(dissenting).

The court’s decision is in conflict with decisions of the Supreme Court of the State of California concerning the protection which the Constitution of the United States affords against unreasonable searches and seizures in the circumstances here involved. 1 The reasons given by the court for taking a narrower view of the Constitution’s coverage do not seem persuasive.

Since the central purpose of the Fourth Amendment is to protect the privacy of persons and property (Wolf v. Colorado, 338 U.S. 25, 27 , 69 S.Ct. 1359 , 93 L.Ed. 1782 (1949)), it is easy to agree that the Amendment does not apply where there is no privacy to protect. It is also easy to agree that it is not a “search” to watch persons who are in plain sight in a public place, and that this is no less true when observation is clandestine than when it is open.

But less than complete privacy is not the equivalent of no privacy at all. The Fourth Amendment protects limited privacy — which, after all, is the only kind *260 people ordinarily know. Houses, hotel rooms, offices, private automobiles, and taxicabs all have windows exposing portions of their interiors, and hotel rooms, offices, and taxicabs must be shared to varying degrees with cleaning people, customers, clients, and taxi drivers. Yet the intrusion of police officers into these places may violate the Fourth Amendment, as demonstrated by cases cited in the court’s opinion, and many others.

The Fourth Amendment does not protect conversations in prison waiting rooms, because in prisons “official surveillance has traditionally been the order of the day.” Lanza v. State of New York, 370 U.S. 139, 143 , 182 S.Ct. 1218 , 1221 (1962). But it does protect conversations in homes, where privacy is ordinarily respected. Silverman v. United States, 365 U.S. 505 , 81 S.Ct. 679 (1961). As the court suggests, the Fourth Amendment does not prevent a policeman from looking into the window of an automobile on a public street. Petteway v. United States, 261 F.2d 53, 54 (4th Cir. 1958). But the officer may not open the door for a closer inspection without complying with the Amendment’s terms. Rios v. United States, 364 U.S. 253 , 80 S.Ct. 1431 , 4 L.Ed.2d 1688 (1960); Gambino v. United States, 275 U.S. 310 , 4 S.Ct. 137 , 72 L.Ed. 293 (1927). In sum, the Fourth Amendment protects such privacy as a reasonable person would suppose to exist in given circumstances.

Persons using the toilet stalls in the Camp Curry restroom did so with the reasonable expectation of partial privacy. The stalls were constructed, as the district court put it, “to shield the person who uses the lavatory from the very intimate details”; or, in this court’s phrase, to provide “at least a minimum of public decency.” As this court states, “every person who enters an enclosed stall in a public toilet is entitled to believe that, while there, he will have at least a modicum of privacy that its design affords.”

It was precisely this “modicum of privacy” which the officers invaded. They did not confine their observation to what might have been seen over or under the doors or side partitions from the public area of the toilet. Their search extended to every corner of the stalls’ interiors. They watched the “intimate details” of the activity of persons who used them. What they observed and photographed could not have been seen and photographed from the public area. As government counsel candidly stated, “Because of the.physical set-up in the restrooms themselves they couldn’t physically observe this activity. So they undertook to cut holes in the ceiling and watch from up there.”

From the viewpoint of those who used the stalls, ceiling peepholes six inches square, centered over each stall, 2 and deliberately screened and finished to give the appearance of ventilating outlets cannot be analogized, as the concurring opinion suggests, to windows in a wall. And it is pure fiction to say that those who used the stalls “impliedly consented” to surveillance through these apertures and “waived” their right to the limited privacy which the enclosed stalls in fact appeared to afford. 3 The law does not *261 permit constructive consent or fictional waiver to override constitutional rights. 4

It may be assumed, for purposes of this case, that the Supreme Court will limit Fourth Amendment protection against eavesdropping to cases involving the “reality of an actual intrusion into a constitutionally protected area.” Silverman v. United States, 365 U.S. 505, 512 , 81 S.Ct. 679, 683 , 5 L.Ed.2d 734 (1961). 5 Cutting an observation hole in the ceiling over each toilet stall constituted an “actual, intrusion” into the area as much as did driving a spike microphone into the wall in Silverman— the one to permit search by ear, the other by eye. And the intrusion did not cease once the microphone was in place or the hole was cut. It continued so long as the officers listened on the earphones or looked through the aperture. The Supreme Court recognized as much in Goldman v. United States, 316 U.S. 129, 134 , 62 S.Ct. 993 , 86 L.Ed. 1322 (1942).

Electronic or visual snooping in an apartment, hotel room, or office is not beyond the reach of the Fourth Amendment simply because the means to accomplish the intrusion are installed before the victim rents the premises. Surely it is wrong to hold, as this court apparently does, that those who occupy such premises do so subject to the presence and subsequent use of previously installed means for secret surveillance.

Once the applicability of the Fourth Amendment is accepted, violation of its requirements in this case is clear. The officers made no effort to secure a warrant. “Over and over again this Court has emphasized that the mandate of the Amendment requires adherence to judicial processes. Only where incident to a valid arrest, or in ‘exceptional circumstances,’ may an exemption lie * * United States v. Jeffers, 342 U.S. 48, 51 , 72 S.Ct. 93, 95 , 96 L.Ed. 59 (1951) (citations omitted). The search was. not incident to an arrest, and no contention is made that exigent circumstances justified the warrantless search. The court cites no case — there is none — holding that such a search may be sustained as “reasonable”. 6

The search offended the Fourth Amendment for another reason. As the Supreme Court of California said of similar police surveillance in Bielicki v. Superior Court, supra, 21 Cal.Rptr. 552 , 371 P.2d at 290 : “Such a practice *262 amounts to a general exploratory search conducted solely to find evidence of guilt, a practice condemned * * * by federal law.” Searches of this character are reminiscent of the abusive writs of assistance and general warrants which motivated the adoption of the Fourth Amendment. See Stanford v. Texas, 379 U.S. 476 , 85 S.Ct. 506 , 13 L.Ed.2d 431 (1965). See also Britt v. Superior Court, 58 Cal.2d 469 , 24 Cal.Rptr. 849 , 374 P.2d 817, 818 (1962), and cases cited.

The ultimate object of the Fourth Amendment is protection of the innocent. The innocent are shielded from unjustified search by the requirement that no warrant issue unless a magistrate is first satisfied that grounds for the search exist. The innocent are afforded some protection from the abuse of warrantless searches incident to arrest by the requirement of probable cause for the arrest itself. The exigent circumstances exception is at least narrowly confined, and supported by practical necessity. But if general exploratory searches for evidence are permitted, the innocent will be as much exposed to intrusions upon their privacy as the guilty; as, indeed, forty innocent men were in the course of this general search.

Since the testimony and photographs introduced at trial were in fact the product of unconstitutional police surveillance through the ceiling holes, it would make no difference if it were true, as the court suggests, that the officers could have seen enough from the public area to know that the crime was being committed. As the Supreme Court of California said in Britt v. Superior Court, 24 Cal.Rptr. 849 , 374 P.2d 817, 819 (1962):

Evidence seized in violation of constitutional rights must be excluded, though precisely the same evidence might have been obtained lawfully by a valid search. Abel v. United States, 362 U.S. 217, 234 , 80 S.Ct. 683 , 4 L.Ed.2d 668 (1962).

Since the “modicum of privacy” which the stall afforded is protected by the Fourth Amendment, other arguments advanced in the concurring opinion seem untenable. (1) It is irrelevant that the manager of the private concern which operated the Camp Curry facility suggested the use of peepholes, and that the carpenter who cut them was a company employee, for the record is clear that the holes were cut and the surveillance conducted by agreement between the company manager and a United States ranger. And in any event, it was officers of the United States and not private persons who conducted the search and secured the evidence. (2) A warrantless search of a protected area is not a permissible choice either for management officials or law enforcement officers, no matter how clear it may be that the premises are being used for an unlawful purpose. Probable cause may authorize the issuance of a search warrant; it cannot alone justify a search without one. Jones v. United States, 357 U.S. 493, 497-498 , 78 S.Ct. 1253 , 2 L.Ed.2d 1514 (1958). “The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime. Any assumption that evidence sufficient to support a magistrate’s disinterested determination to issue a search warrant will justify the officers in making a search without a warrant would reduce *263 the Amendment to a nullity and leave the people’s homes secure only in the discretion of police officers. Crime, even in the privacy of one’s own quarters, is, of course, of grave concern to society, and the law allows such crime to be reached on proper showing. The right of officers to thrust themselves into a home is also a grave concern, not only to the individual but to a society which chooses to dwell in reasonable security and freedom from surveillance. When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or Government enforcement agent.” Johnson v. United States, 333 U.S. 10, 13-14 , 68 S.Ct. 367, 369 , 92 L.Ed. 436 (1948). See also Agnello v. United States, 269 U.S. 20, 33 , 46 S.Ct. 4 , 70 L.Ed. 145 (1925); Eng Fung Jem v. United States, 281 F.2d 803, 804 , 86 A.L.R.2d 981 (9th Cir. 1960).

The convictions were based upon evidence secured in violation of appellants’ constitutional rights and should be reversed.

. Bielicki v. Superior Court, 57 Cal.2d 602 , 21 Cal.Rptr. 552 , 371 P.2d 288 (1962); Britt v. Superior Court, 58 Cal.2d 469 , 24 Cal.Rptr. 849 , 374 P.2d 817 (1962). The opinion of the court concedes as much. The concurring opinion suggests that the California court might arrive at the same result as this court does by applying the rule of People v. Gorg, 45 Cal.2d 776 , 291 P.2d 469 (1955). This seems unlikely in view of the United States Supreme Court’s recent statement that “Our decisions make it clear that rights protected by the Fourth Amendment are not to be eroded by strained applications of the law of agency or by unrealistic doctrines of ‘apparent authority.’ ” Stoner v. State of California, 376 U.S. 483, 488 , 84 S.Ct. 889, 892 , 11 L.Ed.2d 856 (1964).

. The statement in the concurring opinion that the holes were cut “above an open area unconnected with the stalls,” can only refer to the fact that there was a three-foot space between the top of the stalls and the ceiling.

, As the Supreme Court of California said in Bielicki v. Superior Court, 371 P.2d 288, 290-291 (1962) (citations omitted):

. The quotation from People v. Young, 214 Cal.App.2d 131 , 29 Cal.Rptr. 492 (Dist. Ct. App.1963), relied upon by the court is inapposite. Secret surveillance was permitted of “the areas of such toilets, where the members of the public are free to circulate, as distinguished from areas where one may seclude oneself from public view, such as in an enclosed commode or toilet stall.”

. Technical trespass is clearly not required. Silverman v. United States, 365 U.S. at 511, 512 , 81 S.Ct. 679 . See also McDonald v. United States, 335 U.S. 451 , 69 S.Ct. 191 , 93 D.Ed. 153 (1948); Regalado v. California, 374 U.S. 497 , 83 S.Ct. 1875 , 10 L.Ed.2d 1044 (1963). And the latter two cases strongly suggest that visual observation of a private area through apertures not intended by the occupants to be used for that purpose (a transom in McDonald , a hole in a door in Regalado) constitutes a search within the Fourth Amendment though there is neither physical intrusion nor trespass.

. If we were permitted to approve as “reasonable” a warrantless search not incident to an arrest or justified by exigent circumstances, the search conducted here would be a doubtful candidate, in view of the court’s premise that the illegal activity was observable from the public area. Forty innocent users of the stalls were subjected to secret surveillance justified only by police convenience — a search “not really essential to the conviction but merely a routine substitute for more arduous but less intrusive modes of investigation.” (16 Stan.L.Rev. 318, 350 (1964)).