                                                                                               Filed
                                                                                         Washington State
                                                                                         Court of Appeals
                                                                                          Division Two

                                                                                       September 18, 2018
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
 STATE OF WASHINGTON,                                               No. 50674-2-II

                                Respondent,

        v.

 JAMES LAURENCE LOUTHAN,                                      UNPUBLISHED OPINION

                                Appellant.

       WORSWICK, J. — James Louthan appeals from his unlawful possession of a controlled

substance conviction, contending that the trial court erred by failing to suppress evidence seized

during what Louthan asserts was an illegal search of his person. Because Louthan cannot meet

his burden of showing that he had been seized prior to his arrest and because substantial evidence

supports the trial court’s finding that Louthan had consented to a search of his person, his

contention fails, and we affirm his conviction.

                                              FACTS

       On June 20, 2017, the State charged Louthan with unlawful possession of a controlled

substance. Before trial, Louthan moved to suppress evidence that had been seized from his

person. The trial court held a CrR 3.6 hearing to address Louthan’s suppression motion, at

which Lewis County Sheriff’s Deputy Stephen Heller and Louthan testified.

       At the suppression hearing, Deputy Heller testified that he and Trooper Torson Iverson

went to a store in Doty, Washington at approximately 3:00 a.m. on June 19, 2017, in response to

a report of a man wearing a camouflage jacket staring toward the reporting party’s home and
No. 50674-2-II


looking in the doors and windows of the closed store. Heller contacted Louthan outside the store

as Iverson arrived. Iverson’s dashboard camera recorded the officers’ interaction with Louthan.

The recording was played at Louthan’s suppression hearing.

        The video recording shows Louthan telling the officers that he got separated from a

friend who was from the area and that he had not been able to contact his friend due to a lack of

cellular phone service. Louthan also told the officers that he was a type 1 diabetic, did not have

any insulin, and needed food. Louthan confirmed with Iverson that he had been walking down

the highway. When Iverson told Louthan that the police had received a call stating that he had

been walking down the center line of the highway, Louthan responded, “Yeah, right I mean I’ve

been diabetic for thirty-five years, so my vision at night time is not worth a [expletive].” Ex. 1,

at 2 min., 36 sec. through 2 min., 41 sec. Louthan also told Iverson that it was “freezing” out.

Ex. 1, at 2 min., 41 sec. Iverson asked Louthan if he had a light; Louthan told Iverson that he

had a light on his phone but that his phone battery was nearly dead.

         Heller also testified at the suppression hearing that he ran a warrants check on Louthan

while Louthan was speaking with Iverson. Heller found that Louthan had outstanding warrants

but decided that he would not arrest Louthan based on those warrants. Heller further testified at

the hearing that at this point in the interaction, he no longer had a suspicion that Louthan had

been engaged in criminal activity and that the investigative portion of his stop had been

completed. Heller stated that he continued interacting with Louthan to assist him in figuring out

where to go that early in the morning.

       The video exhibit shows Heller telling Louthan about the outstanding warrants and

advising him to take care of the warrants. Heller then tries to call Louthan’s friend, but no one


                                                 2
No. 50674-2-II


answers. Heller asked Louthan, “So, what’s the plan here man? Do you need medical attention

for your diabetes because you haven’t eaten anything and your blood sugar is going to be

[inaudible]?” Ex. 1, at 7 min., 26 sec. through 7 min., 33 sec. Louthan stated that he was “fine

right now” but “I can’t stand out here in the cold, I’m freezing man.” Ex. 1, at 7 min., 43 sec.

through 7 min., 47 sec. Louthan stated that he would try to wake up his friend’s relatives to use

their phone. Heller said that was not a good idea and that it was not a good idea to hang around

there. Louthan stated that he would start walking down the highway then, to which Heller

responded that he didn’t want him walking down the highway. Heller then told Louthan:

        So what I’m going to do is I’m going to give you the option. I already know you
        got warrants. You got to get them taken care of, okay? I’m willing to give you a
        ride into Chehalis, alright? And I think you’re willing. I’m willing to do that. I
        have to go that way anyway. But you got to listen to my [expletive] music, you got
        to wear a seatbelt, and I got to make sure you don’t have any dope, and any
        weapons, or anything on you.

Ex. 1, at 8 min., 10 sec. through 8 min., 27 sec. Heller asked Louthan if his proposal sounded

good, and Louthan said, “Yeah.” Ex. 1, at 8 min., 31 sec. Louthan then asked Heller if he could

call for another ride to come get him. Heller asked Louthan if there was someone else who could

come get him. Louthan did not provide the name of another person, and Heller suggested that

Louthan could try calling someone else after they arrived in Chehalis. Heller told Louthan that

he was not going to confirm the warrants and that he was not taking him to jail. Iverson advised

Louthan that if he was in Chehalis and his blood sugar kept going down, someone there could

call for help. Heller again asked Louthan if the proposal sounded good, and Louthan again said,

“Yeah.” Ex. 1, at 9 min., 22 sec. Heller then searched Louthan and found a clear plastic bag

containing suspected methamphetamines, which was located in a work glove in Louthan’s back

left pocket.

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No. 50674-2-II


         Louthan testified at the suppression hearing that his friend’s sister owned the Doty store

where he had been confronted by police and that his friend’s mother lived next door to the store.

Louthan stated that he was waiting for his friend to come find him at the store when the police

officers arrived. Louthan further stated that he felt that Heller was not providing him with a real

choice as to whether he could accept a ride to Chehalis because he believed Heller was not

permitting him to either wake up his friend’s relatives or to walk down the highway. Louthan

also stated that he felt Heller had mentioned the warrants to coerce him to accept the offer of a

ride to Chehalis.

       The trial court denied Louthan’s suppression motion and entered the following findings

of fact and conclusions of law in support of its ruling:

                                      FINDINGS OF FACT

       1.1     On June 19, 2017, Deputy Stephen Heller with the Lewis County Sheriff’s
               Office responded to a location on Stevens Road in Doty at approximately
               2:57 am for a suspicious person call to 911.

       1.2     The named complainant reported that there was an unknown male standing
               under a street light, smoking a cigarette, staring at her house.

       1.3     The male was also observed by the complainant looking through the
               windows of a closed business he was standing next to.

       1.4     Law enforcement was also informed that a male had been seen in the area
               walking down the middle of the road.

       1.5     Upon contact with the male, Dep. Heller was assisted by Trooper Torson
               Iverson.

       1.6     Neither law enforcement officer used or displayed any aggressive action or
               words towards the male during their contact.

       1.7     Up to the point of Louthan’s arrest, he was never in custody.



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No. 50674-2-II


      1.8     The male indicated that he was from Oakville, and was in the Doty area
              hiking, but had become separated from his friend.

      1.9     The male also stated he had been walking down the middle of the road.

      1.10    The male had attempted to call his friend but his cellphone was not working
              in that area and the battery was dying.

      1.11    Dep. Heller obtained the phone number for the friend the male was
              attempting to call and called the number on his cellphone.

      1.12    Nobody answered the phone call from Dep. Heller.

      1.13    The male advised that he was a type 1 diabetic and had not eaten for several
              hours.

      1.14    The male refused the summoning of medical assistance offered by Dep.
              Heller.

      1.15.   The male was verbally identified as James Louthan.

      1.16    Louthan had active warrants from Grays Harbor County and Mason County,
              which were not confirmed and Louthan was never detained on.

      1.17    When asked his plan, Louthan said that he wanted to wake up a person he
              knew that lived at the location where he was contacted and was told “no”
              by Dep. Heller.

      1.18    After Louthan was told “no”, he said “well, I’m going to walk down the
              highway,” and was told “no” by Dep. Heller.

      1.19    Dep. Heller offered to give Louthan a ride to Chehalis in his patrol vehicle
              so Louthan would have an easier time contacting someone he knew, because
              the temperature at the time was cold, because of Louthan’s medical issues,
              and because of the reports of activity attributed to Louthan.

      1.20    Dep. Heller advised Louthan that him remaining in the area was not a valid
              option.

      1.21    Dep. Heller indicated through testimony that the purpose for him making
              this comment was due to the totality of the circumstances at the time.

      1.22    Louthan had no other person to obtain a ride from other than Dep. Heller.


                                               5
No. 50674-2-II


       1.23   Dep. Heller advised Louthan that he was not going to book him on the
              warrants or even confirm them.

       1.24   Dep. Heller testified that no reasonable suspicion of criminal activity
              existed on the part of Louthan.

       1.25   Louthan decided to accept the offer from Dep. Heller for a ride into
              Chehalis.

       1.26   As a condition of getting a ride to Chehalis in his vehicle, Dep. Heller
              advised Louthan that he would have to be searched for drugs and/or
              weapons.

       1.27   Louthan consented to the search of his person before entering the vehicle.

       1.28   During this search, Dep. Heller discovered a glove in Louthan’s back pants
              pocket that contained a plastic baggie with a white, crystalline substance.

       1.29   This substance was recognized as methamphetamine by Dep. Heller
              through his training and experience.

       1.30   Louthan was placed under arrest for possession of a controlled substance.

       1.31   Dep. Heller advised Louthan of his Miranda warnings from his standard
              issued card immediately after placing Louthan under arrest.

       1.32   After advisement, Louthan stated that           he   had    forgotten   the
              methamphetamine was in his pants pocket.

                                CONCLUSIONS OF LAW (3.6)

       2.1    Under the totality of the circumstances, Dep. Heller’s actions with Louthan
              were a reasonable application of the community caretaking function of law
              enforcement up to the point Louthan consented to be searched.

       2.2    The consent given by Louthan as a condition of getting a ride was valid.

       2.3    Dep. Heller was allowed to require Louthan to be searched as a condition
              of giving him a ride in his patrol vehicle.

Clerk’s Papers (CP) at 20-23.




                                               6
No. 50674-2-II


       Following the trial court’s denial of his suppression motion, Louthan waived his jury trial

right. The matter proceeded to a bench trial on stipulated facts, after which the trial court found

Louthan guilty of unlawful possession of a controlled substance. Louthan appeals.

                                            ANALYSIS

       Louthan contends that the trial court erred in denying his motion to suppress evidence

because the evidence seized by law enforcement officers was found during an illegal detention

and search of his person. Alternatively, Louthan contends that even if he was lawfully detained,

the trial court erred by not suppressing the evidence as beyond the scope of a protective weapons

frisk. Because Louthan has not met his burden of proving that he was seized prior to his arrest

and because substantial evidence supports the trial court’s finding that Louthan had consented to

a search of his person for drugs or weapons as a condition of receiving a ride from Deputy

Heller, his contentions fail and we affirm his conviction.

                                     I. STANDARD OF REVIEW

       We review a trial court’s ruling on a motion to suppress evidence to determine (1)

whether substantial evidence supports the trial court’s challenged findings of fact and, if so, (2)

whether the findings support the trial court’s conclusions of law. State v. Garvin, 166 Wn.2d

242, 249, 207 P.3d 1266 (2009). “Evidence is substantial when it is enough ‘to persuade a fair-

minded person of the truth of the stated premise.’” Garvin, 166 Wn.2d at 249 (quoting State v.

Reid, 98 Wn. App. 152, 156, 988 P.2d 1038 (1999)). Unchallenged findings are verities on

appeal. State v. Gaines, 154 Wn.2d 711, 716, 116 P.3d 993 (2005). We review conclusions of

law de novo. Garvin, 166 Wn.2d at 249.




                                                  7
No. 50674-2-II


                                II. CHALLENGED FINDINGS OF FACT

       Louthan assigns error to the trial court’s findings of fact 1.7, 1.19, 1.21, 1.22, 1.25, 1.26,

and 1.27. But Louthan does not directly address these findings in the argument section of his

brief or explain how they lack substantial evidence in support. Of these findings, only two are

fairly implicated by Louthan’s legal arguments, 1.7 and 1.27. Accordingly, we treat the

remaining findings as verities on appeal.1 In re Det. of Belcher, 196 Wn. App. 592, 600 n.1, 385

P.3d 174 (2016) (citing State v. Bonds, 174 Wn. App. 553, 562, 299 P.3d 663 (2013)), aff’d 189

Wn.2d 280, 399 P.3d 1179 (2017).

A.     Finding of Fact 1.7

       Finding of fact 1.7 states, “Up to the point of Louthan’s arrest, he was never in custody.”

CP at 21. Although Louthan does not directly address this finding, he argues that he was

unlawfully seized at the point of the police encounter when the officers’ suspicions of criminal

activity were dispelled but the officers did not allow him to knock on his friend’s relatives’ door,

remain in the area, or walk down the highway. We disagree.




1
  Moreover, substantial evidence supports findings of fact 1.19, 1.21, 1.22, 1.25, and 1.26.
Findings 1.19 and 1.21 are supported by Heller’s testimony as to his reasons for offering
Louthan a ride to Chehalis and for advising Louthan that his remaining in the area was not a
valid option. Finding 1.22 is clearly supported by the video exhibit showing Heller
unsuccessfully attempting to contact Louthan’s friend and showing Heller ask Louthan if there
was anyone else that could pick him up, to which Louthan did not provide any names. Finding
1.25 is also clearly supported by the video exhibit as it shows Louthan accepting Heller’s offer of
a ride to Chehalis. Whether Louthan’s acceptance was voluntary under the circumstances is a
separate question properly addressed through his challenge to finding 1.27 and conclusions of
law 2.2 and 2.3. The video exhibit also shows Heller advising Louthan that he would be
searched for drugs or weapons as a condition of accepting a ride to Chehalis and, thus, supports
finding 1.26.

                                                  8
No. 50674-2-II


       Although denoted as a finding of fact, the determination of whether a seizure had

occurred is a mixed question of law and fact. State v. Harrington, 167 Wn.2d 656, 662, 222 P.3d

92 (2009). We give great deference to the trial court’s resolution of differing accounts of the

police encounter but review de novo whether those facts constitute a seizure. Harrington, 167

Wn.2d at 662.

       The Fourth Amendment to the United States Constitution and article I, section 7 of the

Washington Constitution protect an individual’s right to be free from unreasonable searches and

seizures. State v. Fortun-Cebada, 158 Wn. App. 158, 168, 241 P.3d 800 (2010). “‘[A]rticle I,

section 7 of the Washington Constitution provides greater protection to individual privacy rights

than the Fourth Amendment to the United States Constitution.’” State v. Rankin, 151 Wn.2d

689, 694, 92 P.3d 202 (2004) (quoting State v. Jones, 146 Wn.2d 328, 332, 45 P.3d 1062

(2002)). However, when determining whether a seizure had occurred under article I, section 7 of

our State Constitution, Washington courts apply the test set forth in United States v. Mendenhall,

446 U.S. 544, 100 S. Ct. 1870, 64 L. Ed. 2d 497 (1980). State v. Young, 135 Wn.2d 498, 509-

10, 957 P.2d 681 (1998); see also Rankin, 151 Wn.2d at 695; State v. O’Neill, 148 Wn.2d 564,

574, 62 P.3d 489 (2003).

       Under the Mendenhall test for determining whether a seizure occurred, “‘[N]ot every

encounter between a police officer and a citizen is an intrusion requiring an objective

justification.’” Rankin, 151 Wn.2d at 695 (quoting Mendenhall, 446 U.S. at 553). Rather, a

seizure occurs under article 1, section 7 only 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.” Rankin,


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No. 50674-2-II


151 Wn.2d at 695. This determination is made objectively by looking at the officer’s actions.

Rankin, 151 Wn.2d at 695.

       Police actions that may amount to a seizure include, “‘the threatening presence of several

officers, the display of a weapon by an officer, some physical touching of the person of the

citizen, or the use of language or tone of voice indicating that compliance with the officer’s

request might be compelled.’” Young, 135 Wn.2d at 512 (quoting Mendenhall, 446 U.S. at 554-

55). A criminal defendant “bears the burden to prove a seizure occurred in violation of [his or]

her constitutional rights.” State v. Young, 167 Wn. App. 922, 929, 275 P.3d 1150 (2012).

       Although it is uncontested that neither of the responding officers “used or displayed any

aggressive action or words towards [Louthan] during their contact,” Louthan asserts that he was

seized when the officers presented him with no other option than to accept the offer of a ride to

Chehalis. CP at 21. We disagree. Even assuming that the officers’ disapproval of Louthan’s

stated plans to knock on a person’s door at 3:00 a.m. in the morning or to walk down the

highway limited his options for leaving the area, a reasonable person in Louthan’s situation

would nonetheless feel free to decline the officer’s offer of a ride or otherwise terminate the

encounter.

       The ‘free to leave’ test for determining when an individual is in custody is not

automatically satisfied when a person is not physically able to leave an area in which he or she is

contacted by police. See, e.g., Florida v. Bostick, 501 U.S. 429, 436, 111 S. Ct. 2382, 115 L. Ed.

2d 389 (1991). Rather, the crucial test is whether a reasonable person would feel free to decline

an officer’s request or otherwise terminate the encounter. Bostick, 501 U.S. at 436; State v.

Kinzy, 141 Wn.2d 373, 388, 5 P.3d 668 (2000). “Whether there was any show of authority on


                                                 10
No. 50674-2-II


the officer’s part, and the extent of any such showing, are crucial factual questions in assessing

whether a seizure occurred.” O’Neill, 148 Wn.2d at 577. And “no seizure occurs where an

officer approaches an individual in public and requests to talk to him or her, engages in

conversation, or requests identification, so long as the person involved need not answer and may

walk away.” State v. Cormier, 100 Wn. App. 457, 461, 997 P.2d 950 (2000).

       Here, after Deputy Heller’s suspicions of criminal activity had been dispelled, he first

attempted to assist Louthan by calling a number for Louthan’s friend. After that attempt was

unsuccessful, Heller asked Louthan what his plan was and whether he needed medical assistance

due to his diabetes and lack of food. Louthan responded that he was “fine right now,” but further

stated, “I can’t stand out here in the cold, I’m freezing man.” Ex. 1, at 7 min., 43 sec. through 7

min., 47 sec. After Heller stated his disapproval of Louthan’s plan to either knock on his friend’s

relative’s door to use the phone or to walk down the highway, Heller presented Louthan with the

offer of a ride to Chehalis on the condition that Heller first check that Louthan had no drugs or

weapons on him. Louthan agreed to the offer but then asked whether someone else could

provide him a ride. Heller asked Louthan if there was someone else who could provide him a

ride, but Louthan did not provide any names. Heller again offered Louthan a ride to Chehalis

and Louthan again agreed.

       The police conduct under these circumstances, when viewed objectively, would not lead

a reasonable person to believe that they could not terminate this encounter. Heller and Torson

did not display any aggressive action toward Louthan during the interaction. And notably,

Heller’s offer to Louthan of a ride to Chehalis was neither a command nor a request. Instead, it

was merely a proposal to which any reasonable person in Louthan’s position could freely


                                                 11
No. 50674-2-II


decline. Because a reasonable person would feel free to terminate the police encounter and

decline Heller’s conditional offer of a ride, Louthan’s challenge to finding of fact 1.7 fails.

B.       Finding of Fact 1.272

         Finding of Fact 1.27 states, “Louthan consented to the search of his person before

entering the vehicle.” CP at 22. Substantial evidence supports this finding.

         “Whether consent was voluntary or instead the product of duress or coercion, express or

implied, is a question of fact to be determined from the totality of the circumstances.” O’Neill,

148 Wn.2d at 588. Factors that may be relevant to a finding of voluntariness are (1) whether

police provided Miranda3 warnings before obtaining consent, (2) the degree of education and

intelligence of the consenting person, and (3) whether the police advised the consenting person

of his or her right to refuse consent. State v. Reichenbach, 153 Wn.2d 126, 132, 101 P.3d 80

(2004). These factors, however, are not helpful here. First, no Miranda warnings were given,

but none were required. Second, the record does not disclose Louthan’s level of intelligence or

degree of education. Finally where, as here, a subject is not in custody, knowledge of the right to

refuse consent is not a prerequisite to finding that the subject’s consent was voluntarily given.

O’Neill, 148 Wn.2d at 588.

         Other factors that may be relevant to a voluntariness finding are (1) whether the

consenting person was restrained, (2) whether police had to repeatedly request consent before it



2
 Louthan does not discuss his consent to search or the voluntariness of such consent. Instead, he
appears to argue that the search was the product of an illegal seizure, which argument we reject
above. Because no seizure occurred prior to Louthan’s arrest, we do not discuss the community
caretaking exception to the warrant requirement.
3
    Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

                                                 12
No. 50674-2-II


was given, and (3) whether the consenting person was cooperative or had refused consent before

providing consent. State v. Dancer, 174 Wn. App. 666, 676, 300 P.3d 475 (2013). Here,

Louthan was not restrained when he twice responded affirmatively to Heller’s offer of a ride to

Chehalis on the condition that Heller first check that he did not possess any drugs or weapons.

As noted above, it is uncontested that neither of the responding officers acted aggressively in

their interactions with Louthan. And there is nothing in the record suggesting that Louthan’s

consent was the product of coercion or duress. Accordingly, substantial evidence supports the

trial court’s finding that, under a totality of the circumstances, Louthan had voluntarily consented

to a search of his person for drugs or weapons.

                                      III. SUPPRESSION RULING

       Having determined that substantial evidence supports the trial court’s challenged findings

of fact, we turn to whether the findings support the challenged conclusions of law. Louthan

assigns error to the trial court’s conclusions of law 2.1, 2.2, and 2.3.

       Conclusion of law 2.1 states, “Under the totality of the circumstances, Dep. Heller’s

actions with Louthan were a reasonable application of the community caretaking function of law

enforcement up to the point Louthan consented to be searched.” CP at 23. Regarding this

conclusion, Louthan argues that his seizure was not justified under the officers’ community

caretaking function because he had declined the officer’s offer to summon aid and because he

did not otherwise exhibit any signs of physical distress requiring emergency treatment. But,

having determined above that Louthan has not met his burden of showing he was seized prior to

his arrest, we need not address Louthan’s argument regarding the reasonableness of the officers’

conduct under their community caretaking function.


                                                  13
No. 50674-2-II


         Next, conclusion of law 2.2 states, “The consent given by Louthan as a condition of

getting a ride was valid.” CP at 23. Although Louthan assigns error to this conclusion of law, he

does not address it in his brief. To the extent that Louthan is challenging the voluntariness of his

consent to search his person, we have addressed the challenge in our review of the trial court’s

finding of fact 1.27 and held that substantial evidence supports the finding. Accordingly, we do

not further address the issue.

         Finally, conclusion of law 2.3 states, “Dep. Heller was allowed to require Louthan to be

searched as a condition of giving him a ride in his patrol vehicle.” CP at 23. Regarding this

conclusion, Louthan argues only that Heller’s search of his pockets went beyond the permissible

scope of a protective weapons frisk. This argument ignores that Louthan had consented to Heller

searching him for weapons or drugs as a condition of receiving a ride to Chehalis in Heller’s

patrol vehicle. Accordingly, Louthan’s reliance on cases discussing the permissible “scope of a

protective weapons search” in the context of an investigative Terry4 stop or medical emergency

are unavailing. Br. of Appellant at 14 (citing State v. Wheeler, 108 Wn.2d 230, 737 P.2d 1005

(1987); State v. Loewen, 97 Wn.2d 562, 647 P.2d 489 (1982)).

         Because Louthan has not met his burden of proving that officers had seized him prior to

his arrest and because substantial evidence supports the trial court’s finding that he voluntarily

consented to Heller’s search for weapons and drugs as a condition of receiving a ride to

Chehalis, we affirm the trial court’s order denying Louthan’s motion to suppress.




4
    Terry v. Ohio, 392 U.S. 1, 88 S. Ct 1868, 20 L. Ed. 2d 889 (1968).

                                                 14
No. 50674-2-II


        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 in accordance with RCW

2.06.040, it is so ordered.



                                                                      Worswick, P.J.
 We concur:



 Johanson, J.




 Melnick, J.




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