(dissenting) — Because the evidence on the table was in open view, Deputy Dekofski viewed it from a lawful vantage point, and his use of a flashlight to see it was not an unwarranted intrusion into Rose’s privacy, I dissent. I express no view on the majority’s apparent authority analysis because the marijuana, packaging materials and gram scale observed through the unobscured front window were sufficient to support the warrant and preclude suppression of the evidence at trial.
The majority correctly states the basis of the open view doctrine as set forth in State v. Seagull, 95 Wn.2d 898, 901, 632 P.2d 44 (1981), and the factors the courts are to consider in determining whether an officer has intruded on a constitutionally protected expectation of privacy by exceeding the scope of his or her implied invitation to come on to the portions of the property open to the public. Majority, at 36-37. However, I cannot agree with its conclusion that: "Dekofs-ki’s peering into the windows of Rose’s residence during the nighttime hours with the aid of a flashlight constituted an unreasonable intrusion into Rose’s reasonable expectation of privacy.”8 Majority, at 38.
*42The majority concedes that the "ragged curtain” hanging on the living room window "did not hinder Dekofski’s view into the living room”. Majority, at 32 n.3. Thus, its reliance on State v. Jordan, 29 Wn. App. 924, 928-29, 631 P.2d 989 (1981) is misplaced. Majority, at 37-38. The drapes in Jordan were almost closed. It was the act of attempting to close them and thereby achieve privacy within the house on which the court relied in concluding that peering through the 6-inch crack was an invasion of that privacy. Here, there was nothing that effectively blocked one’s view from the porch and, hence, no evidence that the occupant intended to obscure from view "that which [was] there to be seen” from the front porch. Seagull, 95 Wn.2d at 901.9
Thus, I conclude that the majority’s real quarrel here is with Deputy Dekofski’s use of a flashlight to enhance his *43ability to see into the residence. The majority acknowledges that we have previously approved the use of flashlights to look into cars. Majority, at 38-39 & n.5. In that context we have
align[ed] ourselves with the almost universal view, that [the] use of a flashlight is not a search at all.
When the circumstances of a particular case are such that the police officer’s observation would not have constituted a search had it occurred in daylight, then the fact that the officer used a flashlight to pierce the nighttime darkness does not transform his observation into a search.
State v. Young, 28 Wn. App. 412, 417, 624 P.2d 725 (quoting Marshall v. United States, 422 F.2d 185, 189 (5th Cir. 1970)), review denied, 95 Wn.2d 1024 (1981); accord State v. Cagle, 5 Wn. App. 644, 646, 490 P.2d 123 (relying on Marshall v. United States, supra, for the proposition that "[t]he mere use of a flashlight, however, does not magically transmute a non-accusatory visual encounter into a Fourth Amendment search”), review denied, 80 Wn.2d 1003 (1971); see also Texas v. Brown, 460 U.S. 730, 75 L. Ed. 2d 502, 103 S. Ct. 1535 (1983); State v. Regan, 76 Wn.2d 331, 336-37, 457 P.2d 1016 (1969).
Both the Supreme Court and this court have also held that the use of binoculars, another artificial means of enhancing an officer’s view of what he or she would otherwise be able to see from a lawful vantage point, does not constitute a search. State v. Manly, 85 Wn.2d 120, 124, 530 P.2d 306 (marijuana plants in a dormitory window observed from the street; officer used binoculars to confirm a report the plants were marijuana), cert. denied, 423 U.S. 855 (1975);10 State v. Jones, 33 Wn. App. 275, 277, 653 P.2d 1369 (1982) (binoculars used to observe defendant inhaling cocaine in a car), review denied, 99 Wn.2d 1003 (1983). I fail to see any distinction between the use of binoculars in Manly, which also involved a residence, and the use of a flashlight in this case.
*44Thus, there must be some basis other than an absolute prohibition on devices that enhance an officer’s ability to see what is, but for distance or darkness, there to be seen. As I read the majority opinion, it seeks to locate this distinction in the fact that this case involved items in open view in a home rather than in an outbuilding, garage or other structure. This, too, is not a valid distinction.
The majority relies on a North Carolina case, State v. Tarantino, 322 N.C. 386, 368 S.E.2d 588 (1988), cert. denied, 489 U.S. 1010 (1989), and the "enormous expectation of privacy with regard to the interior of a personal residence” for its conclusion that Deputy Dekofski exceeded the scope of his implied invitation under the open view doctrine. Majority, at 39. It rejects the rationale of People v. Wheeler, 28 Cal. App. 3d 1065, 105 Cal. Rptr. 56 (1972) (shining flashlight through garage door to observe a stereo cabinet reported stolen by witness to burglary is not a search) and United States v. Wright, 449 F.2d 1355 (D.C. Cir. 1971) (shining flashlight into 9-inch gap between locked garage doors to see stolen car parts not a search), cert. denied, 405 U.S. 947 (1972), presumably because those cases involved garages rather than residences. Tarantino, however, also involved an outbuilding, a storage shed, and facts that do not remotely resemble the facts in this case. In Tarantino, the officer received no response to his initial knocks on the front door. He then "climbed the hill to the second-story porch, using a flashlight to guide his way along a little-used path”. 322 N.C. at 388. He again knocked and, receiving no response, peered though cracks that "were no more than one-quarter of an inch wide” after "maneuvering his body and shining his flashlight through” them. 322 N.C. at 388. This is a far cry from shining a flashlight into an uncovered window through which the deputy in this case could see from his lawful vantage point on the front porch of Rose’s residence.
While I agree that we recognize a heightened degree of privacy in a residence, Fourth Amendment protection also extends to the surrounding curtilage of a residence. The curtilage encompasses property in proximity to a dwelling, *45including other structures, which "an individual reasonably may expect. . . should be treated as the home itself.” United States v. Dunn, 480 U.S. 294, 300, 94 L. Ed. 2d 326, 107 S. Ct. 1134 (1987); accord State v. Ridgway, 57 Wn. App. 915, 918, 790 P.2d 1263 (1990). Whether a structure is within the curtilage depends upon its proximity to the home, whether it is within the same enclosure as the home, the uses to which the area is put and what the occupant has done to prevent observation into it by passersby. Dunn, 480 U.S. at 301. Because the buildings involved in Tarantino, Wheeler and Wright were outbuildings within the curtilage of a residence, the fact that this case involves a residence rather than an outbuilding is, legally, a distinction without a difference.
Finally, I do not find the majority’s emphasis on the fact that the events took place at night persuasive or dispositive of the issue in the case. Majority, at 38-39. Presumably, the majority emphasizes this point to distinguish the events here from the daylight view of the greenhouse approved in Seagull. In Seagull, the court noted a number of circumstances relevant to its conclusion that the officer in that case had not intruded on a constitutionally protected expectation of privacy. 95 Wn.2d at 905. Among those factors, the court observed that "all acts occurred during daylight hours”. 95 Wn.2d at 905.
While I agree that the time of day or night may be relevant in determining whether an officer has acted as "a reasonably respectful citizen”, 95 Wn.2d at 902, and, thus, not exceeded the scope of his or her implied invitation to enter private property, it is apparent from the opinion in Seagull that none of the circumstances the court relied on to uphold that particular warrant is critical to its conclusion. Rather, it emphasized several times that each case requires a fact-specific inquiry, and no set of circumstances is determinative. The court observed:
The presence of an officer within the curtilage of a residence does not automatically amount to an unconstitutional invasion of privacy. Rather, it must be determined under the facts of each case just how private the particular observation point actually was.
*4695 Wn.2d at 902. It later reiterated that "[w]hat is reasonable cannot be determined by a fixed formula. It must be based on the facts and circumstances of each case.” 95 Wn.2d at 903 (citing Ker v. California, 374 U.S. 23, 33, 10 L. Ed. 2d 726, 83 S. Ct. 1623 (1963)). I take this to mean that the Seagull factors do not create a litmus test for every open view observation. It is therefore inappropriate to seize upon one of the Seagull court’s considerations in a fact-specific inquiry and conclude that its absence gives Rose a legitimate expectation of privacy in what could, without the aid of a flashlight, be seen by anyone on his front porch a few hours earlier.
The affidavit in support of the search warrant indicates that Deputy Dekofski was "summoned to” the landlord’s house "[o]n 11/18/91 at approximately 1800 hours”. The search warrant was issued a little over 3 hours later, sometime between 9 and 9:22 p.m. Nothing in the record indicates exactly when the deputy went on to the front porch, but it was not unusually late in the evening. Since he was able to see the water and power lines going to the shed, it could not have been too long after dusk. Had the officer used a flashlight to look in the window in the middle of the night when no one would be expecting visitors, we might have a different case because that might exceed the "license to intrude” afforded a "reasonably respectful citizen”. Seagull, 95 Wn.2d at 902. However, it is certainly not unusual to have visitors between 6 and 9 p.m. Thus, the majority’s analysis must rest on Deputy Dekofski’s use of a flashlight.
I cannot agree with the majority’s conclusions that, standing alone, the use of a flashlight from a lawful vantage point constitutes "a particularly intrusive method of viewing”, Seagull, 95 Wn.2d at 903, in light of the fact that the use of binoculars has been approved in other cases.
Furthermore, no case either the majority or I have found has held on facts even remotely similar to these that using a flashlight to "pierce the nighttime darkness” under circumstances where there would be no legitimate expectation of privacy during the daylight hours takes an officer’s actions *47out of the open view doctrine and converts them into a search. I would decline to do so and would reverse the trial court and remand the case for trial.
Review granted at 125 Wn.2d 1015 (1995).
It is unclear whether or not the majority is relying on a conclusion that the legality of the approach to the house was tainted by what it states was an illegal trip to the shed to reject the State’s open view argument. Majority, at 37. If it is, I question the validity of this conclusion as well. First, the shed was only 19 feet from the house, and the officer could observe the water and power lines going to the shed from the gravel area and paths around the mobile home. Second, the trip to the shed is irrelevant because the warrant was valid based solely on the evidence observed in the house. Third, the deputy did not make a surreptitious trip to the shed or use it to hide or disguise his presence on the property so that *42he could sneak up on the occupants while they were unaware of his presence. A deviation from the most direct route to the residence is not fatal because
[i]t would be unreasonable to require, in every case, that police officers walk a tightrope while on private property engaging in legitimate police business. Absent such a requirement, we cannot say the limited deviation, within the open area, that occurred in this case was so unreasonable as to be an intrusion upon a privacy expectation deserving of Fourth Amendment protection under Katz v. United States, [389 U.S. 347, 19 L. Ed. 2d 576, 88 S. Ct. 507 (1967)].
Seagull, 95 Wn.2d at 905.
As in Seagull, Deputy Dekofski’s route to the vantage point from which he observed the marijuana, packaging materials and scales "would have been a normal one to take if he had gone directly to that door from his car in the parking area.” 95 Wn.2d at 905. The side trip to the shed does not render inadmissible the evidence he legitimately discovered from the front porch of the residence. See State v. Myers, 117 Wn.2d 332, 345, 815 P.2d 761 (1991) ("If the officer substantially or unreasonably departs from a nonintrusive area... he may exceed the scope of 'open view’.”). A detour of 15 to 19 feet, which amounts to only a few steps, from the gravel area is not a "substantial” or "unreasonable” one under the facts of this case.
The majority also relies on the location of Rose’s property at the end of "a very long [250-foot] driveway” as additional evidence of Rose’s expectation of privacy. Majority, at 38. However, the length of a driveway is irrelevant to the question of whether evidence was in open view. Rather, it is a consideration in determining whether law enforcement officials were legitimately on the property in the first place. State v. Ridgway, 57 Wn. App. 915, 918, 790 P.2d 1263 (1990). Here, there is no issue of whether the deputy legitimately entered the property. An officer who receives a report of an alleged crime may go on the property to investigate. Seagull, 95 Wn.2d at 902 n.1.
From the recitation of the facts in Manly, it is not at all clear that the officer could actually see anything except green vegetation without the aid of binoculars. It appears he needed them to identify the plants as marijuana in the first instance. 85 Wn.2d at 121.