concluding that use of light-enhancing starlight scope to aid in seeing activity in a car parked in public parking lot was not a search, even though it allowed police to conduct surveillance without detection 29 feet away from car
How later courts described this case
- concluding that use of light-enhancing starlight scope to aid in seeing activity in a car parked in public parking lot was not a search, even though it allowed police to conduct surveillance without detection 29 feet away from car
- holding that no privacy interest was invaded when the officers saw the defendant’s activities while he was parked in a tavern parking lot and seated in a vehicle with the console light on
- relying, in part, on the fact that the defendant engaged in criminal activities in a car parked in the parking lot of a tavern *614 during the tavern’s business hours in concluding that the defendant did not have a protected privacy interest in the car
- stating that warrantless use of a technological enhancement is not a per se violation of Article I, section 9
Written by the judges who cited it.
The opinion
FADELEY, J.,
specially concurring.
I concur in the result but write separately to plainly state the points essential to that result. The police stopped a *430 vehicle that contained defendant. The operator and defendant consented to a search of the vehicle. Evidence was seized in that consent search.
The police stop was based on reasonable suspicion and was therefore lawful in and of itself. However, the grounds for reasonable suspicion were gained by police who were conducting visual observation of the interior of the automobile that contained defendant.
The automobile, with defendant in it, was located in the partially lighted parking lot of a tavern. Most of the time that police observations were occurring, an interior light was on in the automobile. The officer testified that he made what he believed was an observation with his naked eye of persons in the vehicle plugging one nostril and sniffing something from a vial or container in the other nostril. The substance being sniffed was being passed around from person to person.
Various persons passed close by the automobile and one was taken by defendant or his companion from the tavern to the interior of the automobile. These persons, inside and outside the vehicle, could easily see what the police saw from a second-story window located 29 feet from the automobile. Other cars came into the lot and parked, so that a total of 10 to 15 other vehicles, besides that containingthe defendant, were in the lot.
The police were present at the request and suggestion of the owner of the second-story window and the tavern beneath it. The owner was suspicious that persons in the automobile were dealing illegal drugs at his tavern’s parking lot.
Because the defendant and others were doing the above-described suspicious activities within view of other people in the area who could observe their conduct by the naked eye, the police observation of the conduct did not invade privacy so as to become an illegal search. State v. Owens, 302 Or 196, 206 , 729 P2d 524 (1986); State v. Louis, 296 Or 57, 60-61 , 672 P2d 708 (1983). Everything the officer saw with the naked eye could be and was seen from outside the car, and could be seen without any extra effort such as opening a door or trunk lid.
*431 These observations were a sufficient basis for reasonable suspicion to support the stop of the car that was followed by a consensual search that discovered the evidence at issue. Suppression should not have been ordered as to that evidence.
The reasonable expectation of privacy required to support a Fourth Amendment claim is also obviously lacking concerning the observations. Defendant exposed his conduct to public view in a public place, peopled from time to time by a number of other persons obviously in a position to observe what defendant and his companions were doing, as defendant would have been aware. That is all that needs to be said to dispose of the Fourth Amendment contention. Texas v. Brown, 460 US 730, 740 , 103 S Ct 1535 , 75 L Ed 2d 502 (1983).
I concur in the result; suppression of the evidence obtained from the consensual search, following a stop based on grounds for reasonable suspicion not unlawfully obtained, was error.