People v. Dickinson

Justice SCOTT,

specially concurring:

I join in the judgment, and agree with much set forth in the majority opinion rejecting defendant Hughy Dickinson’s claim to a constitutionally protected reasonable expectation of privacy and concluding that the police intrusion here did not unconstitutionally compromise any privacy interest recognized under the Fourth Amendment. I write separately to make clear that, in my view, the determination as to whether the use of a flashlight to illuminate the interior of a ear constitutes a search is not controlling as to our deliberations.- After examining all the facts and circumstances present here, I believe that the search was reasonable and therefore not prohibited by the Fourth Amendment. Hence, I agree with the majority’s judgment and its opinion that the ruling of the trial court should be reversed.

The undisputed facts indicate that Officer Deck Shaline and Officer Lars Helton were patrolling the public parking lot on bicycles and, while properly engaged in that patrol activity, came upon Dickinson’s parked car and, with the aid of a flashlight, viewed the interior of the car and saw the defendant engaged in suspicious conduct. Despite his claims to the contrary, Dickinson had no reasonable expectation of privacy in the area of his car, in clear view of anyone passing by, that would constitutionally shield him from the consequences of the patrol activity of the police, evén though the officer’s vision was aided by the illumination of a flashlight. Accordingly, I specially concur as to Part III of the majority opinion and join in the judgment as well as all other portions of the opinion.

I

The Fourth Amendment to the United States Constitution protects “[t]he right of the people to be secure ... against unreasonable searches and seizures.” U.S. Const, amend. IV. “The basic purpose of [the Fourth Amendment] is to safeguard the privacy ... of individuals against arbitrary invasions by government officials.” Camara v. Municipal Court, 387 U.S. 523, 528, 87 S.Ct. 1727, 1730, 18 L.Ed.2d 930 (1967). However, the Fourth Amendment does not make unconstitutional all police conduct engaged in during police-citizen encounters, Terry v. Ohio, 392 U.S. 1, 30-31, 88 S.Ct. 1868, 1884-85, 20 L.Ed.2d 889 (1968); Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 1323-24, 75 L.Ed.2d 229 (1983), nor does the Fourth Amendment prohibit all searches. What the Fourth Amendment does prohibit is unreasonable searches.

We have long held that the “touchstone of the Fourth Amendment is reasonableness.” Ohio v. Robinette, — U.S. —, —, 117 S.Ct. 417, 421, — L.Ed.2d —(1996) (quoting Florida v. Jimeno, 500 U.S. 248, 250, 111 S.Ct. 1801, 1803, 114 L.Ed.2d 297 (1991)). The Fourth Amendment is not, of course, a guarantee against all searches and seizures, but only against unreasonable searches and seizures. . United States v. Sharpe, 470 U.S. 675, 682, 105 S.Ct. 1568, 1573, 84 L.Ed.2d 605 (1985); see also Vernonia Sch. Dist. 47J v. Acton, — U.S. —, —, 115 S.Ct. 2386, 2390, 132 L.Ed.2d 564 (1995) (“The ultimate measure of the constitutionality of a governmental search is reasonableness.”); Jimeno, 500 U.S. at 250, 111 S.Ct. at 1803 (“The Fourth Amendment does not proscribe all state-initiated searches and seizures; it merely proscribes those which are unreasonable.”); Elkins v. United States, 364 U.S. 206, 222, 80 S.Ct. 1437, 1446, 4 L.Ed.2d 1669 (1960) (“It must always be remembered that what the Constitution forbids is not all searches and seizures, but unreasonable searches and seizures.”); United States v. Rabinowitz, 339 U.S. 56, 60, 70 S.Ct. 430, 432, 94 L.Ed. 653 (1950) (“It is unreasonable searches that are' prohibited by the Fourth Amendment.”); Carroll v. United States, 267 U.S. 132, 147, 45 S.Ct. 280, 283, 69 L.Ed. 543 (1925) (“The Fourth Amendment does not denounce all searches or seizures, but only such as are unreasonable.”).

Under Supreme Court precedent, which is binding upon us here,¹ we must examine the facts and circumstances surrounding the search to determine whether it was reasonable. What is a reasonable search is not to be determined by any fixed formula. Rabi-nowitz, 339 U.S. at 63, 70 S.Ct. at 434. The recurring questions of the reasonableness of searches must find resolution in the facts and circumstances of each case. Id. Reasonableness, in turn, is measured in objective terms by examining the totality of the circumstances. Ohio v. Robinette, —U.S. at —, 117 S.Ct. at 421; see also United States v. Montoya de Hernandez, 473 U.S. 531, 537, 105 S.Ct. 3304, 3308, 87 L.Ed.2d 381 (1985).

II

The majority holds that the actions of the police shining a flashlight into a vehicle when approaching a citizen to make “observations of items which were plainly visible to anyone, ... does not constitute a search of the vehicle.” Maj. op. at 1312. The majority cites United States v. Dunn, 480 U.S. 294, 305, 107 S.Ct. 1134, 1141-42, 94 L.Ed.2d 326 (1987), Texas v. Brown, 460 U.S. 730, 739-40, 103 S.Ct. 1535, 1541-42, 75 L.Ed.2d 502 (1983), and People v. Romero, 767 P.2d 1225, 1227 (Colo.1989), for the proposition that using a flashlight to illuminate the interior of a car “does not constitute a search that triggers Fourth Amendment protections.” Maj. op. at 1312. It is that portion of the majority’s opinion that I do not join. I am not unmindful of our holding in People v. Romero, 767 P.2d 1225, 1227 (Colo.1989), that a “[police officer’s] observations through [a] car window were not a search.” In Romero, we also noted that “[t]he fact that a police officer uses a flashlight to look into the car does not cause her viewing to become a search.” Id. To support that proposition, we cited United States v. Dunn, 480 U.S. 294, 305, 107 S.Ct. 1134, 1141-42, 94 L.Ed.2d 326 (1987), holding that “it is ‘beyond dispute’ that the action of a police officer in shining his flashlight to illuminate the interior of a car, without probable cause to search the ear, ‘trenched upon no right secured ... by the Fourth Amendment.’” However, concluding the use of a flashlight to illuminate the interior of a car does not “trench[ ] upon ... right[s] secured ... by the Fourth Amendment,” in my view, does not necessarily require a determination that no search occurs.

I agree with the majority when it concludes that the “use of a flashlight to illuminate the interior of the vehicle was proper and did not implicate Fourth Amendment protections.” Id. Nonetheless, in my view, the conduct of the police does constitute a search; however, it is not an “unreasonable search.”

In Hoffman v. People, 780 P.2d 471, 474 (Colo.1989), we summarized the well-settled principles by which Fourth Amendment considerations are to be examined:

The touchstone of fourth amendment analysis is whether a person has a “constitutionally protected reasonable expectation of privacy” in the area or item searched or seized. That determination requires the court to ascertain whether an individual has exhibited a subjective expectation of privacy in the particular place or object in question and whether that subjective expectation is one society recognizes as reasonable. The existence of a legitimate expectation of privacy must be determined after examining all the facts and circumstances in each particular case.

(Citations omitted.)

While I agree that the police officer's conduct here did not violate the Fourth Amendment, I would hold that the police officer’s use of a flashlight to view the interior of the car did in fact constitute a search that requires application of the standards repeated in Hoffman under our Fourth Amendment jurisprudence established by the Supreme Court. In my view, all searches implicate the Fourth Amendment.² However, not all searches violate the guarantees found in the Fourth Amendment of the Constitution because not all searches are unreasonable. There are circumstances such as those present here, in which a search may be deemed reasonable and therefore not violative of the Fourth Amendment.

In my view, Dickinson had no reasonable expectation of privacy because he was in his ear in a public parking lot and the items in the car were in plain view. The police officers, in effect, conducted a search of the ear when they looked into the car with the aid of a flashlight. The police officer’s search, however, was not unreasonable because (1) while lawfully conducting a bicycle patrol, the police officers had a right to be in the public parking lot as any other passersby; (2) Dickinson had no reasonable expectation of privacy in that portion of the interior of his car open to public view; and (3) the police officer’s observance of Dickinson’s actions in plain view, even with the aid of the flashlight, were not so intrusive as to be deemed unreasonable. Thus, in effect, I conclude that the police officer’s flashlight search was reasonable and did not violate the Fourth Amendment.

For the foregoing reasons, I join in the result reached by the majority with the exception of Part III with which I specially concur because I would hold that a search, though reasonable, did in fact occur.

1 . Because we review this case principally based upon the United States Constitution and not based on rights created or expanded by our state constitution, we are bound not by our own precedent but by the construction placed upon the federal constitution by the United States Supreme Court. See Ohio v. Robinette, —U.S. at —, 117 S.Ct. at 420 (holding that when a state court decision fairly appears to rest primarily on federal law, the Court will accept as the most reasonable explanation that the state court decided the case the way it did because it believed that federal law required it to do so); Illinois v. Rodriguez, 497 U.S. 177, 182, 110 S.Ct. 2793, 2798, 111 L.Ed.2d 148 (1990) (same).

2 . To implicate means "to involve as a consequence, corollary, or natural inference.” Webster’s Ninth New Collegiate Dictionary 605 (1985).