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STATE v. DOILE3/3/1989
hey were thereafter arrested. Blood's counsel moved to suppress the evidence and was overruled. On appeal, we affirmed. Justice Schroeder, writing for a unanimous court, reasoned:
"It has been held that the eye cannot commit a trespass condemned by the Fourth Amendment. (See, McDonald v. United States , 335 U.S. 451, 93 L.Ed. 153, 69 S.Ct. 191.) Observation of that which is in plain view is not a search. (State v. Campbell [Mo. 1953], 262 S.W.2d 5; State v. Hawkins , 362 Mo.
152, 240 S.W.2d 688; and State v. Harre [Mo. 1955], 280 S.W.2d 41.)" 190 Kan. at 819.
In State v. McMillin, 206 Kan. 3, 476 P.2d 612 (1970), we said:
"A search implies prying into hidden places for that which is concealed and it is not a search to observe that which is in open view. Looking into a parked car through the windows does not constitute a search, even though it is nighttime and the items can be seen only with the aid of a flashlight [Citation omitted.]." 206 Kan. at 7-8.
We find no basis for holding the district court erred or abused its discretion relative to the officer looking through the vehicle's window while it was parked in the parking lot.
The next point relative to case No. 87-CR-60 is whether the district court erred in not holding the stop, search, and seizure of items from defendant's vehicle were impermissible.
The appellate standard of review is clear. If the findings of the trial court on a motion to suppress evidence are based upon substantial evidence, this court in review will not substitute its view of the evidence for that of the trial court. State v. Chiles, 226 Kan. 140, 144, 595 P.2d 1130 (1979); State v. Kirby, 12 Kan. App. 2d 346, Syl. 5, 744 P.2d 146 (1987), aff'd 242 Kan. 803, 751 P.2d 1041 (1988).
K.S.A. 22-2402(1) provides:
"Without making an arrest, a law enforcement officer may stop any person in a public place whom he reasonably suspects is committing, has committed or is about to commit a crime and may demand of him his name, address and an explanation of his actions."
The officer making the stop must be able to articulate the basis for his reasonable suspicions. See Brown v. Texas, 443 U.S. 47, 51, 61 L.Ed.2d 357, 99 S.Ct. 2637 (1979), and Delaware v. Prouse, 440 U.S. 648, 59 L.Ed.2d 660, 99 S.Ct. 1391 (1979). What is reasonable is based on the totality of the circumstances and is viewed in terms as understood by those versed in the field of law enforcement. United States v. Cortez, 449 U.S. 411, 417-18, 66 L.Ed.2d 621, 101 S.Ct. 690 (1981).
A few minutes prior to the stop, the officer had observed what he believed was a marijuana cigarette on the vehicle's console. Defendant was the only person to enter the vehicle thereafter. When defendant drove away the officer had probable cause to believe contraband was in the vehicle in defendant's possession. He stopped the car. He asked defendant for his driver's license and was told the license had been suspended. Based on his
observations of defendant, he believed defendant was driving under the influence of alcohol. Defendant told the officer he had consumed a few drinks that evening. Defendant failed the field sobriety tests administered. Defendant was at that point arrested and placed in the patrol car. The officer returned to defendant's automobile and saw the marijuana cigarette still in place on the console. The vehicle was searched and what was believed to be contraband was found in the glove compartment and on the floor of the back seat. Additional contraband was found on defendant's person when he was booked into jail.
Defendant's position is that the
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