People v. Shriver ( 1974 )

MR. JUSTICE ERICKSON,

concurring in the result:

In my opinion, the trial court erred in granting Shriver’s motion to suppress the evidence which the police seized from the interior of his car, but for reasons which differ from those set forth in the majority opinion. In my view, our ruling should be predicated upon the concept of privacy enunciated in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).

In Katz, the Supreme Court concluded that the police activity constitutes a search within the meaning of the Fourth Amendment only if it violates the defendant’s justifiable expectations of privacy. A necessary corollary to this principle is that “visual detection by an officer stationed in a place where he has a right to be does not constitute a search.” United States v. Hanahan, 442 F.2d 649 (7th Cir. 1971); Air Pollution Variance Board v. Western Alfalfa Corp., 416 U.S. 861, 94 S.Ct. 2114, 40 L.Ed.2d 607 (1974).

In this case, the automobile was parked in a public parking lot. Accordingly, no restriction is imposed on the officer who patrols the area which would cause him to close his eyes to activity in the area. Since the automobile was in a public place for all to observe, the occupants could not expect their activity to go unnoticed. The police officer in this case could look into the car and properly seize the contraband which was in plain view. Moreover, the fact that he utilized a flashlight to observe the objects which he eventually seized does not require a different result. United States v. Mallides, 473 F.2d 859 (9th Cir. 1973); United States v. Hanahan, supra.

The absence of a right to claim a violation of the right of privacy, coupled with the reasonablenss of the police action, dictate the result reached by the majority. See Gustafson v. Florida, 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456 (1973); United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973); Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653 (1950); Trupiano v. United States, 334 U.S. 699, 68 S.Ct. 1229, 92 L.Ed. 1663 (1948).