concurring:
I join the majority opinion and agree that the search was valid for the reasons there stated. I also believe that additional grounds exist for finding the search to be valid, and some further comment on the dissent and the separate concurrence is required. All are agreed that “objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence.” Ker v. California, 374 U.S. 23, 42-43, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963); Harris v. United States, 390 U.S. 234, 236, 88 S.Ct. 992, 993, 19 L.Ed.2d 1067 (1968). The controlling issue then is whether the police officers here had a right to be in the position where they were when they obtained their “plain view.”
1. The Dissent’s Position.
The dissent adopts the position that “the government would [never] be able to justify a search on plain view grounds when it was necessary for the [police] officer to trespass in order to achieve the view.” Dissent at - of 182 U.S.App.D.C., at 858 of 561 F.2d. In applying this statement of the law it finds that the present entry of the police-on the grass was a prohibited entry and constituted a trespass. In finding such entry by the police officer to be a trespass, and further assuming its unlawfulness, the dissent thus assumes the point for decision — the linchpin of the dissent is the assumption that the officer’s entry on the three feet of grass was an illegal trespass and rendered the resulting search unreasonable. That position is not supported by the case law.
*8482. The Right and Duty of Police Officers.
Not only is it highly questionable whether a police officer’s presence on private property constitutes a trespass, when such entry is in conformance with his duties, but even if it did, it would be justifiable. After all, policemen are empowered and duty-bound to enforce the law on private property as well as on public property. Policemen are public officers, just like judges, who have a right and sworn duty to enforce the law — particularly the criminal law. This obligation extends to private as well as public property and is just as obligatory in the dead of night in highly dangerous circumstances as it is in the daytime in safe surroundings. Their duty is very difficult because our law throws extraordinary safeguards around criminals and what is normal police conduct in most countries is prohibited in the United States. Also, our police forces are relatively small. This requires our police officers to rely greatly on citizen support to stop crime and apprehend those who violate the law. Law-abiding citizens constantly report law violations to the police — by all methods. In some of these reports, written and oral, the citizen identifies himself and in others he chooses to have his name kept confidential or his report is made anonymously. These reports by citizens are one of the hallmarks of a civilized society and lead to the discovery of much criminal activity. Police officers would be derelict in their duties if they did not take reasonable steps promptly to ascertain the correctness of reports of unlawful acts that carry a reasonable suspicion that major criminal laws are being violated in plain view from the outside of a building.
Under the facts here present the police had a right and duty to walk up the sidewalk, step two or three feet onto the grass and further verify the accuracy of the anonymous telephone report by observing what was in plain view from outside the house. This involved no breaking and entering whatsoever — their access was not restricted in any way — the house was not even touched and the result was the verification of the second part of the telephone report, i. e., that a large quantity of contraband narcotics was present where it was plainly visible from outside the house. The first part of the anonymous report had already been verified when the police observed that the light was on in the precise place (the basement window), in the precise manner (so that those in the basement were visible from outside), and at the precise address, that the telephone report had stated. The observation of large quantities of narcotics inside the house furnished probable cause to enter the house and justified the arrest of the principals and the search and seizure of the large quantity of contraband heroin. The police acted throughout in a reasonable manner — that is the test.1
*849That the police acted as resolutely as they did in the dark of night should call for public commendation. That is part of the dangerous duties of policemen — knocking at strange doors in the nighttime not knowing what danger lurks behind them, going up dark alleys (many times alone) and into suspicious and highly dangerous places in order to protect individuals and property, to prevent crime and to enforce the law. That is what citizens pay taxes for. That is one of the purposes for which police departments are organized and policemen are hired. In the last five years in the United States, 640 police officers were feloniously killed in the performance of their duties.2 Their “peering” into windows and entering on strange premises, when reasonable suspicion brings them there in exigent circumstances, could save the lives and property of the occupants of the house. That is not duty for the fainthearted and many intentionally avoid it, but the men who have the ability and the manly courage to respond in such dangerous imperative emergencies should not be branded as “trespassing prowlers,” dissent at- of 182 U.S.App. D.C., at 858 of 561 F.2d, and the law does not do so. Police officers have a different status. They are public officers specially chosen to enforce the law. They are the friends, not the enemies of the law-abiding citizen.
The question then remains: when is an entry by a police officer onto the private property of another within “the' performance of his duty.”
Suppose, instead of an $85,000 illegal narcotics operation, the anonymous telephone caller had reported under identical circumstances that (1) the owners of the house were holding a hostage at gun point in the basement room and torturing him in an attempt to learn the combination of a store safe containing a large amount of money; (2) that a man was beating his wife and would kill her if he was not stopped; (3) that several bank robbers where bankers and policemen had been killed were dividing the $85,000 they had stolen; or (4) that several men were raping a woman in the basement room of the house. Would any person deny that the policeman had a right and duty immediately to step three feet onto the lawn and verify the accuracy of the anonymous telephone reports by a mere glance in exactly the manner that the police did here? Or, should the police be required first to check the title to the property and go to the police station and go through the necessary paper work to obtain a search warrant? (Could they get one on an anonymous report?) I just hope if some person calls the police and says he believes some robbers are robbing me in my house or some friends of mine are using my house to bag $85,000 worth of contraband drugs, and they can be easily seen from the outside, that the police will act immediately and not be afraid to step onto the grass to verify the report. An anonymous tip describing such felonious activities (Tr. 803, 768-775) capable of such easy verification (Id.), deserves something better than to be ignored by public officers who are employed and authorized to enforce the criminal laws.
Reasonableness is the constitutional test and there is nothing unreasonable in such conduct — it would be highly unreasonable for the police not to enter on the property to verify the report without any hesitation. In doing so “the constable” did not “blunder,” dissent at 13, he merely carried out his sworn duty.
*8503. Reasonable Searches and Exigent Circumstances.
The above described situations are what Justice Douglas had in mind when he referred to instances where “officers are . responding to an emergency [and] . the exigencies of the situation made that course imperative.” McDonald v. United States, 335 U.S. 451, 454, 456, 69 S.Ct. 191, 193, 93 L.Ed. 153 (1948). What else should the police do? Lay siege to the home and expose the neighbors to a possible gun battle and a shoot-out3 .for two hours while they look for a U.S. Attorney, return to headquarters, have stenographers type out affidavits and find a magistrate at 1:00 a. m. to issue a search warrant; then when they enter the house the men say they were just playing dominoes and there are no contraband drugs because they were destroyed in the interim?
All these situations involve imperative emergencies — exigent circumstances. Crimes are under way and the criminals will not stand still long enough for the police to do any paper work and still stop the crimes or catch the criminals with evidence sufficient to convict them.4 If the procedure the dissent requires is followed, (1) the robbery will succeed, (2) the wife will be killed, (3) the bank robbers will escape, and (4) the woman will be gang-raped and all the criminals will evade capture and conviction. Is it reasonable for a policeman to stand idly by and permit such almost certain results? The instant case involves the same type of imperative emergency. The crime here is of a different nature, but the $85,000 drug operation is as substantially damaging to society as are the four postulated situations, and experience teaches that these criminals were likely to escape with the evidence if they were not apprehended quickly. The strong likelihood of the imminent removal of the contraband drugs is an unusual circumstance justifying a warrantless search. United States v. Blake, 484 F.2d 50 (8th Cir. 1973), cert. denied, 417 U.S. 949, 94 S.Ct. 3076, 41 L.Ed.2d 669 (1974).
4. The Law with Respect to Police Officers.
The entry upon [the defendant’s] property, [by a police officer] even if made without probable cause, does not necessarily constitute a trespass. When the performance of his duty requires an officer to enter upon private property, his conduct, otherwise a trespass, is justifiable. Giacona v. United States, 257 F.2d 450 (5th Cir. 1958), cert. den., 358 U.S. 873, 79 S.Ct. 113, 3 L.Ed.2d 104; Foster v. United States, 296 F.2d 65 (5th Cir. 1961); United States v. Sterling, 369 F.2d 799 (3d Cir. 1966).
United States v. Knight, 451 F.2d 275, 278 (5th Cir. 1971), cert. denied, 405 U.S. 965, 92 5. Ct. 1171, 31 L.Ed.2d 240 (1972) (emphasis added).
A trespass upon the grounds surrounding a building does not constitute an illegal search because the protection of the fourth amendment does not extend to the grounds. *851Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924); Martin v. United States, 155 F.2d 503 (5th Cir. 1946); Foster v. United States, 296 F.2d 65, 67 (5th Cir. 1962); Monnette v. United States, 299 F.2d 847, 850 (5th Cir. 1962); Atwell v. United States, 414 F.2d 136, 138 (5th Cir. 1969). The policeman’s function authorizes him to take a closer look when he confronts suspicious circumstances on the streets. Cf. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
Hester held permissible, not even to be considered whether it was reasonable or not, an unconsented entry by a police officer of from 50 to 100 yards over open fields. The holding being that the fourth amendment applied to “persons, houses, papers and effects” — not to open fields. Atwell v. United States, 414 F.2d 136, 138 (5th Cir. 1969) holds that a similar unconsented entry over 250 yards of an open field did not constitute a fourth amendment violation. There is no substantial difference between running over 50 to 250 yards of an open field, and stepping off a residential sidewalk 2 to 3 feet onto an open lawn in the city, unless it is that stepping onto the open lawn involved an act of much less magnitude, is more reasonable and indubitably more frequent in a large metropolitan city.
5. Expectation of Privacy.
What is the standard for a justifiable entry onto private property in such circumstances? We know that that standard is less than probable cause, or some of the above quoted decisions would be illogical. The concurring opinion suggests that Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) provides the answer (concurrence at-of 182 U.S.App.D.C., at 851 of 561 F.2d) when it states that the answer turns on whether the individuals involved had a “reasonable expectation of privacy.” If that test were controlling here the defendants would lose hands down for no person could reasonably expect that his large scale illegal activities would remain private, particularly from another occupant (Fudge) of the premises, if he carried them on in a heavily populated area at night, in a brightly lighted room, in front of a window that afforded full visibility to those standing on the outside. The illegal activities here were not private because one of the occupants of the property observed them and reported them to the police.
Undoubtedly, the test of “reasonable expectation of privacy” has to be addressed in any evaluation of a police officer’s entry onto private property. In cases such as United States v. Hanahan, 442 F.2d 649 (7th Cir. 1971), the sighting by the police officer through defendant’s garage window was made from a sidewalk, or just a few inches onto the defendant’s property, but the view was not better from one vantage than the other. Hence, since the defendant could have no reasonable expectation that items kept in the garage would remain free from viewing from the public sidewalk, he had no such expectation even if the viewing actually occurred from a few inches closer, trespass or not.
But the problem is not solved simply by invoking the rule in Katz. That rule incorporates a fair amount of circularity. One will have a reasonable expectation of privacy over those areas that courts tell him he may reasonably expect to be private. Reference to another standard than plain view is also required. The concurrence and dissent both discuss this case as though the only justification proposed was plain view. But another principle is needed to determine whether the vantage point from which the plain view is made is a place where the police officer “has a right to be.” Harris v. United States, 390 U.S. 234, 236, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968). If it is the search is legal.
That other principle, operative in this case, recognized in many other judicial opinions, and referred to above, is exigent circumstances. Cf. McDonald v. United States, supra. This is the factor that determines whether the police officer’s entry, even without probable cause, is within the “performance of his duties.” And it must, as a matter of law, be recognized that no one can have a reasonable expectation of *852privacy over those objects in plain view of police officers in the performance of their duties.
That “performance of duties” requires less than probable cause has already been established. The full contours of that standard are best demonstrated by reference to the case law.
In United States v. Brown, 487 F.2d 208 (4th Cir. 1973), cert. denied, 416 U.S. 909, 94 S.Ct. 1490, 39 L.Ed.2d 575 (1974), revenue agents entered onto defendant’s property, and approached to within ten feet of his barn, which building the court conceded was within the curtilage. At that point, the agents detected the odor of fermentation, and that evidence was subsequently relied upon in obtaining a warrant to search the barn. Though the initial entry was trespassory, the court held that odors emanating onto open areas should have been expected to be sensed, and hence no reasonable expectation of privacy in the Katz sense had been invaded.
In United States v. Bustamante-Gamez, 488 F.2d 4 (9th Cir. 1973), cert. denied, 416 U.S. 970, 94 S.Ct. 1993, 40 L.Ed.2d 559 (1974), the extra step of eventually seeking out a search warrant was not taken. Once again, the only reason the peace officers entered on the property was to obtain evidence — in that case a car possibly stored within a garage and containing marijuana. The court admitted that while the circumstances (involving having lost sight of the car in question in a rather narrow neighborhood) could have been handled through waiting for a search warrant, and that trespassing to eavesdrop was not to be a favored police technique, exigent circumstances justified the eventual search, the trespass that was conceivably involved was not per se cause to condemn a search as unreasonable. This was in spite of the fact that, as the court found, “the officers had cause to believe only that the car, loaded with contraband, was in the garage. Entering the driveway was for purposes of ‘search’ — i. e., to overhear.”
The Ninth Circuit did not even reach the question of a Katz -type invasion of privacy because of the possibility that the delay needed to seek a warrant, or the inconvenience necessitated by cordoning off the area, could lead to the destruction of evidence the officers then knew to be present. 488 F.2d at 8, 9. That knowledge came from overhearing voices in the garage, but the entry to be in a position to overhear was not based on any informed tip or any other information except that the car had disappeared in the vicinity.
The Fifth Circuit has decided an analogous case in United States v. Knight, 451 F.2d 275 (5th Cir. 1971), cert. denied sub nom. Grubbs v. United States, 405 U.S. 965, 92 S.Ct. 1171, 31 L.Ed.2d 240 (1972). The original suspicion of a locality was based on a reliable informant, and by an aerial sighting of a truck resembling the stolen one. However, the court did not sanction the entry onto defendant’s property as legal on these grounds. A warrant could have been sought, but it was not. The court looked to the practicalities of the situation, and concluded:
When the performance of his duty requires an officer to enter upon private property, his conduct, otherwise a trespass, is justifiable. Here the original tip plus the sighting from the air dictated a police investigation to determine whether stolen goods were being transported. Under the circumstances an entry onto the property for the purpose of making a general inquiry was justifiable. Moreover, even if the officers were trespassing on private property, a trespass does not of itself constitute an illegal search [citing cases].
451 F.2d at 278 (emphasis added). Once upon the property, the police officers observed further evidence which gave rise to a full scale search and seizure. It also appears that, in this case, an occupant of the property (the anonymous informant) consented to the search. But it is not necessary here to place any reliance upon such fact to support the validity of the search.
The most common characteristics of an entry to gain a vantage point for audio, olfactory, or visual observation are awareness of the likely presence of evidence, the potential for destruction of that evidence (though a lower standard is required than *853actual knowledge that suspects possessing evidence have discerned police officers’ im-' pending arrival), and the impracticality in terms of inconvenience to innocent persons, possibility of tipping-off suspects, or wasted time, of cordoning off the area and waiting for probable cause to arise. The presence of several of these characteristics has been noted in the majority opinion in this case. (Maj. op. at--of 182 U.S.App.D.C., at 843 of 561 F.2d).
The Katz decision did not vitiate all prior case law and common law on searches. It requires reference to standards of reasonable expectation built up around that prior law. One such standard which has persisted after, and helped provide meaning for, Katz is the legitimacy of police entry onto open areas, even though privately owned, in the course of an investigation. Once that entry has been accomplished, the plain view test will apply as to evidence subsequently obtained. It is clear from all the foregoing that the police officers had a right to be in the position they were when they obtained their “plain view.” Accordingly, the search was legal.
. This is not to suggest that the anonymous tip gave the police probable cause to enter and search the house. It merely gave them, in the context of this case, authority to take a closer look and verify the tip from outside the house in the reasonable manner that they did. The exigent circumstances were then obvious and thereafter it was reasonable for the police to enter the house and make the arrests and the search. This factual situation has many similarities to that involved in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), where the Supreme Court in a decision written by Chief Justice Warren, with only one dissent, held that it was not unreasonable to effect a “seizure” of an individual on the street, “stop- and-frisk” him and then arrest him on the basis of what was found. The decision authorizing the initial “seizure” in Terry represented the same refinement of Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964) and Chapman v. United States, 365 U.S. 610, 81 S.Ct. 776, 5 L.Ed.2d 828 (1961), that the outside verification here represents as to Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). The authority to proceed further was derived from the frisk in Terry, and Aguilar does not foreclose a finding that the police acted reasonably in this situation. Aguilar involved the constitutional requirements for the issuance of a search warrant and did not involve the existence of exigent circumstances found by officers on the beat. Its pronouncements are not to be taken from context and applied or rejected in a wooden manner. (See dissent, n.1.) As Terry v. Ohio, 392 U.S. at 19-20, 88 S.Ct. 1868, teaches, the initial approach is to be tested by the standard of reasonableness, in light of the exigent circumstances present both here and in Terry. Evidence obtained from that original approach could lead to probable cause, but the initial *849inspection (not a full-scale “search of a home”) is defensible if reasonable. This view the dissent ignores.
Moreover, in this case the visual glance through the window from the outside is not as much a search as the temporary seizure and frisk in Terry and the officers had a more substantial basis here in the anonymous tip (cf. Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959)) when it was partially verified from the street sidewalk (I-M, Tr. 21) by seeing the light emanating from the basement window, than existed in the conclusory suspicion in Terry.
. The actual numbers by year are as follows: 1975: 129; 1974: 132; 1973: 134; 1972: 116; 1971: 129. Federal Bureau of Investigation, Crime in the United States — 1975, Uniform Crime Reports 223 (Washington, D.C., 1976).
. The newspaper the day this was written described just such an operation to capture two men involved in a narcotics operation. It involved 17 flak-jacketed special project section policemen; riot helmets, a barricade truck and cruiser, cordoning off the area, limiting escape routes for the gunmen (narcotics suspects), keeping bystanders out of line of fire, pump fire shotguns, rifles, additional .38 caliber sidearms carried by all policemen, other firearms they refused to specify, tear-gas canisters, generator and flood lights. Headquarters were set up in an adjacent grocery store commandeered next to the gunmen’s refuge. Guns were constantly trained on the building housing the gunmen. The police operated on the premises, “We had to be sure . We don’t make assumptions.” Eventually, even though some men came out, the policemen, wearing flak jackets, had to run into the building, to see if any more were inside. Only one bullet had caused any damage. The entire operation took 2'h hours. Washington Post, Nov. 27, 1976, § A, at 10.
. This court has held that an arrest is presumptively invalid when proof of the arrest and its circumstances is not properly preserved in the field, Sullivan v. Murphy, 156 U.S.App.D.C. 28, 57, 478 F.2d 938, 967, cert. denied, 414 U.S. 880, 94 S.Ct. 162, 38 L.Ed.2d 125 (1973), and a cause of action for damages will lie against the responsible officials in such a case, Apton v. Wilson, 165 U.S.App.D.C. 22, 506 F.2d 83 (1974).