concurring. The stop of Johnny Wright’s vehicle had solely to do with the failure to display a license plate. Officer Casey testified at the suppression hearing that he had observed no erratic operation of the vehicle, and even after he smelled alcohol on Mr. Wright’s breath, he did not believe “no way” that Mr. Wright was under the influence of alcohol.
Bobby Dixon had no standing to challenge the search of Mr. Wright’s truck, Dixon v. State, 327 Ark. 105 (1997), but Mr. Wright did. It should be pointed out that, while the Supreme Court in Maryland v. Wilson,_U.S._, 117 S.Ct. 882 (Feb. 19, 1997), approved ordering a passenger from a car, it did not go so far as to authorize a police officer to open a vehicle door in the circumstances presented there and here. Officer Casey testified he had no suspicion whatever that Mr. Dixon was committing a crime when he opened the door. It could thus be said that opening the door to the truck constituted a “search” without reasonable suspicion of criminal activity or probable cause to search.
In view of the apparent purpose of the officer to facilitate Mr. Dixon’s exit from the truck, after issuing a lawful order for him to do so, I am willing to apply the rule of Michigan v. Long, 463 U.S. 1032 (1983). The Supreme Court’s holding in that case, applied to the facts now before us, permitted Officer Casey, once he had a plain view of the pistol inside the truck, to conduct a “protective search” of the areas inside the vehicle. Fie was permitted to search the canvas bag, to which the occupants of the truck could have had immediate access upon re-entering the vehicle and which could have contained a weapon.
The search that followed cannot be justified on the basis of suspicion of driving while intoxicated, due to the lack of any such suspicion. Officer Casey, however, after opening the vehicle door and viewing the beer can and the glass of whiskey, could well have had probable cause to believe that Mr. Wright was guilty of drinking in public and that the vehicle contained evidence of that crime.
At a suppression hearing, Officer Casey testified (as abstracted) that, after opening the door to the truck and seeing the open beer can handed to him by Mr. Dixon and seeing the glass of whiskey, Mr. Dixon “was under suspicion for alcoholic beverage open container in a vehicle under State Statute 5-71-212.”
The offense is defined in Ark. Code Ann. § 5-71-212(c) (Repl. 1993) as consumption of “any alcoholic beverages in any public place, on any highway, or street, or . . . upon any vehicle commonly used for transportation of passengers . . . .” As the officer had probable cause to believe that Mr. Wright’s truck, as well as the canvas bag, contained evidence that Mr. Wright and Mr. Dixon had violated the public drinking law, it was appropriate for the officer to search the truck and the bag and seize the items he discovered.
Although my reasons for affirmance vary somewhat from those of the majority, I concur in the result.