(dissenting).
I respectfully dissent from Part V of the majority opinion. I question whether the effective enforcement of our criminal laws requires government agents to break and enter private premises, like common burglars, to plant eavesdropping devices.
The court order obtained in this case authorized the government:
to make secret and, if necessary, forcible entry any hour of the day or night which is least likely to jeopardize the security of this investigation, upon the premises ., in order to install and subsequently remove whatever electronic equipment is necessary to conduct the interception of oral communications in the business office of said premises.
Pursuant to this order the government stipulated,
that the bug was placed in the Defendant’s body shop by a Government agent without the Defendant’s permission, after business hours when the body shop was closed and locked,
It is clear that conversations, either oral or telephonic, may lawfully be intercepted under strict statutory and constitutional limitations. See 18 U.S.C. § 2510 et seq.; Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); United States v. Cox, 462 F.2d 1293 (8th Cir. 1972). Further, I am well aware that the Fourth Amendment is now interpreted to protect “people” and not “places”. Nevertheless, when interception is authorized, the means required to invade zones of privacy must be no greater than necessary. Katz, supra 389 U.S. at 355, 88 S.Ct. 507; Berger v. New York, 388 U.S. 41, 57, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967). The right to be secure in our homes is still sacrosanct. As the Supreme Court stated in Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886):
It is not the breaking of his doors, and the rummaging of his drawers, that constitutes the essence of the offence; but it is the invasion of his indefeasible right of personal security, personal liberty, and private property, where that right has never been forfeited by his conviction of some public offence, .
116 U.S. at 630, 6 S.Ct. at 532.
Several methods of electronic surveillance are available and might have been used by the government in this case to intercept conversations without forcible entry of the defendant’s private office. First, telephone conversations may be lawfully intercepted. In fact, a tap of the defendant’s phone was authorized at the same time as was the forcible entry. Second, other electronic devices allow interception of conversations within buildings without surreptitious entry by government agents into private premises. Third, informers can be used to disclose and record those conversations to which *703they are a party. Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966).
It is urged that forcible entry into a home or office is authorized in other cases when necessary to search for physical evidence. However, forcible entry may be made in such cases only under exigent circumstances, see Ker v. California, 374 U.S. 23, 40, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963); or when the officer serving a warrant is refused entry after he had knocked and given notice of his purpose. 18 U.S.C.A. § 3109. This “knock and give notice” requirement protects individual privacy, prevents unnecessary destruction of property, and safeguards “officers, who might be mistaken, upon an unannounced intrusion into a home, for someone with no right to be there.” Sabbath v. United States, 391 U.S. 585, 589, 88 S.Ct. 1755, 1758, 20 L.Ed.2d 828 (1968).1
The government argues that notice is not a relevant consideration here, since eavesdropping can succeed only when carried out without the knowledge of the target speaker. See Katz v. United States, supra 389 U.S. at 355, n. 16, 88 S.Ct. 507. This may be true, but I fail to see how it justifies a clandestine breaking and entering of private premises.
The government urges that a warrant may properly authorize forcible entry into a home or other building known to be unoccupied. See Payne v. United States, 508 F.2d 1391, 1394 (5th Cir.), cert. denied, 423 U.S. 933, 96 S.Ct. 287, 46 L.Ed.2d 263 (1975); United States v. Gervato, 474 F.2d 40 (3rd Cir. 1973), vacating 340 F.Supp. 454 (E.D. Pa.1972), cert. denied, 414 U.S. 864, 94 S.Ct. 39, 38 L.Ed.2d 84 (1973). However, when a building is unoccupied and will remain so for the foreseeable future, then forcible entry is the only way that evidence inside it may be seized. In such a case, however, the search may be done openly and without stealthy entry.
The government does not contend that there was no other way to obtain evidence, only that the available alternatives were not well suited to do so. The record disputes this. No exigent circumstances existed here. Successful alternative means are documented in the record. No less than five confidential informants had informed the government of all aspects of the defendant’s alleged fencing operation. A month before this warrant was issued, government agents had actually recovered some stolen property which was in Agrusa’s control. Besides the evidence from the informants and from recovery of some of the property, the government had available the use of wiretaps on the defendant’s phone.
Even if no other practical means of surveillance existed, however, a grant of authority for forcible entry of private premises with the speculative hope of obtaining some future conversation concerning criminal activity would still not be justified. The government’s interest in law enforcement does not outweigh the citizen’s justifiable expectation that government officials will not, under the cloak of authority, surreptitiously break into his home or office. I would hope there still exists “a private enclave where [a person] may lead a private life”2 without fear of stealthy encroachment by government officials. This sanctity must give way only when the government’s interest is paramount. When we weigh such interests, we should do so most carefully.
I know of no other case which has approved a warrant of this type. The majority, I sense, is uneasy about the precedent set today, and attempts to limit its holding to business offices rather than to homes. The true danger of the holding lies there, however, for the distinction between home *704and office under the Fourth Amendment is tenuous at best. See Lanza v. New York, 370 U.S. 139, 143, 82 S.Ct. 1218, 8 L.Ed.2d 384 (1962); United States v. Phillips, 497 F.2d 1131, 1133 (9th Cir. 1974).
If this were a private home, then upon what ground, under the majority’s reasoning, could the search be struck down? A warrant was obtained upon probable cause and the relevant statutes were theoretically complied with. The only ground for reversal would be that the sanctity and privacy of the home is too great and therefore, that the search was unreasonable. But I suggest that the privacy of a person within business premises deserves the same consideration. Rather than draw artificial distinctions, I would hold searches such as this to be unreasonable per se.
Mr. Justice Frankfurter, dissenting in On Lee v. United States, 343 U.S. 747, 72 S.Ct. 967, 96 L.Ed. 1270 (1952), expressed a view appropriate to our holding:
The law of this Court ought not to be open to the just charge of having been dictated by the “odious doctrine,” as Mr. Justice Brandéis called it, that the end justifies reprehensible means. To approve legally what we disapprove morally, on the ground of practical convenience, is to yield to a short-sighted view of practicality. . . . The method by which the state chiefly exerts an influence upon the conduct of its citizens, it was wisely said by Archbishop William Temple, is “the moral qualities which it exhibits in its own conduct.”
Of course criminal prosecution is more than a game. But in any event it should not be deemed to be a dirty game in which “the dirty business” of criminals is outwitted by “the dirty business” of law officers.
My deepest feeling against giving legal sanction to such “dirty business” as the record in this case discloses is that it makes for lazy and not alert law enforcement. It puts a premium on force and fraud, not on imagination and enterprise and professional training.
343 U.S. at 758, 761, 72 S.Ct. at 974.
I would suppress the evidence from the bug planted in the defendant’s office and reverse the conviction.
ON REQUEST FOR REHEARING
Request for rehearing en banc in the above case is denied by an evenly divided court. Four judges voted to grant the rehearing and four judges voted to deny the rehearing.
LAY, HEANEY, BRIGHT and HENLEY, Circuit Judges, dissenting from the order denying a rehearing en banc.
We have voted to grant appellant’s request for a rehearing en banc because we believe that the fourth amendment does not permit government agents to break into and enter private property to spy out evidence which might develop in the future by planting an electronic bug in such premises.
We entertain great doubt of the validity of a judicial order which authorizes such a break-in. We tend to agree with the views of Judge Lay expressed in dissent to the panel opinion.
This case is an important one concerning an aspect of individual liberty — a person’s right to privacy from secret government intrusion into his own premises. Accordingly, we dissent from the order denying a rehearing before the whole court.
. The Court in Sabbath v. United States, supra, quoting from its earlier opinion in Miller v. United States, 357 U.S. 301, 313, 78 S.Ct. 1190, 2 L.Ed.2d 1332 (1958), stated:
The requirement of prior notice of authority and purpose before forcing entry into a home is deeply rooted in our heritage and should not be given grudging application.
391 U.S. at 589, 88 S.Ct. at 1758.
. Murphy v. Waterfront Comm., 378 U.S. 52, 55, 84 S.Ct. 1594, 1597, 12 L.Ed.2d 678 (1964).