Opinion
November 15, 1985
Appeal from the Supreme Court, Erie County, Ostrowski, J.
Present — Dillon, P.J., Denman, Boomer, Green and O'Donnell, JJ.
Order unanimously reversed, on the law and facts, and motion denied. Memorandum: In granting the motion to suppress physical evidence, the court relied upon People v Smith ( 42 N.Y.2d 961). In People v Price ( 54 N.Y.2d 557, 563, n 3), the Court of Appeals explained its holding in People v Smith (supra). It wrote: "We are not unmindful of our holding in People v Smith ( 42 N.Y.2d 961) that the use of a flashlight constituted an unwarranted intrusion. The holding in that case, however, was based on the fact that the initial stop by the police of the defendant's car was unreasonable." Here, unlike the situation in People v Smith (supra), there was no unlawful stop; the vehicle was parked when the police shined the flashlight through the window. Controlling is the case of People v Miller ( 43 N.Y.2d 789, affg on opn below 52 A.D.2d 425), where a police officer shined his flashlight through the window of a parked automobile and observed a firearm on the front seat. The court held that there was no stop of the automobile and that use of the flashlight did not constitute a search within the meaning of the 4th Amendment (see also, Texas v Brown, 460 U.S. 730, 739-740; People v Cruz, 34 N.Y.2d 362, 370).