(dissenting) — The Fourth Amendment to the United States Constitution generally requires a judicial warrant and probable cause for a search or seizure. Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 19 L. Ed. 2d *756576 (1967). One exception to the warrant requirement is police acting in a community caretaking role. Cady v. Dombrowski, 413 U.S. 433, 441, 93 S. Ct. 2523, 37 L. Ed. 2d 706 (1973). When acting in this role, police may at times be justified in making a warrantless search. Id. at 447 (finding a warrantless search of the trunk of a car was reasonable to secure a gun thought to be in the trunk). We recently interpreted the limits to the community caretaking exception in Washington in State v. Kinzy, 141 Wn.2d 373, 5 P.3d 668 (2000), cert. denied, 531 U.S. 1104 (2001).
The community caretaking exception is a narrow exception. Community caretaking encompasses functions “ ‘totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.’ ” Id. at 385 (quoting Cady, 413 U.S. at 441). It extends to offering emergency aid and even to routine checks on health and safety. Id. at 387. However, while the community caretaking exception “serves as a vehicle allowing police to check on persons who appear to be in need of aid,” once police determine aid is not needed the contact should end. Kinzy, 141 Wn.2d at 396-97 (Madsen, J., concurring).55
If it is determined that police have engaged in a search or seizure implicating the Fourth Amendment while acting in their community caretaking role, the reasonableness of that search is determined by “ ‘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.” ’ ” Id. at 387 (quoting Kalmas v. Wagner, 133 Wn.2d 210, 216-17, 943 P.2d 1369 (1997)). Questioning which does not include detention or seizure of the person questioned will likely be reasonable. Id. at 394. However, if the person questioned does not feel free to end the encounter or to leave, i.e., if a seizure has occurred, “[b]alancing the interests will not necessarily favor action *757by police.” Id. at 394. “When in doubt, the balance should be struck on the side of privacy because the policy of the Fourth Amendment is to minimize governmental intrusion into the lives of citizens.” Id. at 394-95. Kinzy cautioned that the community caretaking exception must be cautiously applied to avoid police abuses in even well-intentioned stops. Id. at 388.
In Kinzy we held police seizure of a girl who appeared to be 11 to 13 years old for questioning because she was on the street at night in a drug trafficking area in the company of an adult associated with drug trafficking was not within the community caretaking function. Kinzy, 141 Wn.2d at 379, 396. Although police were justified to approach to ask the girl if she needed aid, once she declined, the encounter should have ended. Id. at 395-96. We held the State’s “interest in maintaining the safety of children did not outweigh Petitioner’s constitutional interests in freedom of association, expression and movement.” Id. at 391-92. We held that seizure violated the Fourth Amendment and the resultant evidence should have been suppressed. Id. at 393.
In my view the present case cannot be distinguished from Kinzy. Here police seized a 12-year-old minor (Adam Acrey) for questioning after he was discovered on the street after midnight in the company of three or four other juveniles on a weeknight.56 Clerk’s Papers (CP) at 19. Once police determined that the boys were not fighting, they no longer had any particular reason to believe that Acrey was in need of aid and the encounter should have ended, as we held in Kinzy. Kinzy, 141 Wn.2d 373, at 395-96. If anything, the situation in which police found Acrey was less indicative of a need for aid than that in which police found Kinzy. Police did not find Acrey in an area of the city notorious for drug *758trafficking in the company of a known drug trafficker, as was the case in Kinzy. Here the boys were walking down Rainier Avenue, a major thoroughfare, after midnight on a weeknight. While I personally believe young boys should not be out without their parents at that hour, the community caretaking exception does not justify police seizing these minors consistent with the holding in Kinzy. See id. at 391-92.
The majority seeks to distinguish the seizure of Acrey from that of Kinzy because Acrey was only 12 while Kinzy was 16. Majority at 753. This fact cannot distinguish the cases, however. When police seized Kinzy they believed she was between 11 and 13 years old, i.e., the same age as Acrey. The reasonableness of a seizure cannot be determined in hindsight but must be determined by the reasonableness of the decision at the time. When that decision was made the police did not know she was 16. Thus, the actual age of the minors is not distinguishing.
The majority further seeks to distinguish Kinzy by claiming Acrey was approached on the street after midnight (majority at 753) while Kinzy was approached just after 10:00 p.m. But Kinzy rejected the lateness of the hour as appropriate grounds for detaining a minor under the community caretaking function. See Kinzy, 141 Wn.2d at 391 (suggesting that such a seizure would be enforcement of a de facto curfew without legal justification).57
Moreover, such a de facto curfew would be an unconstitutional restraint on the liberty of minors in itself. See Kinzy, 141 Wn.2d at 391 (citing City of Seattle v. Pullman, 82 Wn.2d 794, 795 n.1, 514 P.2d 1059 (1973); State v. J.D., 86 Wn. App. 501, 511, 937 P.2d 630 (1997)). In City of Seattle v. Pullman, we found that a juvenile curfew law that forbade loitering, idling, or playing on the streets after curfew was not a valid regulation within the police power because it did not bear a substantial relationship to the *759State’s legitimate interest in protecting minors. See Pullman, 82 Wn.2d at 802. In State v. J.D. the Court of Appeals noted that a broadly drawn curfew law “impermissibly infringes on minors’ right of free expression.” 86 Wn. App. at 509. Moreover, regulations which infringe on freedom of movement must be justified by a compelling need or they are unconstitutional. Id. at 508. The citation of these decisions by Kinzy indicates that the community caretaking exception cannot be invoked by police as justification for seizing minors on the streets after dark.
Because the seizure of Acrey can no more be justified under the community caretaking exception here than it was in Kinzy, the trial court erred when it denied Acrey s motion to suppress the drug evidence that was obtained as a result of Acrey’s seizure.
The motion to suppress should also have been granted because the pat-down search violated the Fourth Amendment.58 The Court of Appeals found the search before giving Acrey a ride was justified under State v. Wheeler, 108 Wn.2d 230, 737 P.2d 1005 (1987). State v. Acrey, 110 Wn. App. 769, 777, 45 P.3d 553 (2002) (citing Wheeler, 108 Wn.2d at 235-36). I disagree. Wheeler does not apply here at all. In Wheeler police transported a crime suspect in their patrol car in handcuffs to a witness identification. Wheeler, 108 Wn.2d at 233. But Adam Acrey was not a suspect when he was searched because police had determined the boys were not involved in the reported fighting which had initially justified the investigative stop. CP at 20.
The Court of Appeals found the pat-down search of Acrey was also justified on grounds of officer safety. Acrey, 110 Wn. App. at 777. But we have held protective frisks of *760suspects temporarily in police custody are justified where officers have reasonable safety concerns based on “ ‘specific and articulable facts’which create an objectively reasonable belief that a suspect is ‘armed and presently dangerous.’ ” State v. Collins, 121 Wn.2d 168, 173, 847 P.2d 919 (1993) (quoting Terry v. Ohio, 392 U.S. 1, 21-24, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968)). Here 12-year-old Adam Acrey was not a crime suspect, and the officer who was to give him a ride did not think the 12-year-old Acrey was armed. CP at 20. Such circumstances do not provide sufficient justification for a search on grounds of officer safety. The officer was no more at risk than would be a taxi driver called to take the 12-year-old home, or a school bus driver, or school teacher for that matter. Because the seizure of Adam Acrey was unreasonable under the reasoning in Kinzy and the pat-down search unjustified as a safety precaution, the evidence gathered as a result of the seizure and search should have been suppressed.
I therefore dissent.
The majority opinion garnered four signatures and Justice Madsen’s concurrence provided the fifth decisive vote, which makes the reasoning in the concurrence especially important in interpreting the holding in Kinzy.
Although the encounter began as an investigative stop based on an anonymous tip that boys were fighting in the area, at the time that police told the boys to sit down to wait while they called their parents, the police no longer suspected the boys of fighting. Clerk’s Papers at 25. Since the suspicion justifying an investigative stop was gone, continued detention by police required separate justification. See State v. Armenta, 134 Wn.2d 1, 15-16, 948 P.2d 1280 (1997) (investigatory detention meets constitutional requirements only so long as officer reasonably suspects person seized is engaged in criminal activity).
Of course, if a curfew law applied there would be no need to invoke the community caretaking exception because violation of a curfew would provide grounds for detaining a minor out in violation of the law.
The majority asserts that Acrey did not challenge the pat-down search on appeal. Majority at 754. The Court of Appeals also claimed that Acrey had not challenged the pat-down search. State v. Acrey, 110 Wn. App. 769, 777,45 P.3d 553 (2002). However, Acrey did challenge the pat-down search as unjustified under the community careta king function in briefing before the Court of Appeals. Br. of Appellant at 12; Reply Br. of Appellant at 4. In any case, since the challenge here involves a claim of a manifest error affecting a constitutional right we could accept review of this issue even had it not been raised below. RAP 2.5(a).