¶15 (concurring) — The majority concludes that Olympia Municipal Code (OMC) 9.64.010 is a valid ordinance criminalizing littering, the offense for which Casey Irwin was arrested, and therefore law enforcement officers lawfully arrested him and conducted a lawful search incident to arrest. The majority reasons that the ordinance is valid because it does not conflict with state statutes that make littering of the kind that occurred here a civil infraction, punishable by a $50 fine. But I question the majority’s conclusion. First, under a line of cases that has not been overruled, if a statute and an ordinance define the same conduct but carry different punishments, thus presenting the arresting and charging authorities with discretion to charge under the law imposing the greater penalty, a violation of article I, section 12 of the Washington State Constitution results. Second, while the constitution bars enforcement of a local law if it conflicts with a state statute, nothing in the constitution limits invalidity to conflicts about substantive behavior as the majority concludes. And indeed, the Court of Appeals has held that an ordinance imposing a greater penalty than a state statute prohibiting the same conduct is invalid under this analysis.
*829¶16 Despite these serious concerns about the legitimacy of the ordinance under the constitution, the defendant has not presented the first of these arguments. Therefore, the court should decide this case on narrower grounds. Judicial restraint is particularly important because aside from the uncertainty under article I, section 12, the majority’s sweeping holding that there is no conflict between the ordinance and the state statute will validate all other ordinances that presently exist or may be enacted with greater penalties than identical state statutes.
¶17 The validity of the arrest and search incident to arrest can be determined without deciding whether OMC 9.64.010 itself is valid. The ordinance was presumptively valid at the time Dennis Ray Edrwin was arrested, and it was not so grossly or flagrantly unconstitutional that a reasonably prudent person would recognize its flaws. Thus, an arrest under the ordinance supported by probable cause gave the officer the authority to arrest and therefore to conduct a warrantless search incident to that arrest.
¶18 In accord with principles of judicial restraint the better course is to refrain from passing on the validity of the ordinance and instead uphold the search on the basis of the presumptive validity of the ordinance.
Analysis
¶19 A line of cases decided under article I, section 12 casts doubt on the validity of the ordinance. Years ago the court held that the Fourteenth Amendment to the United States Constitution and article I, section 12 are violated by a statute that prescribes different punishments for the same act committed under like circumstances by individuals in like situations. In re Habeas Corpus of Olsen, 48 Wn.2d 545, 295 P.2d 324 (1956). In Olsen, the penalty section of an act vested discretion in prosecuting officials to charge a violation either as a gross misdemeanor or a felony, and it was declared unconstitutional. In State v. Zornes, 78 Wn.2d 9, 475 P.2d 109 (1970), the court reasoned *830that the same constitutional invalidity occurs when two operative statutes provide for the same type of discretion.
¶20 This constitutional analysis was applied by both this court and the Court of Appeals and was applied when two separate but identical criminal statutes provided for different penalties, even if both were misdemeanors. It was also applied when a local ordinance provided for a greater penalty than an identical state statute. In State v. Mason, 34 Wn. App. 514, 663 P.2d 137 (1983), for example, a statute and a Seattle ordinance defined the same crime, with the same elements, but provided for different punishments. The court observed that “[w]here two criminal statutes are defined with exactly the same elements, any purposeful discretion exercised by the charging authority, or by the arresting officer . . . could be based only on consideration of the possible penalty involved.” Id. at 519. The court reasoned that a Seattle police officer could exercise unfettered discretion and bring a felony or misdemeanor charge for the same offense, in violation of article I, section 12 and the Fourteenth Amendment. Id. at 520;9 see also City of Seattle v. Hogan, 53 Wn. App. 387, 766 P.2d 1134 (1989); State v. Martell, 22 Wn. App. 415, 416-18, 591 P.2d 789 (1979). In Hogan, 53 Wn. App. at 391-92, the court distinguished some cases on the ground that the court, and not the prosecutor, elected which of a range of punishments were to be imposed, and others on the ground that objective standards existed to govern the exercise of discretion at the charging stage. The court held, however, that application of a Seattle ordinance scheme violated equal protection to the extent it permitted greater punishment for attempted vehicle prowl than the applicable state statute. Id. at 392. The court held the ordinance could be enforced only to the extent it was within statutory limitations. An attorney general opinion similarly concluded that because counties derive their authority from the state, both are considered a single entity for equal protection purposes and “a county would not be *831permitted to enforce an ordinance prescribing a different penalty for the commission of a county offense than is prescribed under state law for the same criminal act.” 1993 Op. Att’y Gen. No. 11, 1993 WL 290225, at *5 n.4.10
¶21 In City of Kennewick v. Fountain, 116 Wn.2d 189, 193, 802 P.2d 1371 (1991), the court observed that United States v. Batchelder, 442 U.S. 114, 99 S. Ct. 2198, 60 L. Ed. 2d 755 (1979), overruled Zornes insofar as it had held that equal protection under the Fourteenth Amendment was violated by acts defining the same offense but prescribing different punishments. As the court subsequently reiterated, Batchelder “ ‘overrules Zornes as to analysis under the Fourteenth Amendment.’ ” In re Boot, 130 Wn.2d 553, 574, 925 P.2d 964 (1996) (quoting Fountain, 116 Wn.2d at 192-93).
¶22 The question that remains, of course, is whether the Olsen/Zornes line of cases is still viable insofar as article I, section 12 is concerned.11 The present status of the rule under the state constitution is uncertain. This court has not overruled the cases to the extent they rely on article I, section 12. Also in question is the result if an ordinance criminalizes what is a civil infraction under a state statute and imposes a far greater punishment than the fines imposable under the state statute — whether the ordinance is invalid or, as held in Hogan, invalid only to the extent the penalties exceed those imposed under state law.
¶23 I believe the uncertainty engendered by this line of cases dictates that in the absence of briefing on the impact of article I, section 12, the court should refrain from *832declaring an ordinance valid when it has penalties that exceed those under an essentially identical state statute.
¶24 The second reason I depart from the majority is because it applies an incorrect standard when determining the validity of the ordinance. A city can enact an ordinance that prohibits and punishes the same acts that constitute an offense under a state statute provided the ordinance does not conflict with state law and the state law does not show that it was intended to be exclusive. City of Bellingham v. Schampera, 57 Wn.2d 106, 109, 356 P.2d 292 (1960). The rule is derived from article XI, section 11 of the state constitution. Id. The majority says that the conflict principle applies only with respect to substantive conduct. But none of the cases cited by the majority contain the limitation announced by the majority. And the majority’s quotation of City of Seattle v. Eze, 111 Wn.2d 22, 33, 759 P.2d 366 (1998), majority at 826, is of a portion of the court’s discussion about an ordinance that in fact prohibited a wider scope of activity than state law. Eze simply fails to address the issue here. The majority does not cite any authority actually holding that only substantive conduct is relevant. Contrary to the majority’s belief, it is equally sensible to say that a conflict exists where a local law permits penalties that a state law forbids or forbids penalties that state law permits.
¶25 Mason demonstrates the point. In Mason, in addition to considering article I, section 12, the Court of Appeals also analyzed the ordinance at issue to determine whether state law preempted it. The ordinance and a state statute both proscribed the crime of promoting prostitution. The court recited that an ordinance is in conflict with state law if it prohibits what the state law permits, or vice versa, and said that the Seattle ordinance
effectively contravenes the penalty provisions chosen by the Legislature to punish the crime of promoting prostitution in the second degree. We conclude that the Legislature intended, by passing the criminal code, to make the grading and punishment of serious criminal offenses a matter of state control. The *833Seattle ordinance is thus “in conflict” with the State criminal code.
State law prevails and local law must fall where there is an irreconcilable conflict. In such a case, the local law is preempted to the extent that an actual conflict exists.
Mason, 34 Wn. App. at 521. Mason was subsequently distinguished, but not disapproved, in State v. Lewis, 115 Wn.2d 294, 300, 797 P.2d 1141 (1990).
¶26 A similar analysis can be applied here. By making littering of the type at issue here a civil infraction, punishable by a civil fine, the legislature has chosen what penalty is to be applied. Under the analysis set out in Mason, the penalties under the ordinance conflict with state law.
¶27 In light of these legal theories, the validity of the city ordinance is seriously in question. Unfortunately, the briefing does not raise or thoroughly address one of these theories. But because it so obviously exists, the court’s better course is to refrain from declaring the ordinance valid and resolve this case on other, firmer grounds.
¶28 As mentioned, I concur in the majority’s result because the arrest was made pursuant to a presumptively valid statute.
¶29 In Michigan v. DeFillippo, 443 U.S. 31, 38, 99 S. Ct. 2627, 61 L. Ed. 2d 343 (1979), the United States Supreme Court held that an arrest under a statute that is valid at the time of the arrest and supported by probable cause remains valid even if the basis for the arrest is later held unconstitutional. A “narrow exception” is recognized when the law is “so grossly and flagrantly unconstitutional that any person of reasonable prudence would be bound to see its flaws.” Id. at 37-38. Mr. Kirwin contends, however, that the rule in DeFillippo cannot be applied because it was rejected in State v. White, 97 Wn.2d 92, 640 P.2d 1061 (1982), where the court declined under article I, section 7 to adopt a good faith exception for arrests made under an unconstitutional statute. He also cites State v. Chenoweth, 160 Wn.2d 454, 472 n.14, 158 P.3d 595 (2007), as acknowledging that *834Washington has not adopted a good faith exception to the warrant requirement.12
¶30 The opinion in White is somewhat confusing because the three parts of the court’s analysis are seemingly inconsistent. The first section concludes that the statute at issue was not presumptively valid because it was so grossly and flagrantly unconstitutional that a reasonably prudent person would see its flaws, i.e., the court applied the exception DeFillippo carved out to the good faith rule. The court does not identify in this section whether its analysis was under the Fourth Amendment or the state constitution or both. The second section deals with the reasonableness standard under the Fourth Amendment and expressly includes “Fourth Amendment” in the heading. White, 97 Wn.2d at 104. The final section’s heading is “Const, art. 1, § 7 provides broader protection than the Fourth Amendment” and concludes that the exclusionary rule must be applied whenever an individual’s right to privacy is unreasonably invaded. White, 97 Wn.2d at 108, 111-12.
¶31 On the one hand, it is arguable that the first section of the opinion is dispositive, particularly given that it does not in any way indicate that it is limited to an analysis under the federal constitution and does not contain in its heading any indication of the scope of the discussion. If so, the balance of the opinion was unnecessary to the court’s decision and thus dicta. On the other hand, the third section appears to hold, as argued by Mr. Kirwin and observed in Chenoweth, that the court rejected the rule of DeFillippo under the state constitution.
¶32 But whatever its meaning, subsequent events have overtaken White and it is now clear that the court has adopted the rule of presumptive validity under article I, section 12. In State v. Potter, 156 Wn.2d 835, 132 P.3d 1089 (2006), the defendants maintained that they were unlawfully arrested for driving while their licenses were sus*835pended because, subsequent to their arrests, this court held that the statutory procedures by which the Department of Licensing suspended licenses were unconstitutional. See City of Redmond v. Moore, 151 Wn.2d 664, 91 P.3d 875 (2004). The defendants in Potter contended that under article I, section 7, evidence of controlled substances found in their vehicles during searches incident to their arrests had to be suppressed as a result of the illegal arrests.
¶33 In a unanimous decision, we applied the DeFillippo rule under article I, section 7, and held that an arrest under a statute valid at the time of the arrest and supported by probable cause remains valid even if the basis for the arrest is later found unconstitutional. Potter, 156 Wn.2d at 843. We also said:
In White, we held that a stop-and-identify statute was unconstitutionally vague and, applying the United States Supreme Court’s exception to the general rule from DeFillippo, excluded evidence under that narrow exception for a law “ ‘so grossly and flagrantly unconstitutional’ ” that any reasonable person would see its flaws.
Id. (quoting White, 97 Wn.2d at 103 (quoting DeFillippo, 443 U.S. at 38)). We concluded that the exception did not apply to the defendants’ cases. With respect to the statute criminalizing driving while license suspended, we noted that the statute that made it unlawful to drive while license suspended remained a valid statute, unlike the statute held unconstitutional in White. Then, with respect to the statutory licensing procedures held unconstitutional in Moore, we reasoned that unlike the circumstances in White, there were no prior cases holding that license suspension procedures in general were unconstitutional and therefore these statutory provisions were not grossly and flagrantly unconstitutional. Id.
¶34 Similarly, in State v. Brockob, 159 Wn.2d 311, 341-42,150 P.3d 59 (2006), one of the defendants contended that his arrest for driving while his license was suspended and a search incident to that arrest were unlawful for the same *836reason claimed in Potter. The defendant also relied on White. The court rejected the defendant’s argument, stating that
White held that police officers may rely on the presumptive validity of statutes in determining whether there is probable cause to make an arrest unless the law is “ ‘so grossly and flagrantly unconstitutional’ by virtue of a prior dispositive judicial holding that it may not serve as the basis for a valid arrest.”
Id. at 341 n.19 (quoting White, 97 Wn.2d at 103 (quoting DeFillippo, 443 U.S. at 38)). As in Potter, the court held that the exception did not apply “because no law relating to driver’s license suspensions had previously been struck down.” Id.
¶35 While Potter and Brockob may have overlooked the third section in White and the discussion under article I, section 12, these cases nevertheless have had the effect of overruling White (unanimously, in Potter) insofar as White can be read to reject the DeFillippo rule.
¶36 Applying the analysis from DeFillippo, Potter, and Brockob, the littering ordinance was presumptively valid at the time Irwin was arrested, regardless of any potential constitutional infirmity. Nor, assuming any unconstitutionality, does it appear the exception would apply, i.e., there does not appear to be gross or flagrant unconstitutionality. Accordingly, the search incident to arrest should be upheld because the arrest was lawful under a presumptively valid ordinance.
Conclusion
¶37 I am troubled by the majority’s unsupported narrowing of the analysis for determining conflict in laws. There is no authority that limits the analysis to substantive conduct, contrary to the majority’s belief. I am also troubled because there is a line of authority that casts doubt on the ordinance’s constitutionality. But because this line of au*837thority and the legal theories it involves are not addressed by the briefing, it should not be the basis for the court’s decision. Given that it exists, however, I believe the better course is to refrain from ruling on the validity of the ordinance and instead decide this case under a more limited analysis. As the State maintains, the ordinance was presumptively valid at the time of the arrest and was therefore authority for the arrest and the search incident to arrest.
¶38 I concur in the result reached by the majority.
Stephens, J., concurs with Madsen, J.As explained below in the text, the ordinance at issue in Mason was invalidated on preemption grounds.
As explained immediately below, this conclusion is flawed insofar as the federal constitution is concerned.
In an unpublished opinion (which therefore may not be cited as authority, see GR 14.1(a)), the Court of Appeals engaged in a Gunwall analysis (see State v. Gunwall, 106 Wn.2d 54, 720 P.2d 808 (1986)) and then determined that the state constitution provides greater protection in this context than the equal protection clause. The court concluded that Zornes remains good law under article I, section 12. Anderson v. Wilson, noted at 94 Wn. App. 1015, 1999 WL 95993, 1999 Wash. App. LEXIS 321.
He concedes that the statement in Chenoweth was not necessary to the disposition of the case before the court.