                                                                             FILED 

                                                                         Feb. 27,2014 

                                                                In the Office of the Clerk of Court 

                                                              W A State Court of Appeals, Division III 





           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                              DMSION THREE 


STATE OF WASHINGTON,                         )
                                             )         No. 30700-0-III
                    Respondent,              )
                                             )
      v.                                     )
                                             )
KYLE KEITH TRAPP,                            )         UNPUBLISHED OPINION
                                             )
                    Appellant.               )

       FEARING, J. - Once again we address the constitutionality ofa law enforcement

officer's encounter with an individual convicted of a crime based upon evidence seized as

a result of the encounter. The superior court, after a bench trial, convicted Kyle Trapp

for possessing heroin. Trapp appeals, arguing the police discovered the heroin only after

he was unlawfully seized, and thus the superior court should have suppressed evidence of

the drug. We disagree and affirm his conviction.

       In addition, Kyle Trapp contends his sentence is incorrectly based on an offender

score that erroneously counts convictions more than five years old, in violation of RCW

9.94A.525(2)(c). Because Trapp has been released from confmement, we hold this issue

is moot.
No. 30700-0-111
State v. Trapp


                                          FACTS

       On May 15, 2011, at 3 :45 p.m., Richland Police Patrol Sergeant Curtis Smith

responded to a 911 call that a man parked in a ubiquitous 7-Eleven store's parking lot

may be in medical distress. The caller, a clerk at the store, reported that the man was

unconscious or possibly dead. While en route to the store, Smith used his on board

computer to determine, by the license plate provided by the store clerk, that Kyle Trapp

was the registered owner of the car. Smith also employed the computer to learn that

Trapp was previously convicted as a violent offender. City medics were dispatched to

the scene because of medical concerns. "[F]or fear of their safety," Smith requested that

the medics wait before assisting Trapp. Clerk's Papers (CP) at 24.

       When Sergeant Curtis Smith arrived at the 7-Eleven, he spotted the car matching

the license plate number provided by dispatch, along with a male "slumped motionless

behind the wheel of the car." Report of Proceedings (RP) at 6. Trapp reclined in a

manner inconsistent with one taking a nap. Smith saw no signs of life. In his 15 years as

an officer, Smith had not observed anyone parked in a public parking lot, in mid-

afternoon, who looked unconscious or dead.

       While waiting for another officer to arrive, Smith parked his car behind Trapp's

vehicle. After two or three minutes, Kyle Trapp "spr[u]ng to life and immediately

reached [for] the [car's] ignition." RP at 8. Trapp backed his car several feet, in a




                                             2

No.30700-0-II1
State v. Trapp


"normal" fashion, until he noticed, through his side mirror, Sergeant Smith. RP at 24.

Smith, who wore his police uniform, waved at Trapp and Trapp stopped his car.

       Sergeant Smith approached Kyle Trapp's car and asked Trapp to roll down his

window. Smith introduced himself, explained he was conducting a welfare check, and

asked Trapp ifhe was okay. Smith sought to assess the condition of Trapp and noticed

immediately that Trapp was confused, disoriented, and slow in speech, had constricted

pupils and attention difficulty, and was unable to communicate in a linear or meaningful

manner. Smith asked Trapp again ifhe was "okay" and Trapp said, "[y]es, I must have

dozed off for a bit, I got up early today." CP at 25. Curtis Smith told Kyle Trapp he was

concerned with his medical condition and whether he could safely operate a car. Trapp

told Smith that he took hydrocodone earlier that day. He admitted that he did not have a

prescription for the pills and that a pill bottle in his possession had the patient's name

stricken.

       In an effort to assess Trapp's medical condition, Smith asked some additional

standard questions. Trapp could not provide the correct time of day or correct date and

could not rationally explain why he was slumped over the wheel. Trapp gave

contradictory stories as his reason for being in the parking lot. Trapp's "agitation,

evasiveness, and nervousness increased with every question." CP at 25. Based on his

experience, Sergeant Smith believed Trapp to be under the influence of an opiate.




                                              3

No. 30700-0-111
State v. Trapp


During the questioning, Smith noticed Trapp repeatedly tap a blue bank deposit bag

located next to Trapp's right hip on the driver's seat.

       Sergeant Smith grew concerned about whether Kyle Trapp possessed a weapon.

Smith instructed Trapp to exit the vehicle so that Smith could search Trapp for weapons.

Trapp did not comply with the instruction. As Smith opened the door to remove Trapp,

Trapp unzipped the blue bank bag and stuffed money in the bag. When Kyle Trapp

opened the blue bag, Sergeant Smith saw two orange capped hypodermic syringes and a

burnt spoon in the bag. From experience and training, Smith concluded the contents

included drug paraphernalia with possible drug residue. After removing Trapp from the

car, Smith searched Trapp's clothing and removed a lighter and knife.

       After questioning Kyle Trapp for about 10 minutes, Sergeant Smith told the

medics to leave the scene. No medic examined Trapp.

       Sergeant Curtis Smith summoned a Drug Recognition Expert from the Richland

Police Department to evaluate Kyle Trapp. The Drug Recognition Expert found Trapp to

be under the influence of a narcotic drug but not to the degree that his ability to drive was

impaired. Smith released Trapp, but seized his vehicle. Smith applied for and executed a

search warrant for the vehicle and its contents, and found heroin and drug paraphernalia.

       Before trial, Kyle Trapp moved to suppress the evidence of heroin and

paraphernalia under CrR 3.6. After hearing testimony from Sergeant Curtis Smith, cover




                                              4

    No. 30700-0-111
    State v. Trapp


    officer Troy Glasgow, and Kyle Trapp, the court made 17 findings of fact and concluded

    as a matter of law:

           1. 	 The approach of the defendant by the police was proper under 

                the community caretaking function. 

           2. 	 The detention of the defendant was proper as both an investigation
                into the defendant's medical condition.
           3. 	 The investigation into possible driving while intoxicated charges
                and drug possession charges.

    CP at 44. The court admitted the heroin found during the search of Trapp's car.

    Kyle Trapp stipulated to the findings of fact the court entered at the suppression hearing

    while reserving the right to appeal the lawfulness of the contact between Sergeant Smith

    and him and the seizure of contraband. Based on the stipulated findings of fact, the court

    found Trapp guilty of possession of heroin.

           At sentencing, the State identified and Kyle Trapp stipulated to four prior

    convictions for class C felonies dating from 1993 to 2002. Based on these prior

    convictions, the State calculated an offender score of four, resulting in a standard range


i   between 6 and 18 months confinement. The State recommended and the court sentenced



I
I
    Trapp to 9 months, beginning on March 14,2012. Although Trapp is now released from

    prison, he claims error to the stipulated number of convictions.




                                                  5

i
I   No. 30700-0-III 


I
i
    State v. Trapp 



                                     LA W AND ANALYSIS

                                               Seizure

           When reviewing claims of unlawful searches and seizures, we often must isolate

    discrete actions of a police officer during an extensive encounter, as if the actions are

    separate frames in a movie. Kyle Trapp conveniently minimizes our task by complaining

    only about being seized when Sergeant Smith waved for him to stop as Trapp backed his

    car, rather than viewing Smith's conduct in its greater context-a stop precipitated by a

,   call that a man may be gravely ill or dead outside a 7-Eleven parking lot. Trapp argues



I   the seizure was unlawful under the Fourth Amendment to the United States Constitution.

    In his framing of an issue, Kyle Trapp contends that the seizure also violated article I,

    section 7 of the Washington Constitution, but he presents no argument that, under his

    circumstances, the Washington Constitution provided him additional protection from

    police activity. Therefore, we do not address whether the conduct of Sergeant Smith

    violated the state constitution. "If a party does not provide constitutional analysis based

    upon the factors set out in Gunwall, [State v. Gunwall, 106 Wn.2d 54, 61-62, 720 P.2d

    808 (1986)] the court will not analyze the state constitutional grounds in a case." First

    Covenant Church ofSeattle v. City ofSeattle, 120 Wn.2d 203, 224,840 P.2d 174 (1992).

           Before addressing whether Sergeant Smith's seizure of Kyle Trapp was

    reasonable and thereby lawful, we must address whether any seizure occurred at the time

    Smith waved at Trapp. The State contends that contacting a driver who appears

                                                  6

No. 30700-0-111
State v. Trapp


incapacitated is not a seizure. If Smith did not seize Trapp, Smith needed no justification

to interact with Trapp. Terry v. Ohio, 392 U.S. 1, 19 n.16, 88 S. Ct. 1868,20 L. Ed. 2d

889 (1968).

       Since Sergeant Smith did more than contact Kyle Trapp and since Trapp was not

incapacitated when Smith waved at him, we conclude that under the circumstances, the

wave constituted a seizure. We question the importance of addressing whether Trapp

was seized, however. The issues of whether a citizen is seized and whether any seizure is

reasonable are theoretically distinct questions, but often courts blur the line between the

questions. The more reasonable an alleged seizure, the more likely a court is to rule there

was no seizure. The State justifies the conduct of Sergeant Smith based upon the

officer's community caretaking function. At least one decision suggests law enforcement

officer action pursuant to the community caretaking function to be conduct short of a

seizure. See State v. Mennegar, 114 Wn.2d 304,309, 787 P.2d 1347 (1990). Another

decision suggests such action is ajustifiable seizure. See State v. O'Neill, 148 Wn.2d

564, 574, 62 P.3d 489 (2003). Our trial court did not expressly rule if and when the

"seizure" of Kyle Trapp occurred.

      The Fourth Amendment provides that "the right ofthe people to be secure in their

persons, houses, papers, and effects against unreasonable searches and seizures, shall not

be violated." But "not all personal intercourse between policemen and citizens involves

'seizures' of persons." United States v. Mendenhall, 446 U.S. 544, 552, 100 S. Ct. 1870,

                                             7

No. 30700-0-111
State v. Trapp


64 L. Ed. 2d 497 (1980). The defendant carries the burden to establish that he was

seized. State v. Young, 135 Wn.2d 498,510, 957P.2d 681 (1998); State v. Thorn, 129

Wn.2d 347,354,917 P.2d 108 (1996).

       A seizure occurs when, '" considering all the circumstances, an individual's

freedom of movement is restrained and the individual would not believe he or she is free

to leave or decline a request due to an officer's use of force or display of authority. '"

State v. Harrington, 167 Wn.2d 656, 663, 222 P.3d 92 (2009) (quoting State v. Rankin,

151 Wn.2d 689, 695, 92 P.3d 202 (2004)). Stated differently, a police contact constitutes

a seizure only if, under the totality of the circumstances, a reasonable person would not

have felt free to leave, "terminate the encounter, refuse to answer the officer's question,

or otherwise go about his business." Thorn, 129 Wn.2d at 353. "The relevant question

is whether a reasonable person in the individual's position would feel he or she was being

detained." Harrington, 167 Wn.2d at 663 (citing O'Neill, 148 Wn.2d at 581).

       Our courts, with help from other courts, have announced other propositions

helpful in determining whether a law enforcement officer's interaction with a citizen

constitutes a "seizure." Police activities such as engaging a citizen in conversation,

identifying themselves as officers, or simply requesting identification do not convert a

casual encounter into a seizure. Florida v. Royer, 460 U.S. 491, 498, 103 S. Ct. 1319, 75

L. Ed. 2d 229 (1983); State v. Knox, 86 Wn. App. 831,838-39,939 P.2d 710 (1997). On

the other hand, the threatening presence of several officers, the display of a weapon,

                                               8

1

       No.30700-0-III

I
 

I
       State v. Trapp


       touching the defendant, and commanding language or tone of voice suggest that the

I

~
       encounter may have constituted a seizure. Mendenhall, 446 U.S. at 554. Where an
]      officer commands a person to halt, a seizure occurs. O'Neill, 148 Wn.2d at 581. The

       subjective intent of the police is irrelevant, except insofar as it is conveyed to the


I
     defendant. Mendenhall, 446 U.S. at 554. Instead, we consider the officer's actual

       conduct and whether it reasonably appeared to be coercive. Thorn, 129 Wn.2d at 353.

       Whether there was any show of authority on the officer's part, and the extent of any such

       showing, are crucial factual questions in assessing whether a seizure occurred. 0 'Neill,



l
     148 Wn.2d at 577.

               Sergeant Curtis Smith's wave to Kyle Trapp coupled with his parking his car

       behind Trapp's car would lead a reasonable person to believe he or she is not free to

       leave. The wave directed Trapp to stop his vehicle after which Smith approached Trapp.

       Trapp noticed Smith wearing a police uniform. The wave was tantamount to an order to

       halt.

               In State v. Bennett, 62 Wn. App. 702, 705, 814 P.2d 1171 (1991), defendant and

       his companions parked their car in the parking lot of a ubiquitous 7-Eleven. Police

       officers drove their respective cars into the parking lot to check the license plate of the

       car in the parking lot. Officer Montalvo parked behind the car, while Officer Woo

       parked behind Montalvo. Officer Montalvo testified that he did not use his flashing red

       lights, but that he and Officer Woo parked in such a manner that the car would have been

                                                     9

    No.30700-0-III
    State v. Trapp


    unable to leave the parking lot. The court held that the blocking of the car constituted a

    "seizure" for Fourth Amendment purposes. In State v. Crane, 105 Wn. App. 301, 311,

    19 P.3d 1100 (2001), the court also considered an officer's parking his car behind a

    citizen's car to be a factor when ruling a seizure occurred.

           The State contends "Washington and a number of other jurisdictions have held

    that contact with a vehicle where the driver is slumped over the wheel and appears

    incapacitated is not a seizure." Br. of Resp't at 3. Trapp's circumstances, however, are

    distinguishable from those the State cites: State v. Knox, 86 Wn. App. 831,939 P.2d 710

    (1997) overruled on other grounds by O'Neill, 148 Wn.2d 564; Commonwealth v.

    Leonard, 422 Mass. 504, 663 N.E.2d 828 (1996); State v. Zubizareta, 122 Idaho 823, 839

    P.2d 1237 (1992); People v. Murray, 137 Ill. 2d 382,560 N.E.2d 309 (1990); State v.

    Clayton, 113 Idaho 817, 748 P.2d 401 (1988); State v. Kersh, 313 N.W.2d 566 (Iowa

    1981). The State's cases involve incapacitated drivers in parked cars. In Knox, an

    intoxicated Knox sat in a stupor inside his car on the deck of a state ferry, blocking

    departing vehicles. The cases support the conclusion that Sergeant Smith had grounds to

    immediately approach Trapp as the latter sat incapacitated upon Smith's arrival at the

    parking lot. Numerous decisions, including those cited by the State, hold no seizure

    occurs when an officer approaches a parked car and asks the driver to roll down his

    window. O'Neill, 148 Wn.2d at 579; see also Knox, 86 Wn. App. at 839-40; State v.

    Young, 135 Wn.2d 498, 511,957 P.2d 681 (1998); State v. Thorn, 129 Wn.2d 347,353,

                                                 10 




I
       No. 30700-0-III 

       State v. Trapp 



       917 P.2d 108 (1996) overruled on other grounds by O'Neill, 148 Wn.2d 564. But


I      Sergeant Smith did not approach Trapp as the latter sat in a parked car. Kyle Trapp was

       conscious and operating a car when Smith waved for him to stop. Sergeant Smith seized

1
.. ~
       Trapp .
 J
                                      Community Caretaking Function

                  Having determined that Sergeant Curtis Smith seized Kyle Trapp, we must next

       ask whether Smith's seizure violates the Fourth Amendment warrant requirement. If

       police unconstitutionally seize an individual prior to arrest, the exclusionary rule calls for

       suppression of evidence obtained via the government's illegality. Mapp v. Ohio, 367
1      U.S. 643, 81 S. Ct. 1684,6 L. Ed. 2d 1081 (1961); Harrington, 167 Wn.2d at 663.

       Because Smith lacked a warrant to seize Trapp, the seizure must be covered by a lawful

       exception to the warrant requirement or the evidence must be suppressed. This issue

       depends on whether the community caretaking exception to the warrant requirement

       applies.

                 As a general rule, warrantless seizures are per se unreasonable under the Fourth

       Amendment to the United States Constitution. State v. Houser, 95 Wn.2d 143, 149,622

       P.2d 1218 (1980) (citing Coolidge v. New Hampshire, 403 U.S. 443,91 S. Ct. 2022, 29

       L. Ed. 2d 564 (1971 )). "Nonetheless, there are a few jealously and carefully drawn

       exceptions to the warrant requirement which provide for those cases where the societal

       costs of obtaining a warrant ... outweigh the reasons for prior recourse to a neutral

                                                      11 

No. 30700-0-111
State v. Trapp


magistrate." State v. Kinzy, 141 Wn.2d 373, 384, 5 P.3d 668 (2000). The State bears the

burden of proving by clear and convincing evidence that the seizure was a stop pursuant

to an exception to the warrant requirement. State v. Garvin, 166 Wn.2d 242, 250, 207

P.3d 1266 (2009).

       The community caretaking exception to a warrantless seizure was first announced

by the United States Supreme Court in Cady v. Dombrowski, 413 U.S. 433,441,93 S. Ct.

2523,37 L. Ed. 2d 706 (1973), which observed with respect to the Fourth Amendment to

the United States Constitution that:

       Local police officers, unlike federal officers, frequently investigate 

       vehicle accidents in which there is no claim of criminal liability and 

       engage in what, for want of a better term, may be described as 

       community caretaking functions, totally divorced from the detection, 

       investigation, or acquisition ofevidence relating to the violation ofa 

       criminal statute. 


(Emphasis added.) The exemption has been extended well beyond auto accidents.

"Many citizens look to the police to assist them in a variety of circumstances, including

delivering emergency messages, giving directions, searching for lost children, assisting

stranded motorists, and rendering first aid." Hudson v. City of Wenatchee, 94 Wn. App.

990, 996, 974 P.2d 342 (1999). The exemption, in Washington, also extends to routine

checks on health and safety. Kinzy, 141 Wn.2d at 386. Citizens of this state expect

police officers to do more than react to crimes that have already occurred. O'Neill, 148

Wn.2d at 576. They also expect the police to investigate when circumstances are


                                            12 

No.30700-0-II1
State v. Trapp


suspicious, to interact with citizens to keep infonned about what is happening in a

neighborhood, and to be available for citizens' questions, comments, and infonnation

citizens may offer. Id.

       The community caretaking function exception applies when '''(1) the officer

subjectively believed that someone likely needed assistance for health or safety reasons;

(2) a reasonable person in the same situation would similarly believe that there was a

need for assistance; and (3) there was a reasonable basis to associate the need for

assistance with the place searched.'"   Kinzy, 141 Wn.2d at 386-87 (quoting State v.

Menz, 75 Wn. App. 351, 354, 880 P.2d 48 (1994)). Whether the community caretaking

exception applies "'depends on a balancing of the individual's interest in freedom from

police interference against the public's interest in having the police perfonn a

'community caretaking function.'" Kinzy, 141 Wn.2d at 387 (quoting Kalmas v. Wagner,

133 Wn.2d 210,216-17,943 P.2d 1369 (1997)).

       Once the exception applies, police officers may conduct a noncriminal

investigation so long as it is necessary and strictly relevant to perfonnance of the

community caretaking function. State v. Gleason, 70 Wn. App. 13, 17-18,851 P.2d 731

(1993). The noncriminal investigation must end when reasons for initiating an encounter

are fully dispelled. State v. DeArman, 54 Wn. App. 621, 626-27, 774 P.2d 1247 (1989).

       Many of the decisions cited by the State to support its argument that no seizure

occurred support its position that any seizure was justifiable under the community

                                             13 

No. 30700-0-111
State v. Trapp


caretaking function exemption. For example, according to Commonwealth v. Leonard,

422 Mass. 504, 508-09, 663 N.E.2d 828 (1996), opening of an unlocked vehicle door,

when the police officer is acting out of a concern for the well being of the person inside,

rather than on the basis of a suspicion of criminality, passes the constitutional threshold.

Police are justified in interfering with a motorist's liberty without probable cause and

without a warrant because there is reason to believe the motorist may be in need of

assistance.' Id at 509 n.2. If the police find a person unconscious or disoriented and

incoherent in a vehicle, it is reasonable for them to enter the vehicle for the purpose of

giving aid to the person in distress and of finding information bearing upon the cause of

his condition. Clayton, 113 Idaho at 748; Kersh, 313 N.W.2d at 568; Anchorage v. Cook,

598 P.2d 939, 942 (Alaska 1979); Guardiola v. State, 268 Ind. 404 375 N.E.2d 1105

(1978); Howell v. State, 300 So.2d 774, 775 (Miss. 1974).

       Kyle Trapp contends that his "coming to life" before Sergeant Trapp stopped him

and his backing his car "normally," ended the justification for detaining him. We

disagree. Sergeant Smith received a call that reported Trapp looked dead. Smith's initial

view of Trapp showed no signs of life. A driver's acting normally for split seconds

should not quiet an officer's belief that a driver of a car is ill or disoriented. Trapp's

ability to reverse the car one to two feet without lurching likely demonstrated he was not

dead, but did not dispel a reasonable belief that he may need medical attention.




                                              14 

No.30700-0-III
State v. Trapp


       If Smith had not stopped Trapp, the latter would have proceeded to operate his car

on city streets. Concern over his medical health was amplified because of the potential

risk he posed to the community at large by driving impaired. In Wibben v. North Dakota

State Highway Commissioner, 413 N.W.2d 329 (N.D. 1987), the court ruled the State's

interest in determining whether a person in control of an automobile was intoxicated,

before the person had opportunity to actually drive in an intoxicated state, outweighed the

person's Fourth Amendment interest in being left alone. The fact that Trapp's car was

moving contributes to the finding that the stop was a "seizure" but also contributes to our

holding that the seizure was justifiable. There is a constitutional difference between

stopping a car and entering a home because of the ambulatory character of vehicles.

Cady, 413 U.S. at 442.

       Kyle Trapp also argues Curtis Smith's release of the medics establishes that Smith

was not concerned about Trapp's medical condition. But Smith did not release the

medics until he had spoken with Trapp for 10 minutes. By that time, Smith likely had

justifiably determined he would not allow Trapp to drive, because of his incoherence.

       The State also justifies Sergeant Smith's detaining of Kyle Trapp as a Terry or

investigatory stop. Since we hold the detaining was constitutional under the community

caretaking function exception, we do not address this second argument.




                                            15 

I

1
I    No. 30700-0-II1
     State v. Trapp


I
1
                                           SENTENCING

             Although Kyle Trapp argues that the trial court incorrectly calculated his offender
I
1    score for purposes of sentencing, Trapp has already been released from confinement. He
i    presents no argument that any error in sentencing impacts his life. Therefore, we find his

     second assignment of error to be moot. "'A case is moot if a court can no longer provide

     effective relief.'" State v. Ross, 152 Wn.2d 220,228,95 P.2d 1225 (2004) (quoting State

I    v. Gentry, 125 Wn.2d 570,616,888 P.2d 1105 (1995». In Ross, the court considered an 



I    appeal of an offender score moot because the defendant had been released from 




I

     imprisonment. 


            Trapp still urges this court to determine the issue as one of public interest. A court

     may reach a determination on the merits of a moot issue in order to provide guidance to

     lower courts where "a case presents an issue of continuing and substantial public interest

     ... that ... will likely reoccur." Ross, 152 Wn.2d at 228 (citing State v. Blilie, 132

     Wn.2d 484,488 n.1, 939 P.2d 691 (1997». Our Supreme Court has already decided this

     issue in In re Personal Restraint ofGoodwin, 146 Wn.2d 861,873-74,50 P.3d 618

     (2002). Thus, we do not consider the issue one of continuing and substantial public

     interest.




                                                  16 

No. 30700-0-111
State v. Trapp


                                     CONCLUSION

       We affirm the trial court's order denying Trapp's motion to suppress and affirm

his conviction.

       A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to

RCW 2.06.040.




WE CONCUR: 





Kulik, lP.T.




                                            17 

