(dissenting).
I dissent because I do not find in this record an unreasonable search and seizure prohibited by the Constitution. Reasonableness is determined neither by a piecemeal examination of the facts nor by application of rigid formulas; the question must be resolved upon an appraisal of “the total atmosphere of the case.” United States v. Rabinowitz, 1950, 339 U.S. 56, 66, 70 S.Ct. 430, 435, 94 L.Ed. 653. I do not believe it is unreasonable for narcotic agents, making a call on the appellant’s premises for the purpose of investigating the reported use of narcotics by one of her tenants, while there to remove the lid of a trash can located outside the home, after the agents had observed appellant leave the house and surreptitiously cast something into the can in circumstances which excited their suspicions. On the contrary, the failure of the agents to have followed this course once their suspicions were aroused would amount to a dereliction of duty on their part.
The Fourth Amendment was designed to safeguard the individual’s right of privacy in his home1 and in his personal effects against arbitrary intrusion by government officials. I cannot find a fundamental constitutional right to privacy in the garbage or trash pail of a rooming house where the receptacle is located out of doors in sight from the street and where there is an admitted constant invitation to the public authorities of the District to remove the contents as refuse. If the trash collector or District sanitary inspector had observed the “throwing motion” and promptly retrieved the contraband narcotics, I doubt anyone would seriously contend that an illegal search and seizure had occurred or that the narcotics could be suppressed as evidence.2 Yet the majority would require one narcotic agent to stand guard over the garbage can while his colleague, if he has one handy, attempts to go downtown to secure a search warrant.3 *664To me the search and seizure does not become “unreasonable” merely because the sight of agents in the vestibule of the rooming house4 induced appellant, a previously convicted narcotic violator, to make a hasty disposal of incriminating evidence. It was not an unlawful or indeed any search which “produced” appellant’s action; it was the sight of the two callers, whom her experienced eye detected to be narcotic agents, which caused fear and panic, and there is no reason to believe her reaction would have been different had she seen the officers approaching her from the public sidewalk rather than from the vestibule of her rooming house.
If, as the majority contends, it was the entry into the vestibule which invalidated the subsequent seizure, it would follow logically that the conduct of the officers would taint any subsequent seizure of the narcotics. Thus had appellant discarded the narcotics in the center of the street or in a neighbor’s yard or in a neighbor’s garbage pail, all in full public view, the majority theory would render any seizure of the narcotics “unlawful.” I am not prepared to join in reducing law enforcement restraints to that absurdity. This novel theory in operation does several things: (a) it runs counter to the Supreme Court’s “open field” abandonment doctrine; (b) it circumscribes the range of law enforcement within a subjective test of the accused’s motives in discarding the nar-cotíes. The accused’s reactions to the acts of the officers thus operate to immobilize all significant law enforcement efforts in the immediate situation.
We must not forget that the articles here seized were not private papers or ordinary personal effects, but narcotics, which, in the absence of stamps or other lawful permit, a citizen cannot lawfully own or possess; moreover, they were not seized in a home but in an outdoor garbage pail. The difference in the degree of protection afforded private property rightfully possessed and articles such as counterfeit money, stolen goods, and customs contraband, in whose regulation or destruction the public has a legitimate interest, has been emphasized time and time again by the Supreme Court.5 See, e. g., Boyd v. United States, 1886, 116 U.S. 616, 623-624, 6 S.Ct. 524, 29 L.Ed. 746; Carroll v. United States, 1925, 267 U.S. 132, 149-153, 45 S.Ct. 280, 69 L.Ed. 543; Harris v. United States, 1947, 331 U.S. 145, 154, 67 S.Ct. 1098, 91 L.Ed. 1399. While the distinction is not sufficient to sanction an invasion of the right to personal privacy in the home, it is a persuasive factor to me in considering whether an individual’s right of privacy renders unreasonable the removal of narcotics from a garbage or trash can situated outside the house in view of the public way and constantly open and available to the public trash collector.
*665If it is not considered unreasonable to seize without warrants contraband in public shops,6 on the public way,7 8or, after a search without a warrant of a private vehicle,8 as has been held, I am not willing to say as a matter of law that this seizure of narcotics from the trash can is so unreasonable as to warrant reversing the District Court’s conclusion. If it is reasonable for federal officers to follow a car into the owner’s garage, located “a few feet back of his residence and within the curtilage,” open the trunk of the car without a warrant and without the consent of the owner, and seize the liquor found therein, it ought to be reasonable for narcotic agents on a routine police investigation to follow appellant to a trash can and seize narcotics found therein when they have reason to believe she threw them there. Scher v. United States, 1938, 305 U.S. 251, 253, 59 S.Ct. 174, 83 L.Ed. 151. The officers’ actions in both the Scher and the instant case can be justified “upon what they saw and heard- — what took place in their presence.” Scher v. United States, supra, 305 U.S. at page 254, 59 S.Ct. at page 176.
Honest citizens neither need nor, I think, want protection for their privacy extended to these artificial limits, and a presently confessed, previously convicted narcotics violator is not entitled to it. Of course the guilty should have the same protective safeguards as the innocent and I would afford them as much. But I refuse to join in what I consider an unfortunate trend of judicial decisions in this field which strain and stretch to give the guilty, not the same, but vastly more protection than the law-abiding citizen.9 In this balancing of rights of the individual and the whole public, which is admittedly a delicate process, society’s vital stake too often is overlooked for reasons which I cannot justify as essential for the preservation of our important fundamental rights.
Mr. Justice Holmes’ observation10 that “there is more danger that criminals will escape justice than that they will be subjected to tyranny” applies to a case like this.
. 1 Cooley, Constitutional Limitations 610-15 (8th ed. 1927). Courts have construed the Fourth Amendment reference to “houses” as including not only dwellings but other structures used as places of business. See, e. g., Gouled v. United States, 1921, 255 U.S. 298, 305, 41 S.Ct. 261, 65 L.Ed. 647. But the distinction between such buildings and the areas surrounding them “is as old as the common law.” Hester v. United States, 1924, 265 U.S. 57, 59, 44 S.Ct. 445, 446, 68 L.Ed. 898.
. The majority says, “placing of the phial Lof narcotics] in this receptacle * * * is not to be construed as an abandonment of the phial unless to persons impliedly or expressly authorized to remove the receptacle’s contents, such as the trashmen, for purposes of destruction.” In other words, this court is saying that as to the District of Columbia trash-men the narcotics were abandoned but as to the District of Columbia narcotic squad they were concealed and thereby rendered subject to suppression in a criminal prosecution. It seems to me that the very act of placing the package in the garbage, trash or refuse pail is an act of abandonment and I would not have any different or special rule for narcotics.
. In United States v. Rabinowitz, 1950, 339 U.S. 56, 85, 70 S.Ct. 430, 444, Justice Frankfurter’s dissent points out that “It is most relevant that the officers had ‘no *664excuse for not getting a search warrant.’ ” Here there is excuse for not doing so.
. The majority glosses over the fact that this was a rooming house. After receiving no response to their knocking, the officers opened the unlocked outer door and stepped into a front hall or vestibule used by appellant, her roomers, and evidently any person calling on such roomers. That some form of tacit consent to enter this common way did exist is indicated by the fact that when appellant came out of her apartment she did not challenge the two strangers or in any way object to their presence. While I would not read appellant’s failure to question the presence of the officers as an affirmative invitation or consent, I see it as an acknowledgment that the vestibule was a semi-public entryway where those who might call on tenants or roomers had a right to be.
. Congress has also recognized that narcotics traffic requires a stricter degree of regulation than that of other contraband. In passing the Narcotic Control Act of July 18, 1956, c. 629, 70 Stat. 567, Congress increased generally the mandatory minimum and permissive maximum sentences for narcotic offenses and provided that the jury could direct the Heath penalty for one convicted of selling heroin to juveniles. 70 Stat. 571, 21 U.S.C.A. § 176b. See also 1956 U.S.Code Cong. & Ad.News, pp. 3274r-3322.
. Fisher v. United States, 1953, 92 U.S. App.D.C. 247, 205 F.2d 702.
. Lee v. United States, 1954, 95 U.S.App. D.C. 156, 221 F.2d 29.
. Brinegar v. United States, 1949, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879.
. Mr. Justice Jackson remarked: “That the rule of exclusion and reversal results in the escape of guilty persons is more capable of demonstration than that it deters invasions of right by the police.” Irvine v. People of State of California, 1954, 347 U.S. 128, 136, 74 S.Ct. 381, 385, 98 L.Ed. 561.
. Kepner v. United States, 1904, 195 U.S. 100, 134, 24 S.Ct. 797, at page 806, 49 L.Ed. 114, (dissent).