(dissenting) — Three main issues are presented by this appeal: (1) whether a warrantless police *658seizure of the defendant’s tennis shoes from a jail locker violates his rights under the fourth amendment to the United States Constitution7 and/or article I, section 7 of the state constitution;8 (2) whether the trial court’s refusal to allow testimony from a defense expert on eyewitness identification constitutes reversible error; and (3) whether the prosecutor’s invited adverse inference based upon the defense’s failure to call a witness is misconduct meriting reversal. I do not reach the third issue because I answer “yes” to the first two.
I. Warrantless seizure
The majority’s willingness to disregard State v. Simpson, 95 Wn.2d 170, 622 P.2d 1199 (1980), is troubling. See majority at 639-41. Closely analogous to these facts, defendant Simpson was arrested for first degree forgery, and his property, including a truck key, was inventoried and placed in a property box. Simpson, 95 Wn.2d at 173. After further investigation it appeared to police that the truck may have been stolen, at which point police simply removed the key from the property box, without benefit of warrant, and utilized the key to open the locked vehicle to search for its vehicle identification number. Id. This court held the search unconstitutional and suppressed the evidence because the police failed to procure a warrant for a new search for a different crime after the initial inventory. Id. at 187-88 & n.5. Like Simpson, police here arrested Cheatam for one crime, but later searched and seized his inventoried shoes for evidence of an unrelated second crime. I cannot fairly *659distinguish the facts of Simpson from the facts of the case at bar.
The majority notes that the lead opinion in Simpson was signed by four justices; however, Chief Justice Utter’s concurring opinion specifically agrees on the point at issue:
The Fourth Amendment bars the police, once the booking search and seizure is completed, from invading a police property box without probable cause.
Respondent’s Fourth Amendment rights as to his effects in the property box did not vanish simply because they were handled by the police.
Simpson, 95 Wn.2d at 192-93 (Utter, C.J., concurring) (emphasis added) (footnote and citations omitted). Chief Justice Utter did not need to discuss the article I, section 7 argument because the search violated a federal right necessarily included within the state constitutional guaranty. Id. at 192 (Utter, C.J., concurring). Therefore in Simpson five justices of our court expressly agreed that a similar search violated the Fourth Amendment, and implicitly determined the search violated the state constitution as well. The majority readily concedes (and rightfully so), “ ‘Article I, section 7 provides greater protection of a person’s right to privacy than the Fourth Amendment,’ ” majority at 642 (quoting State v. O’Neill, 148 Wn.2d 564, 584, 62 P.3d 489 (2003)); accord State v. Jackson, 150 Wn.2d 251, 259, 76 P.3d 217 (2003) (“It is now settled that article I, section 7 is more protective than the Fourth Amendment.”), meaning the Simpson majority necessarily concluded Simpson’s state constitutional rights were violated since the Fourth Amendment violation was expressly found.
Although the majority may disagree with the holding in Simpson, the unconstitutionality of a warrantless postin-ventory search was in fact the holding. Simpson is binding precedent until or unless it is overruled; however, for it to be overruled there must be “a clear showing that an established rule is incorrect and harmful.” State v. Berlin, *660133 Wn.2d 541, 547, 947 P.2d 700 (1997). For the reasons which follow, the holding was not incorrect, although even if it were, I cannot see how requiring the police to obtain a warrant under these circumstances would be “harmful.”
State v. Hendrickson, 129 Wn.2d 61, 917 P.2d 563 (1996), is also on point, though the majority attempts to distinguish it. Majority at 642-43. In Hendrickson the defendant was on work release when arrested for selling cocaine to a fellow inmate. Hendrickson, 129 Wn.2d at 66. After the arrest the police seized his truck parked in the county jail parking lot and conducted an inventory search, finding no contraband. Id. at 67, 76-77. Four days later the police, acting on an anonymous tip, again searched the truck without a warrant and found incriminating evidence. Id. at 67, 72, 77. We held the search violated article I, section 7 because the police did not carry their burden to show the last search fell within any “jealously and carefully drawn” exception to the warrant requirement. Id. at 77.
The majority discounts Hendrickson claiming there was no “lawful inventory search at booking during which the evidence was exposed to police view.” Majority at 643. However, the Hendrickson court specifically held:
In this case, the police informed Hendrickson of their intent to forfeit his truck on February 15, but they did not serve the necessary formal summons to forfeit the truck until February 20, the day after they searched it. The police conducted an inventory search on February 15 and discovered no contraband. They parked the truck in the jail parking lot. The police search on February 19 was investigative in nature. . . .
Because the State has not carried its burden of overcoming the “per se unreasonable” presumption by demonstrating any of the narrow exceptions to a warrant applied to the search of Hendrickson’s vehicle on February 19, we hold the search was unconstitutional and that the trial court should have suppressed the evidence produced in that search.
Hendrickson, 129 Wn.2d at 76-77 (second and third emphasis added). The case at bar falls squarely within the holding of Hendrickson. The police inventoried Cheatam’s shoes *661when he was initially arrested and conducted a constitutionally permissible inventory search that was noninvesti-gative in nature. But four days later, without a warrant, the police again searched with investigative intent Cheatam’s property held in custody for Cheatam’s benefit. Just as “[Cheatam’s] shoes were clearly observable by the police during [the inventory] search,” majority at 643, Hend-rickson’s truck was “clearly observable” by the police when they searched it in their own parking lot. The police sought the incriminating evidence within the truck, just like the police here sought the distinctive tread on Cheatam’s shoe. Yet we held in Hendrickson that the police had to prove one of the exceptions to the warrant requirement. Hendrickson, 129 Wn.2d at 77. To be consistent the police must be held to the same burden here. Since this warrantless search does not fall within an exception to the warrant requirement,9 its fruits must be suppressed.
The majority relies heavily on United States v. Edwards, 415 U.S. 800, 94 S. Ct. 1234, 39 L. Ed. 2d 771 (1974) and cases from other jurisdictions to assert Cheatam had no expectation of privacy in items contained in his locker and thus there was neither search nor seizure of its contents. Majority at 634-36. Edwards does not stand for that proposition. In Edwards the police arrested the defendant, held him overnight in a jail cell, and searched his clothes the day after the arrest to find evidence of the crime for which he was arrested. 415 U.S. at 802. The Court upheld the search of the clothes not because Edwards had a reduced expectation of privacy, but rather because it was a search incident *662to the original lawful arrest. Id. at 805. Contrary to the majority’s position, the Court expressly did “not conclude that the Warrant Clause of the Fourth Amendment is never applicable to postarrest seizures of the effects of an arrestee.” Id. at 808.
Similarly, the Fifth Circuit has reiterated:
We are not prepared to say that an accused whose effects are held by the police for safekeeping has, by the single fact alone of the police custody of the property, surrendered his expectations of the privacy of those effects.
Brett v. United States, 412 F.2d 401, 406 (5th Cir. 1969). Despite the majority’s attempt to discount its precedential value, Brett is still good law.10
Certainly a defendant has no legitimate expectation of privacy if the public has access to the area in which he or she claims to be private. E.g., State v. Jeffries, 105 Wn.2d 398, 414, 717 P.2d 722 (1986) (no reasonable expectation of privacy in storage areas located in woods). And no one would dispute that the police may examine and scrutinize every piece of evidence lawfully seized and kept as evidence. But the majority essentially transmogrifies the inmate property room into another evidence room. In the instant case Cheatam’s shoes could not be released to anyone except Cheatam, someone authorized by Cheatam’s written request that is also approved by the support squad sergeant, or a court order. Clerk’s Papers (CP) at 11, Findings of Fact (FF) 9. Absent a court order or his authorization Cheatam could have expected that his effects would not be disturbed. And that expectation was reasonable.
“Common sense” is the last refuge of the majority when it suggests an inmate has no privacy interest in his or her effects stored for safekeeping. Majority at 643. I posit *663common sense suggests quite the contrary. Walls separate these functionally different rooms and closed containers hide their contents from prying eyes. One room may be to store evidence necessary to convict an arrestee, but the other is used to safeguard the arrestee’s personal effects while he or she is incarcerated, as the trial court here so found. See CP at 11, FF 9. The State had no right to take Cheatam’s property without a court order. And correction officers, as bailors of the defendant’s property, do not have an unbridled license to open any container holding the defendant’s personal effects. The warrantless search was unlawful.
II. Expert testimony
The heart of the majority’s analysis of Dr. Loftus’s proposed testimony centers on a trial court’s “discretion” to admit or reject evidence. Majority at 645-52. The majority opines whether Dr. Loftus’s testimony was relevant and helpful is “debatable” and therefore asserts we should not disturb the trial court’s resolution of that debate. Majority at 652. But what the majority fails to consider is the lack of trial court discretion to refuse relevant evidence, especially when a defendant’s constitutional right to present a defense is at issue, as well as the obvious relevance of this particular testimony.
With some exceptions,11 none of which here apply, “{a]ll relevant evidence is admissible.” ER 402 (emphasis added). Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” ER 401 (emphasis added). If expert testimony is relevant it is admissible so long as the witness is qualified, the opinion is based upon a theory generally accepted in the relevant scientific community, and the testimony would be helpful to the trier of fact. See State v. Allery, 101 Wn.2d 591, 596, 682 P.2d 312 (1984).
*664Obviously the credibility of the victim’s eyewitness account in this case is not only “relevant” under the most basic definition of the term, but it goes to the very heart of whether Cheatam was in fact the perpetrator. “The vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification.” United States v. Wade, 388 U.S. 218, 228, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967). Eyewitness error is the most prevalent cause of wrongful convictions.12 In the case at bar M.M. testified she viewed her attacker for “only about five seconds maybe,” 6 Verbatim Report of Proceedings at 355, and it was a cross-racial identification which is particularly problematic, see Thomas Dillickrath, Expert Testimony on Eyewitness Identification: Admissibility and Alternatives, 55 U. Miami L. Rev. 1059, 1064 (2001).
Nevertheless, the trial court concluded, and the Court of Appeals agreed, Dr. Loftus’s testimony was “within the common knowledge, experience, and understanding of the jurors,” and therefore would not have been helpful. Majority at 644. Yet the majority itself cites authority that eyewitness accounts and their reliability are not necessarily within the common knowledge, experience, and understanding of jurors and that expert testimony to this effect can be very helpful. See majority at 646 (citing Dillickrath, supra, at 1063-65). The majority persuades me on this point!
The trial court may have discretion to determine what is relevant evidence, but it has no discretion to disallow evidence that is relevant. And discretion exercised may be abused. This is especially true in criminal trials where a person’s life, liberty, and property can be taken. The United States Supreme Court has said as much, noting that a defendant has an absolute right to present a defense, including one’s own witnesses for one’s defense. Washington *665v. Texas, 388 U.S. 14, 19, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967); see also Taylor v. Illinois, 484 U.S. 400, 409, 108 S. Ct. 646, 98 L. Ed. 2d 798 (1988). We have followed this rule. See State v. Maupin, 128 Wn.2d 918, 924, 913 P.2d 808 (1996). Refusing relevant evidence denies the defense its right to call a witness on its behalf and its right to argue the facts and circumstances of the case to the jury as they may have been developed through the testimony of the excluded witness. See Washington, 388 U.S. at 19.
The problem with the majority’s analysis is that it attacks the persuasiveness of Dr. Loftus’s testimony, not its relevance. Dr. Loftus would have testified that (1) stress and violence, (2) weapon focus, (3) lighting, and (4) cross-racial identification all could have rendered M.M.’s memory less accurate. See majority at 649. In this case there was (1) a violent rape, (2) with a weapon, (3) that occurred during darkness, and (4) by a person of the opposite race. Whether M.M. had a clear recollection of her assailant, never focused on the knife, viewed her assailant from close range, or gave a description with a “very strong resemblance”13 to Cheatam all go to the persuasiveness of Dr. Loftus or lack thereof. While I have no doubt the prosecution could make a strong argument that M.M.’s identification was, all considered, reliable, it was an argument for the prosecution to make — not the court. But, persuasiveness has no bearing on relevance. If Dr. Loftus’s testimony would have had “any tendency to make [M.M.’s eyewitness account] more probable or less probable than it would be without” the testimony, ER 401 (emphasis added), it was relevant and the trial court had a duty to admit it. Dr. Loftus’s testimony was unquestionably relevant under ER 401 and I do not read the majority to say it would have been error to admit it, only that it would prefer to abdicate its responsibility to be the final arbiter of the law in deference to the trial court. The *666right to appeal becomes a hollow one if our function is merely to rubber stamp.14
Quite telling is the majority’s bottom line: “We conclude that whether the expert testimony proffered here was both relevant and helpful is debatable and, therefore, hold the trial court’s decision not to admit Dr. Loftus’s testimony under the facts of this case was a tenable exercise of discretion.” Majority at 652. I disagree. The relevance of this evidence is not debatable. If the consequence of the evidence is fairly “debatable,” it is up to the jury to conduct that debate, not this court. If the evidence is relevant and competent, the defense has the right to introduce it, and the trial court has no discretion outside the rules of evidence to refuse it.
For these reasons I dissent.
The Fourth Amendment provides:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and 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.
U.S. Const, amend. IV.
“No person shall be disturbed in his private affairs, or his home invaded, without authority of law.” Const, art. I, § 7.
The police cannot meet this burden because none of the exceptions apply. Those exceptions are (1) consent, (2) exigent circumstances, (3) searches incident to a valid arrest, (4) inventory searches, (5) plain view, and (6) Terry investigative stops (Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968)). Hendrickson, 129 Wn.2d at 71. It is conceded that this was not an inventory search (that had already occurred). See majority at 632. Moreover, this was in no way a “search! ] incident to a valid arrest.” A delay of “more than an hour” is too long. United States v. Chadwick, 433 U.S. 1, 15-16, 97 S. Ct. 2476, 53 L. Ed. 2d 538 (1977); see also United States v. Vasey, 834 F.2d 782, 786 (9th Cir. 1987) (delay of 30-45 minutes unreasonable), cited with approval in State v. Smith, 119 Wn.2d 675, 683, 835 P.2d 1025 (1992). Cheatam’s shoes were searched four days after his arrest, well past being “contemporaneous with the arrest.” Smith, 119 Wn.2d at 683.
The majority cites Illinois v. Lafayette, 462 U.S. 640, 103 S. Ct. 2605, 77 L. Ed. 2d 65 (1983) as authority for its claim that Brett is “no longer sound law.” Majority at 637 note 1. Lafayette involved the search of a shoulder bag when the police booked the defendant. Lafayette, 462 U.S. at 641-42. It did not involve a second search of items that had already been stored in inventory, as was the case in Brett. Thus, any claim that Lafayette somehow disapproved or overruled Brett is completely mistaken.
E.g., ER 402 (relevant evidence excluded if prohibited by rule, statute, constitution, etc.); ER 403 (relevant evidence excluded if its probative value is substantially outweighed by unfair prejudice, etc.).
C. Ronald Huff et al., Convicted But Innocent: Wrongful Conviction and Public Policy 64, 66, 86-87 (1996); see also Michael R. Headley, Note, Long on Substance, Short on Process: An Appeal for Process Long Overdue in Eyewitness Lineup Procedures, 53 Hastings L.J. 681, 682 (2002).
Majority at 649-51.
Indeed, this appears to be the approach taken by the concurrence, which opines we should never intrude into this allegedly exclusive province of the trial court. See concurrence at 656-57. I opine, however, that this court must be ever vigilant in its duty to protect the accused’s constitutional right to present a complete defense, and that this court must be equally vigilant not to intrude upon the province of the jury, which is and should be the ultimate decider of the persuasiveness of relevant expert testimony.