State v. Reid, 23642-7-II.

• Decision Date: 03 December 1999
• Docket Number: No. 23642-7-II.,23642-7-II.
• Citation: 988 P.2d 1038,98 Wash.App. 152
• Parties: STATE of Washington, Appellant, v. Jay William REID, Respondent.
• Court: Washington Court of Appeals

988 P.2d 1038

98 Wash.App. 152

STATE of Washington, Appellant, v. Jay William REID, Respondent.

No. 23642-7-II.

Court of Appeals of Washington, Division 2.

December 3, 1999.

Craddock Davis Verser, Port Townsend, for Respondent.

Juelanne B. Dalzell, Jefferson Co. Dep. Pros. Atty, Prosecuting Attorney, Port Townsend, for Appellant.

SEINFELD, J.

The State appeals an order of suppression and subsequent dismissal of charges against Jay W. Reid for being in physical control of a vehicle while under the influence, for obstructing a police officer, and for felony possession of a firearm. It contends, inter alia, that the trial court erred in finding Reid's vehicle to be "safely off the roadway," as RCW 46.61.504(2) uses that term, and in relying on that finding to conclude that the arresting officer lacked probable cause to question and to arrest Reid. Because the trial court erred in applying this affirmative defense in the context of a suppression hearing, we reverse and remand for trial.

FACTS

Deputy Sheriff Delaney testified at a CrR 3.5 hearing that at 11:20 P.M. on May 16, 1998, he discovered Reid sitting asleep in the driver's seat of a car that had its engine running and was parked about three feet off the roadway on the shoulder of Highway 101 in Jefferson County. Although the driver's side window was partially rolled down, Delaney had to knock on the window and call out to Reid several times before he could "arouse" him. Finally, Reid opened the door and Delaney shook him until he "came around." Reid told Delaney that he was not driving.

Delaney detected a strong odor of alcohol coming from the vehicle and could smell intoxicants coming from Reid's breath. Thus, he asked Reid to step from the car and take a field sobriety test. Reid refused to get out of the car and take the test, claiming that "she" was driving the car. There was no other person in the vicinity.

Delaney reached into the car and turned the ignition off. Reid then took the keys out of the ignition but he dropped them on the car floor.

Delaney arrested Reid for refusing to take the sobriety test and for being in physical control of a vehicle while intoxicated. When Delaney informed Reid of his Miranda rights,¹ Reid responded, "F ___ you. I know my rights."

In a search of Reid's vehicle incident to the arrest, Delaney found a loaded .38 caliber revolver. When asked about the firearm, Reid replied that he did not have a gun permit, the gun did not belong to him, and the gun had been stolen from California where it had been used to "kill cops." Reid also told Delaney he was going to "f___" and "kill" him.

Following the suppression hearing, the trial court concluded that because Reid's vehicle was safely off the road, Delaney lacked probable cause to ask Reid to take field sobriety tests or to continue questioning him after Reid refused to participate. Consequently, the trial court suppressed Reid's statements to Delaney. Later, upon Reid's motion and with the State's agreement that it lacked sufficient evidence as a result of the court's ruling to obtain a conviction, the court dismissed the case with prejudice.

The State now appeals the suppression and dismissal. It challenges the trial court's findings, arguing that two of them fail to include significant details and that the court acted beyond the scope of the CrR 3.5 hearing in making the finding that Reid was safely off the road. The State also argues that Delaney had probable cause to make the arrest, and that the trial court erred by determining at a CrR 3.5 hearing the applicability of the statutory defense of being safely off the roadway.

I. FINDINGS OF FACT

The State challenges those portions of findings of fact 2, 3, and 6 that say Reid's vehicle was safely off the roadway.

"[F]indings of fact entered following a CrR 3.5 hearing will be verities on appeal if unchallenged, and, if challenged, they are verities if supported by substantial evidence in the record." State v. Broadaway, 133 Wash.2d 118, 131, 942 P.2d 363 (1997); see also State v. Hill, 123 Wash.2d 641, 647, 870 P.2d 313 (1994). Evidence is substantial when it is sufficient to persuade a fair-minded person of the truth of the stated premise. State v. Thetford, 109 Wash.2d 392, 745 P.2d 496 (1987).

Finding of fact 2 states that Delaney "observed a car parked approximately three feet off the highway with it's [sic] lights on and motor running." Finding of fact 3 states that "Delaney stopped to investigate and found the Defendant Jay Reid asleep in the motor vehicle. After having a difficult time waking Mr. Reid, he ordered Mr. Reid from the car in which he was parked." And finding of fact 6 states: "At the time of his arrest Mr. Reid's vehicle was `safely off the roadway.'"

In its challenge to findings 2 and 3, the State argues only that they fail to contain additional details mentioned in the testimony. The State contends that finding 2 should include the fact that the car was stopped "a mere three (3) feet from the lanes of travel." And it contends that finding 3 should include the facts that (1) Delaney turned off the ignition and left the keys in the ignition; (2) Reid "was passed out ... directly behind the steering wheel"; and (3) Reid "was the only occupant of the vehicle."

The State does not argue and we find nothing in the record indicating that it requested the more detailed findings. Thus, it cannot object on appeal to their omission. See, e.g., United States v. Gregg, 179 F.3d 1312, 1317 (11th Cir.1999); Favell v. Favell, 957 P.2d 556, 562 (Okla.Civ.App.1997) (party failing to request detailed findings below cannot complain of lack of such findings on appeal). Further, an appellate court does not independently evaluate the testimony to embellish the findings. See State v. Carner, 28 Wash.App. 439, 441, 624 P.2d 204 (1981). Thus, we need not further consider the challenge to findings 2 and 3.

The State presents a different argument regarding finding 6. It contends that whether the vehicle was "safely off the roadway" is an issue to be decided by the ultimate trier of fact. We discuss this contention below in conjunction with conclusion of law 3. But insofar as this assignment of error relates to the quantity of evidence to support finding 6, Delaney's testimony that the car was not a hazard to traffic, presented no safety issue other than it was running, and was safely off the roadway provides substantial evidence in support of the challenged finding.

II. PROBABLE CAUSE TO ARREST

The State challenges conclusion of law 2, which provides that "Deputy Delaney exceeded the authority for an investigative stop in requiring Mr. Reid to perform field sobriety tests and in subsequently arresting Mr. Reid when he refused to perform the field sobriety tests." Citing State v. Guzman-Cuellar, 47 Wash.App. 326, 332, 734 P.2d 966 (1987), the State argues that Delaney properly expanded the scope of his investigation as his suspicions became stronger and more pointed and that there was probable cause to arrest Reid for being in physical control of a vehicle while under the influence of intoxicants.

A routine traffic stop is analogous to a "Terry stop."² Berkemer v. McCarty, 468 U.S. 420, 439, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984). Under Terry, "a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest." 392 U.S. at 22, 88 S.Ct. 1868. Further, an officer may approach and question a person under appropriate circumstances as part of his community caretaking function. State v. Nettles, 70 Wash.App. 706, 712, 855 P.2d 699 (1993); State v. Hutchison, 56 Wash.App. 863, 865-66, 785 P.2d 1154 (1990). The scope of the investigative stop "may be enlarged or prolonged as required by the circumstances if the stop confirms or arouses further suspicions." Guzman-Cuellar, 47 Wash.App. at 332, 734 P.2d 966 (citing State v. Davis, 3 Conn.App. 359, 488 A.2d 837, 840 (1985); State v. Merklein, 388 So.2d 218, 219 (Fla. Dist.Ct.App.1980); People v. Hardy, 142 Ill. App.3d 108, 96 Ill.Dec. 447, 491 N.E.2d 493, 498 (1986); Wayne R. LaFave & Jerold H. Israel, Criminal Procedure § 3.8, at 298 (1984)).

Here, in the middle of the night, Delaney came across a car parked a few feet off the highway, its engine running and a man asleep in the driver's seat. Those facts justified an initial investigation. See Hutchison, 56 Wash.App. at 867, 785 P.2d 1154 (search justified when officer reasonably believed intoxicated defendant needed "aid and assistance").

It took several attempts to get Reid's attention and then Reid still was not responsive until Delaney shook him. The vehicle smelled of alcohol and Delaney could smell intoxicants on Reid's breath. These facts justified Delaney's suspicion that Reid might be intoxicated and in physical control of the vehicle. RCW 46.61.504.³

Under these circumstances, it was not unreasonable for Delaney to ask Reid to take a field sobriety test. "[A] request for the performance of field sobriety tests during a routine traffic stop does not alone indicate that the motorist would feel subjected to coercive restraints comparable to those associated with a formal arrest." Heinemann v. Whitman County, 105 Wash.2d 796, 808, 718 P.2d 789 (1986). Correspondingly, Reid was under no legal obligation to take the test. Seattle v. Personeus, 63 Wash.App. 461, 465, 819 P.2d 821 (1991). Thus, the trial court was correct insofar as it concluded that Delaney could not arrest Reid solely for his refusal to participate in sobriety tests.

But this was not the sole basis for arresting Reid. Delaney could arrest Reid without a warrant if there was probable cause to believe that he had committed the offense of being in physical control of a vehicle while intoxicated. Spokane v. Badeaux, 20 Wash.App. 731, 734, 581 P.2d 1088 (1978).

"Probable cause to arrest must be...