(dissenting) — I respectfully dissent. I cannot endorse the majority’s opinion because it does not address the real issue in this case. It is the duty of the courts to ensure the integrity of the criminal justice system and safeguard citizens from egregious police conduct that exceeds principles of fundamental fairness and due process of law. My review of the record leaves me with a deep and abiding certainty that the State violated constitutional principles of fundamental fairness by convicting Mr. Valentine for a crime which it provoked.7 See Paul G. Chevigny, The Right to Resist an Unlawful Arrest, 78 Yale L.J. 1128 (1969).
Manifest error affecting a constitutional right may be addressed for the first time on appeal. RAP 2.5(a). Although the parties have not raised this issue, either before the trial court or on appeal, we may consider any issue necessary for a proper decision and may decide the case on that basis. RAP 12.1(b); State v. Danforth, 97 Wn.2d 255, 643 P.2d 882 (1982); Siegler v. Kuhlman, 81 Wn.2d 448, 502 P.2d 1181 *622(1972), cert. denied, 411 U.S. 983 (1973); Crawford v. Wojnas, 51 Wn. App. 781, 786-87, 754 P.2d 1302, review denied, 111 Wn.2d 1027 (1988).
The majority’s statement of facts places too much emphasis on the apprehension of Mr. Valentine and too little emphasis on police actions preceding the physical altercation.
Officer Richard Robinson testified he was driving west on First Avenue when he "saw a suspicious subject on the corner at First and Jefferson”. He did not recognize the man, so he asked Officer John Moore via portable radio if Officer Moore recognized him. Officer Moore testified he was driving westbound in the alley south of the 1100 block of West First, in his plain white unmarked car, when Officer Robinson asked him on his portable radio if he "knew somebody standing at First and Jefferson that was wearing a black coat”. When Officer Moore got to the end of the alley and came out onto Jefferson, he looked for somebody in a "black coat” but all he saw was somebody bending down and getting into a car near the intersection of Jefferson and First, "and he had a black coat on”.
Officer Moore testified the vehicle made a right turn at the intersection, onto First, without signaling,8 so he "told Officer Robinson on the radio that I did have a violation oil the driver of the vehicle, he hadn’t signalled for a turn, and that I was going to stop the car.” This was clearly a pretex-tual stop.
Officer Moore followed the vehicle and turned on his police lights. He testified that as he did so, he recognized the car and Mr. Valentine. Officer Moore had cited Mr. Valentine twice for failure to have a front license place: the second time was on May 12, just 4 days earlier, and the first time was about a month earlier. Officer Moore reported over his radio that the person he was following was Mr. Valentine.
Officer Richardson followed Officer Moore to provide backup assistance. When Mr. Valentine pulled to the side of *623the street 31/2 blocks later, Officer Moore approached him and Officer Richardson went to the passenger side. Although he knew why Officer Moore had followed Mr. Valentine, there is no indication that Officer Richardson informed him that this was not the "suspicious subject” about whose identity he had inquired.
Officer Jay Jones pulled up and stopped near the front of Mr. Valentine’s car. He stayed on his motorcycle since "[tjhings looked like they were pretty well under control”. Officer Moore asked Mr. Valentine for his license; Officer Richardson asked the two passengers for identification, and had them get out of the car while he ran their identities through the police computer.9 Sergeant Michael Yates and Detective Robert Webb arrived at the scene.
Mr. Valentine complained to Officer Moore about being harassed. He used profane language. But he also handed Officer Moore his license, as requested, and his registration, which the officer had not yet requested. He got out of his car and walked to the front to show the officer that he had attained a front license plate. His actions imply cooperation. And Officer Jones’ testimony corroborates Mr. Valentine’s claim that he was cooperating.
Officer Moore testified that although he had Mr. Valentine’s license and registration, he could not fill out the citation without a current address. Officer Moore further testified that Mr. Valentine refused to provide his current address; therefore, Officer Moore told him he was under arrest for failure to cooperate and for failure to sign a notice of infraction.10 Officer Moore did not have his citation book in *624hand, however, and did not present Mr. Valentine with a citation for his signature.11
Mr. Valentine produced evidence that he had notified the Department of Licensing in January 1990 that he had moved and had attached a sticker with his new address on the back of his license, as directed. He testified that Officer Moore had obtained his address from the sticker for the citation he had written 4 days earlier. Officer Moore testified he knew from the previous contracts that the address on the front of Mr. Valentine’s license was not current, but he did not think he looked on the back of the license on this occasion.
Sergeant Yates, who applied the "carotid hold”12 to Mr. Valentine during the scuffle, testified he headed toward the area as soon as he heard it was Mr. Valentine being stopped. The officer acknowledged he had engaged in a contest of one-upmanship with Mr. Valentine during the previous day’s altercation at a tavern. He also acknowledged that, as a result of the tavern argument, it was probable the officer had discussed Mr. Valentine at the swing shift roll call which took place just an hour or two before the incident at issue.
I am not surprised that Mr. Valentine expressed outrage at his treatment by these police officers, or that he believed he was being harassed. The record permits no other conclusion.
The Supreme Court has recognized that a situation can exist "in which the conduct of law enforcement agents is so *625outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction . . United States v. Russell, 411 U.S. 423, 431-32, 36 L. Ed. 2d 366, 93 S. Ct. 1637 (1973). In determining whether police conduct is outrageous, the totality of the circumstances must be considered. See United States v. Bogart, 783 F.2d 1428, 1438 (9th Cir.), reh’g granted, vacated on other grounds and remanded with respect to one defendant sub nom. United States v. Wingender, 790 F.2d 802 (1986). In order to constitute a due process violation, the conduct must be so outrageous as to shock the conscience of the court. United States v. Osborne, 935 F.2d 32, 36 (4th Cir. 1991).
The flagrant abuse of police authority in this case was much more than obnoxious behavior; it was disturbingly reminiscent of police state tactics. Such tactics have no place in a free and democratic society. Yet, as my colleagues point out, courts have been hesitant to find other instances of police misconduct sufficiently egregious to constitute due process violations. This generalized acceptance by the judiciary of law enforcement excesses threatens to undermine the integrity upon which our criminal justice system is based. The fact that other courts have developed a high shock threshold in the face of reprehensible law enforcement conduct does not persuade me that this court should sanction what transpired here.
I do not believe this appeal can be properly decided without addressing the constitionality of these officers’ actions. Therefore, I would call for supplemental briefing on this issue as authorized by RAP 12.1(b) and would decide the case on that basis.
Review granted at 128 Wn.2d 1001 (1995).
Instructions 15 and 17, which address when an arrest is lawful and the scope of an individual’s right to resist an unlawful arrest, do not adequately address the issue of intentional provocation. The constitutionality of the law enforcement officers’ actions was not before the jury.
Mr. Valentine testified he signaled by hand because he was aware of Officer Moore’s presence and his turn signals were not working.
The stopping of a vehicle based on an infraction coiñmitted by the driver does not, by itself, provide an officer with grounds to require identification of passengers. State v. Larson, 93 Wn.2d 638, 642, 611 P.2d 771 (1980). Officer Robinson’s treatment of Mr. Valentine’s passengers lends credence to the allegation of police harassment.
Mr. Valentine testified Officer Moore told him he was taking him to jail and towing his car, and that is why he went back to roll up the window and lock the door. He did not want people going through his personal effects. Considering the presence of two passengers in the vehicle, either of whom presumably could have *624driven it, one wonders whether the police had reasonable cause for impounding it. See State v. Malbeck, 15 Wn. App. 871, 874-75, 552 P.2d 1092 (1976).
Officer Moore testified he never approached a car with a ticket book at night; he would take a flashlight instead. The stop here, however, took place in the middle of the day. Mr. Valentine later signed a citation presented to him at the hospital. Officer Moore had filled in the form with an address he obtained from Mr. Valentine’s checkbook, taken by another officer from the vehicle’s glovebox.
According to Sergeant Yates and Detective Webb, the carotid hold is a degree of force just short of deadly force. It is generally used only in life-threatening situations.