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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, Respondent,

v. PAUL ALVIN KLEVER, Appellant. No. 69149-0-1 DIVISION ONE
UNPUBLISHED OPINION FILED: November 12, 2013 

### Becker, J. —While investigating a suspicious van parked late at night 

### behind a fast-food restaurant, a Bellingham police officerarrested 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 blockthe 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 foridentification did notelevate the encounter into a seizure under article I, section 7 ofthe Washington Constitution. Accordingly, we affirm Klever's conviction for felony violation of a no-contact order.No. 69149-0-1/2

FACTS Shortly after midnight on March 28, 2012, Bellingham Police Officer Craig Johnson noticed an occupied van at the far end ofthe parking lot behind a Jack inthe Box restaurant. The drive-through window was open, but the dining area ofthe 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 lotnear the van was bounded by 

### vegetation and forest. OfficerJohnson patrolled the area regularly and knew that the restaurant did not allow overnight parking. Inthe 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 notbeen reported stolen.

### OfficerJohnson 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 carperpendicular to the driver's door on the van. The position ofthe patrol car did not preventthe 

### van from moving. Johnson did not activate his overhead flashing lights butNo. 69149-0-1/3
turned on the side spotlight because ofthe darkness. Awoman sat inthe driver's seat. The man in the front passenger seat, later identified as Paul 

### Klever, was "bent over and moving,"1 as ifhe were trying to conceal himself. OfficerJohnson got out ofthe patrol car and walked overto the van. 

### Using a flashlight to illuminate the interior of the van, he asked the occupants 

### through the open driver'swindow whythey were in the parking lot. Klever replied thatthe 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 ofbirth and the last fourdigits of his socialsecurity 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, OfficerJohnson learned that a no-contact 

### order prohibited Klever's contactwith thedriverofthevan. He thenarrested Klever. After being advised of hisMiranda3 rights, Klever acknowledged that he knew the court order prohibited any contactwiththe driver. 

### The State charged Klever with felony violation of a no-contact order 

### (domestic violence). Priortotrial, hemoved to suppresstheevidence obtained after the contact with OfficerJohnson. He argued that he was unlawfully seized 

### when Johnsonapproached thevan, illuminated the occupantswith theflashlight,

1Clerk's Papers at 77. 2Clerk's Papers at 77. 3Miranda 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 guiltyas 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 markedpatrol car near the front ofthe van and effectively blocked it from leaving. He maintains that because there were no articulable facts 

### suggesting possiblecriminal activity, all evidence obtained after the seizure must be suppressed. Because the officer's prearrest encounterwith Klever involved only a social contact, however, we need not determine whether the 

### circumstances alsojustified an investigatory detention. The evidencedeveloped 

### at the suppressionhearing amply supports thetrial court'sconclusion that Klever
was not detained prior to his arrest. 

### As part of their"community caretaking" function, policeofficers are 

### permitted "to approachcitizens and permissively inquire as to whethertheywill 

### answerquestions." Statev. Nettles. 70Wn. App. 706, 712, 855 P.2d 699(1993), review denied. 123 Wn.2d 1010 (1994). A police officer's conduct inengaging a

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### citizen in a public place inconversation and asking for identification does not, without more, raise the encounterto an investigatory detention requiring an articulable suspicion ofwrongdoing. State v. Young. 135 Wn.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 offorce or display of authority." State v. Rankin. 151 Wn.2d 689, 695, 92 P.3d 202 (2004). This standard is "a purely objective one, looking to the actions ofthe law enforcement officer." Young. 135 Wn.2d at 501. Police actions that will likely result in a seizure include: "the threatening presence ofseveral officers, the display of a weapon by an officer, some physical touching ofthe person ofthe citizen, or the use of language or tone ofvoice indicating that 

### compliance withthe officer's request might be compelled." Young, 135 Wn.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 ofestablishing that a seizure occurred in violation of article I, section 7. State v. Harrington. 167 Wn.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 Wn.2d 242, 249, 207 P.3d 1266No. 69149-0-1/6 

### (2009). Whetherthose facts constitute a seizure is an issue of law that we review de novo. Harrington. 167 Wn.2d at 662. 

### The evidence presented at the suppression hearing was essentially 

### undisputed. OfficerJohnson drove his patrol car up to the parked van without 

### activating his emergency lights. Cf. State v. DeArman. 54Wn. App. 621, 624, 774 P.2d 1247 (1989) (seizure occurred when policeofficer 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 notdisplay his weapon, direct Klever or the driverto get out ofthe van, or make any other demands forinformation. Klever provided his identification orally, and Johnson did not request orretain a driver's license or otherform of identification. See State v. Coyne. 99 Wn. App. 566, 572, 995 P.2d 

### 78 (2000) (officer's removal ofdefendant's driver's license oridentification from defendant's presence to conductwarrants checkconstitutes a seizure). Nor did 

### the use ofa spotlight andflashlight toilluminate whatwould otherwise bevisible 

### in daylight constitute anunreasonable intrusion. See Statev. O'Neill. 148Wn.2d 564, 579, 62 P.3d 489 (2003). 

### Klever's arguments on appeal restsolely on the assertion thatOfficer Johnsonparked his patrol carin away thateffectively blocked the vanfrom 

### moving. Butthis contention is basedon Klever's testimony during thedefense'sNo. 69149-0-1/7

case at trial. No comparable evidence was presented during the suppression hearing. Johnson's testimony at the suppression hearing, which he illustrated by
means ofan aerial photograph ofthe parking lot, supported the trial court's 

### finding that "the van was absolutely able to move."4 Moreover, Klever sat in the passenger seat ofthe 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 ofthe van at any time and walk away. Cf. State v. Beito. 147 Wn. App. 504, 510, 195 P.3d 1023 (2008) (officer stood outside 

### passenger door and physically blocked passengerfrom leaving). Viewed objectively, OfficerJohnson's actions did not involve a sufficient 

### display of authority to elevate his contactwith Klever into a seizure. See State v. O'Neill. 148 Wn.2d at 577 (police officer did not seize occupant by approaching 

### car parked late at nightnear 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 foridentification). Consequently, Kleverwas not seized until Johnson arrested him for violation ofthe 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 enterwritten findings of fact and conclusions of law after ruling on his motion to suppress. See CrR

4Clerk'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 offact 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 Wn.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 Wn.2d 311, 344, 150 P.3d 59 (2006); State v. Cannon. 130 Wn.2d at 330. Affirmed. 

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WE CONCUR:
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