COURT OF APPEALS DMIS"IM' 11
201, 3 DEC 3 ! AM 9. 17
STATE OF WASH' STO14
BY p19TY
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 43567 -5- II
Respondent,
V.
NATHAN JOE DELGADO, UNPUBLISHED OPINION
I1
Hurry, J. Nathan Joe Delgado appeals his stipulated bench trial convictions for felony
driving under the influence and driving with a suspended or revoked license. He argues that the
trial court erred in denying his motion to suppress evidence, in particular his blood alcohol test
results, for lack of reasonable, articulable suspicion to justify " stopping" his vehicle and
seizing" him without a warrant.' Holding that the encounter was reasonable under the
community caretaking exception to the constitutional warrant requirement, we affirm.
1 Br. of Appellant at 11. No. 43567 -5 -II
FACTS
I. BACKGROUND
A. Border Patrol Stop
Nathan Joe Delgado was driving a pickup truck on Railroad Drive in downtown Port
Angeles, along the waterfront, near the marina that provides ferry transportation across the
United States border to Canada. Railroad Drive is " as close to the border as you can get without
actually being in the water." Verbatim Report of Proceedings ( VRP) ( May 30, 2012) at 8. U. S.
Border Patrol Agent Jose Romero observed binoculars on Delgado' s pickup' s dashboard and
watched Delgado make abrupt stops in the middle of the empty roadway and then accelerate
quickly and suddenly stop again. In his experience along the southern U.S. border, Romero had
observed similar behavior when smugglers were scouting an area or looking to pick up humans
or contraband. Romero continued to follow as Delgado continued to start and to stop abruptly in
the middle of the road and then make a series of left turns. Now suspicious, Romero ran a
license plate check for Delgado' s pickup truck and learned that its tags were invalid. As Romero
pulled closer, Delgado made a sudden, illegal left turn followed by another left turn. Unable to
make the same turn safely, Romero proceeded down the street, turned around, and refueled at a
gas station. At this point, Romero lost sight of Delgado.
At the same gas station, Delgado pulled up to the adjacent pump, shut off the truck' s
engine, and slumped in his seat. Romero approached and initially asked. Delgado " if he was
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2; 3, okay " it appeared that Delgado was impaired for some reason unknown to Romero who then
asked for his name, where he was from, and what he was doing in the area. According to
Romero, Delgado' s responses were "[ s] omewhat incoherent ": Romero " couldn' t really make out
anything [ Delgado] was saying "; it appeared that Delgado " was being evasive "; and Delgado
didn' t want to provide ... a name or tell ... where he was from." VRP ( May 30, 2012) at 14.
When Romero asked for identification, Delgado
wouldn' t produce any type of identification initially.... [ A] 11 he could provide to me was a vehicle insurance card, and as he handed that to me he stated that that was his driver' s license. ... I explained to him that this was his insurance card and not his driver' s license, and he looked at me bewildered and said, well, doesn' t that work? I doesn' t identify who you are. said that I would like something that would tell me who it is that you are and so forth.
VRP ( May 30, 2012) at 15. Delgado then " slumped over to the side of the vehicle and just [ lay]
there. . . . He couldn' t move "; after a few minutes, Delgado produced a Washington State
identification card, but no driver' s license. VRP ( May 30, 2012) at 15. Romero believed that
Delgado' s" incoherence ... stemm[ ed] from either a health condition, [ or] some type of either
narcotic or alcohol use." VRP (May 30, 2012) at 16.
Delgado' s vague responses and initial failure to produce identification gave Romero the
impression that Delgado was " trying to conceal his identity," which caused Romero to wonder
whether Delgado might be involved in " some type of criminal activity" that Romero " need[ ed] to
2 VRp (May 30, 2012) at 13. 3 Romero " couldn' t tell He had no training in DUI enforcement, although he what was wrong ": had some experience dealing with " some of the effects and incoherencies that come across from narcotic use." VRP ( May 30, 2012) at 17. Romero " didn' t actually smell any alcohol, but [ he] couldn' t tell what was wrong[. He] just couldn' t tell what it was." VRP ( May 30, 2012) at 17.
3 No. 43567 -5 -II
be concerned about[.]" VRP ( May 30, 2012) at 16. Romero told Delgado he was. "going to call
into radio dispatch" and asked for his vehicle keys, which Romero placed on Delgado' s pickup
truck roof. VRP ( May 30, 2012) at 16. Romero took Delgado' s identification card back to his
patrol car, ran a check for " officer safety issues," VRP ( May 30, 2012) at 17, and learned that
Delgado had " an extensive criminal history," including " assault and various felonies,"
4" 5 extraditable warrants out of Illinois and Colorado, " warrants out of Seattle, " and " a prior
Right from law enforcement." VRP ( May 30, 2012) at 17. Romero detained him for a few
minutes until Port Angeles Police Department Officer Dallas Maynard arrived to take Delgado
into custody on the outstanding warrants. After handing off Delgado, Romero left.
B. Arrest for Driving Under the Influence
Based on Delgado' s strong odor of alcohol, Maynard arrested him on suspicion of driving 6 under the influence ( DUI) and driving with a suspended or revoked license. When Delgado
refused to take a breathalyzer test, and after advising him of his Miranda? rights, Maynard drove
4 Clerk' s Papers ( CP) at 62. Romero also verified that Delgado was a U.S. citizen.
SCPat62.
6 During the telephonic request for a search warrant to draw Delgado' s blood for a blood alcohol test, Maynard stated under oath that, as he spoke with Delgado at the gas station, he " detected a fairly strong odor of intoxicating liquor. Mr. Delgado' s speech was pretty low, somewhat slurred, his eyes were red and glassy." CP at 52. When Maynard later asked Delgado if he had anything to drink, Delgado " said that he had drink." CP Maynard asked Delgado to step a at 53. out of the truck, patted him down, and removed a folding knife from the front of Delgado' s pants. Maynard asked if Delgado would take a field sobriety test, but he declined and requested a lawyer. Maynard offered to give Delgado a breathalyzer test, which he also declined. Maynard then placed Delgado " under arrest for DUI - Alcohol. As he was standing there talking to me ... he was also swaying back and forth ... and side to side." CP at 53.
7 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 ( 1966).
0 No. 43567 -5 -II
Delgado to the hospital and requested a telephonic search warrant for two vials of his blood. The
court granted the warrant, and a technician drew Delgado' s blood for a blood alcohol test. A
later analysis revealed that Delgado' s blood alcohol content was .21 per 100 ml of blood.
II. PROCEDURE
The State charged Delgado with DUI and driving while his license was revoked or
suspended. Because Delgado had been denied counsel at the police station, the trial court
granted his motion to suppress his refusal to take a breathalyzer test.$ Delgado also filed a
separate CrR 3. 6 motion to suppress all evidence obtained after his interaction with Romero,
arguing that the stop had been illegal and, thus, all evidence gathered as a result was the " fruit of 9 the poisonous tree. " The trial court denied this CrR 3. 6 motion, ruling that, based on Delgado' s
actions and apparently impaired condition, ( 1) Romero had reason to suspect that Delgado was
suffering from some sort of medical or other impairing condition and ( 2) Romero had acted
reasonably in temporarily taking Delgado' s keys and his identification to run a background
check. Delgado did not object below that the trial court' s findings of fact and conclusions of law
on his suppression motions were inadequate.
Delgado waived his right to jury trial and stipulated to the facts. The trial court found
him guilty of DUI and driving while his license was suspended. Delgado appeals.
8 Denial of counsel is not at issue in this appeal. The State does not cross -appeal suppression of Delgado' s refusal to take the breathalyzer test.
9 CP at 153, 157. Delgado did not, however, contest the validity of the telephonic search warrant to draw his blood; and he stipulated to the results of his blood alcohol test.
5 No. 43567 -5 -II
ANALYSIS
Delgado assigns error to the trial court' s ( 1) finding of fact 1 and conclusion of law 1—
that Romero had a reasonable, articulable, non - pretextual basis for " stop[ ping]" him ( Delgado)
and checking his identification; and ( 2) denial of his motion to suppress all evidence seized after
this stop. Br. of Appellant at 1. Delgado argues that Romero lacked a reasonable articulable
suspicion to stop him and, therefore, violated federal and state constitutional prohibitions on
warrantless search and seizure when he took Delgado' s keys and identification. Delgado also
argues that, if Romero had complied with constitutional requirements, he ( Romero) would not
have seized Delgado' s identification and, consequently, local law enforcement would not have
collected any evidence to charge him with DUI. Based on this reasoning, Delgado contends that
the trial court should have suppressed the evidence of the blood alcohol test results as a " fruit of
the poisonous tree" because it was procured as a result of Romero' s initial allegedly unlawful
seizure. Br. of Appellant at 20 ( citing State v. Ladson, 138 Wn.2d 343, 359 -60, 979 P.2d 833
1999), State v. Kennedy, 107 Wn.2d 1, 4, 726 P. 2d 445 ( 1986) and State v. Carney, 142 Wn.
App. 197, 204 -05, 174 P. 3d 142 ( 2007)). These arguments fail.
1. STANDARDS OF REVIEW
When reviewing a trial court' s denial of a suppression motion, we review the trial court' s
findings of fact to determine whether substantial evidence supports them and whether those
findings support the trial court' s conclusions of law. State v. Garvin, 166 Wn.2d 242, 249, 207
P. 3d 1266 ( 2009) ( citing State v. Hill, 123 Wn.2d 641, 644, 870 P. 2d 313 ( 1994)). Substantial
evidence exists where there is a sufficient quantity of evidence in the record to persuade a fair-
minded, rational person of the truth of the finding. Hill, 123 Wn.2d at 644 ( citing State v.
Al No. 43567 -5 - II
Halstien, 122 Wn.2d 109, 129, 857 P. 2d 270 ( 1993)). We " defer to the trier of fact on issues of
conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence." State v.
Thomas, 150 Wn.2d 821, 874 -75, 83 P. 3d 970 ( citing State v. Cord, 103 Wn.2d 361, 367, 693
P. 2d 81 ( 1985)), abrogated in part on other grounds, Crawford,v. Washington, 541 U.S. 36, 124
S. Ct. 1354, 158 L. Ed. 2d 177 ( 2004). Unchallenged findings of fact are verities on appeal.
Hill, 123 Wn.2d at 644 ( citing In re Riley, 76 Wn.2d 32, 33, 454 P.2d 820, cert. denied, 396 U.S.
972 ( 1969) and Tomlinson v. Clarke, 118 Wn.2d 498, 501, 825 P. 2d 706 ( 1992)). We review the
trial court' s conclusions of law de novo. Garvin, 166 Wn.2d at 249 ( citing State v. Duncan, 146
Wn.2d 166, 171, 43 P. 3d 513 ( 2002) and State v. Carneh, 153 Wn.2d 274, 281, 103 P. 3d 743
2004)).
Both the Fourth Amendment to the federal constitution and article I, section 7 of
Washington' s Constitution prohibit warrantless searches and seizures unless one of the narrow
10 exceptions to the warrant requirement applies. Garvin, 166 Wn.2d at 249. The State bears the
burden of demonstrating that a warrantless search or seizure falls within an exception to the
warrant requirement. State v. Hendrickson, 129 Wn. 2d 61, 71, 917 P. 2d 563 ( 1996) ( citing State
v. Johnson, 128 Wn.2d 431, 447, 909 P. 2d 293 ( 1996)), overruled on other grounds by Carey v.
Musladin, 549 U.S. 70, 127 S. Ct. 649, 166 L. Ed.2d 482 ( 2006). Seizures are constitutional if
they are " reasonable" under the Fourth Amendment of the federal constitution and if they are
to Article I, section 7 to the Washington Constitution provides more extensive privacy protections than the Fourth Amendment to the federal constitution and creates "` an almost
absolute bar to warrantless arrests, searches, and seizures, with only limited exceptions. "' State v. Buelna Valdez, 167 Wn.2d 761, 772, 224 P. 3d 751 ( 2009) ( quoting State v. Ringer, 100 Wn.2d 686, 690, 674 P. 2d 1240 ( 1983), overruled in part by State v. Stroud, 106 Wn.2d 144, 150 -51, 720 P. 2d 436 ( 1986)).
VA No. 43567 -5 -II
undertaken with "` authority of law "' under article I, section 7 of Washington' s constitution.
State v. Bonds, 174 Wn. App. 553, 564, 299 P.3d 663 ( citing State v. Williams, 171 Wn.2d 474,
484 -85, 251 P. 3d 877 ( 2011)), review denied, 178 Wn.2d 1011 ( 2013).
A traffic stop is a "` seizure. "' Ladson, 138 Wn.2d at 350 ( quoting Delaware v. Prouse,
440 U. S. 648, 653, 99 S. Ct. 1391, 59 L. Ed. 2d 660 ( 1979)); ( citing Whren v. United States, 517
U.S. 806, 809 -10, 116 S. Ct. 1769, 135 L. Ed. 2d 89 ( 1996) and City of Seattle v. Mesiani, 110
Wn.2d 454, 460, 755 P. 2d 775 ( 1988) ( Dolliver, J., concurring)). Both the federal and state
constitutions permit a warrantless investigative detention —to which traffic stops are
analogous' '— whenever a law enforcement officer has a reasonable suspicion, based on
specific and articulable facts "' and "` rational inferences from those facts, "'. that the stopped
person has been or is about to be involved in a crime. State v. Snapp, 174 Wn.2d 177, 197, 275
P. 3d 289 ( 20.12) ( quoting Terry v. Ohio, 392 U. S. 1, 21, 88 S. Ct. 1868, 20 L. Ed. 2d 889
1968)); see State v. Doughty, 170 Wn.2d 57, 62, 239 P. 3d 573 ( 2010); State v. Acrey, 148
Wn.2d 738, 747, 64 P. 3d 594 ( 2003). In evaluating the reasonableness of an investigative
detention, we consider " the totality of the circumstances, including the officer' s training and
experience, the location of the stop, and the conduct of the person detained." Acrey, 148 Wn.2d
at 747 ( citing State v. Glover, 116 Wn.2d 509, 514, 806 P. 2d 760 ( 1991)).
11 See Ladson, 138 Wn.2d at 350. No. 43567 -5 -II
When a federal agent collects evidence under federal law in Washington state,
12 Washington law governs admissibility of such evidence if used in a state court prosecution.
State v. Williams, 94 Wn.2d 531, 540 n. l, 617 P. 2d 1012 ( 1980). Because Delgado had an
expectation of state law protections in his state prosecution, the evidence used here, against him
for violation of a state law was subject to the stricter search and seizure protections of
Washington law, even if the State procured that evidence as a result of federal agent Romero' s
initial encounter with Delgado.
II. LAWFULLY SEIZED EVIDENCE
Delgado first argues that the trial court should have suppressed the blood alcohol test
results collected by local law enforcement following his earlier interaction with Romero because
Romero lacked reasonable articulable suspicion to " stop" and seize him (Delgado) and Romero' s 13 stop" was pretextual. Br. of Appellant at 11. The State responds that Romero did not " stop "
Delgado at all: Rather, ( 1) Romero was refueling at a gas station when Delgado drove into the
12 The trial court did not explain whether it was applying federal or state law when it ruled on the admissibility of evidence used in Delgado' s state court prosecution. The State contends,
however, that, because Romero was acting in his official capacity as a federal border patrol agent, we should apply federal law to determine whether a warrant was necessary. See State v. Bradley, 105 Wn.2d 898, 902 -03, 719 P. 2d 546 ( 1986) ( "[ n] either state law nor the state constitution can control federal officers' conduct. "). Delgado cites Washington law in support of his arguments. We agree with Delgado that state law applies. "[ F] ederal law supersedes state statutes only to the extent necessary to protect the achievement of the aims of the [ federal enactment]. "' State Williams, 94 Wn.2d 531, 540, 617 P. 2d 1012 ( 1980) ( second alteration in original) v.
internal quotation marks omitted) ( quoting Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Ware, 414 U. S. 117, 127, 94 S. Ct. 383, 38 L. Ed. 2d 348 ( 1973)). Application of federal or state law, however, is not a key issue in this appeal.
13 Br. of Resp' t at 24.
same gas station and stopped his truck on his own, with no prompting whatsoever by Romero,
and slumped down in his seat; and ( 2) Romero' s temporarily taking Delgado' s identification and
car keys did not " stop[] Delgado from going about his business" for which he had originally
pulled up to the adjacent gas pump. Br. of Resp' t at 25. The State further responds that, based
on Romero' s earlier observations of Delgado' s erratic driving and current observations of
Delgado at the gas station, he ( Romero) had reasonable basis for " seizing" Delgado based on his
lack of responsiveness to Agent Romero' s questions, his evasiveness, and that he appeared to be
ill or intoxicated" and, " therefore[,] a risk to the public if he [( Delgado)] continued to drive." Br.
of Resp' t at 25, 35. We hold that Romero' s detention of Delgado was not pretextual but rather
was reasonable under the community caretaking exception to the warrant requirement.
A. Initial Encounter
Not every encounter between a citizen and a police officer rises to the stature of a
seizure. By simply engaging a person in conversation, an officer does not thereby ` seize' that
person." State v. Mennegar, 114 Wn.2d 304, 310, 787 P. 2d 1347 ( 1990) ( citing State v.
Belanger, 36 Wn. App. 818, 677 P. 2d 781 ( 1984), Florida v. Rodriquez, 469 U. S. 1, 105 S. Ct.
308, 83 L. Ed. 2d 165 ( 1984) and United States v. Mendenhall, 446 U.S. 544, 100 S. Ct. 1870, 64
L. Ed. 2d 497 ( 1980)), overruled on other grounds by State v. Hill, 123 Wn.2d 641, 645, 870
P. 2d 313 ( 1994). " Nor is there a seizure where the conversation between citizen and officer is
freely and voluntarily conducted." Mennegar, 114 Wn.2d at 310 ( citing Belanger, 36 Wn. App.
at 821).
Here, Romero saw Delgado slumped in his stopped pickup truck at a public gas station;
Delgado " didn' t look very healthy" and looked " extremely tired. and sleepy." VRP ( May 30,
10 No. 43567 -5 -II
2012) at 35. Romero initially approached and asked Delgado' s name, where he was from, and
if he was okay." VRP ( May 30, 2012) at 13. Delgado variably did not respond, responded that
he did not know, or responded with a question.
This encounter did not involve a vehicle stop, any show of force by the officer, or an
unreasonable intrusion into Delgado' s privacy. Rather, it was initially the type of permissible
encounter our Supreme Court described in Mennegar, where an officer " simply engage[ ed] a
person in conversation." Mennegar, 114 Wn.2d at 310. Consequently, Romero' s approaching
Delgado' s already stopped pickup and asking him basic identifying questions was not a seizure
and, thus, it did not implicate the state or federal constitution.
B. Initial Warrantless Seizure: Community Caretaking Exception
But when Romero took Delgado' s identification and car keys, this encounter transformed
into a warrantless seizure ( despite, as the State notes, that Romero did not prevent Delgado from
filling up his truck with gas or following through with whatever business he had at the gas
station). See State v. Thomas, 91 Wn. App. 195, 200 -01, 955 P.2d 420, review denied, 136
Wn.2d 1030 ( 1998) ( " Once an officer retains the suspect' s identification or driver' s license and
takes it with him to conduct a warrants check," the officer effects " a seizure within the meaning
of the Fourth Amendment. ") ( citing State v. Dudas, 52 Wn. App. 832, 834, 764 P. 2d 1012
1988), review denied, 112 Wn.2d 1011 ( 1989) and State v. Aranguren, 42 Wn. App. 452, 456-
57, 711 P. 2d 1096 ( 1985)).
While merely requesting identification; without more, does not constitute a seizure; a seizure may occur when the circumstances surrounding the encounter demonstrate that a reasonable person would believe he or she was not free to leave. Whether a reasonable person would believe he or she has been detained depends upon the objective facts surrounding the encounter.
11 No. 43567 -5 -II
Mennegar, 114 Wn.2d at 310 -11 ( footnotes and citations omitted). Here, the objective facts
show that Romero seized Delgado' s keys so Delgado could not drive his truck and that Romero
seized Delgado' s identification when he took it back to his patrol vehicle to run a records check.
See Thomas, 91 Wn. App. at 200 -01 ( citing Dudas, 52 Wn. App. at 834 and Aranguren, 42 Wn.
App. at 456 -57). In order to be considered lawful, this warrantless seizure had to fall under one
of the exceptions to the warrant requirement.
The State relies on the " community caretaking exception to the warrant requirement" in
State v. O' Neill, 148 Wn.2d 564, 574, 62 P. 3d 489 ( 2003) to support its contention that Romero
acted reasonably in taking Delgado' s truck keys based on his ( 1) " reasonable suspicion that Mr.
Delgado was either ill or affected by drugs or alcohol and therefore a risk to the public if he 14; continued to drive" and ( 2) belief that Delgado' s" incoherence ... stemm[ ed] from either a
health condition, [ or] some type of either narcotic or alcohol use. "15 VRP ( May 30, 2012) at 16. In another community caretaking case, decided soon after O' Neill, our Supreme Court
elaborated:
When police officers are engaged in noncriminal, noninvestigative
community caretaking functions," " whether a particular stop is reasonable depends not on the presence of `probable cause' or ` reasonable suspicion,' but rather on a balancing of the competing interests involved in light of all the surrounding facts and circumstances." [ T] he " community caretaking function"
14 Br. of Resp' t at 35. 15 Based on his impression that Delgado was " trying to conceal his identity" by responding vaguely and failing to produce identification upon request, Romero also suspected that Delgado might be involved in " some type of criminal activity." VRP ( May 30, 2012) at 16. Thus, Romero took Delgado' s identification to run a records check for " officer safety." VRP ( May 30, 2012) at 17.
12 No. 43567 -5 -II
exception to the warrant requirement encompasses " not only the ` search and
seizure' of automobiles, but also situations involving either emergency aid or routine checks on health and safety."
Acrey, 148 Wn.2d at 748 -49 ( footnotes and citations omitted) ( quoting State v. Chisholm, 39 Wn.
App. 864, 867, 696 P. 2d 41 ( 1985) and State v. Kinzy, 141 Wn.2d 373, 386, 5 P. 3d 668 ( 2000)
and citing Mennegar, 114 Wn.2d at 313).
Police officers are obligated and expected to help people and to protect property. State v.
Gibson, 104 Wn. App. 792, 796, 17 P. 3d 635 ( 2001) ( citing State v. Menz, 75 Wn. App. 351,
353, 880 P. 2d 48 ( 1994) and State v. Davis, 86 Wn. App. 414, 420, 937 P. 2d 1110 ( 1997)).
Accordingly, the " health and safety" or " emergency exception," which recognizes a police
officer' s community caretaking responsibilities, is one exception to the general warrant
requirement. State v. Schlieker, 115 Wn. App. 264, 270 -71, 62 P. 3d 520 ( 2003). Whether a
seizure falls within the community caretaking exception is. a question of law, which we review de
novo. Schlieker, 115 Wn. App. at 269 ( citing State v. Mendez, 137 Wn.2d 208, 212, 970 P.2d
722 ( 1999), overruled on other grounds by Brendlin v. California, 551 U.S. 249, 127 S. Ct.
2400, 168 L. Ed. 2d 132 ( 2007)). To invoke this exception, the State must show that ( 1) the
officer subjectively and reasonably believed someone needed health or safety assistance; ( 2) the
search was not primarily motivated by intent to arrest and to seize evidence; and ( 3) " there was a
reasonable basis to associate the need for assistance with the place searched." Schlieker, 115
Wn. App. at 270; State v. Nichols, 20 Wn. App. 462, 465 -66, 581 P. 2d 1371 ( 1978). The State
has met this burden here.
Delgado argues that Romero unreasonably seized his keys and identification and that his
stated concern for public safety was merely an excuse to " pursu[ e] a hunch about potential
13 No. 43567 -5 -II
criminal activity." Br. of Appellant at 15. The trial court, however, drew a different conclusion
16 based on Romero' s report of Delgado' s( 1) earlier illegal, erratic or evasive driving, followed
by his pulling into a gas station and slumping over in his seat, demonstrating a potential hazard
on the road; and ( 2) incoherent responses to Romero' s questions, creating a reasonable suspicion
that something was wrong. 17 See State v. Bencivenga, 137 Wn.2d 703, 709, 974 P. 2d 832 ( 1999)
trial court may " logically infer[] intent from proven facts, so long as it is satisfied the state has
proved that intent beyond a reasonable doubt "). This substantial evidence supported the trial
16 Romero had witnessed Delgado make an illegal left turn under a red light, in violation of Washington law. RCW 46. 61. 055, . 290. Delgado' s license plate tags were also invalid. Although Romero had reasonable suspicion that Delgado had violated, or was about to violate, federal laws related to border protection or to stop him for traffic violations, Romero chose not to continue following Delgado because, according to Romero, once Delgado " left the ... area of
immediate concern for me, which is the border area," then he would conclude " that there' s
nothing going on having to do with the border at this point." VRP (May 30, 2012) at 10. Romero' s later chance encounter with Delgado occurred when Delgado pulled into the gas station pump next to where Romero was fueling At this point, according to his vehicle.
Romero, whom implicitly found credible, Romero' s focus changed to a the trial court
community caretaking focus when he saw Delgado slumped in the car, approached the vehicle, began asking questions to determine Delgado' s identity and whether he needed assistance, and observed that Delgado was incoherent and appeared impaired.
17 Romero' s articulated concerns about Delgado' s evasiveness did not transform this encounter into a pretextual stop: I' m thinking he' s trying to conceal his identity from me. So at that point my thought process is more along the lines of is there some kind of criminal history that I' m needing to be concerned about? Is there a reason why he doesn' t produce
some type of identification for me to be able to identify who he is, because perhaps there may be some type of criminal activity that I need to be aware of. VRP ( May 30, 2012) at 16. Romero had reason to be concerned for his own safety, as well as the driving public' s safety. In Washington, concern for officer safety is a legitimate exception
that permits the officer to conduct a warrantless search, State v. Glenn, 140 Wn. App. 627, 633- 34, 166 P. 3d 1235 ( 2007) ( citing State v. Bradley, 105 Wn. App. 30, 36, 18 P. 3d 602, 27 P. 3d 613 ( 2001) and State v. Larson, 88 Wn. App. 849, 853, 946 P. 2d 1212 ( 1997)), and to restrict the suspect' s freedom of movement. State v. Wakeley, 29 Wn. App. 238, 243 n. l, 628 P. 2d 835 1981).
14 No. 43567 -5 - II
court' s ruling that Romero had reason to believe that Delgado was impaired, by medical issues,
alcohol, or some other condition unknown to Romero; this impairment justified Romero' s taking 18 Delgado' s keys and identification and checking further before allowing Delgado to drive away.
See Nichols, 20 Wn. App. at 465 -66. We hold, therefore, that Romero was acting within the
community caretaking exception to the warrant requirement when he took Delgado' s keys and
identification.
The trial court also concluded that, under these circumstances, a reasonable person would
expect police to investigate further to see whether the driver needed medical help and to ensure
that the driver was not impaired so as to endanger others by continuing to drive. " In determining
whether an officer' s encounter with a person is reasonable as part of a routine check on safety,"
we balance the "` individual' s interest in freedom from police interference against the public' s
interest in having the police officers perform a community caretaking function."' Acrey, 148
Wn.2d at 750 ( quoting Kinzy, 141 Wn.2d at 387). Here, Romero' s initial intrusion into
18 More specifically, the trial court remarked first about Romero' s" reasonable suspicion" to
follow Delgado after observing his erratic driving and suspicious activity along the waterfront to find out what he was " up to." VRP ( May 30, 2012) at 67, 68. But after Romero lost sight of Delgado when he left the downtown area, Romero' s " following" him was " done." VRP ( May 30, 2012) at 68. But when Romero later witnessed Delgado drive into the gas station, Romero observed,
S] omething is not right. He' s not acting normally. He is slumped over in the seat of his car. I think any good law enforcement officer at this point regardless of what his mission is would go over and do what Officer Romero. did and say, are you okay, sir? Is something wrong? He' s observed this erratic driving, possibly evasive behavior, now he' s looking at somebody who does not appear to be well. As it turns out the evidence would suggest he was extremely intoxicated, but Agent Romero certainly doesn' t know that. VRP ( May 30, 2012) at 68.
15 No. 43567 -5 -II
Delgado' s ' privacy was limited: Delgado remained in his truck with the keys on the roof while
Romero checked on his license status; and Romero did nothing to prevent Delgado from filling
his truck with fuel or transacting whatever business he had for pulling into the gas station in the
first place.
C. Probable Cause To Detain on Arrest Warrants
Once Romero discovered Delgado' s outstanding arrest warrants and decided to transfer
him into the custody of local police, the encounter was no longer part of the community
caretaking function: Instead, the arrest warrants provided probable cause for Romero to detain
Delgado. Our Supreme Court has held that "[ o] nce [ an] officer discover[ s] the existence of an
outstanding arrest warrant, the officer [ is] clearly and properly performing his duty by arresting"
the individual. Mennegar, 114 Wn.2d at 314. Here, although Romero himself did not formally
arrest Delgado on the warrants, we hold that he acted reasonably in detaining Delgado until he
could transfer custody to local law enforcement officers, who did arrest him. Id.
Accordingly, we affirm the superior court' s denial of Delgado' s motion to suppress the
challenged evidence.
III. ADEQUACY OF TRIAL COURT' S FINDINGS OF FACT ON LEGALITY OF SEIZURE
Lastly, Delgado argues that the trial court' s oral and written findings of fact and
conclusions of law for the CrR 3. 6 suppression hearing were inadequate and that this inadequacy
prejudiced him. Delgado did not object below to the adequacy of the trial court' s findings; nor
did he propose more specific language for the trial court to include. Thus, he has not preserved
this issue for appeal. RAP 2. 5( a). On appeal, Delgado fails to ' assign specific error to the
inadequacy of these findings and to state the issue pertaining to such error, contrary to RAP
16 No. 43567 -5 - II
19 20 10. 3( a)( 4). Accordingly, we do not further consider this argument. See RAP 2. 5( a); RAP
10. 3( a)( 4) and ( g).
We affirm.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record pursuant to RCW 2. 06. 040, it is
so ordered.
Hunt, J.
19 Although Delgado later argues in the body of his brief on appeal that these allegedly inadequate findings prejudiced him, we do not find his analysis persuasive.
20 We note that inadequate or missing findings of fact and conclusions of law do not warrant reversal where the record as a whole, including the trial court' s oral rulings, are sufficient to allow appellate review, which is the case here. See State v. Mitchell, 169 Wn.2d 437, 447 n.6, 237 P. 3d 282 ( 2010) ( citing State v. Bynum, 76 Wn. App. 262, 266, 884 P. 2d 10 ( 1994) and State v. Clark, 46 Wn. App. 856, 859, 732 P. 2d 1029 ( 1987)).