                                                                         FILED
                                                                     OCTOBER 8, 2019
                                                                In the Office of the Clerk of Court
                                                               WA State Court of Appeals, Division III




            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                               DIVISION THREE

STATE OF WASHINGTON,                          )
                                              )        No. 36320-1-III
                     Appellant,               )
                                              )
       v.                                     )
                                              )
EVAN DANIEL SCHRODER,                         )        UNPUBLISHED OPINION
                                              )
                     Respondent.              )

       KORSMO, J. — Evan Schroder appeals from a conviction for driving under the

influence of intoxicating liquor (DUI), contending that police lacked probable cause to

arrest him for driving while license suspended (DWLS). Since he did not present this

argument during the suppression hearing, he has waived it. We affirm.

                                         FACTS

       Law enforcement responded to a report of gun shots being fired in Tekoa.

Spotting the vehicle described by the caller, deputies engaged in a short chase of a

vehicle driven by Mr. Schroder. Schroder stopped his vehicle and attempted to flee on

foot, but was taken into custody. Deputies arrested Mr. Schroder for DWLS and DUI.
No. 36320-1-III
State v. Schroder


         The prosecutor filed charges of attempting to elude, DUI, and DWLS.1 Mr.

Schroeder filed a motion to suppress the evidence of intoxication, arguing that officers

lacked probable cause to arrest him for DUI. Clerk’s Papers (CP) at 6. As a result, the

prosecutor called only the deputy who conducted the DUI investigation to testify at the

CrR 3.6 hearing. Report of Proceedings (RP) at 6 et seq. Deputy Tim Cox explained that

Schroder had been taken into custody by Deputy Christopher Olin prior to Cox reaching

the scene. Cox arrested Schroder for DUI and DWLS. RP at 11. Cox then took

Schroder to the jail and conducted a DUI interview, culminating in a breath alcohol test.

During cross-examination, Cox testified that Olin initially had arrested Schroder for

DWLS. RP at 12, 14.

         The prosecutor argued that there was probable cause to conduct the alcohol

investigation. RP at 19-20. The defense stood on its written motion and the testimony

before the court. RP at 20. The court found that the deputies had arrested Mr. Schroder

for DUI and denied the motion to suppress because there was probable cause for the DUI

arrest. CP at 57.2




         1
             The DWLS charge was dismissed prior to jury selection. Report of Proceedings
at 44.
         2
        Likewise, each of the two sets of findings relating to the two CrR 3.5 hearings
found that the deputies arrested Mr. Schroder for DUI.

                                               2
No. 36320-1-III
State v. Schroder


       The case proceeded to jury trial. The jury acquitted Mr. Schroder on the eluding

charge and found him guilty of DUI. Mr. Schroder then appealed to this court. A panel

considered his appeal without hearing argument.

                                         ANALYSIS

       The sole issue Mr. Schroder presents is a contention that the CrR 3.6 hearing and

associated findings do not establish probable cause to arrest for DWLS, a defect that he

believes requires reversal of the DUI conviction. However, since he did not challenge the

basis for that arrest in the trial court, there understandably are no findings addressing the

issue. He does not get to expand his suppression motion on appeal. He waived the issue.3

       The failure to raise an issue in the trial court normally precludes a party from

raising the issue on appeal. RAP 2.5(a); State v. Scott, 110 Wn.2d 682, 685, 757 P.2d

492 (1988). One exception to that rule is that a claim of manifest constitutional error can

be asserted for the first time on appeal, if the record is adequate to address the issue.

State v. McFarland, 127 Wn.2d 322, 333, 899 P.2d 1251 (1995).

       It is the defendant’s burden in a CrR 3.6 hearing to establish that he was seized.

State v. O’Neill, 148 Wn.2d 564, 575, 62 P.3d 489 (2003); State v. Young, 135 Wn.2d 498,

510, 957 P.2d 681 (1998); State v. Thorn, 129 Wn.2d 347, 354, 917 P.2d 108 (1996),


       3
         The reason for the waiver is quite clear. Mr. Schroder’s own motion to suppress
attached a copy of Deputy Cox’s incident report. There the deputy explained that he had
arrested Schroder for DWLS in Tekoa the previous week due to a radio report that
Schroder’s license was suspended in the state of Idaho. CP at 82.

                                              3
No. 36320-1-III
State v. Schroder


overruled on other grounds by State v. O’Neill, 148 Wn.2d 564, 62 P.3d 489 (2003). Once

a seizure has been established, it is the State’s burden to show that the seizure was justified.

State v. Potter, 156 Wn.2d 835, 840, 132 P.3d 1089 (2006). Thus, this court typically

reviews findings entered following a CrR 3.6 hearing for substantial evidence. State v. Hill,

123 Wn.2d 641, 644, 870 P.2d 313 (1994). We review de novo the conclusions derived

from the factual findings. State v. Armenta, 134 Wn.2d 1, 9, 948 P.2d 1280 (1997).

       In his motion to suppress, Mr. Schroder stated the single issue he was raising:

“Was there probable cause to arrest for DUI.” CP at 6. He then stated the thesis of his

argument: “REASONABLE GROUNDS TO ARREST FOR DUI WERE ABSENT.”

CP at 6.4 The briefing continued with a comparison of the evidence of intoxication in his

case with that of the evidence in another case. In his oral argument to the court, he stood

on his written motion and the evidence presented. RP at 20. At no time did he allege that

law enforcement lacked a basis for stopping him. Thus, the prosecutor did not call

Deputy Olin to testify and no one elicited information concerning the basis for the initial

seizure, let alone obtain findings from the trial court on the subject.

       As a result, Mr. Schroder cannot demonstrate that he was even seized for DWLS,

let alone arrested for that offense, or that it had any causal relationship to his arrest for



       4
        This motion was entirely reasonable. If the officers lacked cause for suspecting
him of impaired driving, they could not obtain evidence of his breath alcohol level.
RCW 46.20.308.

                                               4
No. 36320· 1 ·III
State v. Schroder


DUI. The trial court made no findings on the topic because it was not germane.

Although the court's oral remarks mention that there was probable cause to arrest for

DWLS, the written findings do not touch upon the subject and the oral ruling was not

incorporated into the written findings. RP at 23; CP at 56·58.

       Mr. Schroeder's criticism that the CrR 3.6 findings failed to support the DWLS

arrest is misplaced. He waived any issues concerning the DWLS arrest because he did

not present the issue for the trial court's consideration, leaving both sides with no

incentive to develop the factual background. RAP 2.5(a); McFarland, 127 Wn.2d at 333.

He cannot raise a new issue on appeal simply because there was factual mention of the

topic during a hearing.

       The conviction is affirmed.

       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:




       Fearing, J.



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