dissenting:
The trial court found the defendant, Susan A. Hunt, guilty of unlawful possession of cannabis with intent to deliver and unlawful possession of a controlled substance. (Ill. Rev. Stat. 1987, ch. 56½, pars. 705(d), 1402(b).) The court subsequently granted the defendant’s post-trial motion to suppress illegally seized evidence and to grant her a new trial. Since Officer Greg Metz noticed the cannabis while he was lawfully positioned outside the defendant’s vehicle, the trial court erred in suppressing the evidence. Accordingly, I dissent.
Officer Greg Metz testified that on the night in question he was watching the Miracle Mart parking lot. He stated that the parking lot was frequently used by underage drinkers who were purchasing alcohol at the liquor store across the street. After watching two people in the defendant’s car for approximately two minutes, he drove to within 10 feet of the car. He then illuminated the vehicle with his high-beam headlights and spotlight. As he got out of the car, he saw a passenger in the front seat make a quick movement. Officer Metz walked up to the passenger side of the vehicle and shined his flashlight into the car. The male passenger, Ricky Keeton, rolled down the window. Metz asked the occupants if they had been drinking, and Keeton said that they had not. From his position outside the car, Metz saw a green, leafy substance inside clear plastic bags at the passenger’s feet. Metz then opened the car door, had Keeton step out, and took one of the bags. Another officer searched the defendant and found in her pocket a brown paper bag containing a white powdery substance.
Where a police officer converses with an individual but does not restrain the individual’s freedom to walk away, an investigative stop had not occurred, even if the conversation was investigative in nature. (People v. Kennedy (1978), 66 Ill. App. 3d 267, 383 N.E.2d 713.) A police officer, just as any citizen, has the right to be in a parking lot next to a business which is open to the public. (People v. Caserta (1984), 123 Ill. App. 3d 608, 463 N.E.2d 190.) There is no legitimate expectation of privacy shielding that portion of the interior of a car which may be viewed by inquisitive passerby, and the use of a flashlight to illuminate such an area does not trigger fourth amendment protection. Texas v. Brown (1983), 460 U.S. 730, 75 L. Ed. 2d 502, 103 S. Ct. 1535.
Contrary to the majority’s holding, I find that Officer Metz did not subject the defendant to an investigative stop. Rather, Metz properly walked up to the car, which was in a parking lot next to a business open to the public. As already noted, this was a parking lot known to be frequented by underage drinkers who were purchasing alcohol at a liquor store across the street. His question to Keeton did not transform the encounter into an investigative stop. Neither Keeton nor the defendant was restrained from leaving at that time. Consequently, Officer Metz’s observation of the marijuana in plain view was proper. The officer’s subsequent actions were also proper because at that point, they were based on probable cause.
For these reasons, the order suppressing the evidence should be reversed and I dissent.