(concurring) — Were it the intent of the Legislature to simply prohibit warrantless searches I cannot imagine a clearer manifestation of that intent than RCW 10.79.040 which simply provides:
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.
Although correct in ultimate disposition, and specifically correct in its rejection of a good faith defense, both the majority and Chief Justice Durham’s concurrence go to great lengths in dicta to pay lip service to the proposition that this statute does not simply prohibit all warrant-less searches but rather only those warrantless searches which are also inconsonant with Constitution article I, section 7.
The plain words of the statute set forth the elements of *698this crime: to convict, the defendant must (1) be a policeman or peace officer who (2) conducts a warrantless residential search. It is settled the "legislature’s definition of the elements of the offense is usually dispositive . . . .” McMillan v. Pennsylvania, 477 U.S. 79, 85, 106 S. Ct. 2411, 91 L. Ed. 2d 67 (1986). There is simply no third element to the crime which also requires the prosecution to prove that the warrantless residential search was also unconstitutional. When the Legislature declines to include a particular element in a statutory crime, the court must accept that determination. State v. Martell, 22 Wn. App. 415, 418-19, 591 P.2d 789 (1979) ("[W]e deem it a legislative function to define the elements of a particular crime. It would be a distortion of the judicial function for us, in the guise of statutory construction, to change a clearly expressed disjunctive element of the crime and declare it to be a conjunctive element. Courts may not modify a statute by construction.”) (citing Anderson v. City of Seattle, 78 Wn.2d 201, 471 P.2d 87 (1970)). Indeed, as the majority correctly observes,
[Hjowever much members of this court may think that a statute should be rewritten, it is imperative that we not rewrite statutes to express what we think the law should be. We simply have no such authority.
Majority at 689 (citations omitted).
This court must consider the meaning and application of RCW 10.79.040 as a case of first impression as no previous reported authority deals with a criminal prosecution arising under it. Several cases have mentioned the statute in passing, however only in the context of a motion to suppress evidence in a collateral proceeding. Even then the statute makes little more than a cameo appearance marked by a paucity of discussion. The majority’s conclusion that "criminal liability does not arise under RCW 10.79.045 when a police officer conducts a constitutionally valid warrantless search” (majority at 686) is not only inconsistent with the clear text of the statute but lacks precedential support.
*699The majority identifies two prior cases from this court •to support the proposition that that statute does not mean what it says: State v. Thomas, 183 Wash. 643, 646, 49 P.2d 28 (1935) and State v. Smith, 50 Wn.2d 408, 314 P.2d 1024 (1957). Thomas involved the appeal of a robbery conviction wherein the accused assigned error to the introduction into evidence of a pair of socks seized coincident to a lawful arrest but without a search warrant. The court, almost in passing, stated, "The statute, of course, has no application to a search made as incident to a lawful arrest.” Thomas, 183 Wash. at 646. On its face Thomas involved a motion to suppress evidence utilized in a collateral proceeding against a third person, not a criminal prosecution under the subject statute. Thus Thomas involved the situation where the officer was on the premises pursuant to independent lawful authority neither search related nor dependent. The officer’s presence in the residence at issue here, however, was not incident to a lawful arrest but was motivated solely to gather evidence against the accused.
Smith was also an exclusion of evidence case, not a criminal proceeding which arose under this statute. Smith says nothing about the statute other than simply citing it, but rather proceeds to determine the admissibility of the evidence under a federal constitutional analysis which otherwise limits the exclusionary rule to situations not involving consent or waiver.
The majority also cites three Court of Appeals decisions, none of which are binding on this court in any event: State v. Campbell, 15 Wn. App. 98, 547 P.2d 295 (1976); State v. Sanders, 8 Wn. App. 306, 506 P.2d 892 (1973); and State v. Duarte, 4 Wn. App. 825, 484 P.2d 1156, review denied, 79 Wn.2d 1006 (1971). Campbell cited the statute but contained no analysis of its application even in the context of a motion to suppress evidence constitutionally seized under the exigent emergency exception to the warrant rule. Sanders was also a suppression of evidence case which contained no discussion of RCW 10.79.040 other than stating,
*700Because the statute, RCW 10.79.040, implements article I, section 7, and because the constitutional right secured by article I, section 7 is the same constitutional right secured by the Fourth Amendment, we will discuss the validity of the search in terms of the Fourth Amendment.
Sanders, 8 Wn. App. at 309 (citations omitted). Nor does Duarte shed any new light on the subject as it is a suppression case, not a proceeding under the statute per se, which simply purports to summarily follow Smith.
In sum, none of the cases identified by the majority provides precedent, much less reason, to support the majority’s dicta that this statute does not mean exactly what it says nor do I find any reason articulated by the majority other than its appeal to inapposite authority to support the proposition that "criminal liability does not arise under RCW 10.79.045 when a police officer conducts a constitutionally valid warrantless search.” Majority at 686. Such claim defeats the clear language of the statute and robs the Legislature of its authority to rise above the irreducible constitutional minimum guarantee of civil liberties embodied in the Declaration of Rights, Const, art. I, and defeats the express grant of legislative authority whereby government is "established to protect and maintain individual rights.” Const, art. I, § 1. Indeed, what is "manifest” (majority at 686) is that our Declaration of Rights provides a floor beneath which our civil liberties may not sink, not a ceiling above which they may not rise.
Moreover the majority’s dicta that this statute does not mean what it says adds backhanded support to defendant’s claim that it is therefore unconstitutionally vague. The majority’s response that "a sufficiently specific prior judicial construction of a statute can save a statute from unconstitutional vagueness” (majority at 692) seems curiously out of place when presented with a statute that is clear enough on its face but is rendered vague by the majority’s evident predisposition that it should not be enforced as written. Were this the holding of the case, rather than obiter dicta, I would be most inclined to agree *701with the defendant that, from the standpoint of the accused, if the statute does not mean what it clearly says, who knows what it does mean.
Reconsideration denied February 3, 1998.