(concurring in the result):
I concur in the result.
Police action must always be carried out within the Constitution, and, if I read the principal opinion correctly, it premises the right to search an automobile upon the reasonableness of particular police action without regard to whether probable cause existed for the search. Probable cause, of course, is the proper test for examination of vehicles without warrants, and unless it is found to exist, the search is per se unreasonable and illegal. Carroll v United States, 267 US 132, 69 L ed 543, 45 S Ct 280 (1925); Brinegar v United States, 338 US 160, 93 L ed 1879, 69 S Ct 1302 (1949). As was stated in the former case, at page 149;
“On reason and authority the true rule is that if the search and seizure without a warrant are made upon probable cause, that is, upon a belief, reasonably arising out of circumstances known to the seizing officer, that an automobile or other vehicle contains that which by law is subject to seizure and destruction, the search and seizure are valid.”
And in the Brinegar case, supra, the same Court declared, at page 175:
“In dealing with probable cause, however, as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of every day life on which reasonable and prudent men, not legal technicians, act. The standard of proof is *578accordingly correlative to what must be proved.”
Lieutenant Fahringer, the Military Police Duty Officer, was fully aware of the series of breaking and enterings which had recently occurred in local post exchanges and a weapons storage area. He was also aware of the theft of weapons. He observed accused and Owens slumped over in the front seat of an automobile in an exchange parking lot during the early hours of the morning. Accused was dressed in a uniform and Owens in civilian clothing. The men were aroused, and, while Fahringer was properly checking their identification, his assistant, Sergeant Ramon, directed his flashlight into the open door of the car and observed a .45 caliber service-type pistol on the floor, protruding from under the seat. When he made known his discovery to Fahringer, the latter placed accused and Owens under apprehension on suspicion of larceny of the weapon. The vehicle was then thoroughly searched, and another pistol was turned up.
The foregoing facts indicate to me the existence of probable cause to search the vehicle, i.e., “factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.” Brinegar v United States, supra. The men were" discovered in a vehicle parked beside an exchange store, located on a military base at which there had been a series of breaking and en-terings into such establishments, resulting in the theft of weapons like that which Ramon observed. While routinely checking the identification of these strangers, Sergeant Ramon discovered this service pistol and he did so without in anyway searching the automobile.
Thus, in Smith v United States, 2 F2d 715 (CA 4th Cir) (1924), it was held that turning a flashlight into a car through an open rear door and thereby discovering the presence of illicit whiskey did not constitute a search of the vehicle. As the court remarked, at page 716:
. . A search implies some exploratory investigation. It is not a search to observe that which is open and patent, in either sunlight or artificial light.”
See also Fisher v United States, 205 F2d 702 (CA DC Cir) (1953) (looking through an open door into a back room); and Safarik v United States, 62 F2d 892 (CA 8th Cir) (1933) (use of flashlight to observe illegal whiskey through chicken coop window).
It was at this point that accused was apprehended, the officers being aware that he and Owens had been found in the vicinity of a post exchange; that there had been previous breaking and enterings, including'the one in which service pistols had been stolen; and that a service-type automatic had been found in their vehicle. It seems clear that these known matters were sufficient to allow a reasonable and prudent individual to infer that the two men had participated in the previous offenses and were about to repeat their crime. Thus, under the principles laid down by the Supreme Court, probable cause existed for their apprehension and the search of their automobile.
The same conclusion was reached by the Circuit Court of Appeals in Busby v United States, 296 F2d 328 (CA 9th Cir) (1961), upon facts almost identical to those now before us. In that case, a police officer stopped defendants’ car as its taillight was not burning. Another officer arrived on the scene with information tending to indicate that the men may have intended to rob a local bar which they had left shortly before. The officers asked the occupants to step out of their vehicle. When the door was opened and the dome light went on, one of the officers observed a sawed-off shotgun protruding from under the rear seat. The men were arrested, and a search of the car disclosed other loaded weapons, material with which to fashion masks, gloves, flashlights, an electric drill, and adhesive tape. In finding the search legal, the court said, at page 331:
“. . . Considering the hour of the morning, the information received and all the surrounding cir- ' cumstances, the officers were per*579fectly justified in making inquiries of the appellants and in asking them to step out of the automobile. These actions appear to have been proper police practice under the circumstances, and certainly this routine investigation did not constitute an arrest or search.
“The undisputed facts show that when the appellants were asked to step out of the car the dome light went on, illuminating the partially disclosed shotgun. There is no evidence indicating that officer McDonald made any search of the car to find the shotgun or that he in any way entered the car or did anything except to look at what had been revealed in the car when the dome light was illuminated. Seeing the gun gave the officers probable cause to make an arrest and a search for additional evidence.”
In like manner, discovery, without a search, of the .45 caliber automatic pistol in this case gave Lieutenant Fahringer and his associates the last link needed to establish probable cause to arrest accused and Owens and to make a search for additional evidence. Accordingly, there was no illegal search and seizure upon which the contention that Owens’ testimony was inadmissible could be premised, and I join in the affirmance of the board of review’s decision.