¶28 (concurring) — Reluctantly, I concur in the majority opinion. My reluctance does not stem from the majority’s analysis of RCW 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
¶29 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 formality of the arrest. Thus, the officer who made the arrest was not “the” officer in whose presence the offense was committed.
¶30 Unfortunately, the statutory codification of the common law rule does not carry out the purpose of the rule. As we have noted, RCW 10.31.100 does not alter the basic *133common 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 of the 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)).
¶31 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, § 5.1(c) at 40 (5th ed. 2012).
¶32 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.3 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 34-35 (“[p]resence is most commonly thought of as the state of being in view, and *134thus 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.
¶33 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 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.
¶34 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.
¶35 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 *135officer 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 the request of another officer in whose presence a traffic infraction has been committed. RCW 10.31.100(6).
¶36 Thus, if the legislature believes that a valuable tool is unavailable to law enforcement because of the plain language of RCW 10.31.100, 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 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).
¶37 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.
Wiggins, J., concurs with Madsen, C.J.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.