But as the State correctly points out, the affidavit did establish probable cause to search Wiatt's bedroom for evidence of the rape of Ms. Cruz, irrespective of the information about the videotape, because Ms. Cruz reported that she had been raped in Wiatt's bedroom and that he had mentioned using a lubricant. See State v. Johnson, 104 Wn. App. 489, 501, 17 P.3d 3 (2001) (holding that where a warrant validly permitted police to search for evidence of a rape, but invalidly permitted police to search for videotapes, the warrant was severable it was valid as to evidence of the rape but invalid as to the videotapes). The State contends that, even if the affidavit lacked probable cause to permit a search for video equipment and tapes, the police properly seized the videotape under the doctrines of plain view and inevitable discovery.
The precise question is whether a rational trier of fact taking the evidence in light most favorable to the State could find consent by clear and convincing evidence.State v. Johnson, 104 Wn. App. 489, 503, 17 P.3d 3 (2001); see also Schneckloth v. Bustamonte, 412 U.S. 218, 248, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); State v. Bustamante-Davila, 138 Wn.2d 964, 981, 983 P.2d 590 (1999); State v. McCrorey, 70 Wn. App. 103, 108, 851 P.2d 1234, review denied, 122 Wn.2d 1013 (1993).Bustamante-Davila, 138 Wn.2d at 981; State v. Shoemaker, 85 Wn.2d 207, 211-12, 533 P.2d 123 (1975); McCrorey, 70 Wn. App. at 108.
Probable cause requires a nexus between the criminal activity and the item police want to seize. State v. Johnson, 104 Wn.App. 489, 498, 17 P.3d 3 (2001). Probable cause also requires a nexus between the item sought and the place police want to search.
But doing so would undoubtedly be an unlawful seizure. See State v. Johnson , 104 Wash. App. 489, 501-02, 17 P.3d 3 (2001) (discussing Hicks , 480 U.S. at 328-29, 107 S.Ct. 1149 (manipulating stereo equipment that an officer reasonably suspects may be incriminating evidence to determine the serial number, which would give the officer probable cause, constitutes an unlawful search under the plain view doctrine)). At most, Officer Breault noticed and later seized a utility knife with some dried blood near the bag of clothing.
Indeed, courts have repeatedly accommodated the legitimate law enforcement interest in employing subterfuge or untruths. State v. Hastings, 119 Wash.2d 229, 233, 830 P.2d 658 (1992) ; accord State v. Johnson, 104 Wash. App. 489, 503, 17 P.3d 3 (2001). However, when the police do choose to lie, they must accept both the benefits and the detriments of that choice.
State v. Khounvichai, 149 Wash.2d 557, 69 P.3d 862 (2003) ( Ferrier warnings not required where police request entry to a home merely to question or gain information regarding an investigation); State v. Williams, 142 Wash.2d 17, 27–28, 11 P.3d 714 (2000) (Ferrier warnings not required where police request consent to enter a home to arrest a visitor under a valid warrant); State v. Bustamante–Davila, 138 Wash.2d 964, 983 P.2d 590 (1999) (Ferrier warnings not required when police and Immigration and Naturalization Service agent gained consensual entry to defendant's home to serve a presumptively valid deportation order).¶ 9 The Court of Appeals likewise has addressed and resolved Ferrier issues by focusing on the purpose for which the officers sought to enter a residence.E.g., State v. Dodson, 110 Wash.App. 112, 124, 39 P.3d 324 (Ferrier not applicable to officers looking on rural property for other man suspected in vehicle theft), review denied, 147 Wash.2d 1004, 53 P.3d 1007 (2002) ; State v. Johnson, 104 Wash.App. 489, 505–06, 17 P.3d 3 (2001) ( Ferrier warnings not necessary when officers went to house with probable cause to arrest suspect); State This court treated a motel room as the equivalent of a house for Ferrier purposes in State v. Kennedy, 107 Wash.App. 972, 29 P.3d 746 (2001), review denied, 145 Wash.2d 1030, 42 P.3d 975 (2002).
The Court of Appeals likewise has addressed and resolved Ferrier issues by focusing on the purpose for which the officers entered a residence. E.g., State v. Dodson, 110 Wn. App. 112, 124, 39 P.3d 324 ( Ferrier not applicable to officers looking on rural property for other man suspected in vehicle theft), review denied, 147 Wn.2d 1004 (2002); State v. Johnson, 104 Wn. App. 489, 505-506, 17 P.3d 3 (2001) ( Ferrier warnings not necessary when officers went to house with probable cause to arrest suspect); State v. Leupp, 96 Wn. App. 324, 333-334, 980 P.2d 765 (1999) ( Ferrier warnings not applicable when police officers arrived at a residence in response to a 911 call), review denied, 139 Wn.2d 1018 (2000). ¶9 On other occasions, the courts have considered the application of Ferrier to locations other than a residence and concluded that Ferrier warnings are not required other than in the situation of the heightened scrutiny applied to the home.
Because, as the trial court found, the officers' intent in going to Lawson's property was to check on a reported danger, not to investigate a crime without a warrant, Ferrier does not apply and we should accept the trial court's evidence-supported finding that Lawson's consent was freely given. State v. Kennedy, 107 Wn. App. 972, 976-77, 29 P.3d 746 (2001) (observing that our state Supreme Court has limited Ferrier to situations where officers proceed to a residence believing contraband will be found, contact a resident, seek entrance into a home, and then ask for permission to conduct a search; Ferrier is not required where officers have a warrant or are responding to a 911 emergency call); see also State v. Johnson, 104 Wn. App. 489, 505-06, 17 P.3d 3 (2001). ¶40
CP (Kelso) at 165 (Findings of Fact No. 54). State v. O'Neill, 148 Wn.2d 564, 583, 62 P.3d 489 (2003); State v. Hoggatt, 108 Wn. App. 257, 270, 30 P.3d 488 (2001); State v. Johnson, 104 Wn. App. 489, 501, 17 P.3d 3 (2001). II.
Appellant cites two cases he believes involve similar circumstances, one from Washington and one from Maryland, where the appellate courts found that certain videotapes were improperly seized because they were outside the scope of the search warrant: In State v. Johnson, 17 P.3d 3, 4-5 (Wash.Ct.App. 2001) two young sisters reported that the defendant had sexually abused them at his apartment using a certain vibrating massager. The police recovered from the defendant's apartment the vibrating massager and a variety of other items, including two videotapes depicting the defendant fondling a different young child.