dissenting.
I respectfully dissent from part II.C. because I believe that under the circumstances of this case, Reimer had no objectively reasonable and justifiable expectation of privacy once his plastic cup was lawfully seized.
The Court’s opinion correctly focuses on whether Reimer had an objectively reasonable expectation of privacy in the mug’s interior under the circumstances (Opinion at 217, 899 P.2d at 430, citing State v. Wilkins 125 Idaho 215, 222, 868 P.2d 1231, 1238 (1994)), but reaches the wrong conclusion. In support of the conclusion that Reimer’s mug deserved Fourth Amendment protection, the Court’s opinion says the mug’s bottom was tightly sealed, the interior contents were not visible without being opened, and Reimer had the mug in his possession and never abandoned it. (Opinion at 217, 899 P.2d at 430). This analysis is unconvincing, because it ignores the fact that the cup had already been properly seized as evidence.
When Reimer asked if he could have his cup back, Sgt. Majors replied that he was keeping it as evidence. At that point, Reimer had no objectively reasonable and justifiable expectation of privacy in the cup’s inner *220contents. One would reasonably expect that the cup would be handled and its contents tested. This Court has declared that a legitimate expectation of privacy means more than a subjective expectation of not being discovered. State v. Wilkins 125 Idaho 215, 222, 868 P.2d 1231, 1238 (1994) (quoting State v. Jennings, 101 Idaho 265, 611 P.2d 1050, 1051 (1980)). No reasonable person under the circumstances could justifiably expect that the police would have to obtain a separate search warrant before removing the cup’s bottom.
According to the Court, however, a lawfully seized piece of evidence with an interior cannot be opened without the police first obtaining a separate search warrant. The United States Supreme Court has recognized that such a blanket requirement would impose substantial burdens on law enforcement without advancing legitimate Fourth Amendment values. In a concurring opinion in Robbins v. California, 453 U.S. 420, 433-434, 101 S.Ct. 2841, 2849-50, 69 L.Ed.2d 744 (1981), quoted favorably in United States v. Ross, 456 U.S 798, 816-17 n. 21, 102 S.Ct. 2157, 2168 n. 21, 72 L.Ed.2d 572 (1982), Justice Powell declared:
While the plurality’s blanket warrant requirement does not even purport to protect any privacy interest, it would impose substantial new burdens on law enforcement. Confronted with a cigar box or a Dixie cup in the course of a probable-cause search of an automobile for narcotics, the conscientious policeman would be required to take the object to a magistrate, fill out the appropriate forms, await the decision, and finally obtain the warrant. Suspects or vehicles normally will be detained while the warrant is sought. This process may take hours, removing the officer from his normal police duties. Expenditure of such time and effort, drawn from the public’s limited resources for detecting or preventing crimes, is justified when it protects an individual’s reasonable privacy interest. In my view, the plurality’s requirement cannot be so justified. The aggregate burden of procuring warrants whenever an officer has probable cause to search the most trivial container may be heavy and will not be compensated by the advancement of important Fourth Amendment values.
Although the precise holding of Ross may not control here (pursuant to “automobile exception” to the Fourth Amendment’s warrant requirement, officers who have probable cause may conduct warrantless search of vehicle and its contents that is as thorough as a magistrate could authorize by warrant), the above quoted rationale is appropriate.
There was probable cause to search the cup after Sgt. Majors heard the suspicious rattling noise. The Court’s opinion says the rattling noise did not justify a warrantless search, because nothing about the noise suggested further evidence regarding the cup’s liquid contents. (Opinion at 219, 899 P.2d at 432). I disagree with the .Court’s hindsight appraisal. The glass vial could easily have contained whiskey, or bourbon, or rum, instead of methamphetamine. If it had, such evidence could certainly be probative to the open container violation. After having smelled alcohol on Reimer's breath, after having smelled alcohol in the cup, and then hearing the suspicious rattling noise, Sgt. Majors had probable cause to further search the cup’s contents. We should not impose the immense burden of procuring warrants “whenever an officer has probable cause to search the most trivial container.” (Powell, supra). The Fourth Amendment protects against unreasonable searches. This was no unreasonable search.
The Court’s opinion quotes a footnote in Horton v. California, 496 U.S. 128, 141 n. 11, 110 S.Ct. 2301, 2310 n. 11, 110 L.Ed.2d 112 (1990) for the proposition that Reimer continued to have a privacy interest after police seized the cup. (Opinion at 218, 899 P.2d at 431) That footnote is dicta. In Horton, the Supreme Court held that a police officer, who was authorized by a warrant to search a dwelling, could seize evidence observed during the search under the “plain view” doctrine, even though the discovery of the evidence was not inadvertent. 496 U.S. at 142, 110 S.Ct. at 2310-2311. The footnote quoted in this Court’s opinion was not necessary to the holding in Horton, and there was no issue in Horton regarding the further search *221of evidence already lawfully seized. Likewise, in U.S. v. Villarreal, 963 F.2d 770 (5th Cir.1992) (see Opinion at 218-19, 899 P.2d at 430-31), the evidence searched without a warrant had not been previously seized as evidence of a crime. Villarreal, 963 F.2d at 772-73.
In view of the heavy burdens on limited police and judicial resources, it is unreasonable under the circumstances here to require the police to get a search warrant before they may remove the bottom of a plastic cup which has been lawfully seized as evidence. Accordingly, I dissent.