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STATE v. DOILE3/3/1989
e and the officers were in that category. This is not the same situation as looking into a vehicle parked in the owner's garage. It is difficult to see what expectation of privacy for his vehicle Doile could have in these circumstances.
Defendant argues the officer's actions constituted a search and would be justified only if the plain view doctrine or Ross exception applied.
It is well established that under certain circumstances the police may seize evidence in plain view. In Coolidge v. New Hampshire, 403 U.S. 443, 467-71, 29 L.Ed.2d 564, 91 S.Ct. 2022, reh. denied 404 U.S. 874 (1971), the United States Supreme Court set out the circumstances in which plain view has legal significance. The test is threefold: (1) The initial intrusion which afforded the authorities the plain view was lawful by virtue of a warrant (search or arrest), waiver, or exigent circumstances; (2) the discovery of the evidence was inadvertent; and (3) the authorities immediately had reasonable or probable cause to believe the evidence observed in plain view was incriminating in nature.
In State v. Galloway, 232 Kan. 87, 652 P.2d 673 (1982), we adopted the "plain view" exception to the Fourth Amendment as enunciated in Coolidge v. New Hampshire, 403 U.S. 443.
In United States v. Ross, 456 U.S. 798, 72 L.Ed.2d 572, 102 S.Ct. 2157 (1982), the United States Supreme Court held that police officers who have legitimately stopped an automobile and who have probable cause to believe that contraband is concealed
somewhere within may conduct a warrantless search of the vehicle, including compartments and containers within the vehicle whose contents are not in plain view.
However, the use of a flashlight by a police officer lawfully on the premises to view the interior of an automobile does not by itself raise the activity to the level of a search.
In Texas v. Brown, 460 U.S. 730, 75 L.Ed.2d 502, 103 S.Ct. 1535 (1983), a "plain view" case, a police officer, assisting at a routine nighttime driver's license checkpoint in Fort Worth, Texas, asked a driver for his driver's license. At the same time, the officer shined his flashlight into the car and saw the driver drop a knotted balloon onto the seat beside his leg. When the driver opened the glove compartment to get his license, the officer noticed several plastic vials, quantities of white powder, and an open bag of party balloons. On appeal, the United States Supreme Court upheld the use of the flashlight, stating:
"It is likewise beyond dispute that Maples' action in shining his flashlight to illuminate the interior of Brown's car trenched upon no right secured to the latter by the Fourth Amendment. The Court said in United States v. Lee, 274 U.S. 559, 563 (1927): ` use of a searchlight is comparable to the use of a marine glass or a field glass. It is not prohibited by the Constitution' Numerous other courts> have agreed that the use of artificial means to illuminate a darkened area simply does not constitute a search, and thus triggers no Fourth Amendment protection." 460 U.S. at 739-40. See Annot., 89 L.Ed.2d 939.
In State v. Blood, 190 Kan. 812, 378 P.2d 548 (1963), suspects in a case involving the theft of blank checks and the contents of the cash register from a service station were asked to return to the crime scene in their automobile. Returning to the service station, they parked partially on the shoulder of the highway leading to the service station. A state trooper dispatched to the scene looked into the parked automobile with a flashlight and saw several credit cards and a green metal box inside. Both occupants of the car denied knowledge of the items. T
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