State Of Washington v. Paul Alvin Klever ( 2013 )

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COURT OF APrLALS D:
2013 HOY 12 A;J. 10= 30
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 69149-0-1
Respondent,
DIVISION ONE
v.
PAUL ALVIN KLEVER, UNPUBLISHED OPINION
Appellant. FILED: November 12, 2013
Becker, J. —While investigating a suspicious van parked late at night
behind a fast-food restaurant, a Bellingham police officer arrested Paul Klever, a
passenger in the van, for violating a no-contact order. On appeal, Klever
contends that he was unlawfully seized before his arrest when the officer's patrol
car effectively prevented the van from leaving. But substantial evidence at the
suppression hearing supported the trial court's finding that the patrol car did not
block the van. And the trial court correctly concluded that the officer's actions in
illuminating the van with a spotlight and flashlight, speaking briefly with the van's
occupants, and asking for identification did not elevate the encounter into a
seizure under article I, section 7 of the Washington Constitution. Accordingly, we
affirm Klever's conviction for felony violation of a no-contact order.
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FACTS
Shortly after midnight on March 28, 2012, Bellingham Police Officer Craig
Johnson noticed an occupied van at the far end of the parking lot behind a Jack
in the Box restaurant. The drive-through window was open, but the dining area
of the restaurant was closed.
The van was backed into a parking stall about 100 feet from the
restaurant, near the cement enclosure for the garbage dumpster. No other cars
were parked nearby. The area of the parking lot near the van was bounded by
vegetation and forest. Officer Johnson patrolled the area regularly and knew that
the restaurant did not allow overnight parking. In the past, restaurant
management had asked him to check on suspicious vehicles parked late at night.
When Officer Johnson saw the van's license plate, he realized that he had
spoken about the same van with a Whatcom County Sheriff's Office deputy
earlier in the evening. The deputy told him the owner of the van was possibly
involved in the delivery of a controlled substance. At that time, Johnson also
learned that the van was registered to a woman and that it had not been reported
stolen.
Officer Johnson drove his marked patrol car over to the van and parked at
an angle to the van, with the passenger-side door of the patrol car perpendicular
to the driver's door on the van. The position of the patrol car did not prevent the
van from moving. Johnson did not activate his overhead flashing lights but
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turned on the side spotlight because of the darkness. A woman sat in the
driver's seat. The man in the front passenger seat, later identified as Paul
Klever, was "bent over and moving,"1 as if he were trying to conceal himself.
Officer Johnson got out of the patrol car and walked over to the van.
Using a flashlight to illuminate the interior of the van, he asked the occupants
through the open driver's window whythey were in the parking lot. Klever replied
that the two were just talking and had not purchased any food from the
restaurant. When Johnson asked for identification, Klever identified himself
orally and provided his date of birth and the last four digits of his social security
number. Both the officer and the occupants used "a social and conversational
tone."2 The conversation lasted no more than five minutes.
Upon checking with dispatch, Officer Johnson learned that a no-contact
order prohibited Klever's contact with the driver ofthe van. He then arrested
Klever. After being advised of his Miranda3 rights, Klever acknowledged that he
knew the court order prohibited any contact with the driver.
The State charged Klever with felony violation of a no-contact order
(domestic violence). Prior to trial, he moved to suppress the evidence obtained
after the contact with Officer Johnson. He argued that he was unlawfully seized
when Johnson approached the van, illuminated the occupants with the flashlight,
1 Clerk's Papers at 77.
2 Clerk's Papers at 77.
3 Miranda v. Arizona. 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
No. 69149-0-1/4
and then asked for identification. The trial court denied the motion, concluding
that the encounter was a social contact and that Klever was not seized until he
was arrested.
A jury found Klever guilty as charged, and the court imposed a standard
range sentence. The court entered written CrR 3.5 and CrR 3.6 findings of fact
and conclusions of law on March 19, 2013, after Klever filed his opening brief.
ANALYSIS
Klever contends that he was unlawfully detained when Officer Johnson
parked his marked patrol car near the front of the van and effectively blocked it
from leaving. He maintains that because there were no articulable facts
suggesting possible criminal activity, all evidence obtained after the seizure must
be suppressed. Because the officer's prearrest encounter with Klever involved
only a social contact, however, we need not determine whether the
circumstances also justified an investigatory detention. The evidence developed
at the suppression hearing amply supports the trial court's conclusion that Klever
was not detained prior to his arrest.
As part of their "community caretaking" function, police officers are
permitted "to approach citizens and permissively inquire as to whetherthey will
answer questions." State v. Nettles. 70 Wash. App. 706, 712, 855 P.2d 699 (1993),
review denied. 123 Wash. 2d 1010 (1994). A police officer's conduct in engaging a
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No. 69149-0-1/5
citizen in a public place in conversation and asking for identification does not,
without more, raise the encounter to an investigatory detention requiring an
articulable suspicion of wrongdoing. State v. Young. 135 Wash. 2d 498, 511, 957
P.2d681 (1998).
Under article I, section 7 of the Washington Constitution, a seizure occurs
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."
State v. Rankin. 151 Wash. 2d 689, 695, 92 P.3d 202 (2004). This standard is "a
purely objective one, looking to the actions of the law enforcement officer."
Young. 135 Wash. 2d at 501. Police actions that will likely result in 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 Wash. 2d at 512, quoting United States v. Mendenhall. 446 U.S. 544,
554-55, 100 S. Ct. 1870, 64 L. Ed. 2d 497 (1980).
Klever bears the burden of establishing that a seizure occurred in violation
of article I, section 7. State v. Harrington. 167 Wash. 2d 656, 664, 222 P.3d 92
(2009). We review the findings of fact entered following a suppression hearing
for substantial evidence. State v. Garvin. 166 Wash. 2d 242, 249, 207 P.3d 1266
No. 69149-0-1/6
(2009). Whether those facts constitute a seizure is an issue of law that we
review de novo. Harrington. 167 Wash. 2d at 662.
The evidence presented at the suppression hearing was essentially
undisputed. Officer Johnson drove his patrol car up to the parked van without
activating his emergency lights. Cf. State v. DeArman. 54 Wash. App. 621, 624,
774 P.2d 1247 (1989) (seizure occurred when police officer pulled up behind car
and activated emergency lights). He then got out of his patrol car, walked over to
the driver's side of the van, and spoke briefly in a conversational tone of voice
with the occupants through an open window. Johnson, who was the only officer
present, did not display his weapon, direct Klever or the driver to get out ofthe
van, or make any other demands for information. Klever provided his
identification orally, and Johnson did not request or retain a driver's license or
other form of identification. See State v. Coyne. 99 Wash. App. 566, 572, 995 P.2d
78 (2000) (officer's removal ofdefendant's driver's license or identification from
defendant's presence to conductwarrants check constitutes a seizure). Nor did
the use of a spotlight and flashlight to illuminate whatwould otherwise be visible
in daylight constitute an unreasonable intrusion. See State v. O'Neill. 148 Wash. 2d
564, 579, 62 P.3d 489 (2003).
Klever's arguments on appeal rest solely on the assertion that Officer
Johnson parked his patrol car in a way that effectively blocked the van from
moving. But this contention is based on Klever's testimony during the defense's
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case at trial. No comparable evidence was presented during the suppression
hearing. Johnson's testimony at the suppression hearing, which he illustrated by
means of an aerial photograph of the parking lot, supported the trial court's
finding that "the van was absolutely able to move."4 Moreover, Klever sat in the
passenger seat of the van while Johnson spoke with the occupants through the
driver's open window. He has not identified any circumstances suggesting that
he was not free to get out of the van at any time and walk away. Cf. State v.
Beito. 147 Wash. App. 504, 510, 195 P.3d 1023 (2008) (officer stood outside
passenger door and physically blocked passenger from leaving).
Viewed objectively, Officer Johnson's actions did not involve a sufficient
display of authority to elevate his contact with Klever into a seizure. See State v.
O'Neill. 148 Wash. 2d at 577 (police officer did not seize occupant by approaching
car parked late at night near recently burglarized building, illuminating the car
with spotlight and flashlight, asking the driver to roll down window and try to start
the car, and asking for identification). Consequently, Kleverwas not seized until
Johnson arrested him for violation of the no-contact order. The trial court did not
err in denying the motion to suppress.
Klever also assigns error to the trial court's failure to enter written findings
of fact and conclusions of law after ruling on his motion to suppress. See CrR
4 Clerk's Papers at 77.
No. 69149-0-1/8
3.5; CrR 3.6(b). As indicated, the trial court entered written CrR 3.5 and CrR 3.6
findings of fact and conclusions of law after Klever filed his opening brief.
We will not reverse a conviction for the late entry of findings and
conclusions unless the delay prejudiced the defendant or the findings and
conclusions were tailored to address the issues raised in the defendant's
appellate brief. State v. Cannon. 130 Wash. 2d 313, 329-30, 922 P.2d 1293 (1996).
Here, the trial court's thorough and detailed written findings and conclusion
accurately reflected the evidence presented during the suppression hearing, the
parties' arguments, and the court's oral decision. Klever has not alleged or
demonstrated that the written findings and conclusions are inadequate to permit
appellate review or that the delayed entry was in any way prejudicial. Neither
reversal nor remand is therefore warranted. See State v. Brockob. 159 Wash. 2d
311, 344, 150 P.3d 59 (2006); State v. Cannon. 130 Wash. 2d at 330.
Affirmed.
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WE CONCUR:
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