                                                                                               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NATHAN JOE DELGADO,                                                               UNPUBLISHED OPINION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




                                                                 2
No. 43567 -5 -II


         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.


                                                                         0
No. 43567 -5 -II




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)).


                                                                      17
