¶28 (dissenting) — The trial court denied Tyler’s motion to reopen the suppression hearing in part because it erroneously believed this inventory search occurred before Arizona v. Gant, 556 U.S. 332, 129 S. Ct. 1710, 173 L. Ed. 2d 485 (2009). Because of this factual error, the trial court abused its discretion in denying Tyler’s motion to reopen.
¶29 We review a trial court’s decision to deny reopening a suppression hearing for an abuse of discretion. A trial court abuses its discretion when its decision is based on untenable grounds. State v. Johnson, 90 Wn. App. 54, 69, 950 P.2d 981 (1998) (citing State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971)). A trial court’s decision based on facts not supported by the record is based on untenable grounds. State v. Rundquist, 79 Wn. App. 786, 793, 905 P.2d 922 (1995).
¶30 In denying Tyler’s motion to reopen, the trial court reasoned:
First, the Court has found, and the Defendant admits, that the impound in this case was reasonable, and that finding was supported by substantial evidence as the Court has previously noted, and to do an impound without doing an inventory would be inappropriate, if not foolish. Second, this arrest, impound and inventory took place prior to the publication of the Gant decision, so the ruling in Gant could not have been the motivation for this inventory search.
Clerk’s Papers (CP) at 41.
¶31 The State concedes that the second finding is incorrect. The Supreme Court published Gant on April 21, 2009, *218more than six months before the arrest in this case. Gant, 556 U.S. 332. Deputy Anglin’s e-mail was sent on April 23, 2009, two days after the Gant decision. The deputy arrested Tyler on November 12, 2009, more than six months after Gant. Moreover, the trial court’s comment that Tyler “admitted that the impound . . . was reasonable” is questionable. Tyler conceded that the impound was reasonable in his original motion and, arguably, again in his motion to reconsider. But Tyler did not learn of Deputy Anglin’s e-mail until after he moved for the trial court to reconsider. And Tyler did not renew his concession after that or in his briefing to us.
¶32 Deputy Anglin wrote in his e-mail that Gant
hinders our ability to continue the efforts that have been enforce [sic] for some time. The obvious way to circumvent this is impounding the vehicle and performing an inventory search. The problem with this is that we must afford the person the chance to contact someone else and determine if [the car] is safely off of the roadway or not. It also obviously limits what we can search as well.
CP at 36.
¶33 The majority seeks to temper the sting of this by noting that the deputy wrote the message only to persuade his supervisors to send him to K-9 school, the deputy had no supervisory authority in the department, and there is no evidence he influenced his supervisors to alter police procedures. Majority at 215. But the question is not whether the department changed its procedures because of the e-mail, but whether Deputy Anglin utilized his “way-around-Gcmi” in post-Gant traffic stops and, in particular, whether he did so with Tyler. Moreover, that Deputy Anglin makes the statements in a request for K-9 training sheds no light on whether he intends to circumvent Gant with impound inventories. Nothing in this purpose suggests that Deputy Anglin was somehow not serious about his “way-around-Gani” proposal.
*219¶34 To be valid, the State must prove that a warrantless inventory search was “conducted in good faith and not as a pretext for an investigatory search.” State v. Houser, 95 Wn.2d 143, 155, 622 P.2d 1218 (1980). And to the extent the “good faith” issue turns on disputed facts, only the trial court can resolve them by weighing the evidence and making findings of fact. See, e.g., State v. Sadler, 147 Wn. App. 97, 123, 193 P.3d 1108 (2008).
¶35 Here, Tyler testified at the suppression hearing that as soon as he exited the car, Deputy Anglin asked if he could search it. Tyler said he could not. Deputy Anglin then “went and looked in the car.” Report of Proceedings (RP) at 32. Tyler also denied that the car was within a foot of the fog line and denied that Deputy Anglin ever mentioned impounding and inventorying the car.
¶36 Deputy Anglin testified that he asked Tyler for permission to search because the passenger had acted suspiciously in trying to hide a “beer can” and Tyler appeared to be nervous. RP at 15, 17. Deputy Anglin learned that the “beer can” was actually a can of Sparks11 when he got up to the vehicle, well before he sought permission to search. RP at 15. More telling is the deputy’s explanation of what he believed the scope of a consent search to be; he testified it would permit him to “search different areas of the vehicle which would include the trunk, locked containers if he allows us to, cell phones, under the hood.” RP at 13. Deputy Anglin’s request for permission to search signals his early interest in conducting a broad search of the vehicle.
¶37 In addition, Deputy Anglin testified that he inventoried the car and found a little blue tin in the vehicle, the size of an Altoid container. The deputy discussed the details of the container and further stated that “honestly, I do not know what they’re used for other than to hold jewelry or illicit drugs.” RP at 20. Deputy Anglin unscrewed the small *220blue container to look at the contents. Notably, here, Deputy Anglin did not know the Jefferson County Sheriff’s Department’s standard for inventory procedures and whether police are directed to search closed containers in the vehicle. See Florida v. Wells, 495 U.S. 1, 110 S. Ct. 1632, 109 L. Ed. 2d 1 (1990) (the lack of standardized procedures by police resulted in the exclusion of marijuana seized from a locked suitcase discovered by police while conducting an inventory search of a vehicle).
¶38 These circumstances together with the deputy’s email are more than sufficient to warrant a further hearing to determine whether something is constitutionally amiss with Deputy Anglin’s “inventor/’ of Tyler’s vehicle. I would remand for the trial court to reopen the suppression issue.
Review granted at 174 Wn.2d 1005 (2012).
Sparks is a malt beverage that contains alcohol.