concurring:

I concur fully in Judge Adams’ opinion and I concur in the result of Judge Sneed’s opinion.

Judge Adams writes separately, from the perspective of a judge from a circuit other than the ninth. Sitting as a visiting judge of the Ninth Circuit in this case, he of course finds himself bound by Ninth Circuit precedent but nonetheless moved to report that other circuits, confronted with the facts of this case, would reach a different result and, in his view, for sounder reasons than those expressed by Judge Sneed, in his opinion.

I write as a Ninth Circuit Judge bound by Ninth Circuit precedent that compels the result Judge Sneed reaches, but not bound to agree with his fourth amendment analysis.

Judge Sneed takes Katz v. United States, 389 U.S. 347 , 88 S.Ct. 507 , 19 L.Ed.2d 576 (1967), as the starting point for his analysis, as do I, but we do not agree as to its import.

The petitioner in Katz was convicted of transmitting wagering information in violation of a federal statute. At trial, the government introduced evidence obtained from the attachment of microphones and recording devices to the outside of public telephone booths used by the petitioner. This Circuit, stressing the absence of any physical penetration into the phone booths, upheld the admission of the recordings. The Supreme Court reversed.

In reaching its decision, the Katz Court rejected prior fourth amendment analysis that had single-mindedly focused on “constitutionally protected areas” and the necessity of finding a technical trespass. The majority stated:

Id. at 351-52 , 88 S.Ct. at 511-12 (footnotes and citations omitted).

In the most enigmatic portion of its opinion, the majority concluded that the government’s surveillance technique “violated the privacy upon which [the petitioner] justifiably relied while using the telephone booth.” Id. at 353 , 88 S.Ct. at 512 . The underlying analysis emphasized justifiable expectations of privacy.

Although Katz is especially noteworthy for abandoning analysis based on “constitutionally protected areas” and for eliminating technical trespass as a requirement for finding an illegal search, it also is significant for what it left intact. Most important is the continuing relevance of examining the physical characteristics of the area searched as part of the fourth amendment analysis. Immediately after penning the maxim, “[T]he Fourth Amendment protects people, not places,” the majority held that just as the fourth amendment protects one while in a friend’s apartment, a business office, or taxicab, the same protection includes the occupant of a public telephone booth. Id. at 352 , 88 S.Ct. at 511 . Thus, because the Katz expectation of privacy must be a reasonable one, and because physical surroundings of necessity form a part of what is reasonable, the appropriateness of viewing fourth amendment problems in the context of the immediate physical surroundings is not open to doubt.

*1326 One of the problems with Judge Sneed’s analysis is that it is completely void of any discussion of the defendants’ expectation of privacy in their home. It draws no distinction whatsoever between beeper surveillance of a suspect on the street and monitoring him inside his home. Contrary to Judge Sneed’s view, Katz does not preclude such analysis; in fact, it is necessary to any determination of reasonable expectations of privacy under Katz .

Justice Harlan, concurring in Katz , suggested that the limits of fourth amendment protection are seldom discoverable without reference to place. Id. at 361 , 88 S.Ct. at 516 . He also concluded that two requirements emerged from previous decisions: a person must exhibit an actual (subjective) expectation of privacy, and the expectation must be one that society is prepared to recognize as reasonable. Id.

As noted by Judge Sneed, a majority of the Court eventually adopted the two-pronged analysis of Justice Harlan’s concurrence when it decided Smith v. Maryland, 442 U.S. 735, 740-41 , 99 S.Ct. 2577, 2579-80 , 61 L.Ed.2d 220 (1979). After noting that the application of the fourth amendment has consistently depended on demonstration of a “legitimate,” “reasonable,” or “justifiable” expectation of privacy, id. at 740 , 99 S.Ct. at 2579 the Court concluded that Justice Harlan was correct in suggesting that the Katz inquiry requires an analysis of both subjective and objective expectations of privacy. But the court was quick to recognize that the two-pronged test, itself, is not fully adequate:

Id. at 740, n. 5, 99 S.Ct. at 2579 n.5.

One of the foundations of the fourth amendment is the right of the people “to be secure in their ... houses.” Unfortunately, Judge Sneed, in reviewing fourth amendment questions, has chosen to balance the rights of the people to be secure in their homes against the needs of law enforcement. See Judge Sneed’s opinions in this case and United States v. Dubrofsky, 581 F.2d 208 (9th Cir. 1978). Fourth amendment protections should not be eroded, however, merely because the government has a strong suspicion as to the identity of the perpetrator of a serious crime. A long line of Supreme Court decisions demonstrates that balancing is undertaken only after it is concluded that there has been a search. See, e.g., Delaware v. Prouse, 440 U.S. 648, 653-54 , 99 S.Ct. 1391, 1395-96 , 59 L.Ed.2d 660 (1979); United States v. Brignoni-Ponce, 422 U.S. 873, 878 , 95 S.Ct. 2574, 2578 , 45 L.Ed.2d 607 (1975); Terry v. Ohio, 392 U.S. 1, 16, 20-21 , 88 S.Ct. 1868, 1877, 1879 , 20 L.Ed.2d 889 (1968). The initial determination as to whether the government’s intrusion on the privacy of one’s home constitutes a search is not subject to such a balancing test. It should be subject instead to careful scrutiny by this court. Yet Judge Sneed, writing for the court in Dubrofsky , held that the monitoring of a tracking device located inside a private residence did not constitute a search, without any discussion of the special privacy interests inherent in the home. He reaches the same conclusion today.

I find myself in the difficult position of acquiescing in the government’s conduct in this case because I am bound by Dubrofsky .