dissenting:
I agree with the majority that the officers acted in good faith and that the searches were conducted in a reasonable manner. However, I do not agree that a valid arrest warrant and probable cause are constitutionally insufficient to justify a search for the suspect upon a third person’s premises. The majority’s additional requirement of a search warrant in such circumstances causes me grave concern, and I must respectfully dissent.
The broad arguments advanced by the plaintiffs were considered and rejected in United States v. Phillips, 593 F.2d 553 (4th Cir. 1978). Phillips involved the search of a residence which federal officers had observed for about one year to be a gathering place for members of a narcotics distribution ring. After obtaining valid arrest warrants, the policemen sought to execute the warrants at the residences. Though no one responded to their knocks at the door, the officers heard noises within the house. They forcibly entered and proceeded to search for the named suspects. During their search, the officers seized evidence lying in plain view which was later used at trial.
The Phillips defendants objected to admission of the evidence on the ground that it was illegally seized, and raised the issue on appeal. We held that the search was reasonable and that it did not violate the fourth amendment, although no search warrant was obtained. We did so on the ground that it has long been established that police officers may lawfully enter a dwelling, with force if necessary, to execute a valid arrest warrant, where they reasonably believe that the named suspect is on the premises. Id. at 557; Rodriguez v. Jones, 473 F.2d 599, 604-06 (5th Cir.) cert. denied, 412 U.S. 953, 93 S.Ct. 3023, 37 L.Ed.2d 1007 (1973); United States v. Brown, 467 F.2d 419, 423 (D.C. Cir. 1972) (Mr. Justice Clark); United States v. Cravero, 545 F.2d 406, 421 (5th Cir. 1976) cert. denied, sub nom. Cook v. United States, 430 U.S. 983, 97 S.Ct. 1679, 52 L.Ed.2d 377 (1977); United States v. McKinney, 379 F.2d 259, 262-63 (6th Cir. 1967); Michael v. United States, 393 F.2d 22, 32 (10th Cir. 1968). See Lankford v. Gelston, 364 F.2d 197, 205-06 (4th Cir. 1966); Vance v. North Carolina, 432 F.2d 984, 990-91 (4th Cir. 1970).1
I see no necessity to create an exception to this rule for third-party residences because a magistrate’s evaluation of probable cause prior to such a search will have no appreciable effect upon the privacy interests to be protected. The search is intrusive upon those privacy interests whether or not exigent circumstances are present or a search warrant is obtained. Lankford v. Gelston, 364 F.2d at 206. The resident’s privacy interest centers primarily on the manner and extent of the search conducted — a matter unaffected by a warrant requirement since it cannot be reviewed before the fact.
Also, the search for a person named in an arrest warrant presents inherent exigencies not present in the search for objects. See Vance v. North Carolina, 432 F.2d at 990-91. Named suspects frequently pose a threat of danger to the police and to the public, necessitating the swiftest possible execution of arrest warrants. The suspect’s very failure to present himself to the police may, in a practical sense, be viewed as an exigency justifying an exception to the warrant requirement of the fourth amendment. In most cases other circumstances, such as the gravity of the crime or the stability and dangerous propensities of the *1163suspect, are present when the suspect eludes the police. See United States v. McKinney, 379 F.2d at 263; United States v. Brown, 467 F.2d at 424.
In this case no exigent circumstance appeared. Although the custody and welfare of a young child was at issue, no felony was suspected. The suspect was wanted for failure to appear in court. She was not considered unstable or dangerous. Nevertheless, I think no purpose would have been served by requiring the officers here to make a separate trip to the magistrate each time they formed a reasonable belief as to her presence in a particular dwelling. To impose such a rule would have hampered them in their duties while giving no appreciable benefit to the residents of the dwellings.
I hasten to add that any search conducted under these circumstances may be challenged in federal tort actions by a resident of the dwelling searched, on the ground that an officer’s belief was unreasonable or that the conduct of the search was unreasonable. 42 U.S.C. § 1983. See Hill v. Rowland, 474 F.2d 1374 (4th Cir. 1974); Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). The reasonable belief standard is not without teeth. See United States v. Cravero, 545 F.2d 406, 421 (5th Cir. 1976):
The test is properly framed in terms of reasonable belief. Probable cause is essentially a concept of reasonableness, but it has become a term of art in that it must always be determined by a magistrate unless exigent circumstances excuse a search warrant. . . . Reasonable belief embodies the same standards of reasonableness [as probable cause] but allows the officer who has already been to the magistrate to secure an arrest warrant, to determine that the suspect is probably within certain premises without an additional trip to the magistrate and without exigent circumstances.
(Footnote and citations omitted). The reasonableness of the search itself must be determined on a case-by-case basis. In many circumstances a brief and courteous walk-through is sufficient to determine if a suspect is in fact in the home.
The recent Supreme Court decision in Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), does not require a contrary conclusion. As the majority notes, Payton did not address the issue presented here.
Accordingly, I would find that the police need not obtain a search warrant for third-party dwellings when they have a reasonable belief that the person named in a valid arrest warrant is in the dwelling.
. In 1975, twenty-five states had statutes authorizing warrantless entries to arrest in residences, absent exigent circumstances. Note, “Warrantless Entry to Arrest: A Practical Solution to a Fourth Amendment Problem,” 1978 U.Ill.L.F. 655, 668-69. Several of our sister circuits have recently held that per se violations of fourth amendment rights occur when police officers enter residences with neither an arrest warrant nor a search warrant, absent exigent circumstances. United States v. Killebrew, 560 F.2d 729, 733 (6th Cir. 1977); United States v. Reed, 572 F.2d 412, 420-23 (2nd Cir.) cert. denied sub nom. Goldsmith v. United States, 439 U.S. 913, 99 S.Ct. 283, 58 L.Ed.2d 259 (1978). Contra, United States ex rel. Wright v. Woods, 432 F.2d 1143, 1145-46 (7th Cir. 1970).