(dissenting)—I dissent from that portion of the majority opinion which holds that the defendant's arrest was improper. I would affirm the defendant's conviction for possession of the controlled substance which was found on him after his arrest.
The defendant in this case leveled a gratuitous 5- to 10-minute barrage of screamed obscenities at Seattle police officers. This did not occur at midday in a family neighborhood, but at night in a downtown night life section of a large city where, as an officer testified, they must necessarily assume that every person, adult or juvenile, is armed. The defendant's belligerence and torrent of obscenities occurred before the arrest, not after it. The defendant was not in a private place but was on a public sidewalk within the hearing of numerous members of the public. He was not expressing political or religious beliefs but was expressing his hatred of the police and the world at large.
Despite the foregoing, the defendant was not placed under arrest until other people started to move toward the scene and the defendant refused to move on when requested by the officers that he do so. As the trial court stated in that connection:
The Court: And the facts here are that people were gathering; [the defendant] continued to yell, yelling obscenities. He was asked to quiet down. He didn't quiet down. It wasn't an unintentional act as far as he was concerned. He kept pursuing it, and the officers felt at that time that they had probable cause to make an arrest for disorderly conduct.
(Italics mine.)
I fail to see that the "freedom of speech" contemplated by the First Amendment has anything whatsoever to do with this case. A person's constitutional right to "freedom of speech" does not give a person the right to scream "Fire!" in a crowded theater and did not give the defendant the right to do as he did here. As the United States Supreme Court held in Chaplinsky v. New Hampshire, 315 U.S. 568, 570-72, 86 L. Ed. 1031, 62 S. Ct. 766 (1942):
*762It is now clear that "Freedom of speech and freedom of the press, which are protected by the First Amendment from infringement by Congress, are among the fundamental personal rights and liberties which are protected by the Fourteenth Amendment from invasion by state action."
and further:
Allowing the broadest scope to the language and purpose of the Fourteenth Amendment, it is well understood that the right of free speech is not absolute at all times and under all circumstances. There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or "fighting" words—those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. "Resort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no question under that instrument." Cantwell v. Connecticut, 310 U. S. 296, 309-310 [84 L. Ed. 1213, 60 S. Ct. 900, 128 A.L.R. 1352 (1940)].
(Footnotes omitted.)
The constitution of this state contains the following admonition:
A frequent recurrence to fundamental principles is essential to the security of individual right and the perpetuity of free government.
(Italics mine.) Const. art. 1, § 32. It is appropriate that we have recurrence to basics here.
"At common law, any act which disturbs or tends to disturb the public peace is a misdemeanor. By 'peace' is meant the tranquility enjoyed by citizens of a community where good order reigns among its members, this being the natu*763ral right of all persons in political society. It is that invisible sense of security which every man feels so necessary to his comfort, and for which all governments are instituted." (Footnotes omitted.) 4 C. Torcia, Wharton on Criminal Law § 521, at 173-74 (14th ed. 1981). "The utterance of abusive language, unaccompanied by a threat of violence, is not punishable at common law as a breach of the peace. However, the use of abusive language toward another in a public place, in the presence of others, has such a tendency to disturb the public peace as to be punishable." (Footnotes omitted.) 4 C. Torcia, Wharton on Criminal Law § 530, at 193 (14th ed. 1981). What occurred here was a breach of the peace and the officers had the right to make the arrest at the time they did. See Seattle Municipal Code 12A.12.010; RCW 9A.76.020(3); RCW 9A.84.030(1)(a) and (c); Davis v. Burgess, 54 Mich. 514, 20 N.W. 540 (1884).
It was the sworn duty of the police officers to keep the peace. If the confrontation with this loud, raging, obscene young man had escalated into a general melee or riot, the officers most assuredly would have been severely criticized for letting the situation get out of hand. Here they made a decision based on their experience and expertise as police officers and arrested the defendant, thus nipping in the bud what could have developed into a bad situation. As the courts have said many times and in many contexts, what may appear one way to a judge sitting in an upholstered chair may well appear quite differently to a trained police officer patrolling the streets at night and dealing with real people in real situations.4
I do not consider Pasco v. Dixson, 81 Wn.2d 510, 503 P.2d 76 (1972) and Kennewick v. Keller, 11 Wn. App. 777, 525 P.2d 267 (1974), which are cited by the majority, to be controlling. Pasco involved a disorderly conduct charge based on a single obscene word uttered after the arrest. Kennewick involved a disorderly conduct charge based on *764the defendant's uttering an obscenity three times after he had been asked to accompany the officer to the police station (in effect an arrest). In the present case, however, the defendant's belligerence and shouted torrent of obscenities occurred before the arrest and were a cause of it; in addition, the arrest was not made until after a crowd had started to collect and the defendant refused to move on when asked to do so.
What is more, I see no need to decide this case on constitutional grounds at all. "We have consistently held that we will not pass on constitutional issues unless absolutely necessary to a determination of the appeal." Ohnstad v. Tacoma, 64 Wn.2d 904, 907, 395 P.2d 97 (1964). Accordingly, there is no demonstrable need to constitutionalize the right to use obscenity toward police officers as the majority opinion seems to do.
For the additional reasons which follow, the validity of the defendant's arrest for disorderly conduct should be upheld, notwithstanding the later dismissal of that charge by the city prosecutor. I would, therefore, not suppress as evidence the controlled substance found on his person and would affirm his conviction for possession of the controlled substance found on him after his arrest.
Directly in point, factually and legally, is the opinion in Von Sleichter v. United States, 472 F.2d 1244 (D.C. Cir.), cert. denied, 409 U.S. 1063, 34 L. Ed. 2d 517, 93 S. Ct. 555 (1972).
■In Von Sleichter, a police officer patrolling his beat asked a question of the defendant in that case, in a public place, and the defendant responded with obscenities. The defendant was arrested for disorderly conduct, was found to have drugs in his possession and thereafter was convicted of unlawful possession of drugs.
In upholding the validity of the arrest, Judge Leventhal, writing for the majority of the United States Circuit Court of Appeals held as follows:
Appellant's words were in a context that is pertinent. We are not to be taken as suggesting that these words *765would suffice for an arrest if uttered, to take the hypothetical case put in Williams [Williams v. District of Columbia, 419 F.2d 638, 136 U.S. App. D.C. 56 (D.C. Cir. 1969)], by a "hapless stonemason" who accidentally stubs his toe, and whose spontaneous profanity is patently devoid of any possible offense. But appellant's words were in response to an officer's civil inquiry, a request for cooperation that may lawfully and reasonably be directed to citizens at large without any charge of crime. It is one thing to say that a citizen's cooperation is a moral duty rather than a legal duty that can be compelled. It is quite another to contend that the Constitution provides an immunity from arrest for a person who chooses to manifest his unwillingness to cooperate with the shout of a four-letter expletive on a public street, within earshot of passers-by. His primary verbal target may have been the officer; but he cannot stake out a constitutional right to disregard shock on the passers-by.
(Footnote omitted.) Von Sleichter v. United States, 472 F.2d at 1247.
And further:
We reiterate that we are not deciding that defendant was guilty of disorderly conduct, a decision that would require a determination concerning community standards. The standard that governs arrest does not require proof enough to convict. The police officer's probable cause for arrest may stand even though the prosecutor needs additional evidence for the preliminary hearing or the trial.
We are aware that conventions and fashions in language change. But we do not think that it can be doubted that these words have at least some minimal shock quality—we would recognize that well enough if they were shouted in a courtroom, or even a court corridor—that is sufficient to allow a criminal proceeding to be begun. And that is what is involved in the validity of an arrest. Indeed, there is implicit recognition of such shock value in another of appellant's arguments—that cursing is a useful safety-valve for pent-up hostility; that there is a cathartic charge in using words with a shock value, which justifies the use of such language in the service of a broader public interest. Whatever therapeutic claims may be made for this safety-valve in the context of language *766spoken solely to a policeman, or in private, we do not see it as establishing a license to shout shocking and offensive expressions on the public streets, without regard to public annoyance.
Anything is possible; it is possible that this policeman was an old-fashioned fuddy-duddy who was not aware that the shockers of yester-year are today's common idiom on the residential streets of Georgetown. But as Bailey [Bailey v. United States, 389 F.2d 305, 128 U.S. App. D.C. 354 (D.C. Cir. 1967)] and many other cases reiterate—over and over again—the question is, not what would be held at a trial on the merits, but what it was reasonable for the policeman to do in the circumstances. We must give some credit to the policeman for ability to assess the ordinary impact of the sights and sounds he hears, at least for the purposes of an initial determination on his part to make an arrest, and subject to whatever might be brought out on cross-examination or rebuttal at a preliminary hearing or trial. We are not prepared to lay down a rule that there is such a constitutional privilege to shout four-letter words on a public street that a policeman who explains that he had made an arrest for the shouting of such language within hearing of citizens on the street must be held to have failed to show probable cause. We think the record before us does not permit us to vitiate the arrest for disorderly conduct.
Affirmed.
(Footnotes omitted.) Von Sleichter v. United States, 472 F.2d at 1249.
I would affirm the conviction in the present case.
See, e.g., State v. Cabigas, 5 Wn. App. 183, 185, 486 P.2d 1139 (1971); State v. Sinclair, 11 Wn. App. 523, 531, 523 P.2d 1209 (1974).