joined by MATTHEWS, Justice, dissenting.
I dissent from the majority’s holding that the officers had no right to be on the path where they first viewed Chilton because, in my opinion, the officers’ conduct in this *57case did not invade Chilton’s reasonable expectation of privacy.
The trial court found that the path “was made use of by whomever happened to want to do so.” This finding is supported by substantial evidence. The hillside between South Franklin Street and Gastineau Avenue where the officers stood is overgrown with brush, and in Officer Kalwara’s words, “accumulated with trash, i. e., beer cans, bottles, old shoes and other detritus” that one commonly finds on vacant urban land. Officer Kalwara had found persons smoking marijuana in back of Chilton’s apartment building on prior occasions. There is no fence or other obstruction behind the building. Where the path meets the public stairway at a landing, there is an absence of a railing and easy access to the path. The path is a “very well beaten” one. No conflicting evidence was ever presented. I cannot agree that the trial court was clearly erroneous in finding that the path was impliedly open to the public.
In my opinion, given the nature of the area and its known public use, the police could utilize the path just as any other person might.1 For fourth amendment purposes, it is not particularly significant that the officers were standing on private property when they viewed Chilton. “The technicalities of the common law of trespass are not dispositive of Fourth Amendment claims.” United States v. Vilhotti, 323 F.Supp. 425, 431 (S.D.N.Y.1971). In Pistro v. State, 590 P.2d 884 (Alaska 1979), we held that evidence viewed while police officers were on the defendant’s driveway was admissible because this would have been the way the public ordinarily entered the premises. There is no evidence that Chilton or the owners of the apartment building ever made an attempt to exercise any degree of control over the area in back of the building. Courts have generally held that tenants in a multiple-unit building have a lower expectation of privacy in those areas of the building or surrounding grounds which are open to common use. See, e. g., United States v. Cruz Pagan, 537 F.2d 554, 557-58 (1st Cir. 1976) (no expectation of privacy in underground garage); Smith v. State, 510 P.2d 793, 798 (Alaska), cert. denied, 414 U.S. 1086, 94 S.Ct. 603, 38 L.Ed.2d 489 (1973) (no expectation of privacy in dumpster belonging to apartment building); Commonwealth v. Thomas, 358 Mass. 771, 267 N.E.2d 489 (1971) (no expectation of privacy in the cellar of an apartment building). Although the officers did not use an area that might be connected in some way with those having business in the building, it was still an area freely used by the public. The officers did not engage in offensive conduct such as climbing onto a fire escape2 or peering under a pulled window shade.3 Under the circumstances, I would agree with the trial court that the officers’ presence near Chil-ton’s open window did not invade a reasonable expectation of privacy,4 and the evidence observed by the officers was in plain view.
. See 1 W. La Fave, Search and Seizure, § 2.3 at 325 (1978).
. Cohen v. Superior Court, 5 Cal.App.3d 429, 85 Cal.Rptr. 354 (1970) (remanding to trial court for additional testimony concerning tenants’ use of first escape).
. Lorenzana v. Superior Court, 9 Cal.3d 626, 108 Cal.Rptr. 585, 511 P.2d 33 (1973).
.I do not see how this case can be squared with State v. Myers, 601 P.2d 239 (Alaska 1979), where a majority of this court held that the police could make a warrantless entry into an unlocked movie theatre after closing hours. Certainly there is a lower expectation of privacy in an unfenced, vacant urban lot, especially given obvious signs of public use such as the path, trash and beaten-down brush, than in the interior of a building.