dissenting:
In United States v. Erickson, 991 F.2d 529 (9th Cir.1993), police officers were informed of a suspected burglary, arrived at the scene and spoke to two neighbors who told them they had seen two men dragging a large brown plastic bag, apparently full of heavy items, across the backyard of the residence adjacent to the scene of the suspected burglary. One of the officers found an open basement window at the scene of the suspected crime and pulled back a plastic sheet to investigate the basement. On doing so, the officer saw numerous marijuana plants and smelled marijuana. This court upheld the order of the district court suppressing the *1445evidence that was obtained by the policeman’s look. In the hearing before the district court the government had maintained that the police had acted in exigent circumstances. When District Court Judge Robert Bryan found there were no such circumstances, the government abandoned this ground on appeal and sought to justify the search in terms of the community caretaking functions of the police — a justification that we treated as equally unavailing. In other words, even where two neighbors, interviewed by the police, had seen strong indication that a burglary had taken place, not even the prosecutors were willing to argue on appeal that the police were acting in exigent circumstances when they peeked into the house. The attempt by the majority to distinguish Erickson from this case rings hollow.
At a time when the use of the exclusionary rule is being relaxed judicially and when further relaxations are contemplated by Congress, it is particularly necessary to maintain the vitality of the Fourth Amendment in assuring the sanctity of the homes of law-abiding citizens. It would be not much less than a constitutional catastrophe if this court were willing to relax its vigilance. Here is what happened in this case. Clyde Murdock was confronted in his bedroom, as he lay asleep in his bed, by an armed police officer, who with his gun drawn, told him to show his hands. This unexpected request woke Mur-dock up. From his prone position, he saw a gunman holding a gun at his head. He asked the gunman: “Who are you? What are you doing in my house? Why are you here?” He received no answer, to these questions (the majority opinion stigmatizes him as “uncooperative”). Instead, the gunman continued to shout at him to show his hands and finally yanked the blanket from his bed. Murdock was then kept covered by the gun while two other police officers searched his house. After the search of the house had been completed, the police then conducted a pat-down search. Murdock asked the gun-holding officer “to get the gun out of his face.” There was no response. When the pat-down was completed, the police looked at his driver’s license and identified him as the owner of the house. The majority opinion is pleased to describe this astounding series of events as a Terry stop. It is, however, difficult to know or even imagine what the basis for a Terry stop of a man asleep in his own bed might be. I trust that it is not that he had -gone to sleep in his clothes that made him the object of the police belief that they confronted a criminal. The Terry rule was designed to cover “street encounters” between citizens and the police on the beat. See Terry v. Ohio, 392 U.S. 1, 13, 88 S.Ct. 1868, 1875, 20 L.Ed.2d 889 (1968). It was originally applied on behalf of a police officer with “reason to believe that he was dealing with an armed and dangerous individual.” Id. at 27, 88 S.Ct. at 1883. It does not protect police action taken in good faith based on “inarticulate hunches.” Id. at 22, 88 S.Ct. at 1880. Nor does it protect decisions that are a “product of a volatile or inventive imagination.” Id. at 28, 88 S.Ct. at 1883.
The majority opinion relies on Maryland v. Buie, 494 U.S. 325, 333, 110 S.Ct. 1093, 1097, 108 L.Ed.2d 276 (1990) and Michigan v. Summers, 452 U.S. 692, 702, n. 17, 705, 101 S.Ct. 2587, 2594, n. 17, 2595, 69 L.Ed.2d 340 (1981), for the majority’s extension of Terry. Examination of those cases shows them far from the case at hand. Buie involved a “protective sweep” of a dwelling in connection with the arrest within it of an individual for whom the officers had a warrant. Terry was invoked by way of analogy only, to show that application of the Fourth Amendment requires balancing to determine reasonableness. Buie, 494 U.S. at 332-33, 110 S.Ct. at 1097-98. There was no suggestion that Terry was itself extended to stops effected within a home. Buie itself contains the warning that for a protective sweep within a home “there must be articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene.” Id. at 334, 110 S.Ct. at 1098. What articulable facts of this character justified the police sweep here after finding the' television on, Buds near the screen, and a man asleep in bed?
*1446Michigan v. Summers, 452 U.S. 692, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981) involved the execution of a warrant, in this case a search warrant of a house. Incident to its execution, the police stopped a man on the front steps leaving the house and detained him during the search; the stop was held lawful. In Summers, the Court notes that it is not deciding what might be justified by exigent circumstances, absent a warrant. Id. at 702, n. 17, 101 S.Ct. at 2594, n. 17. Instead, the Court declared: “for Fourth Amendment purposes, we hold that a warrant to search for contraband founded on probable cause implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted.” Id. at 705, 101 S.Ct. at 2595. The Court’s careful delineation of the limits on police action with a warrant stands in startling contrast to what the majority opinion in this case approves in a warrantless police action without probable cause. Terry is here extended to an almost unimaginable degree. Sound asleep in your own bed you can be nabbed by police whose chief ground for the “stop” is that a blanket covers your hands and clothes.
It may be that, deep in the memory of the three policemen who carried out this operation, there was the story of Goldilocks and the Three Bears. Like the Three Bears, the three policemen at first encountered a scene where one or more persons had been enjoying themselves — in this case by drinking Budweiser. They then opened a closed bedroom door and found a person they did not know asleep, clothed, in a bed. If they were the Three Bears, they could have identified this sleeping figure as an alien in their home and could have at least effected a Goldilocks stop if not a Terry stop. However, the analogy falters. The three bears were in their own home and so could recognize a stranger in it when they saw one. The three policemen were in Clyde Murdock’s home and had no reason to suppose that the sleeping man who had drunk some beer was now committing or had just committed a crime.
In some way that is not fully articulated the majority opinion attempts to link this use of armed force in a man’s bedroom to the events that occurred in the mind of the police shortly before their entry. A little after 8:00 p.m. that spring evening a neighbor of Mur-dock’s had encountered an unidentified person who is described simply as “a passing person.” The passing person told the neighbor that a boy, 16 to 22 years of age, had run from a house at the end of the cul de sac and had driven off in a black Chevy. On the basis of this tip the neighbor called the Fon-tana Police Department. The defendants’ statement of facts continues: “Because the house was dark, it was believed that a possible burglary or other crime had occurred.” The majority opinion shows some embarrassment as there is no identification of who believed that a possible burglary or other crime had occurred. Was it the passing person, the neighbor or the police dispatcher? What was the basis for this belief? The Murdocks had children; it was scarcely surprising that a Murdock child or a friend should run out of the house and enter a car. There was no report of anyone carrying loot from the Murdock house. There was no sign of forced entry. Compared with the facts in Erickson, these facts do not even amount to a suspicion that a burglary had occurred. Unlike Erickson, where the informants who had seen the two men moving the heavy bag were interviewed by the investigating police, in this case the police had no idea who the passing person was who made the comment that triggered their response. The police did not interview the neighbor who had called the police. A farfetched guess might have been that a boy had entered the house and had run out again, although even that speculation would have had almost no basis. The basis for believing that a burglary was actually in progress was nil.
Despite this shadowy bit of information, the police dispatcher sent three cruisers to the Murdock house. The police did a bang-up job of covering the house front and back with their guns drawn. They examined the house and garage and found everything locked, except a sliding door at the rear which was eight to ten inches open — an open door on a spring evening in southern California is scarcely surprising, let alone suspicious. At this point the majority opinion concedes that the police had no basis for entering Murdock’s home, no basis for believing that there were exigent circumstances.
*1447The police could hear a television set on and see some lights. That no doubt warranted the belief that somebody was at home. When they called “police” and no one answered and when a telephone answering device answered a random telephone call, the police jumped to the conclusion that there was someone at home who was being prevented from answering them, and made the further assumption that this person was being criminally restrained rather than being in the shower, the toilet, or his or her bed. Thereupon they made their bold entry that led them to see and seize Clyde Murdock in his bed. Their imaginations had been active, volatile and inventive.
The defense claim of exigent circumstances here comes down to the claim that when a homeowner is asleep and does not answer his phone or a police call, the police have reason to think that a crime is probably in progress. On the basis of that doctrine, there must be a good many homes in California that may be entered by roving policemen.
The majority opinion tries to suggest that the earlier anonymous and entirely mistaken report of a “possible burglary or other crime” that “had occurred” can somehow be put together with the homeowner’s silence to create exigent circumstances. Zeroes do not add up. No scrap of information pointed to a burglary in the present. At the very most the police had suspicion that a possible crime had taken place. There was absolutely no reason to believe a crime was occurring at the time the police arrived. The defendants do not assert any basis for such a supposition. There was no reason to think that when the television was on and an answering machine was in operation that mere non-response to a police call indicated a criminal emergency occurring within the house.
The majority opinion recites words that courts up until now have taken seriously. An entry into a person’s home without a warrant is “presumptively unreasonable.” Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 1380, 63 L.Ed.2d 639 (1980). To have police officers thrust themselves into a home is “a grave concern, not only to the individual but to a society which chooses to dwell in reasonable security and freedom from surveillance.” Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 369, 92 L.Ed. 436 (1948). As we have put it: “The warrantless search of a private residence strikes at the heart of the Fourth Amendment protections.” Erickson, 991 F.2d at 532.
Instead of applying Fourth Amendment law as set out on behalf of a person accused of a crime in Erickson, the majority opinion flouts Erickson to deny protection to a law-abiding homeowner. Instead of preserving the limits on arrest with a warrant and search with a warrant, so carefully set out in Buie and Summers, the majority opinion approves an expansive doctrine of police freedom to act on hunch without warrant or even articulable facts. In a case which is of first impression in this circuit, Terry stop authority is given an enormous extension. Instead of being treated as presumptively unreasonable, the break-in by the police and the seizure of Clyde Murdock are rationalized by speculation. Instead of their actions being treated as a grave concern not only to Clyde Murdock but to all of us, the police officers that committed the outrage are shielded from liability. Instead of protecting the heart of the Fourth Amendment, the majority opinion strikes at it.
I would reverse the district court.