concurring. I concur with the result in this case, but I believe that the officer’s initial encounter with the appellant was not a “stop,” but was a request for information in accordance with A.R.Cr.P. Rule 2.2(a). That rule provides:
A law enforcement officer may request any person to furnish information or otherwise cooperate in the investigation or prevention of crime.
The Supreme Court explained in Baxter v. State, 274 Ark. 539, 626 S.W.2d 935 (1982), that this authority to approach citizens must be reasonable under the circumstances existing at the time and must be weighed against the individual’s right to privacy and personal freedom. Consideration is to be given to the intensity of the interference, the gravity of the alleged crime, and the circumstances surrounding the encounter. Id.
At the time the appellant encountered Officer Gines, the Flemmings had told Officer Grixby that they had seen a red and white Ranchero with a loud muffler in the neighborhood and that it was unfamiliar. They stated that they saw a person get out of the vehicle and that the next time they saw him, he was by the side of a nearby house carrying a box or laundry basket. The officers testified that a red and white Ranchero was not commonly seen in the Jonesboro area. Because the activities of the occupants of the vehicle were suspicious enough to alarm the neighbors and because the vehicle was unique, the police officers were justified in requesting information from the appellant. I also wish to point out that the appellant voluntarily stopped his vehicle; he was not “stopped” by the police. The officer did not intrude to any large degree on the appellant’s privacy; he. merely followed him.
Furthermore, I think the majority goes farther than it needs to in labelling the officer’s discovery of the binocular case and jewelry a “search.” The Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. Katz v. United States, 389 U.S. 347 (1967). In determining whether a search has occurred, the central inquiry is whether the conduct of the police violated the privacy upon which the individual had justifiably relied. Id. This inquiry normally embraces two questions: (1) whether the individual, by his conduct, has exhibited an actual expectation of privacy, and (2) whether the individual’s subjective expectation of privacy is one that society is prepared to recognize as reasonable. Smith v. Maryland, 442 U.S. 736 (1979).
In the present case, the appellant’s vehicle was just off a public street, in the driveway of a vacant house. The jewelry which was later seized was found in an open binocular case underneath a pair of binoculars where the jewelry could easily be seen in the bottom of the case. The case was lying in the open bed of the Ranchero on top of several bags of trash and old clothes. Although the officer did shine a flashlight into the bed of the vehicle, he stated that he did not move or touch anything. The fact that the officer used a flashlight to enhance his vision does not bring his actions into the category of a Fourth Amendment search. See Texas v. Brown, 460 U.S. 730 (1983); United States v. Lee, 274 U.S. 559 (1927). The appellant in this case had no legitimate expectation of privacy and I simply do not believe that this was a search within the meaning of the Fourth Amendment.
I turn now to the issue of the officers’ seizure of the binocular case. The seizure could not be valid under the “plain view doctrine” because it was not readily apparent that the binocular case and jewelry were of an incriminating nature. Johnson v. State, 291 Ark. 260, 724 S.W.2d 160 (1987). The owner of the jewelry stated that except the two watches, most of it was ordinary costume jewelry. See Smith v. State, 265 Ark. 104, 576 S.W.2d 957 (1979). Furthermore it is difficult to say that the discovery was inadvertent because Officer Gines stated that when he shone the flashlight into the bed of the Ranchero he was looking for the fruits of a crime. This cannot be considered a seizure pursuant to a valid arrest either because it is not clear at what point the appellant was actually arrested. When the officer shone his flashlight into the bed of the vehicle, the appellant was in the driving compartment. However, Officer Gines had placed the appellant in the back of the police car prior to the seizure of the binocular case.
Objects found in a public place, or a place where there is no reasonable expectation of privacy, do not implicate Fourth Amendment concerns, and, given probable cause to associate the property with criminal activity, the property may be seized. Payton v. New York, 445 U.S. 573 (1980). Under Payton, even where the Fourth Amendment prohibition of unreasonable searches is not implicated, where private property is seized, officers must have probable cause to associate the property with criminal activity. Probable cause, in this context, is a belief that there is a “practical, nontechnical probability that incriminating evidence is involved,” i.e., a particularized suspicion, and does not require a showing that such belief is “correct or more likely true than false.” Texas v. Brown, 460 U.S. 730 (1983).
Officer Gines stated that he believed the appellant to be a suspect in a burglary. When the appellant stopped his vehicle and got out, the other two occupants fled while Officer Gines was using his radio. When Officer Gines asked the appellant about the ownership of the property, the appellant did not respond. Although there was testimony from Officer Mashburn that there was nothing inherently suspicious in the items themselves, Officer Gines did state that he deemed it suspicious because the jewelry was stuffed into the bottom of the binocular case, underneath a pair of binoculars and the case was in the open bed of the Ranchero among other items that were obviously trash. Based on the totality of the circumstances, I believe that the officers had probable cause to take possession of the binocular case and jewelry in order to determine their true ownership. See Munguia v. State, 22 Ark. App. 187, 737 S.W.2d 658 (1987).
Although I have some serious reservations about the legality of the appellant’s arrest, that issue was not presented to the trial court, nor was it argued on appeal.
I concur in the result reached by the majority.
Jennings, J., joins in concurrence.