(dissenting):
I agree that the search warrant was validly issued but I dissent because of the manner in which it was executed.
18 U.S.C. § 3109 provides:
“The officer may break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute a search warrant, if, after notice of his authority and purpose, he is refused admittance * *
In Keiningham v. United States, 109 U.S.App.D.C. 272, 287 F.2d 126, the officers had an arrest warrant, and also a search warrant for premises No. 1106. Those premises adjoined premises No. 1108 and a door from the former led to the latter. The officers entered No. 1108 through the door and searched those premises. This court held the search unlawful and the evidence procured thereby inadmissible, saying,
“Since the entry into 1108 was made without permission and was not preceded by an announcement, that entry was improper and the search which followed that improper entry cannot be upheld even if the search would otherwise have been valid. * * * We think that a person’s right to privacy in his home (and the limitation of authority to a searching police officer) is governed by something more than the fortuitous circumstance of an unlocked door, and that the word ‘break’ as used in 18 U.S.C. § 3109, means ‘enter without permission.’ We think *805that a ‘peaceful’ entry which does not violate the provisions of § 3109 must be a permissive one, and not merely one which does not result in a breaking of parts of the house. We hold that the officers ‘entered’ 1108 when they passed through the door in the partition, and we decide these cases on the narrow ground that an announcement, at least, was required at that time.”
109 U.S.App.D.C. at 276, 287 F.2d at 130.
In our case the officers entered “without permission.” The “permission” granted by the eight year old boy did not give leave to the officers to enter and search.1 And the subsequent entry through the partially open door, being without permission, constituted a violation of Section 3109. It seems to me to be indisputable from the evidence that Officer Aiken, who first entered the apartment, did so before announcing his authority and purpose and without opportunity for his admittance to be refused. See 18 U.S.C. § 3109, supra. Therefore, as in Keiningham, I think the consequent search was unlawful and the evidence thereby secured should have been excluded. I accordingly would reverse and remand.
I construe the placing of his foot in the door by Officer Aiken, as described in the Appendix to this opinion, as an entry on his part. He stood in the doorway with his foot in the door, “the little piece that comes across the door.” In answering a question by the Judge, he described it this way: “I stepped — I put my foot in the doorway.” In Keiningham, as we have seen, the entry was made by opening a door. Here it was made by the offieer placing himself in the doorway so as to maintain his presence in the apartment, though he had not complied with Section 3109. From a legal standpoint this seems to me the same as though he had walked into the apartment without complying. I cannot read the record, as my brethren do, as showing that when the officer spoke to Mrs. White he was not inside the apartment, if by this it is meant that he had not entered. Before speaking to her he used a well known method of entering and of making his entry good against possible opposition. I should think any of us would consider such action of an officer at our front door as an entry into the house.
As applied to our case Section 3109 required the officer to remain outside at the threshold until he had made his announcement. Otherwise the entry without permission could not possibly afford the required opportunity for admittance to be refused.2
The fact that the entry in this case was peaceful does not render it lawful. Keiningham, supra. Nor does the fact that the door was partially open remove the necessity for complying with the procedures imposed by law prior to entering without permission. A person’s right to privacy within his home is governed by something more than the fortuitous circumstance of a partially open door. Keiningham, supra. Moreover, the absence of a search warrant for premises No. 1108 in Keiningham does not affect the application of that case to our situation; for the entry there was held unlawful because made without permission and without an announcement, not because the officers had no warrant. Nor can the entry in Keiningham be termed *806a forceful one; our court did not so characterize the opening and passing through the door.
Miller v. United States, 357 U.S. 301, 78 S.Ct. 1190, 2 L.Ed.2d 1332, referred to by my brethren, I suggest affords no support to their opinion.3 The evidence involved in Miller was suppressed as the fruit of an illegal arrest traceable to an illegal entry. The Court applied the criteria of Section 3109, Its requirements not having been met the entry was held to be unlawful. True, it was a forceful entry, but the holding that it was unlawful was not based on that. It was based on the absence of notice which met the requirements of Section 3109. Compare Ker v. State of California, 374 U.S. 23, 46, 83 S.Ct. 1623, 10 L.Ed.2d 726, where the problem is recognized as one of unannounced police intrusions. (Opinion of Mr. Justice Brennan.) 4
Section 3109 sets forth conditions under which force may be used in executing a warrant. It does not, however, authorize a peaceful entry to execute a warrant without compliance with the same conditions which permit the use of force.
“Even if probable cause exists for the arrest of a person within, the Fourth Amendment is violated by an unannounced police intrusion into a private home, with or without an arrest warrant, except (1) where the persons within already know of the officers’ authority and purpose, or (2) where the officers are justified in the belief that persons within are in imminent peril of bodily harm, or (3) where those within, made aware of the presence of someone outside (because, for example, there has been a knock at the door), are then engaged in activity which justifies the officers in the belief that an escape or the destruction of evidence is being attempted.”
Ker v. State of California, supra at 47, 83 S.Ct. 1623, 1636 (opinion of Mr. Justice Brennan). The opinion of Mr. Justice Clark, which, with the concurrence on a different ground by Mr. Justice Harlan, prevailed in Ker, found that the unannounced character of the entry did not render the resulting arrest and search unreasonable; but the opinion rests upon an exception recognized by California decisions, based upon the likelihood in the particular circumstances that evidence would be destroyed. Mr. Justice Clark states, “Here * * * the criteria under California law clearly include an exception to the notice requirement where exigent circumstances are present.” 374 U.S. at 39, 83 S.Ct. at 1633. No exigent circumstances are relied upon by my brethren in support of the reasonableness of the entry in our case.
I would reach the same result in this case were I to consider the question without the benefit of Section 3109; that is, were I required to determine whether the search was an unreasonable one under the Fourth Amendment unaided by Section 3109. On the surface it might seem that in all the circumstances disclosed by this record the search was not unreasonable. I am unable so to conclude because to do so would involve, if my view of the facts is correct, an abandonment of the necessity, in determining reasonableness, of notice and opportunity for persons within a private home to consent to or refuse admission, prior to entry therein *807by a police officer. These I think are requirements of reasonableness, unless the situation comes within an exception such as the Court found in Ker v. State of California.
Appendix
[Cross examination by the Assistant United States Attorney, Mr. Titus, of Officer Aiken, who first entered the apartment.]
“Q. What did you do when you arrived at the apartment, tell us the whole sequence, but briefly.
“A. It was a young boy that later was identified as the son of Roland and Mrs. White, he opened the door and—
“Q. How did it come about that he opened the door?
“A. As we came up, he was opening the door, he was coming out.
“Q. He was coming cut?
“A. He was coming out of the apartment and at that time we asked him was Roland there and we wanted to see Roland White and his wife, and he opened the door, he said, ‘Come in.’
“Q. The boy said, ‘Come in’ ?
“A. That is right, he opened the door and said, ‘Come in.’
“Q. You had just seen him coming out of the apartment?
“A. He was getting ready to come out, he opened the door and was standing in the hallway when we came up.
“Q. Was the door open when you came up ?
“A. Yes, sir.
“Q. What did the boy say?
“A. He stepped back and said, ‘Come on in.’ At this time, as soon as the door opened, we could see into the apartment, Officer Somerville and I, I was the first one, I identified myself as a police officer and I stated I had a search warrant for the premises.
“Q. Who did you identify yourself to?
“A. I identified myself to Mrs. White, I saw her first.
“Q. Where was she?
“A. She was standing to my left, from about here to you.
“Q. Inside the apartment?
“A. Inside the apartment.
“Q. When you made your identification of yourself as a police officer, what else did you say?
“A. I showed my badge and I told her I had a search warrant.
“Q. For the apartment?
“A. Yes, sir.
“Q. When you said that, where were you standing at that time?
“A. It was still standing in the doorway.
“Q. In the doorway?
“A. Yes, sir.
“Q. Were you inside the apartment or in the doorway ?
“A. I was in the doorway itself.
“Q. Not inside the apartment?
“A. No, sir.”
[Redirect examination by counsel for defendant, Mr. Gentry.]
“Q. You say when you approached the apartment, a boy was coming out?
“A. Yes, sir.
“Q. Was he outside?
“A. He was just coming out the door, in fact he hadn’t closed the door when we came up.
“A. We were in the doorway when the boy opened the door, I put my foot in the door and at that time, I told him I was the police — when I say doorway, I mean the little piece that comes across the door, and told them I was a police officer and I had a search warrant.
“Q. No one inside the apartment invited you in, is that correct?
“A. Other than the boy, the young boy that just opened the door *808and was going out, he told us to come in.
“Q. What did you tell this little boy?
“A. When he said come in?
“Q. Before he said come in ?
“A. The only thing, I asked him was White or Mrs. White home and he just opened the door. He said yes, and opened the door and said, ‘Come on in.’
“Q. Did you tell him who you were?
“A. Not immediately,
“Q. Were you in uniform ?
“A. No, sir.
“Q. Was Detective Somerville in uniform ?
“A. No, sir.
“Q. Were these the only two detectives present?
“A. At this particular time, Somerville and I were the only two who went up there. * * * ”
[Examination by the Court.]
“The Court: The Court under-
stands the boy said come in; now, did you go in?
“The Witness : I stepped — I put my foot in the doorway.
“The Court: All right. Now, at that time, where was Mrs. White?
“The Witness: Mrs. White was to my left, about standing from here to Mr. Titus, and Roland White was directly in front of me.
“The Court: What did you say to Mrs. White?
“The Witness : I told her that I was a police officer and I showed her my badge and I told her I had a search warrant for the premises.
“The Court: What, if anything, did Mrs. White say?
“The Witness: At that time, I don’t recall whether she said anything or not. I don’t remember what she said.
“The Court: What, if anything, did you do?
“The Witness : At this time, we came on in and I walked over to Mrs. White.
“The Court: All right. You may step down.”
. The officers were not in uniform, were not known to the boy to be officers, their mission was also unknown to him, and in any event his natural and innocent courtesy in response to their inquiry cannot transform an otherwise unlawful entry into a permissive one for the execution of an undisclosed search warrant.
. Refusal of admittance has been formalized in the cases construing Section 3109 so as to require a certain amount of time to elapse between the announcement and the actual entry. See Masiello v. United States, 113 U.S.App.D.C. 32, 33, 304 F.2d 399, 400, and the appeal after remand, 115 U.S.App.D.C. 57, 58, 317 F.2d 121, 122; Munoz v. United States, 325 F.2d 23, 26 (9th Cir.); United States v. Poppitt, 227 F.Supp. 73, 80 (D.Del.); United States v. Barrow, 212 F.Supp. 837, 846 (E.D.Pa.).
. The recent decision of the Supreme Court in United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684, also referred to by my brethren, was not concerned with the manner of executing a warrant — our question — but with the procurement of the warrant, as to the validity of which we are agreed in this case.
. Apart from Section 3109, intrusions of privacy such as “peering through a window” which furnish probable cause for arrest without a warrant have been found to be violative of the Fourth Amendment. See People of State of California v. Hurst, 325 F.2d 891 (9th Cir.), (cert. applied for and pending, 85 S.Ct. 1796); Brock v. United States, 223 F.2d 681 (5th Cir). And see also McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153.