¶1concurring.
¶2Although I agree with, and join in, the court’s decision, I write separately to add three points. First, the court’s opinion relies heavily on Arkansas v. Sanders, 442 U.S. 753, 764 n. 13, 99 S.Ct. 2586, 2593 n. 13, 61 L.Ed.2d 235 (1979), and United States v. Williams, 822 F.2d 1174, 1184-85 & n. 113 (D.C.Cir.1987), in formulating the “federal standard” that we ask the trial court to apply on remand. The opinion gives only secondary mention to the standard articulated in the three-justice concurrence in Texas v. Brown, 460 U.S. 730, 747-51, 103 S.Ct. 1535, 1546-48, 75 L.Ed.2d 502 (1983). Although I view all three of these cases as making essentially the same point in slightly different language, I find the Texas v. Brown concurrence the most lucid explanation.
¶3The formulation of the standard in Texas v. Brown seems particularly compatible with the notion of immediate apparency that this court recently addressed in Brown v. State, 809 P.2d 421, 423-24 (Alaska App.1991), and that the Alaska Supreme Court addressed in Reeves v. State, 599 P.2d 727, 728-40 (Alaska 1979). Although dicta in the majority opinion in Reevessomewhat blurred the distinction between plain view seizures and searches, I do not believe that Reevesis inconsistent with this standard. For these reasons, I would prefer to rely on the Texas v. Brown concurrence as describing the standard to be applied on remand.
¶4Second, while the court’s opinion simply remands for application of the “federal standard,” I would make it clear that my decision to follow this standard is based on state constitutional law, that is, on the Alaska Constitution’s provisions guarantee*1261ing freedom from unreasonable searches and seizures and the right to privacy. Alaska Const, art. I, §§ 14, 22. Our espousal of the “federal standard” should not, and, in my view, does not, hinge on its current or future viability under the federal constitution.
¶5Third, with regard to the proper application of the “federal standard,” I would raise a note of caution against placing undue emphasis on degree of certainty as the sole determinant of a proper warrantless search. Although a high degree of certainty as to the presence of contraband may well be a prerequisite to a warrantless search of a closed, opaque container under the plain view doctrine, it is not the only prerequisite. As the Alaska Supreme-Court made clear in Erickson v. State, 507 P.2d 508, 512 (Alaska 1973), even “abundant probable cause” does not negate the warrant requirement.
¶6Degree of certainty, or level of probable cause, is not in and of itself sufficient. The core concern of the warrant requirement is privacy. As Texas v. Brown, Arkansas v. Sanders, and United States v. Williams establish, the plain view exception is founded on the theory that there can be no reasonable expectation of privacy when contraband is in plain view. It is for this reason that the doctrine allows the warrantless opening of a properly seized container — such as a bottle or a plastic bag — which is transparent and unmistakably reveals its contents to be contraband. No reasonable person could maintain that any vestige of privacy remains in the container.
¶7This same rationale must control when the state invokes the plain view doctrine to justify the warrantless opening of a container that is opaque, rather than transparent. The pivotal inquiry must be whether observation of the unopened container amounts to a virtual, if not literal, observation of its contents — an “equivalent to the plain view of [the contraband] itself.” Texas v. Brown, 460 U.S. at 751, 103 S.Ct. at 1548. If such equivalency exists, all reasonable expectation of privacy in the contents of the container ceases, and the plain view doctrine allows its warrantless opening; if not, a warrant must be obtained, or some other recognized exception to the warrant requirement shown. For purposes of the plain view doctrine, it matters little if observations involve sight, sound, smell, or feel, provided that they are properly made and do not result from separate violations of the warrant requirement.
¶8It is crucial to draw the distinction between this notion of literal transparency, on the one hand, and a mere increase in the degree of certainty as to the presence of contraband, on the other. When a closed container, by its nature and the circumstances surrounding its use, is capable of simultaneously holding both legitimate articles and contraband, even the highest degree of certainty that contraband is present will not be equivalent to a plain view of its contents. In such a case the certain presence of contraband cannot in itself extinguish the owner’s continued right to expect privacy as to other contents, which may be legitimate. A paradigm of this situation is the suitcase in Erickson, the warrantless opening of which the Alaska Supreme Court refused to justify under the plain view doctrine, despite a heightened level of probable cause. 507 P.2d at 513-14.
¶9This distinction between virtual observation of a container’s contents and increased certainty as to the presence of contraband lies at the heart of Justice Stevens’ reference, in Texas v. Brown, to “single-purpose containers which ‘by their very nature cannot support any reasonable expectation of privacy because their contents can be inferred from their outward appearance.’ ” 460 U.S. at 750-51, 103 S.Ct. at 1548 (emphasis added) (quoting Arkansas v. Sanders, 442 U.S. at 764-65 n. 13, 99 S.Ct. at 2593-94 n. 13). I believe we must honor this distinction if we are to avoid drifting away from the sound moorings of the plain view doctrine, into the uncharted waters of “super” probable cause — waters vast enough to engulf the entire warrant requirement.