Find Legal Information

Court of Appeals Division II
State of Washington

Opinion Information Sheet

			

    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                        DIVISION II

STATE OF WASHINGTON,
                             Respondent,                         No.  41519-4-II

       v.                                                  UNPUBLISHED OPINION

TERRY LEE WINTERSTEIN,
                             Appellant.

       Van Deren, J.  --  Terry Winterstein appeals the trial court's denial of his motion to 

suppress evidence.  He argues that the trial court abused its discretion by failing to hold a full 

suppression hearing, after remand from our Supreme Court.1 We agree with Winterstein that the 

trial court must hold a new suppression hearing -- including the opportunity for live testimony -- in 

accord with our Supreme Court's order on remand; thus, we remand this matter to the trial court 

for a full suppression hearing.

                                            FACTS

       Winterstein pleaded guilty to a gross misdemeanor charge in September 2002 and received 

a community supervision sentence.  In February 2003, Winterstein's community corrections 

1 Winterstein also argues that the trial court violated his due process rights and abused its 
discretion by predetermining the hearing's outcome and that the trial court erred in determining 
that the CCO had probable cause to believe that Winterstein lived at the searched residence before 
the search.  Because we remand for a new, full suppression hearing based on Winterstein's first 
argument, we do not address these issues. 

No.  41519-4-II

officer (CCO) went to the home where the CCO believed Winterstein resided.  The CCO and 

other law enforcement officers conducted a warrantless search of the premises.  State v. 

Winterstein, 167 Wn.2d 620, 624-26, 220 P.3d 1226 (2009).  Based on law enforcement's 

discovery of methamphetamine paraphernalia, the State charged Winterstein with unlawful 

manufacture of methamphetamine and a jury convicted him as charged.  Winterstein, 167 Wn.2d 

at 625-26.

       Based on newly discovered evidence provided by the State after the close of evidence at 

trial, Winterstein unsuccessfully moved to suppress the evidence seized as a result of the CCO's 

warrantless search.  Winterstein, 167 Wn.2d at 626-27.  The trial court did not enter written 

findings of fact and conclusions of law after the suppression hearing.  State v. Winterstein, 140 

Wn. App. 676, 684, 166 P.3d 1242 (2007), rev'd, 167 Wn.2d at 636. 

       We affirmed on appeal, reasoning that (1) the search was lawful because, under the Terry2

standard, the CCO had a reasonable belief that Winterstein lived at the residence and, (2) even if 

the search was unlawful, the evidence was admissible under the inevitable discovery doctrine.  

Winterstein, 140 Wn. App. at 691-93.  

       On review, our Supreme Court reversed, holding that (1) probable cause is the applicable 

standard when determining whether a probation officer's belief that a probationer lives at a 

residence justifies a warrantless search of the residence and (2) the inevitable discovery doctrine is 

incompatible with our state constitution.  Winterstein, 167 Wn.2d at 636.  It remanded to the trial 

court "for a new suppression hearing with instructions that the probable cause standard applies 

and the inevitable discovery doctrine does not."  Winterstein, 167 Wn.2d at 636.  

2 Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).  
                                               2 

No.  41519-4-II

       On remand, the State argued to the trial court that it need only review the record and 

argument from the earlier suppression hearing.  Winterstein argued that our Supreme Court 

remanded for a full suppression hearing, including live testimony, and that new testimony was 

needed because application of the probable cause standard would "impact" and "completely 

reshape[]" cross-examination of the State's witnesses.  Report of Proceedings (RP) at 2, 12.  The 

trial court ruled that it would not allow new testimony, stating, "I read the Supreme Court's 

opinion.  It's, 'Go back and reapply the correct standard to the information you have.' That's the 

way I read it." RP at 13.

       The trial court denied Winterstein's suppression motion.  It entered a single finding of fact 

stating, "[The CCO] had probable cause on February 6, 2003 to believe that [Winterstein] was 

residing at [the residence]."  Clerk's Papers at 2.  It entered conclusions of law (1) denying 

Winterstein's suppression motion and (2) stating that the judgment and sentence entered in the 

case would remain in effect.  Winterstein appeals.  

                                          ANALYSIS

                     Live Testimony Required at New Suppression Hearing

       Winterstein argues that the trial court abused its discretion when it disallowed a full 

suppression hearing, including live testimony, on remand from the Supreme Court.  The State 

argues that the trial court did not abuse its discretion because remand required only application of 

the correct legal standard to the existing record.  

       We review a trial court's evidentiary rulings for abuse of discretion.  State v. Lormor, 172 

Wn.2d 85, 94, 257 P.3d 624 (2011).  We reverse only if the trial court's exercise of discretion is 

manifestly unreasonable or based on untenable grounds or reasons.  Lormor, 172 Wn.2d at 94.  

                                               3 

No.  41519-4-II

       The trial court interpreted the Supreme Court's order remanding for a new suppression 

hearing as not requiring a full suppression hearing with live testimony, thus, it entertained only 

argument and assessed the evidence adduced at the earlier hearing before determining that 

probable cause supported the CCO's belief that Winterstein lived at the searched residence.  But 

after the trial court held the remand hearing in Winterstein, we decided State v. Reichert, 158 Wn. 

App. 374, 388-89, 242 P.3d 44 (2010), review denied, 171 Wn.2d 1006 (2011), in which we 

remanded for a full suppression hearing based on the same issue.  

       In Reichert, the trial court, relying on our decision in Winterstein, also applied the 

reasonable suspicion standard to determine whether evidence sufficiently supported a CCO's 

belief that a probationer lived at a certain residence.  158 Wn. App. at 378-79, 388.  By the time 

Reichert's case came before us on appeal, the Supreme Court had issued its decision in 

Winterstein, 167 Wn.2d at 636, reversing our decision that the search of the house in Winterstein, 

140 Wn. App. at 691-93, was permissible and clarifying that the proper legal standard was 

whether the CCO had probable cause to believe Winterstein lived in the house.  Thus, we held in 

Reichert:  

              Given that the trial court relied on the reasonable suspicion standard, the 
       remedy our Supreme Court articulated in Winterstein, and the parties' agreement 
       at oral argument that remand was appropriate to determine the facts under the 
       probable cause standard, we remand for a full suppression hearing to determine if 
       [the CCO] had probable cause to believe that [the defendant] lived at the . . . 
       residence before searching it.

Reichert, 158 Wn. App. at 388-89 (emphasis added).  

       As in Reichert, an appellate court remanded Winterstein's case to the trial court for 

determination of the facts, applying the probable cause standard, and the parties agree that 

                                               4 

No.  41519-4-II

remand for a suppression hearing was an appropriate remedy.  Winterstein and the State disagree 

only about the hearing's scope.  Here, because neither party had "the incentive or opportunityto 

develop the factual record before the trial court" under the appropriate legal standard, a full 

suppression hearing with live testimony was appropriate on remand.  State v. Robinson, 171 

Wn.2d 292, 306, 253 P.3d 84 (2011).  

       We hold that the Supreme Court's remand order required the trial court to conduct a new, 

full suppression hearing, including live testimony, and that the trial court abused its discretion in 

failing to grant Winterstein's request for such a hearing.  We remand for a new, full suppression 

hearing, with live testimony, for determination of whether the CCO had probable cause to believe 

Winterstein resided in the searched house before the search commenced.

       A majorityof the panel having determined that this opinion will not be printed in the 

Washington Appellate Reports but will be filed for public record pursuant to RCW 2.06.040, it is 

so ordered.

                                                 Van Deren, J.
We concur:

Worswick, A.C.J.

Quinn-Brintnall, J.

                                               5