104 Wash. App. 489 | Wash. Ct. App. | 2001
Larry Edward Johnson appeals his conviction for possessing videotapes of a minor engaged in sexually explicit conduct. He claims that the police illegally seized the videotapes for which he was convicted; that the evidence is insufficient; and that one facet of his sentence is unlawful. We affirm, except for the one facet of his sentence.
In late October 1997, sisters CL and DL, ages 8 and 10, alleged that Johnson had sexually abused them while they were visiting in his apartment. CL said that on at least three occasions Johnson had massaged her genital area with a “long” vibrating massager that had “an ‘on button’ on the handle” and a “round thingy on the end with green bumps on it.”
On December 3, 1997, Detective Maureen Pea-Schuman of the Vancouver Police Department requested a warrant to search Johnson’s home for the massager and other items. She based her request on the girls’ statements as described above, and on the following assertions:
I have been a detective assigned to the Child Abuse Intervention Center since April 1992. In that capacity I have investigated over 400 child abuse cases and have received 350 plus hours of training specifically related to child sexual abuse.
*493 Through my training and experience, I have learned that adults who are sexually attracted to or sexually involved with children use sexually explicit materials . . . for lowering the inhibitions of children, sexually stimulating children and themselves, and for demonstrating the desired sexual acts before, during, and after sexual activity with children. Further, they often use sexual aides [sic] such as dildoes fashioned after a man’s penis of various sizes and shapes, in addition to other sexual aides [sic], such as a massager, in the seduction of their victims. . . . Those materials are treated as prize possessions. They often maintain diaries of their sexual encounters with children. These accounts of their sexual experiences are used as a means of reliving the encounter when the offender has no children to molest. Such diaries might consist of a notebook, scraps of paper, or a formal diary. Depending on the resources available to the offender, they may be contained on audio tape or computer entries in a “home computer.”[2 ]
Also on December 3, the Clark County District Court issued the requested warrant. It authorized a search of Johnson’s apartment for:
1) Any sexual aides [sic] consisting of “sex toys” such as rubber penis’ [sic] or dildoes of various sizes, shapes, and construction, including a vibrating massager described as having a long handle with an on/off switch with a round end, 2) Magazines, books, movies, and photographs depicting nudity and/or sexual activity of juveniles or adults, as well as collections of newspaper, magazine, and other publications clippings of juveniles which tend to demonstrate a particular sex and age preference of Larry William [sic] Johnson, 3) Correspondence, diaries, and any other writings, tape recordings, or letters relating to any juvenile and/or adults which tend to show the identity of juveniles and adults and sexual conduct between juveniles and adults [.][3 ]
On December 4, 1997, at 9:30 a.m., Pea-Schuman and Detective Evelyn Oman went to Johnson’s apartment. Both were in plain clothes. One knocked, and Johnson came to the door. Pea-Schuman said they were police officers who
Johnson invited them into the living room, where they advised him of his Miranda
At about 10:35 a.m., Pea-Schuman told Johnson he would be arrested. She also said they would like to search the apartment. She asked “if that would be okay with him or if he would rather we have a search warrant, that it was totally his choice.”
BEFORE ANY SEARCH IS MADE, YOU MUST UNDERSTAND YOUR RIGHTS
(1) You may refuse to consent to a search and may demand that a search warrant be obtained prior to any search of the property described below.
(2) If you consent to a search, anything of value as evidence seized in the course of the search can be used in court against you.
I HAVE READ THE ABOVE STATEMENT OF MY RIGHTS AND UNDERSTAND THESE RIGHTS.
I HEREBY CONSENT TO A SEARCH WITHOUT WARRANT
*495 OF [MY HOME] . . . AND I HEREBY AUTHORIZE THESE OFFICERS TO SEIZE ANY ARTICLE WHICH THEY CONSIDER TO BE OF VALUE AS EVIDENCE.
THIS STATEMENT IS SIGNED OF MY OWN FREE WILL WITHOUT ANY THREATS OR PROMISES HAVING BEEN MADE TO ME.[9 ]
During the next five or ten minutes, a patrol officer and two more detectives arrived at the apartment. PeaSchuman told Johnson that the two detectives were there to help search the apartment, and Johnson said “that would be okay.”
At 10:56 a.m., detectives started searching the apartment. In Johnson’s bedroom, according to Pea-Schuman, they found
one unmarked video tape. This video tape was placed into the VCR to view while we were there. After a few short moments of what appeared to be general T.V., the tape turned black, then focused on a small girl sleeping on what appeared to be a couch. As the focus went wide angle and close-up on the face of the child, the child appeared to be approximately ten to twelve years of age. . . . This panned to a child’s genitalia being exposed, the underwear removed to the side, the legs spread apart. As the video progressed, what appeared to be a male hand began massaging and fondling the child’s genital area.... This particular scene ended, more pornography continued with . . . what appeared to be an adult female, [and] the tape ended once again with regular T.V.* [11 ]
In a hall closet,
there was another video tape found on the tape shelf. This video tape was also unmarked. When placed into the VCR, again, there appeared to be regular T.V. and then spliced into it was the same scene as we had earlier seen with the child being fondled by what appeared to be an adult male hand.[12 ]
At 2:50 p.m., the officers finished their search of the apartment. They seized as evidence the two videotapes with the fondling scene, the vibrating massager, and many other items. Only the two videotapes were later admitted at trial.
After finishing at the apartment, Pea-Schuman and Oman went to the county jail, where they again advised Johnson of his Miranda rights. He indicated he was willing to talk and signed another Miranda waiver form. When asked about the videotape with the sleeping child, he said he had made the tape about 10 years earlier; that he did not remember the child’s name; and that the adult male hand was his.
The State charged Johnson with unlawfully possessing pictures of a minor engaged in sexually explicit conduct.
Johnson moved to suppress the two videotapes. He argued in part that the affidavit for the warrant did not show probable cause to seize or view the videotapes, and that his consent had been obtained in violation of State v. Ferrier.
The trial court denied the motion to suppress. It reasoned that Ferrier did not apply in a situation of this kind, and that Johnson had voluntarily consented to a search of his apartment. It agreed with Johnson, however, that the affidavit for the warrant did not show probable cause to seize or view the tapes. On the latter point, it stated:
*497 The trend in search warrant affidavits is to particularly describe those items for which information exists, justifying a belief that such are present in the premises to be searched, and then to generalize about items which an officer’s “training and experience” dictate “are commonly found” in the residences of a generalized class of persons such as “drug dealers” or “sex offenders.” This trend appears in this affidavit. The test for probable cause is whether or not, under all the circumstances, a reasonable person would believe that evidence of a crime is probably present in the premises to be searched. The “training and experience” and “commonly found” language does no more than state it is possible that certain evidence will be found, or has been found in the past in other cases; not that it is probable that such evidence exists in a particular case. “Probable [”] means more likely than not[.]
The warrant is clearly overbroad. Nothing in the content of the affidavit sets out facts to believe that sex toys or dildos were used in these alleged offenses, and are therefore evidence of a crime. Likewise, no facts set out in the affidavit establish a likelihood that magazines, books, photographs and other publications depicting nudity or sexual performance of the defendant are evidence of the crimes alleged herein.[15 ]
The trial court held a bench trial on stipulated facts at which it admitted the two videotapes. It found Johnson guilty, sentenced him to 320 days in jail, and required him to register as a sex offender. The jail time was within the standard range, but the registration requirement was not. In support of the registration requirement, the trial court found “particular vulnerability” because the child shown in the videotape was “asleep during the commission of the act.”
I
The first issue is whether the trial court erred by denying Johnson’s motion to suppress. We consider whether the
A
The first question is whether the warrant authorized the police to seize and view the two videotapes. The Fourth Amendment provides that “no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
These requirements cannot be met merely by showing that a person probably lives in a particular place; that the person is probably involved in criminal activity of a particular type; and that the affiant officer knows, from training and experience, that persons involved in such criminal activity often keep contraband or other evidence in their homes.
“Based on my experience and training, as well as the corporate knowledge and experience of other fellow law enforcement officers, I am aware that it is generally a common practice for drug traffickers to store at least a portion of their drug inventory and drug related paraphernalia in their common residences. It is generally a common practice for drug traffickers to maintain in their residences records relating to drug trafficking activities, including records maintained on personal computers. . . . Moreover, it is generally a common practice for traffickers to conceal at their residences large sums of money, either the proceeds of drug sales or [proceeds] to [be] utilized to purchase controlled substances. . . .
I know from previous training and experiences that it is common practice for drug traffickers to maintain firearms, other weapons and ammunition in their residences for the purpose of protecting their drug inventory and drug proceeds [,]”[22 ]
A magistrate issued the requested search warrant, the police found drugs, and the State filed a charge. The defendant moved to suppress, arguing that even if the affidavit showed probable cause to believe he was illegally dealing drugs, the affidavit did not show probable cause to believe he had evidence of such activity in his home. The State responded “that a nexus is established between the items to be seized and the place to be searched where there is sufficient evidence to believe a suspect is probably involved in drug dealing and the suspect resides at the place to be searched”;
In the case now before us, the affidavit for the search warrant contained probable cause to believe that Johnson had committed child rape or child molestation; that a vibrating massager was evidence of the crimes; and that the massager would probably be found in his home. The affidavit did not contain probable cause to believe that the other listed items (e.g., magazines, books, movies, photographs, correspondence, diaries, tape recordings, sexual aids other than the massager) constituted evidence of the crimes. Nor did it contain probable cause to believe that the other listed items would probably be found in his home. On the contrary, as to items other than the massager, it contained only “general statements regarding the common habits of’ child abusers, which are “not alone sufficient to establish probable cause.”
B
The parties frame the next question in terms of the warrant’s severability. Johnson claims the warrant was nonseverable—i.e., invalid as to all items including the massager. The State claims the warrant was severable— i.e., valid as to the massager but invalid as to other items. Both rely on State v. Perrone.
The plain view doctrine allows officers to seize an item, without a warrant,
Arizona v. Hicks and State v. Murray exemplify cases in which officers conduct an additional unauthorized search. In each of those cases, officers were lawfully in the defendant’s home. They saw an item that they suspected was stolen (a stereo in Hicks, a TV in Murray), but they lacked probable cause to believe it was stolen. To acquire probable cause, they moved the item until its serial number became visible; copied the serial number; and compared the serial number to their stolen property reports. The plain view doctrine did not justify their conduct because when they first saw the item they lacked “immediate knowledge”
Ross v. Maryland
This case is like Hicks, Murray, and Ross, assuming the warrant was severable. Pea-Schuman and Oman were in possession of the massager before they saw the videotapes in issue here; but, even if they were not, they could not reasonably have thought they would find a massager inside a videotape. When they first saw the tapes, nothing about the exterior of the tapes gave probable cause to believe the tapes were evidence of a crime. To acquire probable cause, they needed to view the tapes’ contents, and doing that was an additional unauthorized search. Even if the warrant was severable, so that it authorized a search for the massager, it has no bearing on the seizure and viewing of the videotapes.
C
Consent is the remaining question with respect to the
In this case, the trial court found that Johnson’s consent was voluntary. That finding is supported by substantial evidence.
1
Johnson argues that his consent was vitiated because the officers did not reveal they already had a warrant. An officer serving a search warrant is not required to seek consent to enter,
2
Johnson argues that his consent was vitiated because the officers failed to comply with Ferrier
The Washington Supreme Court has “limited Ferrier to the kind of coercive searches the police employed there.”
In a “knock-and-talk” procedure, not having obtained a warrant, police officers proceed to premises where they believe contraband will be found. Once there they knock on the door and talk with the resident, asking if they may enter. After being allowed to enter, the officers then explain why they are there, that they have no search warrant, and ask permission to search the premises.[50 ]
This limitation on Ferrier has several specific effects. In State v. Williams and State v. Bustamante-Davila, the Supreme Court held that Ferrier does not apply when officers have an arrest warrant
In this case, the officers went to Johnson’s home with probable cause to arrest;
II
Relying on State v. Chester,
Johnson argues that the trial court unlawfully required him to register as a sex offender. Even an exceptional sentence must be authorized by statute.
Johnson’s remaining arguments need not be reached or obviously lack merit.
We remand to the trial court with instructions to strike the registration requirement. In all other respects, we affirm.
Bridgewater, J., and Wang, J. Pro Tern., concur.
Ex. 8 at 8.
Ex. 5.
Ex. 6.
Ex. 8 at 9.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Ex. 8 at 10.
Ex. 8 at 13.
Ex. 8 at 14.
Ex. 3.
Ex. 8 at 13.
Ex. 8 at 14.
Ex. 8 at 14.
This is according to both parties. Br. of Appellant at 1; Br. of Resp’t at 3. Neither has included the charge in the record on appeal, and neither has shown whether Johnson was convicted for the alleged abuse of CL and DL.
136 Wn.2d 103, 960 P.2d 927 (1998).
Clerk’s Papers at 41-42, 42-43.
Clerk’s Papers at 92.
U.S. Const, amend IV; State v. Perrone, 119 Wn.2d 538, 545, 834 P.2d 611 (1992).
State v. Thein, 138 Wn.2d 133, 140, 977 P.2d 582 (1999) (quoting State v. Goble, 88 Wn. App. 503, 509, 945 P.2d 263 (1997)).
Thein, 138 Wn.2d at 140; State v. Cole, 128 Wn.2d 262, 286, 906 P.2d 925 (1995); State v. Dalton, 73 Wn. App. 132, 136, 868 P.2d 873 (1994).
Thein, 138 Wn.2d at 148; Goble, 88 Wn. App. at 511-12; State v. Olson, 73 Wn. App. 348, 357, 869 P.2d 110, review denied, 124 Wn.2d 1029 (1994); Dalton, 73 Wn. App. at 138; State v. Rangitsch, 40 Wn. App. 771, 780, 700 P.2d 382 (1985).
State v. Thein, 138 Wn.2d 133, 977 P.2d 582 (1999). The Thein court found it unnecessary to “address Them’s argument that police did not have cause to believe he was probably a drug dealer.” Thein, 138 Wn.2d at 140 n.2. Necessarily then, it assumed that the police had such cause.
Thein, 138 Wn.2d at 138-39 (last alteration in original).
Thein, 138 Wn.2d at 141.
Thein, 138 Wn.2d at 141.
Thein, 138 Wn.2d at 151.
Thein, 138 Wn.2d at 148.
Thein, 138 Wn.2d at 151.
119 Wn.2d 538, 834 P.2d 611 (1992).
State v. Lair, 95 Wn.2d 706, 715-16, 630 P.2d 427 (1981) (quoting Coolidge v. New Hampshire, 403 U.S. 443, 465-66, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971)).
Lair, 95 Wn.2d at 715-16 (quoting Coolidge, 403 U.S. at 465-66); State v. Dimmer, 7 Wn. App. 31, 33, 497 P.2d 613, review denied, 81 Wn.2d 1003 (1972). See also State v. Bustamante-Davila, 138 Wn.2d 964, 982, 983 P.2d 590 (1999); State v. Chambers, 88 Wn. App. 640, 645, 945 P.2d 1172 (1997).
Arizona v. Hicks, 480 U.S. 321, 325, 107 S. Ct. 1149, 94 L. Ed. 2d 347 (1987); State v. Murray, 84 Wn.2d 527, 534, 527 P.2d 1303 (1974), cert. denied, 421 U.S. 1004 (1975).
Murray, 84 Wn.2d at 534; Dimmer, 7 Wn. App. at 33. See also State v. Hudson, 124 Wn.2d 107, 114, 874 P.2d 160 (1994); State v. Gocken, 71 Wn. App. 267, 278, 857 P.2d 1074 (1993), review denied, 123 Wn.2d 1024 (1994).
Arizona v. Hicks, 480 U.S. 321, 325, 107 S. Ct. 1149, 94 L. Ed. 2d 347 (1987); State v. Murray, 84 Wn.2d 527, 534, 527 P.2d 1303 (1974), cert. denied, 421 U.S. 1004 (1975).
Ross v. Maryland, 59 Md. App. 251, 475 A.2d 481, cert. denied, 301 Md. 177, 482 A.2d 502 (1984).
Schneckloth v. Bustamonte, 412 U.S. 218, 248, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973); Bustamante-Davila, 138 Wn.2d at 981; State v. McCrorey, 70 Wn. App. 103, 108, 851 P.2d 1234, review denied, 122 Wn.2d 1013 (1993).
State v. Smith, 115 Wn.2d 775, 789, 801 P.2d 975 (1990); State v. Shoemaker, 85 Wn.2d 207, 211-12, 533 P.2d 123 (1975); McCrorey, 70 Wn. App. at 111; Schneckloth, 412 U.S. at 249; see Bustamante-Davila, 138 Wn.2d at 981.
Bustamante-Davila, 138 Wn.2d at 982; Smith, 115 Wn.2d at 789.
State v. Ladson, 138 Wn.2d 343, 349, 979 P.2d 833 (1999) (consent is an exception to the warrant requirement); State v. Mathe, 35 Wn. App. 572, 576, 668 P.2d 599 (1983).
See State v. Hill, 123 Wn.2d 641, 647, 870 P.2d 313 (1994).
State v. Alldredge, 73 Wn. App. 171, 178-79, 868 P.2d 183 (1994); see State v. Myers, 102 Wn.2d 548, 554-55, 689 P.2d 38 (1984).
Myers, 102 Wn.2d at 554 (“a ruse entry, especially when the deception is not realized until after the entry has been accomplished, actually promotes both the purpose of preventing violent confrontation between the officer and a surprised occupant and that of preventing unnecessary property damage”); see also State v. Garcia-Hernandez, 67 Wn. App. 492, 496, 837 P.2d 624 (1992); State v. Richards, 87 Wn. App. 285, 289, 941 P.2d 710 (1997); State v. Schimpf, 82 Wn. App. 61, 63, 914 P.2d 1206, review denied, 130 Wn.2d 1005 (1996).
Myers, 102 Wn.2d at 555; State v. Nedergard, 51 Wn. App. 304, 307-08, 753 P.2d 526 (1988); State v. Hashman, 46 Wn. App. 211, 214, 729 P.2d 651 (1986).
136 Wn.2d 103, 960 P.2d 927 (1998).
See State v. Jackson, 102 Wn.2d 432, 437, 688 P.2d 136 (1984) (probable cause has two prongs: personal knowledge and veracity).
Ferrier, 136 Wn.2d at 115.
Ferrier, 136 Wn.2d at 118.
The State does not claim that Ferrier applies prospectively only. Nor could it do so successfully. As a general rule, a new constitutional holding applies on direct appeal even though the events in issue occurred before the holding was announced. State v. McCormack, 117 Wn.2d 141, 145, 812 P.2d 483 (1991), cert. denied, 502 U.S. 1111 (1992); see also United States v. Johnson, 457 U.S. 537, 102 S. Ct. 2579, 73 L. Ed. 2d 202 (1982); State v. Counts, 99 Wn.2d 54, 58, 659 P.2d 1087 (1983); State v. Rodriguez, 65 Wn. App. 409, 417, 828 P.2d 636, review denied, 119 Wn.2d 1019 (1992).
State v. Williams, 142 Wn.2d 17, 26, 11 P.3d 714 (2000).
Bustamante-Davila, 138 Wn.2d at 980.
Bustamante-Davila, 138 Wn.2d at 976-77 (footnotes omitted).
State v. Williams, 142 Wn.2d 17, 27, 11 P.3d 714 (2000).
State v. Bustamante-Davila, 138 Wn.2d 964, 984, 983 P.2d 590 (1999) (local officers “in good faith believed [that INS agent] had a valid deportation order issued by an immigration judge”).
See Williams, 142 Wn.2d at 28; Bustamante-Davila, 138 Wn.2d at 976. Although Williams did not involve a search warrant, the court commented, “[W]e limit the requirement of a warning [under Ferrier] to situations where police seek to conduct a search for contraband or evidence of a crime without obtaining a search warrant.” Williams, 142 Wn.2d at 28. Although Bustamante-Davila did not involve a search warrant, the court commented that Ferrier was limited to the “knock-and-talk” procedure, and that the knock-and-talk procedure was one in which the police sought to search without obtaining a warrant. Bustamante-Davila, 138 Wn.2d at 976.
CL and DL had personal knowledge, and their veracity was inferable from the circumstances. In addition, their statements were corroborated by physical examinations.
State v. Chester, 133 Wn.2d 15, 940 P.2d 1374 (1997).
State v. Myers, 133 Wn.2d 26, 941 P.2d 1102 (1997).
See State v. Guerin, 63 Wn. App. 117, 121, 816 P.2d 1249 (1991), review denied, 118 Wn.2d 1015 (1992) (trial court lacked statutory authority to impose community placement); State v. Skillman, 60 Wn. App. 837, 838, 809 P.2d 756 (1991) (similar). For precisely this reason, a trial court may not impose either a standard or exceptional sentence that exceeds the statutory maximum term. See RCW 9.94A. 120(13).
See Oostra v. Holstine, 86 Wn. App. 536, 546, 937 P.2d 195 (1997), review denied, 133 Wn.2d 1034 (1998) (no statutory authority to require registration in civil proceeding involving sexual abuse).
See RCW 9A.44.130(9)(a).
