concurring:
In view of the special circumstances of this case and the care with which the court’s opinion is limited to these circumstances, I am pleased to concur.
LEVENTHAL, Circuit Judge, joined by Judges J. SKELLY WRIGHT and SPOTTS-WOOD W. ROBINSON, III:
I concur in Judge McGowan’s opinion for the majority. He takes note that appellant’s counsel contends en banc that the warrantless entry and search violate the Fourth Amendment because the observation of activities inside the house that established probable cause was made by Officer Simms not from the street, or from the walkway to the house, but only after the officer went onto the grass lawn in order to peer through the basement window. As Judge McGowan’s opinion brings out, that issue had not been pressed earlier in the appeal before the panel, but only en banc, when the issue had been identified in dicta in the panel opinion.1 This is a fair case for application of the rule that we will not reverse in the absence of “plain” error or decide questions not suitably raised.2
Fourth Amendment jurisprudence permits seizure, if otherwise reasonable, of “objects falling in the plain view of an officer who has a right to be in the position,” Harris v. United States, 390 U.S. 234, 236, 88 S.Ct. 992, 993, 19 L.Ed.2d 1067 (1968). The same applies to searches that are reasonable in the light of information gained by an officer on plain view from a place where he has a right to be. Coolidge v. New Hampshire, 403 U.S. 443, 466-67, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); James v. United States, 135 U.S.App.D.C. 314, 315 n.1, 418 F.2d 1150, 1151 n.1 (1969).
Does the rule apply when the officer is not in a place where he has a right to be, because he is trespassing on someone else’s property? Is the answer, Yes — so long as it can be called a “technical trespass?” Of course, there are differences between trespasses. For example, a trespass in order to do an act that is lawful is at most the misdemeanor of unlawful entry, whereas a trespass in order to commit a felony is a burglary. But in my view calling a trespass “technical” because it is only a few feet away from a place where the person has a right to be would not be responsive to the broad purposes of the Fourth Amendment. The salient question is, was the trespasser in a place where he was encroaching on a reasonable expectation of privacy that comes within the fair intendment of the Fourth Amendment. Katz v. United States, 389 U.S. 347, 351-52, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Judge McGowan is quite right “that common law property concepts are not particularly illuminative of Fourth Amendment problems,” as the Katz case dramatically illustrates. But at least with respect to the home and the surrounding curtilage the protections traditionally accorded from the time of the common law have bearing on the inquiry as to reasonable expectation of privacy.3
*846Open fields are not within the special protection accorded by the Fourth Amendment to the people in their “persons, houses, papers, and effects.” So held Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924), where Justice Holmes, characteristically laconic, said (265 U.S. at 59, 44 S.Ct. at 446): “The distinction between the latter [open fields] and the house is as old as the common law. 4 Bl.Comm. 223, 225, 226.” And indeed Blackstone, after developing the crime of common law burglary, notes that “the law of England has so particular and tender a regard to the immunity of a man’s house, that it styles it his castle, and will never suffer it to be violated with impunity.” And while “no distant barn, warehouse, or the like are under the same privileges, nor looked upon as a man’s castle of defiance,” “the capital house protects and privileges all its branches and appurtenances, if within the curti-lage or homestall.” The notion undergird-ing the curtilage-open fields distinction, that the law accords special protection to activity within the home and its immediate private surroundings, finds resonance in recent Supreme Court opinions.4
The “open fields” doctrine was rightly applied by Judge Haynsworth to observations by revenue agents, who smelled the odor of whiskey escaping through cracks in the siding of a barn, even assuming, what had not in fact been established, that the woodlands in which they were concealed were the property of the defendant. United States v. Young, 322 F.2d 443 (4th Cir. 1963). Nor is there quarrel with extension to a still “located approximately 250 yards from the back of a house in the open land beyond the curtilage of the house.” Atwell v. United States, 414 F.2d 136, 138 (5th Cir. 1969). And it was accurate, too, for Judge Thornberry to accompany this holding with the observation that “a trespass does not of itself constitute an illegal search.” 414 F.2d at 138.
Meanwhile, the Fifth Circuit, in Mon-nette v. United States, 299 F.2d 847, 851 (1962), upheld the search of a building when the odor of mash emanating from the premises had been distinctly “identified at the property line.” The holding of Monnette is sound enough, but at one point the opinion uses language susceptible of an unsound, and I think plainly unintended, result. The opinion cites Hester for the proposition that the Fourth Amendment does not extend to the “grounds surrounding a building.” This formulation is too broad an expansion of “open fields.” And indeed the court obviously did not mean that all grounds surrounding a building were beyond the Fourth Amendment, for when the court moved from the (olfactory) observation made at the property line to consider the (visual) observation made when the agents went up to the house and peered through the rear windows in an attempt to gain further evidence, the court flatly said “this peering into the dwelling was a trespass certainly and probably violated his right to privacy as well.” Id. The court was able to bypass that peering trespass only because it had not yielded any information and hence was not material.
The distinction between open fields or woodlands and the grounds immediately surrounding a house would seem plain enough. But it seems to have been blurred in United States v. Hanahan, 442 F.2d 649 (7th Cir. 1971). There the court first held that the officer was standing on the sidewalk when he looked into the garage (where defendant was working on stolen cars) and then said that even if the officer *847were standing on “[a] few inches of grass between the sidewalk and the garage,” “it was no more than a technical trespass” and Atwell established that a trespass is not of itself an illegal search. Id. at 654. Of course a trespass is not itself a search, but it may establish that the officer was not in a place where he had a right to be when he made the view that justified the search. For Fourth Amendment purposes an officer has a right to be in open fields, etc., where there is no Fourth Amendment expectation of privacy, but does this apply to the lawn around a house? The opinion was not careful about such matters.
Hanahan was improved upon in United States v. Conner, 478 F.2d 1320 (7th Cir. 1973), where Judge Pell held that the observation of the garage was permissible whether made from the alley (a public way) or the adjoining apron outside the rear door of the garage. While he noted that it would be a technical trespass if the police were on the adjoining apron, his key discussion stresses that this apron adjoining the alley “was not fenced off from the alley” and hence the situation was such that the defendants “had no reasonable expectation of privacy.” Id. at 1323.
The core issue is reasonable expectation of privacy. That is the kernel of the cases upholding warrantless searches based on plain view observations from a place where the officer had a right to be. In my view while Fourth Amendment protection would not extend to observations by persons using the paved way from the sidewalk to the door of the house, it would likely extend to evidence obtained by walking onto the lawn around the house and then peering into windows.5
. This point had not been raised in Johnson’s motion at trial. Nor was it pursued by any defense counsel in oral presentation at the suppression hearing.
. If this were a core Fourth Amendment violation like breaking into a house, it would be subject to notice as plain error. In this case, however, we have an issue that is not specifically controlled by authority, and while I think study and analysis point the likely way of the law, the issue is one that should be focused prior to decision.
. As Justice Harlan put it, concurring in Katz, while the Fourth Amendment protects people, not places, “[t]he question, however, is what protection it affords to those people. Generally, as here, the answer to that question requires reference to a ‘place.’ . . Thus a man’s home is, for most purposes, a place where he expects privacy, but objects, activities, or state-*846merits that he exposes to the ‘plain view’ of outsiders are not ‘protected’ because no intention to keep them to himself has been exhibited.” 389 U.S. at 361, 88 S.Ct. at 516.
. In Cardwell v. Lewis, 417 U.S. 583, 593, 94 S.Ct. 2464, 2471, 41 L.Ed.2d 325 (1974), the Court upheld the warrantless seizure of an unoccupied car parked in a public parking lot, as a seizure “from a public place where access was not meaningfully restricted,” distinguishing the seizure of an automobile on a private driveway tn its earlier decision in Coolidge v. New Hampshire, supra, as “requirfing] an entry upon private property.” These plurality opinions are discussed in United States v. Vance E. Robinson, 174 U.S.App.D.C. 351, 355 n.8, 533 F.2d 578, 582 n.8 (en banc, 1976).
. United States v. Santana, 427 U.S. 38, 96 S.Ct. 2406, 49 L.Ed.2d 300 (1976), is entirely congruent with the observations in this opinion. In a different context, the Court decided that the rule of United States v. Watson, 423 S.Ct. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976), permitting warrantless arrest upon probable cause when effected in a “public” place, applies to the arrest of an individual standing in the doorway of her house who on seeing the police retreats into the vestibule of her dwelling. The Court stated, citing Katz, that what a person knowingly exposes to the public is not the subject of Fourth Amendment protection, and further that although “under the common law of property the threshold of one’s dwelling is ‘private,’ as is the yard surrounding the house,” a person standing in the doorway of her dwelling “was not in an area where she had any expectation of privacy.” Santana “was not merely visible to the public but as exposed to public view, speech, hearing and touch as if she had been standing completely outside her house.” 427 U.S. at 42, 96 S.Ct. at 2409.