As noted in Marshall v. United States, 422 F.2d 185 (5th Cir. 1970), cited at 330 of LaFave): When circumstances of a particular case are such that the police officer’s observations 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. Regardless of the time of day or night, the plain view rule must be upheld where the viewer is rightfully positioned . . . The plain view rule does not go into hibernation at sunset.
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