(concurring) — I agree with the result reached by the majority in this case, but disagree with the majority’s analysis on the issue of unlawful arrest, and in particular the majority’s reading of former RCW 75.10.020 (1992), repealed by Laws of 1998, ch. 190, § 124.12
Former RCW 75.10.020(2) reads as follows: “Fisheries patrol officers and ex officio fisheries patrol officers may arrest without warrant a person they have reason to believe is in violation of this title or the rules of the director.” The prohibition against warrantless misdemeanor arrests where the violation occurs outside the presence of the officer is a common law rule. State v. Bonds, 98 Wn.2d 1, 9-10, 653 P.2d 1024 (1982). This statute clearly provides the necessary legislative authority for fish and wildlife officers to make warrantless arrests for misdemeanor offenses under Title 75 RCW, without addressing whether the act of a violation itself took place in the officer’s presence. Compare RCW 77.12.090 (granting equivalent authority) and State v. Mierz, 127 Wn.2d 460, 472 n.8, 901 P.2d 286, 50 A.L.R.5th 921 (1995) (noting statutory authority of wildlife officers to arrest without warrant) with former RCW 75.10.010 (1992) (allowing enforcement of any criminal law by fisheries patrol officer if violation occurs in his or her presence), repealed by Laws of 1998, ch. 190, § 124 and former RCW *78275.08.190 (1955) (granting authority to “arrest without writ, order or process, any person in the act of violating any of the provisions of this title . . . .” (emphasis added)), repealed by Laws of 1983, 1st Ex. Sess., ch. 46, § 185.
Thus, if Officer Brown had wished to issue a citation to Staats during his initial visit on June 1, 1993, or even upon his return a week later, such an arrest would have been statutorily justified. At that time, Officer Brown had probable cause to arrest Staats for commencing construction without a permit: a gross misdemeanor under former RCW 75.20.100 (1992).
Officer Brown’s delay of more than three months, however, took his actions outside the scope of the statute. By that time, common sense suggests the hearsay information he had received from Agent Woltering had grown stale. See, e.g., State v. Perea, 85 Wn. App. 339, 343, 932 P.2d 1258 (1997) (noting test for staleness of information to establish probable cause is one of common sense). Officer Brown had no reason to believe that, at this point, Staats was “in violation” of the law; Staats could easily have acquired a permit during the past three months. The officer should, therefore, have either sought a warrant or proceeded by complaint. See CrRLJ 2.1 (prosecution must proceed by complaint unless suspect could have been arrested by the officer).
As a result, Officer Brown was not discharging his duties within the context of former RCW 75.10.040 (1992), repealed by Laws of 1998, ch. 190, § 124. This alone was enough to render the arrest of Staats under this statute unlawful. I would, therefore, decline to reach the constitutionality of former RCW 75.10.040, as the analysis is not necessary for the disposition of this case.
Alexander, J., concurs with Johnson, J.
The statute has essentially been recodified at RCW 77.12.090.