Filed Washington State Court of Appeals Division Two
October 25, 2022
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 56179-4-II
Respondent,
v. UNPUBLISHED OPINION
WILLIAM HOWARD WITKOWSKI,
Appellant.
WORSWICK, J. ⎯ William Howard Witkowski appeals, for a second time, his convictions
and sentence for multiple felonies.1 Following his first appeal, we held that Ferrier2 warnings
were required prior to law enforcement’s warrantless entry onto the curtilage of his property and
remanded to the trial court for excision of the subsequent search warrant affidavit and to
determine whether probable cause remained for the search warrant following that excision. The
trial court complied with our remand instructions and concluded that the excised affidavit
contained probable cause to support the search warrant.
1 Witkowski appeals his convictions for one count of unlawful possession of a controlled substance with intent to deliver (heroin), one count of unlawful possession of a controlled substance with intent to deliver (methamphetamine), twelve counts of first degree unlawful possession of a firearm, one count of unlawful possession of a controlled substance (oxycodone), and seven counts of unlawful possession of a stolen firearm. Witkowski does not appeal his conviction for one count of third degree defrauding a public utility. 2 State v. Ferrier, 136 Wn.2d 103, 960 P.2d 927 (1998). No. 56179-4-II
Witkowski appeals that determination. He argues that the search warrant authorizing the
search of his property was based on stale evidence, and therefore, the drug and firearm evidence
should have been suppressed as fruit of the poisonous tree. We disagree and affirm.
FACTS
In May 2015, Ohop Mutual Light Company shut off power to Witkowski’s property as a
result of non-payment. On October 6, 2015, an engineering coordinator for Ohop went to the
property in response to a customer reporting an illegal power hookup on the property and
observed that the original power meter belonging at the address was laying on the ground. A
stolen power meter had been installed in its place. The engineer took detailed photos of the
illegal power hookup, the stolen meter providing power to the residence, and the original meter
before he left the property to investigate records at the Ohop office. When he returned to the
property later that day, he discovered that the stolen power meter had been removed.
Twenty days later on October 26, 2015, law enforcement went to the property. Officers
made contact with Tina Berven who also resided at the property and told her they needed to
speak with her and Witkowski about the theft of power. During that visit, Berven opened a gate
in a fence and allowed the officers onto the property. State v. Witkowski, No. 53412-6-II, slip op.
at 3-4 (Wash. Ct. App. Apr. 6, 2021).3 Once on the property, the officers observed a power pole
with no power meter hooked up and a meter laying at the base of the pole. Witkowski, slip op. at
4. A few days later, law enforcement requested a search warrant for the stolen power meter
3 Unpublished, https://www.courts.wa.gov/opinions/pdf/D2%2053412-6-II%20Unpublished%20 Opinion.pdf
2 No. 56179-4-II
based on the information from the Ohop engineer and information from the officers’ October 26
visit.
Officers executed the warrant on October 29 and discovered heroin, a scale, oxycodone
pills, methamphetamine, and crib notes in a vehicle. Witkowski, slip op. at 5. They also found
evidence suggesting there may be controlled substances and illegal firearms on the premises.
Witkowski, slip op. at 5. Based on information obtained when executing the first search warrant,
law enforcement requested and obtained a second search warrant related to the suspected illegal
drugs and firearms. Witkowski, slip op. at 5. During the execution of the second search warrant,
law enforcement seized numerous firearms. Witkowski, slip op. at 5.
The State charged Witkowski with multiple felonies arising from the drugs and firearms
evidence seized during the execution of the two search warrants. Witkowski, slip op. at 5.
Witkowski moved to suppress the evidence, arguing that it should have been suppressed because
the law enforcement deputies failed to give Ferrier warnings before entering the property on
October 26. Witkowski, slip op. at 5. The trial court denied his motion, and a jury found
Witkowski guilty as charged. Witkowski, slip op. at 6.
Witkowski appealed, and we held that the trial court erred by concluding that Ferrier
warnings were not required prior to the sheriff’s deputies entering the curtilage of Witkowski’s
property prior to obtaining a search warrant. We remanded to the trial court to determine which
portions of the search warrant affidavit should be excised and to determine whether sufficient
probable cause existed for the search warrant following that excision. Witkowski, op. at 10.
At a hearing on the matter, the State and Witkowski largely agreed on the appropriate
excisions to be made. The trial court adopted the State’s proposed excisions. Witkowski argued
3 No. 56179-4-II
that the remaining information in the warrant affidavit was stale, but the trial court disagreed.
The trial court concluded that after excising the warrant affidavit in accordance with our remand
instructions, the remaining facts established probable cause to search the property and
outbuildings.
Witkowski appeals.
ANALYSIS
Witkowski argues that the evidence supporting most of his convictions should have been
suppressed as fruit of the poisonous tree because it was gathered during the execution of a search
warrant that was based on stale information and therefore not supported by probable cause. We
disagree.
I. APPEALABILITY
As an initial matter, the State argues that we should decline to address the merits of
Witkowski’s argument because he failed to raise the staleness issue in his previous appeal. “The
general rule is that a defendant is prohibited from raising issues on a second appeal that were or
could have been raised on the first appeal.” State v. Mandanas, 163 Wn. App. 712, 716, 262
P.3d 522 (2011). This limitation extends to issues “of constitutional import.” Mandanas, 163
Wn. App. at 717. At our discretion, we may nonetheless address issues not previously raised in
an earlier appeal where, on remand, the trial court exercised its independent judgment in
reviewing and ruling on the issue. State v. Wheeler, 183 Wn.2d 71, 78, 349 P.3d 820 (2015).
4 No. 56179-4-II
Witkowski’s prior appeal was limited to whether law enforcement failed to provide
Ferrier warnings as required prior to entering the curtilage of his property.4 We held that they
were and remanded to the trial court to determine which portions of the search warrant should be
excised, and whether probable cause existed for the search warrant following that excision.
Witkowski, slip op. at 10. In our opinion, we specifically explained, “[b]ecause the trial court has
not previously considered staleness, Witkowski will be able to make this argument on remand.”
Witkowski, slip op. at 9. On remand, Witkowski argued, and the trial court exercised its
Free access — add to your briefcase to read the full text and ask questions with AI
Filed Washington State Court of Appeals Division Two
October 25, 2022
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 56179-4-II
Respondent,
v. UNPUBLISHED OPINION
WILLIAM HOWARD WITKOWSKI,
Appellant.
WORSWICK, J. ⎯ William Howard Witkowski appeals, for a second time, his convictions
and sentence for multiple felonies.1 Following his first appeal, we held that Ferrier2 warnings
were required prior to law enforcement’s warrantless entry onto the curtilage of his property and
remanded to the trial court for excision of the subsequent search warrant affidavit and to
determine whether probable cause remained for the search warrant following that excision. The
trial court complied with our remand instructions and concluded that the excised affidavit
contained probable cause to support the search warrant.
1 Witkowski appeals his convictions for one count of unlawful possession of a controlled substance with intent to deliver (heroin), one count of unlawful possession of a controlled substance with intent to deliver (methamphetamine), twelve counts of first degree unlawful possession of a firearm, one count of unlawful possession of a controlled substance (oxycodone), and seven counts of unlawful possession of a stolen firearm. Witkowski does not appeal his conviction for one count of third degree defrauding a public utility. 2 State v. Ferrier, 136 Wn.2d 103, 960 P.2d 927 (1998). No. 56179-4-II
Witkowski appeals that determination. He argues that the search warrant authorizing the
search of his property was based on stale evidence, and therefore, the drug and firearm evidence
should have been suppressed as fruit of the poisonous tree. We disagree and affirm.
FACTS
In May 2015, Ohop Mutual Light Company shut off power to Witkowski’s property as a
result of non-payment. On October 6, 2015, an engineering coordinator for Ohop went to the
property in response to a customer reporting an illegal power hookup on the property and
observed that the original power meter belonging at the address was laying on the ground. A
stolen power meter had been installed in its place. The engineer took detailed photos of the
illegal power hookup, the stolen meter providing power to the residence, and the original meter
before he left the property to investigate records at the Ohop office. When he returned to the
property later that day, he discovered that the stolen power meter had been removed.
Twenty days later on October 26, 2015, law enforcement went to the property. Officers
made contact with Tina Berven who also resided at the property and told her they needed to
speak with her and Witkowski about the theft of power. During that visit, Berven opened a gate
in a fence and allowed the officers onto the property. State v. Witkowski, No. 53412-6-II, slip op.
at 3-4 (Wash. Ct. App. Apr. 6, 2021).3 Once on the property, the officers observed a power pole
with no power meter hooked up and a meter laying at the base of the pole. Witkowski, slip op. at
4. A few days later, law enforcement requested a search warrant for the stolen power meter
3 Unpublished, https://www.courts.wa.gov/opinions/pdf/D2%2053412-6-II%20Unpublished%20 Opinion.pdf
2 No. 56179-4-II
based on the information from the Ohop engineer and information from the officers’ October 26
visit.
Officers executed the warrant on October 29 and discovered heroin, a scale, oxycodone
pills, methamphetamine, and crib notes in a vehicle. Witkowski, slip op. at 5. They also found
evidence suggesting there may be controlled substances and illegal firearms on the premises.
Witkowski, slip op. at 5. Based on information obtained when executing the first search warrant,
law enforcement requested and obtained a second search warrant related to the suspected illegal
drugs and firearms. Witkowski, slip op. at 5. During the execution of the second search warrant,
law enforcement seized numerous firearms. Witkowski, slip op. at 5.
The State charged Witkowski with multiple felonies arising from the drugs and firearms
evidence seized during the execution of the two search warrants. Witkowski, slip op. at 5.
Witkowski moved to suppress the evidence, arguing that it should have been suppressed because
the law enforcement deputies failed to give Ferrier warnings before entering the property on
October 26. Witkowski, slip op. at 5. The trial court denied his motion, and a jury found
Witkowski guilty as charged. Witkowski, slip op. at 6.
Witkowski appealed, and we held that the trial court erred by concluding that Ferrier
warnings were not required prior to the sheriff’s deputies entering the curtilage of Witkowski’s
property prior to obtaining a search warrant. We remanded to the trial court to determine which
portions of the search warrant affidavit should be excised and to determine whether sufficient
probable cause existed for the search warrant following that excision. Witkowski, op. at 10.
At a hearing on the matter, the State and Witkowski largely agreed on the appropriate
excisions to be made. The trial court adopted the State’s proposed excisions. Witkowski argued
3 No. 56179-4-II
that the remaining information in the warrant affidavit was stale, but the trial court disagreed.
The trial court concluded that after excising the warrant affidavit in accordance with our remand
instructions, the remaining facts established probable cause to search the property and
outbuildings.
Witkowski appeals.
ANALYSIS
Witkowski argues that the evidence supporting most of his convictions should have been
suppressed as fruit of the poisonous tree because it was gathered during the execution of a search
warrant that was based on stale information and therefore not supported by probable cause. We
disagree.
I. APPEALABILITY
As an initial matter, the State argues that we should decline to address the merits of
Witkowski’s argument because he failed to raise the staleness issue in his previous appeal. “The
general rule is that a defendant is prohibited from raising issues on a second appeal that were or
could have been raised on the first appeal.” State v. Mandanas, 163 Wn. App. 712, 716, 262
P.3d 522 (2011). This limitation extends to issues “of constitutional import.” Mandanas, 163
Wn. App. at 717. At our discretion, we may nonetheless address issues not previously raised in
an earlier appeal where, on remand, the trial court exercised its independent judgment in
reviewing and ruling on the issue. State v. Wheeler, 183 Wn.2d 71, 78, 349 P.3d 820 (2015).
4 No. 56179-4-II
Witkowski’s prior appeal was limited to whether law enforcement failed to provide
Ferrier warnings as required prior to entering the curtilage of his property.4 We held that they
were and remanded to the trial court to determine which portions of the search warrant should be
excised, and whether probable cause existed for the search warrant following that excision.
Witkowski, slip op. at 10. In our opinion, we specifically explained, “[b]ecause the trial court has
not previously considered staleness, Witkowski will be able to make this argument on remand.”
Witkowski, slip op. at 9. On remand, Witkowski argued, and the trial court exercised its
judgment regarding staleness, so we consider the merits of Witkowski’s argument.
II. PROBABLE CAUSE
A. Standard of Review
Witkowski and the State disagree as to our standard of review. Witkowski characterizes
the trial court’s actions on remand as a suppression hearing and contends that we should review
the trial court’s determination of probable cause de novo. The State responds that our review is
for abuse of discretion.
We review the issuance of a search warrant for abuse of discretion, giving great
deference to the issuing judge or magistrate. State v. Neth, 165 Wn.2d 177, 182, 196 P.3d 658
(2008). But following a suppression hearing, we review a trial court’s assessment of probable
cause de novo. Neth, 165 Wn.2d at 182. This is because at a suppression hearing, the trial court
acts in an appellate-like capacity and its review is limited to the four corners of the warrant
affidavit. Neth, 165 Wn.2d at 182.
4 Witkowski also argued for the first time on appeal that the second search warrant was invalid, but we declined to address that issue because Witkowski failed to demonstrate a manifest constitutional error.
5 No. 56179-4-II
Although in this instance the trial court’s determination of probable cause did not occur
directly following a motion to suppress, its review was similarly appellate-like. The trial court
did not engage in fact-finding or hear from witnesses. Rather, its assessment of probable cause
was limited to reviewing the four corners of the excised warrant affidavit—as it would be in a
suppression hearing. Accordingly, the trial court’s assessment of probable cause is a legal
conclusion we review de novo.
B. Staleness
Witkowski argues that the information in the warrant affidavit was stale and insufficient
to show probable cause. He argues the information was stale because of the delay between the
report by the Ohop Mutual employee and the execution of the warrant and because the Ohop
Mutual employee had reported that the stolen power meter was no longer at the hookup site. We
We apply a commonsense analysis in reviewing warrant affidavits. Neth, 165 Wn.2d at
182. And all doubts are resolved in favor of the warrant’s validity. State v. Maddox, 152 Wn.2d
499, 509, 98 P.3d 1199 (2004). “A search warrant should be issued only if the application shows
probable cause that the defendant is involved in criminal activity and that evidence of the
criminal activity will be found in the place to be searched.” Neth, 165 Wn.2d at 182. “It is only
the probability of criminal activity, not a prima facie showing of it, that governs probable cause.
The magistrate is entitled to make reasonable inferences from the facts and circumstances set out
in the affidavit.” Maddox, 152 Wn.2d at 505.
In reviewing the issue of staleness in a probable cause determination, we consider the
information presented to the issuing magistrate and look to the totality of the circumstances to
6 No. 56179-4-II
evaluate whether the facts underlying the search warrant are stale. Maddox, 152 Wn.2d at 506.
Information is not stale “if the facts and circumstances in the affidavit support a commonsense
determination that there is continuing and contemporaneous possession of the property intended
to be seized.” Maddox, 152 Wn.2d at 506. In evaluating staleness, length of time is only one
factor we consider along with other relevant circumstances, including the nature and scope of the
suspected criminal activity. See Maddox, 152 Wn.2d at 506 (observing the majority rule in other
jurisdictions that the staleness determination depends on the nature of criminal activity, the
length of the activity, and the nature of the property to be seized).
In State v. Hall, the court considered whether a two-month lapse between the informant’s
tip and execution of the search warrant rendered the tip stale; there, the informant had reported
his earlier observations of the defendant’s home marijuana grow operation. 53 Wn. App. 296,
299-300, 766 P.2d 512 (1989). The court found that probable cause existed because it was
reasonable to believe that the grow operation was still in existence based on the number of
marijuana plants already found and the informant’s description of the size of the marijuana plants
in the home. Hall, 53 Wn. App. at 300.
Witkowski attempts to distinguish this case from Hall by emphasizing the Ohop Mutual
employee’s report that the stolen power meter was no longer visible when he returned to the
property on October 6, but his attempt falls short. Witkowski contends that this case is more
similar to Maddox where the day before law enforcement executed its search warrant, the
informant was told Maddox was “out” of the methamphetamine that law enforcement suspected
would be found during its search. Br. of Appellant 17 (citing Maddox, 152 Wn.2d at 503-04).
7 No. 56179-4-II
Unlike the methamphetamine in Maddox, the evidence expected to be found at
Witkowski’s property was not transitory by nature. Witkowski argues that no evidence showed
the stolen power meter remained on the premises, but ignores that there was also no evidence to
suggest that it had been sold or removed as opposed to simply placed out of sight after the Ohop
Mutual employee visited. Moreover, given the ongoing nature and scope of the suspected
criminal activity—theft of power for over five months—it is not unreasonable to suspect that
evidence of that activity remained on the property.
We apply a commonsense analysis, and common sense supports the reasonable inference
that the stolen power meter or other evidence of power theft remained on the property. Under
the totality of the circumstances, we hold that the trial court did not err by concluding that
probable cause existed to believe Witkowski was involved in criminal activity and that evidence
of that criminal activity would be found on his property.
III. STATEMENT OF ADDITIONAL GROUNDS FOR REVIEW
In a Statement of Additional Grounds for Review, Witkowski appears to take issue with
the investigating law enforcement officers who searched his property. Although RAP 10.10 does
not require an appellant to refer to the record or cite relevant authority, he is required to inform
of us of the nature and occurrence of the alleged errors. The sentiments in Witkowski’s
statement of additional grounds are too vague to allow us to identify any alleged legal error and
we do not consider them further.
We affirm.
8 No. 56179-4-II
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2.06.040, it is so ordered.
Worswick, J We concur:
Glasgow, C.J.
Price, J.