¶25 (dissenting) — Because Joshua Swetz failed to object to the evidence and to move to suppress below, he has failed to preserve the evidentiary challenge that he now attempts to raise for the first time on appeal. Therefore, I respectfully dissent from the majority’s consideration of this nonpreserved issue and its reversal of both convictions. I would affirm.
Hunt, J.¶26 In the alternative, I dissent for the following additional reasons: (1) Officer Osterdahl’s initial seizure of the marijuana “baggie” and glass pipes, in open view inside Swetz’s vehicle, was not the result of a search; and (2) Osterdahl’s later seizure of the remaining drug evidence was the result of a later, lawful, warrantless vehicle search incident to Swetz’s arrest for possession of the contraband *138in open view.8 Under this alternative rationale, I would remand for a full evidentiary hearing to develop a record on the suppression issue that Swetz argues for the first time on appeal.
I. Failure To Preserve Error
f 27 At the outset, I disagree with the majority’s holding that Swetz can attempt to suppress evidence for the first time on appeal where he failed to preserve the issue below.
A. No Objection to Record Below
¶28 I would affirm Swetz’s convictions based on State v. Millan, 151 Wn. App. 492, 212 P.3d 603 (2009), review granted, 168 Wn.2d 1005 (2010). Under RAP 2.5(a),9 we may refuse to review any claim of error that the appellant did not raise in the trial court.
¶29 At trial, Swetz neither filed a motion to suppress nor objected to the admissibility of the evidence of the two charged crimes. Nor did he challenge the lawfulness of Osterdahl’s search of his (Swetz’s) car or the seizure of evidence from his car. Accordingly, I would hold that Swetz failed to preserve this issue for review, and I would decline *139to address his evidentiary objection for the first time on appeal. ER 103(a).10
B. Constitutional Error Not “Manifest”
¶30 Alternatively for purposes of this analysis only I will assume that Swetz’s evidentiary procedural default might be considered a “manifest error affecting a constitutional right,” which he may raise for the first time on appeal. RAP 2.5(a). To fall within this exception, however, not only must the claimed error “implicate [ ] a constitutional interest as compared to another form of trial error,” but also it must be “manifest”; the trial record must be sufficiently complete such that we can determine whether the asserted error “ ‘actual [ly] prejudice [d]’ ” the appellant by having “ ‘practical and identifiable consequences [at] trial.’ ” State v. O’Hara, 167 Wn.2d 91, 98-99, 217 P.3d 756 (2009) (internal quotation marks omitted) (quoting State v. Kirkman, 159 Wn.2d 918, 935, 155 P.3d 125 (2007)). But“[i]f the facts necessary to adjudicate the claimed error are not in the record on appeal, no actual prejudice is shown and the error is not manifest.” State v. McFarland, 127 Wn.2d 322, 333, 899 P.3d 1251 (1995) (citing State v. Riley, 121 Wn.2d 22, 31, 846 P.2d 1365 (1993)); see also State v. Louthan, 158 Wn. App. 732, 745, 242 P.3d 954 (2010).
|31 Because Swetz failed to object to the search and failed to move to suppress the evidence at trial, the State had neither need nor opportunity to present evidence of the circumstances surrounding the warrantless vehicle search incident to Swetz’s arrest and the seizure of various items *140of evidence from different locations in Swetz’s car. Nor did the State have an opportunity to present alternative theories to justify the later-contested search. Consequently, the trial court did not make a ruling or enter findings of fact and conclusions of law addressing the admissibility of evidence, to which Swetz could have assigned error on appeal and which we could now review against the backdrop of a fully developed record.11 See CrR 3.6(a);12 ER 103(a); see also State v. Guloy, 104 Wn.2d 412, 421, 705 P.2d 1182 (1985); State v. Harris, 154 Wn. App. 87, 102-04, 224 P.3d 830 (2010) (Quinn-Brintnall, J., dissenting).
f 32 “ ‘The appellate courts will not sanction a party’s failure to point out at trial an error which the trial court, if given the opportunity, might have been able to correct to avoid an appeal and a consequent new trial.’ ” O’Hara, 167 Wn.2d at 98 (quoting State v. Scott, 110 Wn.2d 682, 685, 757 P.2d 492 (1988)). RAP 2.5(a) is not meant to “ ‘permit[ ] every possible constitutional error to be raised for the first time on appeal’ ” because that “ ‘undermines the trial process, generates unnecessary appeals, creates undesirable retrials and is wasteful of the limited resources of prosecutors, public defenders and courts.’ ” McFarland, 127 Wn.2d at 333 (quoting State v. Lynn, 67 Wn. App. 339, 344, 835 P.2d 251 (1992)).
*141f33 Because Swetz failed to object to the search and to make a record below, he has not demonstrated that the alleged error is manifest. Therefore, I would adopt Division One’s rationale in Roberts:
Because the defense did not file a CrR 3.6 motion to suppress . . . , the record is not sufficient to determine the merits of [appellant’s] claim that the [search was unlawful], . . . Accordingly, we conclude the record is insufficient to address the merits of whether [there] was a valid basis for the search.
State v. Roberts, 158 Wn. App. 174, 184, 240 P.3d 1198 (2010) (citing McFarland, 127 Wn.2d at 338); see also State v Naillieux, 158 Wn. App. 630, 637-38, 241 P.3d 1280 (2010) (appellant’s failure to raise constitutional errors at trial left the State with no “opportunity to address an objection” and the trial court with “no opportunity to correct an error”).13
f 34 For the reasons explained in Roberts and Naillieux, I would hold that Swetz cannot raise this alleged constitutional error for the first time on appeal because he has not shown that it is “manifest.”
*142II. Lawful Seizures of Evidence
|35 I recognize, however, that the Supreme Court may not agree with our analysis in Millan and may hold, instead, that a defendant such as Swetz can challenge on appeal a vehicle search incident to arrest that he failed to preserve below. Therefore, I respectfully dissent on the alternative grounds that Osterdahl lawfully seized the evidence from Swetz’s vehicle and that this evidence was admissible under our state constitution. More specifically, I disagree with the majority’s characterization of Osterdahl’s seizing various items of evidence from Swetz’s car at different times as the product of a single, unlawful, warrantless vehicle search incident to Swetz’s arrest for marijuana possession. The majority conflates Osterdahl’s initial open-view seizure of marijuana from the passenger seat and pipes from floorboard of Swetz’s car with additional contraband found during an extensive subsequent vehicle search incident to his arrest for possession of this initial open-view contraband.
¶36 Because Swetz did not move to suppress the evidence at trial, the State had neither the opportunity nor the incentive to make a record that could illustrate fully and accurately the sequence of events that produced the evidence. Consequently, the record before us on appeal is inadequate to resolve the highly fact-intensive legal search and seizure issues.
¶37 In contrast, Osterdahl’s police report14 contains a detailed account of the sequence of events, which the State *143would likely have elicited had Swetz requested a suppression hearing. This report provides a glimpse of the type of record the State could have made had Swetz objected to the admissibility of the evidence at trial. Therefore, at the very least, we should remand for a full evidentiary hearing on the suppression issue that Swetz now raises for the first time on appeal and for which no record has yet been made.
A. “Open View”15
¶38 The majority concludes that Osterdahl unlawfully seized the clear plastic zip lock baggie of marijuana on the passenger seat, Verbatim Report of Proceedings (VRP) at 28, and the glass pipes on the driver’s side floorboards, all *144of which were in “open view”16 through the driver’s side door that Swetz had left open. Majority at 132. I disagree. Assuming, without agreeing, that Swetz can object to the admissibility of this evidence for the first time on appeal, the baggie of marijuana in open view on the seat adjacent to the open car door and the glass pipes in open view on the driver’s side floorboard were not illegally seized and, therefore, not subject to suppression on constitutional or other grounds.
1. No prearrest vehicle search
¶39 Swetz initiated contact with Osterdahl when Swetz walked up to the driver’s side door of Osterdahl’s vehicle, Osterdahl rolled down his window, and Swetz reported that he (Swetz) had seen a bear roaming the streets, which Osterdahl confirmed. During that conversation, Osterdahl noticed a “strong odor of burnt marijuana” emanating from Swetz. VRP at 27. Osterdahl then exited his patrol vehicle and accompanied Swetz back to Swetz’s vehicle. Through the open driver’s door of Swetz’s car, Osterdahl saw a plastic baggie of marijuana on the front passenger seat and two multicolored glass pipes, which appeared to contain both burnt and fresh marijuana, on the driver’s side floorboard. See VRP at 16, 28; Police Report at 2-3. Osterdahl collected *145these items, and placed Swetz under arrest for marijuana possession.17 See Police Report at 3.
140 Article I, section 7 of our state constitution does not require suppression of the marijuana in Osterdahl’s “open view” on the passenger seat because it was not the product of an unlawful warrantless search; on the contrary, there was no search that led to the seizure of this initial evidence. Under the “open view” doctrine, an officer does not perform a search if he is present in a constitutionally nonprotected area and observes an object that is exposed to the public. Seagull, 95 Wn.2d at 901-02 (citation omitted); see also State v. Perez, 41 Wn. App. 481, 483, 704 P.2d 625 (1985); Louthan, 158 Wn. App. at 745. Thus, in constitutionally nonprotected areas, “ ‘if an officer ... looks into a car from the outside and sees . . . contraband in the car, he has not searched the car.’ ” State v. Gibson, 152 Wn. App. 945, 955, 219 P.3d 964 (2009) (quoting State v. Kennedy, 107 Wn.2d 1, 10, 726 P.2d 445 (1986)).
¶41 Swetz parked his car in a public skate park, which is presumptively a constitutionally nonprotected area, where he had no reasonable expectation of privacy as to what others could see in open view inside his car, especially when he left the driver’s side door of his vehicle open. From outside Swetz’s car, Osterdahl saw the marijuana on the passenger seat and the glass pipes on the driver’s side floor. This open view observation of contraband was not a search. Seagull, 95 Wn.2d at 901-02.
*1462. Initial seizure
¶42 Nevertheless, an officer may seize contraband in “open view” only if (1) the officer has probable cause to believe that it is evidence of a crime, and (2) the officer is “faced with ‘emergent or exigent circumstances regarding the security and acquisition of incriminating evidence’ that made it impracticable to obtain a warrant.” Gibson, 152 Wn. App. at 956 (quoting State v. Smith, 88 Wn.2d 127, 137-38, 559 P.2d 970 (1977)); see also State v. Ozuna, 80 Wn. App. 684, 688, 911 P.2d 395 (1996) (“Even if the officers reasonably believe that items seen inside a vehicle are stolen . . . there must be exigent circumstances making it impractical to obtain a search warrant.” (citing State v. Patterson, 112 Wn.2d 731, 733-36, 774 P.2d 10 (1989))).
f43 Osterdahl had probable cause to believe that the marijuana and the glass pipes he observed in open view on the seat and floor of Swetz’s car were evidence of a crime. Not only did Osterdahl make these visual observations, but earlier Swetz had “bent over and leaned into” Osterdahl’s vehicle and Osterdahl had detected a strong odor of marijuana emanating from Swetz’s person. Police Report at 2. Swetz even admitted to Osterdahl that he (Swetz) had been smoking “pot.” Police Report at 2.
¶44 In addition, the following exigent circumstances18 were present:19 Osterdahl was apparently alone on patrol, *147with no backup. Swetz was not under arrest when Osterdahl observed the marijuana and glass pipes in open view in Swetz’s car. See Police Report at 2-3. Thus, Swetz was an unsecured suspect who presented “a risk of flight or destruction of evidence.” State v. Mierz, 72 Wn. App. 783, 791-92, 866 P.2d 65 (1994) (citing State v. Terrovona, 105 Wn.2d 632, 644, 716 P.2d 295 (1986)), aff’d, 127 Wn.2d 460, 901 P.2d 286 (1995). Earlier that night, Osterdahl had observed Swetz with another adult male who was no longer present during this later encounter. When Osterdahl asked where his companion was, Swetz replied that his companion was pursuing the bear because they thought it would be “neat to wrestle a bear.” Police Report at 2. Osterdahl had no way of knowing whether Swetz’s companion was still pursuing the bear or likely to return to Swetz’s vehicle; either alternative presented a possible threat to Osterdahl’s safety or to the preservation of the contraband evidence.20 In my view, these exigent circumstances justified Osterdahl’s seizure of the contraband in “open view” before placing Swetz under arrest, without first attempting to obtain a warrant.
*148B. Subsequent Warrantless Vehicle Search Incident to Arrest
¶45 Assuming, without conceding, that Swetz can challenge the vehicle search incident to arrest for the first time on appeal, I disagree with the majority’s reading of Patton21 and Valdez22 that, after Osterdahl arrested Swetz for possession of the marijuana in open view, article I, section 7 of our state constitution required Osterdahl to obtain a warrant before conducting the vehicle search incident to Swetz’s arrest. See majority at 132. Instead, I would distinguish Patton and Valdez by following the rationale of Judge Quinn-Brintnall’s majority opinion in Louthan. See Louthan, 158 Wn. App. 750, 753.
¶46 The majority reads Patton and Valdez as holding that article I, section 7 permits warrantless vehicle searches only when there is a threat to (1) officer safety; or (2) the preservation of evidence of the crime of the arrest. But, as Louthan correctly points out, the facts of Patton are unique: Patton was not a driver or recent occupant of the vehicle searched and no nexus existed between Patton, the reason for his arrest, and the vehicle. Louthan, 158 Wn. App. at 751 (quoting Patton, 167 Wn.2d at 395). In contrast, Swetz was the driver of the vehicle that Osterdahl searched following Swetz’s arrest. Moreover, Osterdahl arrested Swetz for marijuana possession after smelling a strong odor of burnt marijuana on Swetz’s person and observing marijuana in open view on the passenger seat of Swetz’s vehicle. Patton does not apply to the facts here.
¶47 In Valdez, “the State ha[d] not shown that it was reasonable to believe that evidence relevant to the underlying crime might be found in the vehicle.” Valdez, 167 Wn.2d at 778. In contrast, based on Swetz’s odor of recent marijuana smoking and the marijuana and pipes in open *149view through the open door of Swetz’s car, Osterdahl reasonably believed that Swetz’s car contained evidence of marijuana possession, the crime for which Osterdahl had just arrested Swetz. Thus, Osterdahl’s warrantless search of Swetz’s vehicle incident to arrest was not a “fishing expedition in which the police thought they might discover evidence of some unrelated crime.” State v. Wright, 155 Wn. App. 537, 555, 230 P.3d 1063, review granted, 169 Wn. 2d 1026 (2010). Nor was the search “a police entitlement” that gave Osterdahl the unbridled permission to search Swetz’s vehicle simply by virtue of arresting Swetz. Arizona v. Gant, 556 U.S. 332, 347, 129 S. Ct. 1710, 173 L. Ed. 2d 485 (2009).
|48 Instead, the search was a minimal intrusion on Swetz’s privacy rights under our constitution. Swetz had parked his vehicle and left the door open at a public skate park, which diminished his reasonable expectation of privacy in his vehicle and its contents.23 Through this open door, Osterdahl had observed the marijuana in open view on the passenger seat of Swetz’s vehicle after only moments earlier having smelled a strong odor of burnt marijuana on Swetz’s breath and person. Thus, Osterdahls’ warrantless search was neither “arbitrary” nor “unreasonable.” State v. Houser, 95 Wn.2d 143, 148, 622 P.2d 1218 (1980). Accordingly, I respectfully disagree with the majority’s holding that the search of the vehicle incident to Swetz’s arrest and seizure of evidence from inside the vehicle was unlawful.
¶49 I would hold that Swetz failed to preserve his evidentiary challenge for appeal and affirm. Alternatively, I would remand for a full evidentiary hearing on the suppression issues that Swetz now seeks to raise for the first time on appeal in the absence of a record to enable our review.
Swetz concedes that the Fourth Amendment to the federal constitution and Arizona v. Gant, 556 U.S. 332, 129 S. Ct. 1710, 173 L. Ed. 2d 485 (2009), permitted Officer Osterdahl’s warrantless search of his (Swetz’s) vehicle incident to his arrest for marijuana possession.
RAP 2.5(a) provides:
(a) Errors Raised for First Time on Review. The appellate court may refuse to review any claim of error which was not raised in the trial court. However, a party may raise the following claimed errors for the first time in the appellate court: (1) lack of trial court jurisdiction, (2) failure to establish facts upon which relief can be granted, and (3) manifest error affecting a constitutional right. A party or the court may raise at any time the question of appellate court jurisdiction. A party may present a ground for affirming a trial court decision which was not presented to the trial court if the record has been sufficiently developed to fairly consider the ground. A party may raise a claim of error which was not raised by the party in the trial court if another party on the same side of the case has raised the claim of error in the trial court.
ER 103(a) provides:
(a) Effect of Erroneous Ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and
(1) Objection. In case the ruling is one admitting evidence, a timely objection or motion to strike is made, stating the specific ground of objection, if the specific ground was not apparent from the context; or
(2) Offer of Proof. In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.
The majority states that Swetz did not challenge Officer Osterdahl’s vehicle search because our Supreme Court handed down State v. Patton, 167 Wn.2d 379, 219 P.3d 651 (2009) and State v. Valdez, 167 Wn.2d 761, 224 P.3d 751 (2009) after Swetz’s trial and conviction. See majority at 127 n.4. Even assuming this fact to be true, it is irrelevant to our analysis because Swetz did not raise any kind of suppression challenge whatsoever below, much less one based on Valdez and Patton. Thus, the timing of our Supreme Court’s decisions does not excuse Swetz’s complete failure to raise any suppression challenge in a timely manner in the trial court.
CrR 3.6 provides, in part:
(a) Pleadings. Motions to suppress physical, oral or identification evidence, other than motion pursuant to rule 3.5, shall be in writing supported by an affidavit or document setting forth the facts the moving party anticipates will be elicited at a hearing, and a memorandum of authorities in support of the motion.
(Emphasis added.)
As Division Three of our court recently noted in Naillieux:
We sit as a court of review, which, of course, means that we do not preside over trial proceedings de novo. Our function is to review the validity of claimed errors by a trial judge who presided over a trial. That function assumes that counsel preserve the error by objecting to something the trial judge did or did not do. We do not, and should not, be in the business of retrying these cases. It is a wasteful use of judicial resources. And it encourages skilled counsel to save claims of constitutional error for appeal so a defendant can get a new trial and second chance at a not guilty verdict if the first trial does not end in his favor. Most errors in a criminal case can be characterized as constitutional.
Mr. Naillieux is entitled to a new trial only if his claimed errors are manifest constitutional errors. Even if the claimed error is constitutional in nature, we will not review it unless it is also manifest. An error is manifest when the defendant shows “the asserted error had practical and identifiable consequences in the trial of the case.” “ ‘Manifest’ means unmistakable, evident or indisputable, as distinct from obscure, hidden or concealed. ‘Affecting’ means having an impact or impinging on, in short, to make a difference. A purely formalistic error is insufficient.” We conclude that, while Mr. Naillieux’s claims of manifest constitutional error might well implicate constitutional due process rights, they are not manifest.
Naillieux, 158 Wn. App. at 638-39 (alteration in original) (citations omitted) (quoting Lynn, 67 Wn. App. at 345).
The State marked Osterdahl’s police report for identification only and used it to refresh his recollection during the CrR 3.5 hearing on the admissibility of Swetz’s statements. Swetz also asked Osterdahl to read from his report to refresh his recollection during cross-examination. Although not accepted into evidence below or officially designated as Clerk’s Papers on appeal, this police report is included in the record before us on appeal, immediately following exhibit 3. And it is relevant to our consideration of the issues before us on appeal, especially in light of the fact that both Swetz and the State used it below, despite its not having been officially admitted into evidence.
The majority criticizes my referencing the police report because it was not admitted into evidence and “does not conclusively establish the sequence of *143events.” Majority at 133. I agree. But I do not claim that the police report establishes any facts at all; nor is that my purpose in referencing it here, which, with all due respect, the majority misconstrues.
On the contrary, the police report provides a glimpse into the record that the State might have made had Swetz timely objected to the admissibility of the evidence at trial and requested a CrR 3.6 evidentiary hearing. If Swetz had moved to suppress below, then the State would have had an opportunity to prove the true sequence of events surrounding the search and seizure of the evidence. But because Swetz failed to raise any suppression challenge whatsoever, we are, as the majority rightly points out, left with an incomplete and vague record, with the police report providing the only clues as to what the State’s proof might have been.
I agree with the majority that the record is incomplete for us to know “the sequence of events” pertinent to our review of the suppression issues that Swetz raises for the first time on appeal. Majority at 133. But the inadequate record is not the fault of the State, which should not have its evidence now suppressed for lack of supporting facts. Instead, the lack of a record is directly attributable to Swetz’s procedural default in the trial court. In my view, this underdeveloped record is reason for refusing to entertain Swetz’s untimely suppression argument on appeal; in the alternative, it should prompt our remand to the trial court for development of a record that would allow our review of the issues that Swetz now raises for the first time on appeal.
The majority asserts that we should not reach the possible applicability of the open view doctrine because the State has not attempted to show that the open view exception applies. Indeed, as the majority notes, the State has conceded that Osterdahl’s search was unlawful if we hold that (1) Swetz can raise his suppression challenge for the first time on appeal, and (2) an officer’s reasonable suspicion that evidence of the crime of arrest will be found in the vehicle is insufficient to support a warrantless vehicle search incident to arrest under our constitution. See majority at 131; Br. of Resp’t at 6. But we are free to reject the State’s concession. See, e.g., State v. Woodruff, 137 Wn. App. 127, 133, 151 P.3d 1086 (2007). The majority’s acceptance of the State’s concession does not foreclose applicability of the open view doctrine here. Moreover, we cannot know whether the State would still make this concession if Swetz had made a timely suppression challenge below, thus providing the State the opportunity to establish a record demonstrating open view and then to argue this point to the trial court.
The “open view” doctrine and the closely related “plain view” doctrine are exceptions to the general rule that warrantless searches are per se unreasonable. State v. Gibson, 152 Wn. App. 945, 954, 219 P.3d 964 (2009) (citing State v. Seagull, 95 Wn.2d 898, 632 P.2d 44 (1981)). The “open view” doctrine applies when an officer is present in a constitutionally nonprotected area. Seagull, 95 Wn.2d at 901-02. In these constitutionally nonprotected areas, “ ‘[t]he object under observation is not subject to any reasonable expectation of privacy and the observation is not within the scope of the constitution.’ ” Seagull, 95 Wn.2d at 902 (quoting State v. Kaaheena, 59 Haw. 23, 29, 575 P.2d 462 (1978)).
Because Swetz’s vehicle was located in a skate park, a constitutionally nonprotected public area, the “open view” doctrine applies (the “plain view” doctrine, in contrast, comes into play if the officer has lawfully intruded into a location where there otherwise is a reasonable expectation of privacy). Seagull, 95 Wn.2d at 901; see also State v. Barnes, 158 Wn. App. 602, 612-13, 243 P.3d 165 (2010).
Only after arresting Swetz did Osterdahl search Swetz’s car incident to his arrest. During the vehicle search, Osterdahl found and seized more marijuana and glass pipes, as well as diazepam (commonly known as Valium). VRP at 49. It was this evidence — the other quantity of marijuana, the other glass pipes, and the diazepam — that was seized during Osterdahl’s warrantless vehicle search incident to Swetz’s arrest. The State charged Swetz with unlawful possession of diazepam, count I, distinct from count II, possession of marijuana. It is not clear from the record on appeal whether count II was based on the bag of marijuana initially seized in open view on the passenger seat before Swetz’s arrest or on the marijuana seized later during the subsequent warrantless vehicle search incident to that arrest or both.
I agree with Chief Justice Madsen’s assessment in her dissent in State v. Tibbles, 169 Wn.2d 364, 373-79, 236 P.3d 885 (2010), that applying the State v. Terrovona, 105 Wn.2d 632, 716 P.2d 295 (1986), exigent circumstances factors involving the warrantless search of a home to cases involving evidence seized from an automobile is an unworkable departure from prior case law. Tibbles, 169 Wn.2d at 374-75 (Madsen, C.J., dissenting). Accordingly, as the majority recently held in Louthan, similarly, here, we should neither consider nor apply the Terrovona factors in this case, which involves no search and seizure of contraband in open view. Louthan, 158 Wn. App. at 747 n.6.
The majority counters that many, if not all, of these exigent circumstances, revealed thus far only in the police report, are not present in the record. See majority at 135-37.1 agree. But as I noted in footnote 14, we cannot know the truth about these exigent circumstances because, as a result of Swetz’s failure to challenge the admissibility of the evidence below, there was no evidentiary *147hearing to establish these facts. In my view, the majoritys discomfort with the lack of established detailed facts in the record underscores the need for us to wait to review Swetz’s suppression arguments only after the trial court has an opportunity to conduct an evidentiary hearing on remand.
As the Third Circuit Court of Appeals has noted:
For there to be reversible error, it is mandatory for the appellant properly to identify the error to the trial court and to suggest a legally appropriate course of action. The reasons for this requirement go to the heart of the common law tradition and the adversary system. It affords an opportunity for correction and avoidance in the trial court in various ways: it gives the adversary the opportunity either to avoid the challenged action or to present a reasoned defense of the trial court’s action; and it provides the trial court with the alternative of altering or modifying a decision or of ordering a more fully developed record for review.
Pfeifer v. Jones & Laughlin Steel Corp., 678 F.2d 453, 457 n.1 (3d Cir. 1982), judgment vacated on other grounds, 462 U.S. 523, 103 S. Ct. 2541, 76 L. Ed. 2d 768 (1983).
See State v. Young, 28 Wn. App. 412, 419, 624 P.2d 725 (“[CJourts have found exigent circumstances ... where a defendant is in custody but his accomplices or others acting for him have not yet been apprehended.”), review denied, 95 Wn.2d 1024 (1981). And here, unlike in Young, Swetz was not yet in custody.
State v. Patton, 167 Wn.2d 379, 219 P.3d 651 (2009).
State v. Valdez, 167 Wn.2d 761, 224 P.3d 751 (2009).
See Gibson, 152 Wn. App. at 955 (citing Young, 28 Wn. App. at 416 (citing United States v. Chadwick, 433 U.S. 1, 12-13, 97 S. Ct. 2476, 53 L. Ed. 2d 538 (1977))).