                                                                        FIL
                                                                      CO OF APPE -
                                                                        r       ALS
                                                                           DIVISIONt TI

                                                                     2013 MAR
    IN THE COURT OF APPEALS OF THE STATE                          OF                      0
                                                                     STATE OF MSIIPISTOItd
                                          DIVISION II
                                                                       Y
                                                                                E UTY
STATE OF WASHINGTON,                                             No. 43275 7 II
                                                                           - -


                             Respondent,

       V.




JOSHUA JAMES REES,                                         UNPUBLISHED OPINION


                                       t.



       PENOYAR, J:
                 Joshua Rees appeals from his conviction for unlawful possession of

heroin, arguing that the trial court erred by denying his motion to suppress the evidence seized
from his vehicle. We affirm.

       On September 15, 2011, the execution of a search warrant for Rees's vehicle resulted in

the seizure of heroin and drug paraphernalia. The State charged Rees with unlawful possession

of heroin. Rees moved to suppress the evidence seized from his vehicle, arguing that the seizure

of the vehicle while a search warrant was being obtained was an illegal warrantless seizure. The

trial court denied his motion, making the following findings of fact, to which Rees does not

assign error:
                1.
                 1  On September 15, 2011, at approximately 10: 7 P. .,in Lewis
                                                                    4    M
       County, Chehalis Police Officers were dispatched to the Wal Mart store, located
                                                                   -
       at 1601 NW Louisiana Ave., response to a report of a lost child.
                                  in
               1.
                2   Officer Ayers arrived and was contacted by Wal Mart management
                                                                   -
       who informed him that they had located the mother of the lost child inside the
       store.
                1.
                 3    Store personnel also stated that the mother was associated with a
       green Saturn in the parking lot.


1 A commissioner of this court initially considered Rees's appeal as a motion on the merits under
RAP 18. 4 and then transferred it to a panel of judges..
      1

2 The findings are,
                  therefore verities on appeal. State v. Stevenson, 128 Wn. App. 179, 193, 114
P. d 699 (
 3       2005).
43275 7 II
      - -



                 1.
                  4 Store personnel stated they had some concern about the vehicle
      because a male subject was apparently passed out in the front passenger seat, and
       a small child in the rear area of the vehicle was trying to wake up the man.
                 1.
                  5 Officer Ayers approached the vehicle, which was running at the
      time, and observed what appeared to be a male sleeping in the front passenger
       seat.
                 1.
                  6     Officer Ayers also observed a small child in the rear of the vehicle
       who was crying.
                 1.
                  7    Officer Ayers attempted to rouse the male subject, who was later
       identified as Joshua James Rees, the defendant, by knocking on and yelling at him
       through the partially open front, passenger side window, but was unsuccessful in
                                                   -
       doing so.
                 1.
                  8     Officer Ayers was familiar with the defendant through prior
       contacts, and knew him to use controlled substances.
              1.9     The defendant's breathing was shallow.
              1.01    Officer Ayers requested aid respond to the scene.
                   While waiting for aid to arrive, Officer Ayers and Officer Taylor,
                 1.1
                  1
       who had also responded to the scene, were contacted by a female subject
       identified as Whitney Cothren.
                1.2
                 1     Ms. Cothren had a second child with her at the time she contacted
       the Officers in the parking lot.
                 1.3
                  1     Ms. Cothren appeared lethargic and exhibited slurred speech as she
       conversed with the Officers.
                 1.4
                  1   Ms. Cothren was able to wake up the defendant by slapping the
       back of his head and pushing it forward.
                 1.5
                  1     Officer Ayers noted that the defendant appeared to be lethargic and
       incoherent, and had slurred speech.
                 1.6__ _
                  1 Officer Ayers believed_ defendant_ under the influence of a
                                          the        was
       narcotic.
                 1.7
                  1     Officer Taylor had the defendant exit the vehicle.
                 1.8
                  1     The defendant was then seated in an aid unit where he was
       evaluated by medical personnel.
                 1.9
                  1     At this time, Trooper Brunstad, Washington State Patrol, arrived to
       assist.
                                                         Drug Recognition Expert   with   the
                 1.0
                  2     Trooper Brunstad is      a


       Washington State Patrol. .
                 1.1
                  2  Officer Ayers asked Trooper Brunstad to contact Ms. Cothren and
       the defendant to see whether he believed they were under the influence of a
       controlled substance.
                 1.2•
                  2     Trooper Brunstad spoke with Ms. Cothren and made observations
       of the defendant as he stood nearby.
                 1.3
                  2     Both Ms. Cothren and the defendant appeared lethargic and slow
       to respond.
                 1.4
                  2     Trooper Brunstad noted that the defendant appeared much more
       impaired that [sic]Ms. Cothren.
                                                     2
43275 7 II
      - -



                1.5
                 2     Trooper Brunstad returned a short while later and explained that he
       believed both the defendant and Ms. Cothren were under the influence of a
       narcotic.
                1.6
                 2     Heroin is a narcotic.
                1.7
                 2   Trooper Brunstad did not believe that either the defendant, nor Ms.
       Cothren could safely operate a motor vehicle.
                1.8
                 2    Officer Ayers walked around the Saturn and observe an orange -
       colored syringe cap on the driver's side floorboard.
              1.9
                2     Based on his training and experience, Officer Ayers knew syringes
       to be a common tool for the intravenous use of drugs.
                                                   -
                1.0
                 3     Officer Ayers also saw a bloody napkin between where the.
       defendant had been seated inside the vehicle and the front, passenger side door.
                                                                             -
                1.1
                 3     The defendant was transported to the Centralia Providence
       Hospital for further evaluation and care.
                1.2
                 3     Officer Taylor transported Ms. Cothren and her two children to the
       Centralia Hospital.
                1.3
                 3     Officer Ayers seized the vehicle while he' applied for a search
       warrant.
                1.4
                 3     The vehicle was towed to the Chehalis Police Department
       impound.
                1.5
                 3     A search warrant for the vehicle was later obtained and executed.

Clerk's Papers (CP)at 35 38.
                         -

       Based on these findings, the court entered the following conclusions of law:

                2.
                 1     Officer Ayers had sufficient probable cause to seize the vehicle
             apply fora searchwarrant-.
                2.
                 2     At the time Officer Ayers seized the defendant's vehicle, there was
       sufficient probable cause to warrant a neutral and detached magistrate to believe a
       controlled substance(s) in the vehicle, and issue a warrant for the search of
                               was
       the vehicle.
                2.
                 3     The seizure of the defendant's vehicle was proper.
                2.
                 4     The defendant's motion to suppress is denied.

CPat38.


       After his motion to suppress was denied, Rees agreed to be tried by the court on

stipulated facts. The court found him guilty as charged.

       Rees renews his argument that the evidence seized from the vehicle was the result of an

illegal warrantless seizure of his vehicle while awaiting the issuance of a search warrant.

                                                   3
43275 7 II
      - -




W] en an officer has probable cause to believe that a car contains contraband or evidence of
 h

crime, he or she may seize and hold the car for the time reasonably needed to obtain a search

warrant and conduct the subsequent search."State v. Huff, 64 Wn. App. 641, 653, 826 P. d 698
                                                                                     2

1992). Probable cause exists for a seizure when there are "facts sufficient for a reasonable

person to conclude the defendant probably was involved in criminal activity."State v. Young,

167 Wn. App. 922, 929, 275 P. d 1150 (2012)internal quotations and citations omitted).
                            3               (

       Rees contends that the only evidence of drugs inside the vehicle were the syringe cap and

bloody napkin, and because neither officer saw an injection site on either Rees or Cothren, those

items did not provide Ayers with probable cause to conclude that Rees was probably involved in

drug possession. He also contends that a number of medical conditions could have resulted in

his lethargy and incoherence.

       At the time he seized the vehicle, Ayers had observed that both Rees and Cothren were

lethargic   and had slurred   speech. Brunstad concluded that both were under the influence of

controlled substances. Ayers knew that Rees had a history of controlled substance use. Ayers

saw a syringe cap and a bloody napkin in the vehicle. Both are consistent with the injection of
controlled substances. Ayers had facts sufficient for a reasonable person to conclude that Rees

probably    was   involved in criminal   activity. He therefore had probable cause to seize Rees's

vehicle for the time needed to obtain and execute a search warrant for the vehicle. The seizure of

the evidence from the vehicle did not result from an illegal warrantless seizure.




                                                   M
43275 7 II
      - -



       We affirm the denial of Rees's motion to suppress

      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

040,
2.6.it is so ordered.
 0




We concur:




       Quinn-
            Brintnall, J.



 0"
0 Johanson, A. .
   - J.      C




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