People v. Goodman
227 N.W.2d 261
Mich. Ct. App.
1975
Check Treatment
Per Curiam.

This appeal questions the admissibility of evidence seized from the defendant’s automobile by a police officer incident to a stop for a traffic violation. The defendant entered a plea of nolo contendere to the charged offense of carrying a concealed weapon in a motor vehicle, MCLA 750.227; MSA 28.424, was found guilty by the trial court and sentenced to serve five years probation. From his plea-based conviction, defendant appeals as of right.

The facts are largely undisputed. On February 24, 1973, at 1:30 a.m., the defendant was stopped *222 by two Tuscola County sheriffs deputies because the defendant’s car had an inoperative headlight.

After the defendant had pulled over, he exited his car. One of the deputies then conducted a visual inspection of the interior of the automobile by shining a flashlight through its windows. During this inspection, the officer observed an unzipped black leather pistol case or gun holster sticking out from under the driver’s seat next to the floor console. When the officer reached inside the car to retrieve the holster, he found a paper sack containing a handgun. The gun case, too, contained a small firearm.

The defendant sought to suppress the evidence, arguing that the discovery, seizure and subsequent admission into evidence of the revolvers violated his right to be free from "unreasonable searches and seizures”. US Const, Am IV; Const 1963, art 1, § 11. The trial court upheld their admission solely on the ground that the police officer was lawfully positioned at the time of the visual inspection and therefore his seizure of the evidence was lawful under the plain-view doctrine.

Although the issue was neither raised nor briefed on appeal, defendant’s plea of nolo contendere waived the right to challenge on appeal the denial of the motion to suppress. MCLA 767.37; MSA 28.977, states that where a plea of nolo contendere is accepted "the court shall proceed as if he (defendant) had pleaded guilty”. A guilty plea waives any non-jurisdictional defects in prior stages of the proceedings. People v Pogue, 54 Mich App 74, 75-76; 220 NW2d 317 (1974). It also waives the right of an appeal from an order denying a motion to suppress the evidence. People v Wickham, 41 Mich App 358, 360; 200 NW2d 339 (1972). We therefore affirm the trial court’s appli *223 cation of the plain-view rule and denial of the motion to suppress.

Without intending to establish precedent and solely because substantive issues were raised on appeal, we proceed to dispose of the issues submitted as briefed. The seizure of objects within the plain view of an officer, in a place where he had a right to be, is not proscribed by the Fourth Amendment. People v Whalen, 390 Mich 672; 213 NW2d 116 (1973). In the instant case, the officers clearly had a right to be near the defendant’s automobile, having lawfully stopped the defendant for a traffic violation. People v Kuntze, 371 Mich 419, 424; 124 NW2d 269 (1963).

The use of a flashlight does not automatically transform a daytime plain-view observation into a nocturnal Fourth Amendment search. People v Whalen, supra, 390 Mich 672, 679. Marshall v United States, 422 F2d 185, 189 (CA 5, 1970), said:

" * * * When the circumstances of a particular case are such that the police officer’s observation would not have constituted a search had it occurred in daylight, then the fact that the officer used a flashlight to pierce the nighttime darkness does not transform his observation into a search.”

Warden, Maryland Penitentiary v Hayden, 387 US 294, 300-302; 87 S Ct 1642, 1646-1647; 18 L Ed 2d 782, 788-789 (1967), abolished the distinction between "mere evidence” and contraband or the instrumentalities of crime, and said that such evidence was properly seized and admitted into evidence. People v Major, 34 Mich App 405, 411-412; 191 NW2d 494 (1971), upheld the "plain view” seizure of a paper sack containing some clothes and a gym bag containing money, some stolen checks and a gun. The officer’s discovery of the *224 unzipped gun case, while not contraband itself, provided him with probable cause to believe that defendant had committed the offense to which he subsequently pled nolo contendere. People v Williams # 1, 45 Mich App 623, 625; 207 NW2d 176 (1973) . The rule applies where, as here, the government’s initial intrusion was limited and justifiable and discovery of the evidence inadvertent. People v Harden, 54 Mich App 353, 359; 220 NW2d 785 (1974).

Affirmed.