Use of flashlight to illuminate area otherwise in plain view does not constitute search under Fourth Amendment

SEARCH & SEIZURE United States v. Cruz-Mendez, No. 05-4296, ___ F.3d ___ (10th Cir. Nov. 6, 2006)(Utah). Appeal of conviction for illegal reentry to United States in violation of 8 U.S.C. § 1326. HELD: District court did not err by denying defendant’s motion to suppress evidence. Where defendant’s girlfriend consented to police officer’s presence in living room of her apartment, officer’s use of flashlight to observe cell phone in kitchen and etched with defendant’s name was not unlawful search in violation of Fourth Amendment. Because girlfriend consented to officer’s presence in living room, officer was lawfully in position from which to view phone in kitchen that was otherwise in plain view. Furthermore, use of artificial means (i.e., flashlight) to illuminate darkened area (i.e., kitchen) does not constitute search, and thus does not implicate Fourth Amendment. Read the opinion here.