible search, regardless of a police officer’s best effort to conform to the law. The result is that RCW 10.79.045 becomes a strict liability crime. This *694step should be taken only if the Legislature intended to eliminate any mens rea; the majority fails to offer any indication of such intent. Moreover, it is apparent that the 1921 Legislature, by enacting RCW 10.79.045, intended to criminalize only a police officer’s knowingly unlawful search. I would construe RCW 10.79.045 to require that a police officer knowingly perform an unlawful search before incurring criminal liability.
In determining whether the Legislature has intended to create a strict liability crime, we look to the Supreme Court for guidance.5 In Staples v. United States, 511 U.S. 600, 114 S. Ct. 1793, 1804, 128 L. Ed. 2d 608 (1994), the Supreme Court reversed the defendant’s conviction for possession of an unregistered machine gun. Even though the National Firearms Act, 26 U.S.C. § 5861(d), did not contain a knowledge requirement, the Court held that the government had to prove that the defendant knew his rifle had the characteristics that would bring it within the statute’s definition of machine gun before the government could obtain a conviction.6 The Court observed, " '[t]he existence of a mens rea is the rule of, rather than the exception to, the principles of Anglo-American criminal jurisprudence.’ ”7 The Court concluded that a statute’s silence regarding a mental element, therefore, is not dispositive.8 Rather, there must be some indication that the Legislature intended to dispense with the mens rea requirement before a statute may be construed to define a strict liability crime.9 There are no comprehensive criteria; each case depends on a commonsense determination of whether the Legislature intended to eliminate the mens rea *695requirement.10 The majority’s construction of RCW 10.79.045 fails this standard.
It is apparent that the Legislature intended to criminalize only a police officer’s knowingly unlawful search. RCW 10.79.040, as enacted in 1921, contained an inherent mental element by requiring that a police officer obtain a warrant as a necessary prerequisite to the lawful search of any home: "It shall be unlawful for any policeman or other peace officer to enter and search any private dwelling house or place of residence without the authority of a search warrant issued upon a complaint as by law provided.” It was unnecessary for the 1921 Legislature to explicitly codify a mental element because a police officer would certainly know whether he or she had obtained a warrant prior to entry. Therefore, RCW 10.79.045, which makes it a gross misdemeanor for a police officer to violate RCW 10.79.40, would have criminalized only a police officer’s knowingly unlawful search.
Despite the plain language of the statute, however, this court has construed RCW 10.79.040 to allow constitutionally permissible warrantless searches.11 Consequently, the unlawfulness of a search no longer simply turned on whether or not a police officer had obtained a warrant prior to the search. Instead, the unlawfulness of a search now turns on the legal question of whether the search was permissible in the context of our constantly evolving search and seizure jurisprudence. Yet, none of the cases construing RCW 10.79.040 to allow constitutionally permissible warrantless searches involved criminal liability under RCW 10.79.045. Rather, these cases were decided in the context of the exclusionary rule. Thus, we *696removed the mental element inherent in RCW 10.79.040 without considering the effect this would have on the potential criminalization of an unlawful search under RCW 10.79.045.
Since the present case is the first published case of prosecution under RCW 10.79.045, the Legislature likewise has had no reason to consider the implications of our construction of RCW 10.79.040 in the context of criminal liability under RCW 10.79.045. Thus, the majority’s suggestion that the Legislature could have expressly protected good faith conduct is not persuasive. We are dealing with a statute that everyone concedes has been overlooked by both the courts and the Legislature for over 70 years. In this light, the Legislature’s decision to protect good faith police conduct in other settings takes on a different significance.12 Because the 1921 Legislature had no way of anticipating that we would remove the unambiguous warrant requirement and the Legislature since then has protected officers’ good faith conduct from criminal liability, we cannot say that the Legislature intended to create a strict liability crime with RCW 10.79.045. Therefore, it is appropriate to construe RCW 10.79.045 to require that a police officer knowingly perform an unlawful search before incurring criminal liability.
The majority’s decision not only ignores the standard for imposing strict liability and defeats legislative intent, but also results in substantial harm to the public; the threat of criminal liability attaching to innocent conduct may undermine police officers’ willingness to exercise decisively the discretion that is required of them. To this day, attorneys, legal scholars, and the courts disagree on the scope of constitutionally permissible warrantless searches. Yet, under the majority’s construction of RCW 10.79.045, a police officer is expected to know at any moment the exact contours of search and seizure jurisprudence in order to avoid criminal liability.
*697Our primary duty in interpreting statutes is to carry out the intent of the Legislature.13 There is nothing to suggest that the 1921 Legislature, or any Legislature since then, intended to criminalize anything other than a police officer’s knowingly unlawful search. Indeed, everything points to the contrary. Since there is no deterrent eifect in penalizing innocent conduct, the only consequence of the majority’s holding is the substantial public harm of forcing our police officers to weigh the risk of criminal liability against their command of search and seizure jurisprudence when deciding whether to perform a warrantless search.
I would construe RCW 10.79.045 to criminalize only a police officer’s knowingly unlawful search.
Dolliver, Guy, and Talmadge, JJ., concur with Durham, C.J.
See State v. Bash, 130 Wn.2d 594, 605-06, 925 P.2d 978 (1996) (citing Staples v. United States, 511 U.S. 600, 114 S. Ct. 1793, 128 L. Ed. 2d 608 (1994)).
Staples, 511 U.S. at 604.
Staples, 511 U.S. at 605 (quoting United States v. United States Gypsum Co., 438 U.S. 422, 436-37, 98 S. Ct. 2864, 2873, 57 L. Ed. 2d 854 (1978)).
Staples, 511 U.S. at 605.
See id.
Staples, 511 U.S. at 619-20.
See, e.g., State v. Thomas, 183 Wash. 643, 646, 49 P.2d 28 (1935); State v. McCollum, 17 Wn.2d 85, 88, 136 P.2d 165 (1943), overruled on other grounds by State v. Ringer, 100 Wn.2d 686, 699, 674 P.2d 1240 (1983); State v. Smith, 50 Wn.2d 408, 411, 314 P.2d 1024 (1957). See also, e.g., City of Snohomish v. Swoboda, 1 Wn. App. 292, 296-97, 461 P.2d 546 (1969); State v. Duarte, 4 Wn. App. 825, 833, 484 P.2d 1156 (1971); State v. Sanders, 8 Wn. App. 306, 310-12, 506 P.2d 892 (1973); State v. Campbell, 15 Wn. App. 98, 100, 547 P.2d 295 (1976).
See, e.g., RCW 9A.16.040(3) (no criminal liability for police officer using deadly force in good faith without malice); RCW 10.31.100(12) (no criminal liability for police officer making arrest in good faith without malice).
State v. Rivas, 126 Wn.2d 443, 451, 896 P.2d 57 (1995).