KATO, J.
William Lembcke, a juvenile, was convicted of four counts of aggravated first degree murder. Claiming the court erred by refusing to suppress his statements to police and evidence discovered during a search of the family home, Mr. Lembcke appeals. He also contends the court abused its discretion by excusing a juror without first holding a hearing. We affirm.
In December 2000, four members of the Lembcke family were reported missing.
The Stevens County Sheriff's Office contacted William Lembcke in an attempt to locate his family. Mr. Lembcke eventually confessed to killing his father, mother, brother, and sister. The State charged him with four counts of aggravated first degree murder. He was convicted on all counts and sentenced to life imprisonment without possibility of parole. This appeal follows.
Mr. Lembcke first claims the court erred by admitting evidence obtained through a search of the Lembcke home. Andy Davenport was the brother of Diane Lembcke, William's mother. Mr. Davenport had not seen four of the members of the Lembcke family for several days, even though he shared a driveway with them. On December 29, 2000, William Lembcke told Clint, his older brother, who did not live at home, that the family had gone to California to visit a sick relative. Clint asked other relatives if they knew anyone in the family who was sick, but none did. Both Andy and Clint went into the Lembcke home where they saw, among other things, the wallet of Robert Lembcke and Diane's purse. Mr. Davenport contacted the police and asked them to check things out.
Deputies Paul Murray and Duane Johnson conducted a `welfare check' in the early morning hours of December 30, 2000. Clerk's Papers at 99. When the deputies arrived at the Lembcke home, William was trying to leave in a pickup. Deputy Murray pulled into the driveway first, parked his car, and was followed by Deputy Johnson and then Mr. Davenport. The manner in which these three cars were parked effectively blocked the driveway.
Mr. Lembcke had three passengers in his pickup. Deputy Murray told him they were concerned about his family and their whereabouts. Mr. Lembcke said he did not know where they were, but the deputies could go into the house to look around.
Deputy Murray asked if he could look in the bedroom of Mr. Lembcke's parents. He consented. The deputy found the parents' wallet and purse and identification.
While Deputy Murray was looking in the bedroom, Deputy Johnson noticed what looked like blood on the hot water tank and washing machine. Given the circumstances, the deputies conferred. They decided to ask Mr. Lembcke to sign a consent form and read him his Miranda warnings as a precautionary measure. Mr. Lembcke consented to a further search and did not ask for a lawyer.
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
Upon further investigation, Deputy Johnson saw blood on a light fixture and what appeared to be fresh paint on the ceiling with dark stains showing through. He also saw bits of flesh on a kitchen ornament.
The deputies decided to go outside and speak with the passengers in the pickup. They then saw blood in the bed of the vehicle. At this point, they arrested Mr. Lembcke and stopped searching the home.
Before trial, Mr. Lembcke moved to suppress the evidence found during the search. After a hearing, the court determined the police were acting in their community caretaking function and Mr. Lembcke was not seized until he was arrested. Accordingly, suppression was unwarranted. Mr. Lembcke challenges this ruling.
We review the trial court's denial of a motion to suppress by examining whether substantial evidence supports the challenged findings and whether those findings support the trial court's conclusions of law. State v. Ross, 106 Wn. App. 876, 880, 26 P.3d 298 (2001), review denied, 145 Wn.2d 1016 (2002).
Mr. Lembcke's argument centers on whether the deputies exceeded the scope of the `community caretaking function' exception to the warrant requirement by `seiz[ing]' him when they first arrived at the house. Br. of Appellant at 21.
The community caretaking function allows for limited invasion of Fourth Amendment privacy rights when necessary to render aid or assistance or make routine checks on health and safety. State v. Kinzy, 141 Wn.2d 373, 386, 5 P.3d 668 (2000), cert. denied, 531 U.S. 1104 (2001). An officer may invoke the community caretaking exception if (1) he subjectively believes that someone likely needs assistance for health or safety reasons; (2) a reasonable person in the same situation would believe the same; and (3) he has a reasonable basis to associate the need for help with the place he searched. State v. Johnson, 104 Wn. App. 409, 415, 16 P.3d 680, review denied, 143 Wn.2d 1024 (2001). Whether an encounter under this exception is reasonable depends upon a balancing of the individual's interest in freedom from police interference against the public's interest in having the police perform a community caretaking function. Kinzy, 141 Wn.2d at 387. Clearly, the deputies here responded to the Lembcke house under the community caretaking function. Responding to a report that the members of the Lembcke family had not been seen for several days, the deputies were trying to locate them to see if they were safe. The requirements for the exception were met. The initial contact at the Lembcke home was proper.
Mr. Lembcke claims the deputies exceeded the scope of the community caretaking function exception because they seized him when they arrived at the house. The test for whether a seizure has occurred is a purely objective one, looking to the actions of the law enforcement officer. State v. Young, 135 Wn.2d 498, 501, 957 P.2d 681 (1998). The person asserting a seizure has the burden of proving a disturbance of his or her private affairs. Id. at 510.
A person is seized if he or she is restrained by physical force or show of authority. Kinzy, 141 Wn.2d at 388. The relevant inquiry is whether "a reasonable person would have felt free to leave or otherwise decline the officer's requests and terminate the encounter." Id. (quoting State v. Thorn, 129 Wn.2d 347, 352, 917 P.2d 108 (1996)). `Examples of circumstance that might indicate a seizure, even where the person did not attempt to leave, would be 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. . . . In the absence of some such evidence, otherwise inoffensive contact between a member of the public and the police cannot, as a matter of law, amount to a seizure of that person.'
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) (citations omitted)).
The only restraint or show of authority was the manner in which the deputies parked their cars in the driveway. The evidence does not show that the deputies approached Mr. Lembcke in a threatening manner. There was no display of a weapon. There is no indication the deputies' actions suggested that compliance with their requests would be compelled. In these circumstances, a reasonable person would have felt free to leave or to decline the officers' requests and terminate the encounter. The court properly concluded Mr. Lembcke was not seized.
Under the community caretaking function exception, if an individual has not been `seized,' balancing an individual's interests against the public's usually results in favoring action by the police. Kinzy, 141 Wn.2d at 387. If a person has been seized, his or her interest in being free from police intrusion is no longer minimal. Id. at 388. When conducting a balancing test in these situations, courts must cautiously apply the community caretaking function exception because there is a real risk of abuse in allowing even well-intentioned stops to assist. Id.
Because Mr. Lembcke was not seized, his personal interests were minimal.
Therefore, the public's interest in having the police exercise their community caretaking function outweighed Mr. Lembcke's own personal interests.
Under the community caretaking function exception, a police officer may conduct a noncriminal investigation so long as it is necessary and strictly relevant to the performance of this function. Id. at 388. The noncriminal investigation must end when reasons for initiating the contact are fully dispelled. Id. That is exactly what happened here. The deputies entered the house in an attempt to determine where the Lembcke family might be. In doing so, they noticed blood stains and other signs that a crime might have occurred. Their actions were within the scope of the community caretaking exception. The court did not err by denying the motion to suppress. Mr. Lembcke next contends the court erred by admitting statements he made to detectives. The deputies initially read Mr. Lembcke his Miranda warnings as a precautionary measure around 1:37 a.m. After noticing blood stains in the house and pickup, they arrested Mr. Lembcke. Around 4:00 a.m, Detectives Paramore and Baskin arrived and arranged to have Mr. Lembcke transported to the Stevens County Jail. There, he was again advised of his rights and he waived them. After taking his oral statement, detectives recorded a statement in which Mr. Lembcke revealed what had happened at his house; how he killed his family; and where he had taken the bodies. After the detectives went to recover the bodies, they noticed some discrepancies between the evidence and Mr. Lembcke's statements. The detectives reinterviewed him at that time. Before a court will admit a defendant's custodial statements, the State must prove by a preponderance of the evidence that the defendant was advised of his Miranda rights and made a voluntary, knowing, and intelligent waiver of those rights prior to making the statement to police. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); State v. Braun, 82 Wn.2d 157, 160-61, 509 P.2d 742 (1973).
Mr. Lembcke asserts that he was in custody from the moment the deputies arrived at his house. However, he was not seized until the officers detained and arrested him. At this point he received Miranda warnings. Mr. Lembcke concedes that the warnings as read were proper.
Therefore, the only issue is whether Mr. Lembcke's waiver of those rights was effective.
An accused may waive his Miranda rights if the waiver is knowing, intelligent, and voluntary. State v. Bradford, 95 Wn. App. 935, 944, 978 P.2d 534 (1999), review denied, 139 Wn.2d 1022 (2000). When considering the validity of a waiver, two determinations must be made. State v. Corn, 95 Wn. App. 41, 57, 975 P.2d 520 (1999). `First, the relinquishment of the right must be voluntary in that `it was the product of a free and deliberate choice rather than intimidation, coercion, or deception." Id. at 57-58 (quoting Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986)). `Second, the waiver must be made with `full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it." Id. at 58 (quoting Burbine, 475 U.S. at 421).
Whether a juvenile has effectively waived his Miranda rights also depends upon the totality of the circumstances surrounding the interrogation. Fare v. Michael C., 442 U.S. 707, 725, 99 S.Ct. 2560, 61 L.Ed.2d 197 (1979); Dutil v. State, 93 Wn.2d 84, 87, 606 P.2d 269 (1980).
These circumstances include the juvenile's age, intelligence, background, and his capacity to effect a voluntary waiver. State v. Jones, 95 Wn.2d 616, 625, 628 P.2d 472 (1981). `If a juvenile understands that he has a right, after he is told that he has that right, and that his statements can be used against him in a court, the constitutional requirement is met.' Dutil, 93 Wn.2d at 90. Review of the record indicates that Mr. Lembcke's waiver of his rights was valid. When he confessed, he had received the Miranda warnings twice. The detectives who gave him the warnings the second time went over each right with Mr. Lembcke, making sure he understood. Two psychiatrists testified Mr. Lembcke had the capacity to understand his rights. Although it had been a long night, the detectives testified Mr. Lembcke was oriented, alert, and attentive. The State met its burden of showing by a preponderance of the evidence that Mr. Lembcke's waiver was knowing, voluntary, and intelligent. The court did not err. Mr. Lembcke also contends the court improperly excused a juror. Jury selection began in Okanogan County on August 16, 2001. The court explained to the jury pool why a jury was being selected from Okanogan County rather than Stevens County. The court also explained the time commitment involved and indicated it was aware the circumstances might make serving impossible for some.
J. B. was selected as Juror No. 3. During selection, she did not voice any problems or concerns she had about being able to serve.
On August 20, the court informed counsel and Mr. Lembcke that it had excused Juror No. 3 because her father became ill over the weekend. An alternate juror would replace her. Over Mr. Lembcke's objection to the ex parte dismissal of this juror, the trial began. We review a court's decision to remove a juror for an abuse of discretion. State v. Ashcraft, 71 Wn. App. 444, 461, 859 P.2d 60 (1993).
RCW 2.36.100 permits the court to excuse an otherwise qualified potential juror for reasons of undue hardship, extreme inconvenience, public necessity, or any other reason deemed sufficient by the court. CrR 6.5 allows the court to replace a juror with an alternate juror, before the submission of the case to the jury, if the juror becomes unable to serve.
Although CrR 6.5 does not specifically require a hearing, some sort of formal proceeding is indeed contemplated by the rule. Ashcraft, 71 Wn. App. at 462. But such a proceeding is only required when the case has already gone to the jury and the alternates have been temporarily excused. State v. Johnson, 90 Wn. App. 54, 72, 950 P.2d 981 (1998). The purpose of a formal proceeding is to verify that the juror is unable to serve and to demonstrate the alternate is still impartial. State v. Jorden, 103 Wn. App. 221, 227, 11 P.3d 866 (2000), review denied, 143 Wn.2d 1015 (2001).
Because the case had not yet gone to the jury, a formal proceeding was not required. Moreover, any error was harmless. The jury had not heard any evidence at the time Juror No. 3 was excused. The juror was replaced by an alternate. There is no showing that excusing this juror prejudicially affected Mr. Lembcke's trial. See State v. Easter, 130 Wn.2d 228, 242, 922 P.2d 1285 (1996) (If the court is convinced beyond a reasonable doubt any reasonable jury would reach the same result absent the error, the error is harmless.).
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.
BROWN and SCHULTHEIS, JJ., concur.