(dissenting) — This case presents the following issue: Was James Thorn "seized” when Spokane Police Officer Peden walked up to Thorn, who was seated in his car, and asked him, "Where is the pipe?” Clerk’s Papers at 35. That question, if asked in an accusatory manner, might well constitute a seizure, because a reasonable person upon hearing it could have "believed that he was not free to leave.” Michigan v. Chesternut, 486 U.S. 567, 573, 108 S. Ct. 1975, 100 L. Ed. 2d 565 (1988) (quoting United States v. Mendenhall, 446 U.S. 544, 554, 100 S. Ct. *3551870, 64 L. Ed. 2d 497, reh’g denied, 448 U.S. 908 (1980)). On the other hand, the same question, if asked in a non-adversarial tone, might not constitute a seizure.
Significantly, the majority has no facts upon which to reach its determination that the superior court and the Court of Appeals, Division Three, erred in concluding that Officer Peden’s contact with Thorn was a seizure. Indeed, it is the complete absence of facts concerning the manner in which the question was asked that makes it impossible for any court to reach a conclusion that the contact between Officer Peden and the Defendant was a seizure, or that it was not.5 This case, therefore, ultimately turns on whether Thorn had the burden, at the outset, to prove that a seizure occurred, or whether his initial burden was simply to challenge the officer’s actions, and point to evidence that the officer was acting without benefit of a warrant.
In my opinion, the latter describes Thorn’s burden. Furthermore, I believe Thorn met this burden by effectively characterizing Officer Peden’s statement as a demand for incriminating evidence, and calling attention to the fact that Peden was not in possession of a warrant. The issue having thus been raised, the burden of proof shifted to the State to show either that a seizure did not occur, or that the seizure was justified notwithstanding the absence of a warrant. The State, in this case, did not, and, on this record, could not rebut Thorn’s assertion that a seizure had occurred, nor could it show that the officer’s actions were within any of the recognized exceptions to the warrant requirement. Consequently, I would affirm the trial court’s suppression order. I, therefore, dissent.
Despite the limited factual presentation at the suppression hearing, the evidence relating to Officer Peden’s initial contact with Thorn was sufficient to convince the *356trial judge that a seizure had occurred.6 That rilling was consistent with a decision of the United States Supreme Court that, like the case before us, turned on a determination of whether, and when, a seizure had occurred. See California v. Hodari D., 499 U.S. 621, 624, 111 S. Ct. 1547, 113 L. Ed. 2d 690 (1991). In that case, the Court said that a seizure requires either physical force "or, where that is absent, submission to the assertion of authority.” Hodari, 499 U.S. at 626-27 (quoting with approval Rollin M. Perkins, The Law of Arrest, 25 Iowa L. Rev. 201, 206 (1940)).7 The majority overlooks the fact that when Officer Peden asserted his authority by approaching the car and asking, "Where is the pipe?” and Thorn submitted to Peden’s implied demand, a seizure, as defined in Hodari, had occurred, thus providing a basis for sustaining the trial court’s suppression order.
Most significantly, though, the majority criticizes the trial court for failing to recognize what it indicates is the dispositive principle in this case: that the burden of proving that a seizure occurred is on the defendant. Majority Op. at 354 (citing United States v. Carhee, 27 F.3d 1493 (10th Cir. 1994); Russell v. State, 717 S.W.2d 7 (Tex. Crim. App. 1986)). While that principle was correctly applied in the cases from other jurisdictions cited by the majority, it is not, in my judgment, applicable here. Indeed, those cases provide support for the position I am advancing in this dissent.
*357In Carhee, a Drug Enforcement Administration (DEA) agent and an Oklahoma City police officer, acting on a tip from DEA agents in Los Angeles, approached the defendant, Carhee, after he disembarked from a commercial flight and was waiting for a taxi outside the Oklahoma City airport. The officers identified themselves to Carhee and asked to speak to him. They then questioned him about his travels, ultimately receiving his permission to search his luggage. Carhee, 27 F.3d at 1495. Carhee contended that he had been seized " 'as soon as the officers hailed him.’ ” Carhee, 27 F.3d at 1497 (quoting Appellant’s Br. at 9). The trial court rejected this contention, concluding that Carhee had not shown that the police conduct would have communicated to a reasonable person that the person was not free to decline the officers’ requests or otherwise terminate the encounter. Carhee, 27 F.3d at 1497 (citing Florida v. Bostick, 501 U.S. 429, 436, 111 S. Ct. 2382, 115 L. Ed. 2d 389 (1991)). The Tenth Circuit Court of Appeals agreed, and affirmed the trial court’s order denying Carhee’s suppression motion.
Although, as the majority has noted, the Court of Appeals stated that "[a]s to the warrantless encounter, Carhee bears the burden of proving whether and when the Fourth Amendment was implicated (i.e., the point at which he or his luggage was 'seized’)[,]” it also pointed out that the defendant need only make a prima facie showing that the Fourth Amendment is implicated in order to meet that burden. Carhee, 27 F.3d at 1496 (citing United States v. Crocker, 510 F.2d 1129, 1135 (10th Cir. 1975)). In Carhee, the defendant did not make such a showing, failing even to allege that the officers acted in a manner that could be described as threatening, intimidating, or asserting their authority.
Here, on the other hand, there was evidence presented to the trial court that the officer not only did not attempt to engage in any dialogue, friendly or otherwise, with Thorn, but instead initiated contact with Thorn by making what amounted to a demand for incriminating evi*358dence. This showing, in my view, satisfied Thorn’s initial burden of challenging the officer’s action as a warrantless seizure, thus implicating the Fourth Amendment and shifting the burden to the state to prove either that a seizure did not occur, or that the warrantless seizure was justified.
Similarly, the other case cited by the majority, Russell v. State, does not support the proposition that the burden of proving that a seizure occurred always remains with the defendant. Rather, the opinion in that case seems to imply otherwise:
When a defendant seeks to suppress evidence on the basis of a Fourth Amendment violation, . . . the burden of proof [is] initially upon the defendant. As the movant in a motion to suppress evidence, a defendant must produce evidence that defeats the presumption of proper police conduct and therefore shifts the burden of proof to the State. A defendant meets his initial burden of proof by establishing that a search or seizure occurred without a warrant.
Russell, 717 S.W.2d at 9 (emphasis added; citations omitted; footnote omitted). In Russell, the defendant "offered no evidence that she was physically threatened or restrained, verbally intimidated, or otherwise compelled” to the extent that a reasonable person would have felt unable to terminate the encounter with the police. Russell, 717 S.W.2d at 11. The Texas Criminal Court of Appeals in that case declined to resort to "indulging in speculation” and decided the question of whether a seizure occurred based solely upon the evidence in the record. On that record, the court concluded that "no Fourth Amendment seizure has been established.” Russell, 717 S.W.2d at 11.
In contrast to the facts in Russell, here there was some evidence presented that tended to support a conclusion that Thorn could have felt "verbally intimidated” by the officer’s question, "Where is the pipe?” and thus unable to freely terminate the encounter. See Russell, 717 S.W.2d at 11. In addition, because Officer Peden was acting without benefit of a warrant, there was no presumption that his *359action was based on probable cause. See Rogers v. United States, 330 F.2d 535, 542-43 (5th Cir.) ("While an arrest pursuant to a warrant is prima facie evidence of probable cause, the prosecutor should be forced to come forward with evidence, of probable cause in the absence of a warrant.” (citations omitted)), cert. denied, 379 U.S. 916 (1964). The Fifth Circuit Court of Appeal’s reasoning in Russell, therefore, clearly supports the notion that in a case such as the instant, where a seizure is not justified by a warrant, the burden of proof does not remain with the moving party. Rather, once a defendant claims, and offers some evidence that he or she was seized or searched, the burden shifts to the State to show that the seizure or search falls within the narrowly defined exceptions to the warrant requirement of the Fourth Amendment. See State v. Talley, 14 Wn. App. 484, 490, 543 P.2d 348 (1975) ("Once challenged, a warrantless entry requires that the state bear the burden of demonstrating the officers were lawfully present upon the premises.”).8
This concept of "shifting” burdens of persuasion and production in a suppression hearing was discussed in the case of United States v. Al-Azzawy, 784 F.2d 890 (9th Cir. 1985), cert. denied, 476 U.S. 1144 (1986), cited with approval in United States v. Delgadillo-Velasquez, 856 F.2d 1292, 1295, 1299 (9th Cir. 1988). The district court in AlAzzawy suppressed unregistered firearms and explosive devices that were seized during a warrantless search of the home where the defendant was staying. The government contended on appeal in Al-Azzawy that the district court erred in finding that the search was not justified by *360exigent circumstances. The Ninth Circuit reversed the district court’s order excluding the evidence and remanded for trial. Significantly, the Court of Appeals concluded that though the case against Al-Azzawy had not yet surpassed the suppression hearing stage, it was the government’s burden to show that the defendant’s challenge to the search was legally or factually unsupported. Al-Azzawy, 784 F.2d at 895.
Similarly, in United States v. Shugart, 889 F. Supp. 963 (E.D. Tex. 1995), the court employed a shifting burden analysis. In Shugart, agents of the Drug Enforcement Administration seized and searched a package addressed to the defendant. The federal district court in that case suppressed the evidence seized after the search of the package because neither the defendant, nor his wife, had consented validly to the search. It summarized its analysis as follows:
Generally, the burdens of production and persuasion rest upon the movant in a suppression hearing. United States v. De La Fuente, 548 F.2d 528, 533 (5th Cir.), cert. denied, 431 U.S. 932, 97 S. Ct. 2640, 53 L. Ed. 2d 249 (1977), and cert. denied, 434 U.S. 954, 98 S. Ct. 479, 54 L. Ed. 2d 312 (1977). However, if a defendant produces evidence that a search was conducted and evidence seized without a warrant, the burden shifts to the government to justify the warrantless search and seizure. Id.; United States v. Pena, 961 F.2d 333, 338-39 (2nd Cir. 1992). Here, the burden has shifted to the government, because the search of [the allegedly unlawfully searched package] was conducted without a warrant.
In order to satisfy its burden, the government must show that the consent to search was freely and voluntarily given, see Bumper v. North Carolina, 391 U.S. 543, 548-49, 88 S. Ct. 1788, 1791-92, 20 L. Ed. 2d 797 (1968).
Shugart, 889 F. Supp. at 981.
Thorn’s situation is comparable to Shugart’s in that Thorn and his pipe were allegedly seized by agents of the government without the benefit of a warrant. Thorn, having raised the issue of warrantless seizure, has satisfied *361his burden and the burden, therefore, shifted to the State to show either that there was no seizure, or, alternatively, that the production of the pipe was voluntarily given, or otherwise the result of a proper warrantless search. Given only the limited facts of the stipulation in this case, it is impossible for the State to show either, and thus it cannot satisfy its burden. The majority, therefore, should not have reversed the trial court. Rather, it should have affirmed the order dismissing the case.
Johnson, J., concurs with Alexander, J.
The only evidence presented at the suppression hearing in this case was a stipulation as to the facts, based on the arresting officer’s report. The stipulation referred as often to what the report did not contain as it did to what the report did say, and, significantly, made no reference to the manner in which the question, "Where is the pipe?” was asked.
When grounds exist upon which a trial court’s decision granting a defendant’s motion to suppress can be properly sustained, it is incumbent upon this, or any reviewing court, to do so. State v. Ellis, 21 Wn. App. 123, 124, 584 P.2d 428 (1978). See also State v. Maxfield, 125 Wn.2d 378, 385, 886 P.2d 123 (1994) (citing State v. Hill, 123 Wn.2d 641, 644-46, 870 P.2d 313 (1994)); accord State v. Carner, 28 Wn. App. 439, 624 P.2d 204 (1981) (When the state appeals from an order suppressing evidence, there is no fundamental constitutional right involved which requires an independent evaluation of the evidence; accordingly, the Court of Appeals will apply the usual substantial evidence test to evaluate those disputed findings.).
Although the quoted language refers to "an arrest,” the Supreme Court in Hodari was addressing only a question of whether "a seizure” had occurred, and characterized an arrest as "the quintessential 'seizure of the person’ under our Fourth Amendment jurisprudence.” Hodari, 499 U.S. at 624.
The majority appears to discount these cases, on the grounds that they "address the issue of who has the burden of showing that an exception to the rule against warrantless seizures applies” rather than the issue of "whether a seizure has occurred in the first instance.” Majority Op. at 354 n.4. In making that observation, the majority, in my opinion, relies on a distinction without a difference. The precise question we face in this case is one of first impression in this jurisdiction, and we thus must rely on analogous circumstances. Even in other jurisdictions, as the cases cited by the majority indicate, "the burdens of persuasion and of producing evidence in motions for the suppression of evidence have been badly confused.” Rogers, 330 F.2d at 542. Coincidentally, Rogers is one of the cases relied upon by Russell.