State v. Claytor

Harsha, Presiding Judge,

concurring.

I concur in the detailed judgment and opinion to the extent that it affirms the judgment of conviction and sentence. I write separately because I am now persuaded that this court, with this writer participating, previously conducted an incorrect analysis of the plain view doctrine in

Howell

by applying the Fourth Amendment analysis specified in

Coolidge.

A leading treatise in the area of search and seizure notes the following distinction between the plain view doctrine where there is a prior justification for a search and the plain view doctrine where there is no search at all:

“ * * * The fact that there is a plain view in the

Coolidge

sense does not mean that there has been no search; indeed, the situations described by Justice Stewart are in the main search situations — search pursuant to a warrant naming other objects, search during hot pursuit, search incident to arrest, and a search for purposes other than finding evidence. Rather, the effort in

Coolidge

is to describe when items so found may be seized even though they were not the items which were legitimate objectives of that search. The

Coolidge

plurality identifies three requirements: (1) there must be a prior valid intrusion; (2) the discovery of the seized items must be inadvertent; and (3) it must be immediately apparent to the police that they have evidence before them. The significance of these requirements in terms of justifying a warrantless seizure of evidence is discussed at several points in this Treatise.

*633

“By comparison, the concern here is with plain view in a quite different sense, namely, as descriptive of a situation in which there has been no search at all in the Fourth Amendment sense. This situation, which perhaps is deserving of a different label so as to avoid confusion of it with that discussed in Coolidge, encompasses those circumstances in which an observation is made by a police officer without a prior physical intrusion into a constitutionally protected area. This includes

the case in which an officer discovers an object which has been left in an ‘open field’ or similar nonprotected area, and also

those cases in which an officer

— again,

without making a prior physical intrusion

— sees

an object

on the person of an individual, within premises, or

within a vehicle.

In each of these instances there has been no search at all because of the plain view character of the situation, and this means that the observation is lawful without the necessity of establishing either pre-existing probable cause or the existence of a search warrant or one of the traditional exceptions to the warrant requirement.

“It is extremely important to understand that the kind of plain view described in the preceding paragraph, because it involves no intrusion covered by the Fourth Amendment, need not meet the three requirements set out in the

Coolidge

plurality opinion. By definition, there is no prior valid intrusion. Whether it is immediately apparent that what has been observed is evidence of crime may have a bearing upon what the police may do as a result of this nonsearch observation, but it is clearly irrelevant to the threshold issue of whether the observation was a search.” (Footnotes omitted and emphasis added.) 1 LaFave, Search and Seizure (2 Ed.1987) 321-322, Section 2.2(a).

Other commentators have chosen to characterize this situation as being in “open view” rather than confusing the issue with the plain view denomination. Nonetheless, the importance of the distinction focuses upon the fact that there is no Fourth Amendment right to privacy involved here. Accordingly, since the Fourth Amendment does not apply, no Fourth Amendment analysis is needed or appropriate.

As a general rule, one does not have a reasonable expectation of privacy in common or public areas. When others have access to an area, the accused assumes the risk that others will observe items left in open view. While the accused may have a subjective expectation of privacy in his car while parked in a business lot, it is not one which this court, or more importantly, society is prepared to recognize as reasonable.

Our decision in

Howell,

correctly recognized at 6 that an officer’s initial observations in viewing cocaine on the seat of a truck did not constitute a search, but then incorrectly applied the

Coolidge

requirements. By contrast, the principal opinion correctly avoids applying the

Coolidge

test, although it does cite

Howell

to support application of the plain view doctrine here. As noted by both

*634

the principal opinion and LaFave, the characterization of an observation as a nonsearch plain (open) view situation settles the lawfulness of the observation itself, but it does not determine whether a seizure of the observed object would likewise be lawful. The plain (open) view doctrine authorizes seizure of illegal or evidentiary items visible to a police officer only if the officer’s access to the object itself has a Fourth Amendment justification. See,

e.g.,

LaFave,

supra,

at 323-324. The principal opinion aptly determines that the seizure of the cocaine was justified pursuant to the automobile exception to the warrant requirement set forth in

Carroll.

Accordingly, I concur.