I concur in the court’s opinion with the exception of Part IV from which I respectfully dissent.
Part IV enunciates a novel rule of constitutional proportions drawn primarily from precedents applicable to the Fifth Amendment privilege against self-incrimination and here made an appendage to the Fourth Amendment immunity from unreasonable search and seizure. The functionally significant question posed by the majority’s novel rule is, “Must evidence of the exercise of the Fourth Amendment right to resist a search without a warrant be excluded at the option of a defendant charged with assisting a federal offender in order to hinder or prevent his apprehension, in violation of 18 U.S.C. § 3, when the search was based on exigent circumstances and not in violation of the defendant’s Fourth Amendment rights.” The majority answer yes as a matter of constitutional law. I respectfully dissent because I think the answer should be no.
*1354I.
The Exercise Of Constitutional Rights Need Not Be Without Costs.
The majority has not framed the issue as precisely as I have. To them admission of the evidence of a refusal to admit the police would be the equivalent of a prosecutor commenting on the defendant’s failure to testify or his post-arrest silence proscribed by Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965) and Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). The principle on which they rely was stated in its most sweeping form by Mr. Justice Black in his concurring opinion in United States v. Grunewald, 353 U.S. 391, 425, 77 S.Ct. 963, 984, 1 L.Ed.2d 931 (1957). There he said:
“I can think of no special circumstances that would justify use of a constitutional privilege to discredit or convict a person who asserts it. The value of constitutional privileges is largely destroyed if persons can be penalized for relying on them.”
(Italics added).
The due process rights under the Fifth and Fourteenth Amendments of the Constitution require that the exercise of constitutional rights must be free of penalties imposed by courts say Mr. Justice Black and the majority.1 The difficulty with this is that no such broad principle exists.
If it were to exist, its most probable manifestation would be in connection with the Fifth Amendment privilege. Reducing the cost of exercising the privilege is compatible with its purpose, viz. the proscription of testimonial compulsion. Schmerber v. California, 384 U.S. 757, 764-65, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). Any burden whatsoever on the exercise can be viewed as contributing to compulsion. Therefore, it is not surprising that we have decisions such as Griffin, Grunewald, Doyle, and United States v. Hale, 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975). There are, on the other hand, decisions which recognize that not every contribution to testimonial compulsion is barred by the Constitution. Repeated questions on cross-examination reasonably related to the direct examination that could provoke the exercise of the privilege are a hazard which a defendant must confront in deciding whether he will take the stand on his own behalf. United States v. Hearst, 563 F.2d 1331, 1341 (9th Cir. 1977), cert. denied, 435 U.S. 1000, 98 S.Ct. 1656, 56 L.Ed.2d 90 (1978). Cf. Communist Party of United States v. Subversive Activities Control Board, 367 U.S. 1, 108, 81 S.Ct. 1357, 6 L.Ed.2d 625 (1960). That the hazard exists may induce him to refrain from testifying, in which case the purpose of the Fifth Amendment privilege is served while the right to testify is impaired. It might, however, induce the defendant to testify in a manner that eliminates any necessity to claim the privilege, in which case the hazard has contributed to the compulsion of testimony. Or, finally, the hazard may be accepted, as in Hearst, and the privilege claimed as needed on cross-examination. All recognize that under such circumstances the exercise of the privilege is not free of cost.
Nor is claiming the privilege by refraining from taking the stand without its costs as every defense attorney knows. Cf. United States v. Grayson, - U.S. -, 98 S.Ct. 2610, 57 L.Ed.2d 582 (1978) Mr. Justice Stewart dissenting, p. - n.5, 98 S.Ct. 2610. Such costs could be reduced by permitting the defendant to determine whether the jury should be given a cautionary instruction designed to preclude an adverse inference from being drawn by his failure to testify. The Supreme Court recently has *1355refused to so reduce the costs. See Lakeside v. Oregon, 435 U.S. 333, 98 S.Ct. 1091, 55 L.Ed.2d 319 (1978). An even further reduction of the costs of claiming the privilege could be achieved by requiring that the jury be charged that a claim of privilege is evidence of innocence. Diligent search reveals no instance in which this has been considered; yet not to so charge increases the chances that juries will draw adverse inferences from the failure to testify-
Not only are costs, albeit thought to be tolerable in amount, attached to the proper exercise of the Fifth Amendment privilege, but very substantial costs can be assessed for improper efforts to exercise the privilege. Imprisonment for contempt, for example, can be the result of an unjustified refusal on alleged Fifth Amendment grounds to testify before a grand jury. Cf. Brown v. United States, 359 U.S. 41, 79 S.Ct. 539, 3 L.Ed.2d 609 (1959), overruled on other grounds, Harris v. United States, 382 U.S. 162, 86 S.Ct. 352, 15 L.Ed.2d 240 (1965), and Murphy v. Waterfront Commission, 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964); Matter of Fischel, 557 F.2d 209 (9th Cir. 1977). Moreover, a good faith belief in the soundness of the assertion of the privilege does not provide immunity from contempt. Cf. Matter of Fred R. Witte Center Glass No. 3, 544 F.2d 1026 (9th Cir. 1976).
The Supreme Court also recently has held that costs can be attached to the exercise of “a defendant’s statutory right, 28 U.S.C. § 3481, and perhaps a constitutional right to testify on his own behalf.” United States v. Grayson,-U.S.-, p.-, 98 S.Ct. 2610, p. 2618, 57 L.Ed.2d 582 (1978). To permit a sentencing judge to consider in fixing the defendant’s sentence the probable untruthfulness of the defendant’s testimony was held not to impair impermissibly the defendant’s right to testify. The burden of the risk was not considered intolerable.
Another tolerable risk attending the exercise of a constitutional right recently was recognized in Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978). It was held that it was not improper for a prosecutor, in negotiating with the defendant to plead guilty, to threaten to reindict the defendant on a more serious charge, which the prosecutor had probable cause to believe the defendant had committed, if the plea was not forthcoming, and to carry out that threat when the defendant rejected the plea bargain.
II.
The Principle of Appreciable Impairment.
A definitive treatment of the entire issue of the “costs” that properly may be visited on those exercising constitutional rights in the criminal justice process appears in Chaffin v. Stynchcombe, 412 U.S. 17, 30-31, 93 S.Ct. 1977, 1984, 36 L.Ed.2d 714 (1973). Mr. Justice Powell’s majority opinion stated:
“Jackson [United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968)] did not hold, as subsequent decisions have made clear, that the Constitution forbids every government-imposed choice in the criminal process that has the effect of discouraging the exercise of constitutional rights. In Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970), Parker v. North Carolina, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785 (1970), and North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), defendants entered pleas of guilty in order to avoid the potential imposition of death sentences by a jury. Each was dissuaded from exercising his rights to a jury trial and to plead not guilty. Each was, in that sense, ‘discouraged’ from asserting his rights, but the Court found no constitutional infirmity despite the claim in each case that Jackson compelled a contrary result. Brady is particularly instructive. The Court there canvassed several common plea-bargaining circumstances in which the accused is confronted with the ‘certainty or probability’ that, if he determines to exercise his right to plead innocent and to demand a jury trial, he will receive a higher sentence than would *1356have followed a waiver of those rights. 397 U.S. at 751, 90 S.Ct. 1463. Although every such circumstance has a discouraging effect on the defendant’s assertion of his trial rights, the imposition of these difficult choices was upheld as an inevitable attribute of any legitimate system which tolerates and encourages the negotiation of pleas.” (Footnote omitted).
Mr. Justice Powell, invoking Mr. Justice Harlan’s opinion in Crampton v. Ohio, a companion case to McGautha v. California, 402 U.S. 183, 91 S.Ct. 1454, 28 L.Ed.2d 711 (1971), put the nub of the matter this way:
“Recognizing that the inquiry, by its very nature, must be made on a case-by-case basis, the Court [in Crampton ] indicated that the ‘threshold question is whether compelling the election impairs to an appreciable extent any of the policies behind the rights involved’.” 412 U.S. at 32, 93 S.Ct. at 1985.
III.
No Appreciable Impairment of Fourth Amendment Policies.
Placed within the framework of the analysis of Justices Harlan and Powell, the question is whether visiting upon the defendant in this case the admission of her assertion of her Fourth Amendment rights has subjected her to an election between forsaking and asserting her rights that “impairs to an appreciable extent any of the policies” behind Fourth Amendment rights.
The Amendment’s purpose “is to safeguard the privacy and security of individuals against arbitrary invasion of government officials.” Camara v. Municipal Court, 387 U.S. 523, 528, 87 S.Ct. 1727, 1730, 18 L.Ed.2d 930 (1967). No impairment to an appreciable extent would result from the admission of defendant’s assertion in this case. That this is so quickly becomes clear when it is remembered that should exigent circumstances not exist to justify the war-rantless search all basis for prosecution of the defendant disappears. The presence of Duvernay and his parcels in her apartment vanishes leaving nothing of the government’s case. That is, whether the assertion itself is admissible or not, the familiar exclusionary rule is available to afford protection to the defendant against “arbitrary invasions of government officials.” The defendant only needs the majority’s rule when it is established that the rights she asserts do not exist. To no extent, at least in theory, are the defendant’s Fourth Amendment rights impaired by the admission in evidence of the fact that they have been asserted.
The majority’s concern perhaps is with the remote possibility that one answering the knock of police demanding entrance to search, aware that his refusal on Fourth Amendment grounds might come out in a trial some time later, will timidly admit the officers without protest. Although it remains unclear how such admission would impair any Fourth Amendment rights, perhaps the majority believes that timidity may be construed as consent to the search and that, in any event, a firm insistence on Fourth Amendment rights furthers the Amendment’s purposes.
I am unpersuaded. Even a lawyer, much less one who is not a lawyer, is unlikely to permit the possibility that his assertion by Fourth Amendment rights might be admitted in evidence in a later prosecution to influence his response to a policeman’s knock and demand to enter and search. More immediate concerns will govern his response. Nor is it likely that a mere timid failure to assert Fourth Amendment rights will be interpreted as consent to search. See, Amos v. United States, 255 U.S. 313, 317, 41 S.Ct. 266, 65 L.Ed. 654 (1921); Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948); United States v. Page, 302 F.2d 81, 84 (9th Cir. 1962), en banc (Opinion by Duniway, J.). And finally, inadmissibility of the assertion of Fourth Amendment rights is not likely to embolden those less inclined to assert those rights. Aside from the fact that the cases which come before this court reflect no timidity in asserting Fourth Amendment rights, the causal link between inadmissibility and the vigor with which Fourth Amendment rights *1357are asserted is too attenuated to justify the conclusion that admissibility will impair to an appreciable extent any of the policies of the Fourth Amendment.
The majority recognizes, as it must, that its rule is unrelated to the deterrent purpose served by the exclusionary rule devised by the courts to further the policies of the Fourth Amendment. The conduct of law enforcement officers will be uninfluenced in theory, as well as in fact, by the majority's rule which, I repeat, generally will be needed by the accused only when none of his Fourth Amendment rights have been violated. Warrantless searches based on proper exigent circumstances are not a second class of searches under the Fourth Amendment that should be judicially discouraged. They are necessary to law enforcement, are in the public interest, and not violative of the Fourth Amendment.
IV.
No Appreciable Impairment Of Fifth Amendment Policies.
The true problem which this case presents is that, although admission of the defendant’s assertion of Fourth Amendment rights does not impair to an appreciable extent the policies of the Fourth Amendment, the assertion tends to inculpate the defendant of the crime of which she is charged. This troubles the majority. It should not do so. In principle the issue is no different from that presented by an effort to exclude from evidence, in a prosecution for possession by a felon of a firearm, under 18 U.S.C.A.App. § 1202, a good faith, but erroneous, assertion by the felon to an undercover agent that notwithstanding the law the Second Amendment entitled him “to keep and bear arms.” The assertion is inculpatory, and I should think admissible, notwithstanding its reference to a supposed constitutional right. I suspect that the majority would agree had the officers in this case equipped themselves with a proper warrant and had the defendant asserted that the warrant was invalid. But, to repeat, a warrantless search based on proper exigent circumstances no more contravenes the Fourth Amendment than does a search based on a proper warrant.
The inculpatory nature of the assertion calls into play no Fifth Amendment considerations. The assertion bears no mark of testimonial compulsion; the defendant was not in custody when she made it. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). It is true that but for the officers coming to the defendant’s door there would have been no assertion of Fourth Amendment rights; but this does not make her confrontation with the officers a “custodial police interrogation.” United States v. Irion, 482 F.2d 1240, 1244-45 (9th Cir. 1973). Admission of the assertion will not impair to an appreciable extent any of the policies of the Fifth Amendment.
Nothing I have said is contrary to the holdings of District of Columbia v. Little, 339 U.S. 1, 70 S.Ct. 468, 94 L.Ed. 599 (1950), and Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967). The defendant’s assertion of Fourth Amendment rights, even if without foundation, cannot constitute the crime with which the defendant is charged. The jury on retrial should be so instructed. Little and Camara do not support the proposition that an assertion of Fourth Amendment rights is inadmissible in a prosecution such as before us. To extend the reach of these cases to that point is to confuse inculpatory evidence of a crime with the elements of a crime. Perhaps the majority believes that only by excluding evidence of the assertion can the jury be prevented from convicting solely on the ground of the assertion contrary to the holding of Little and Camara. If so, it has exalted a situation more properly governed by Rule 403, Fed.R.Evid., into a mischievous principle of constitutional law.
V.
What Our Holding With Respect To Part .IV Ought To Be.
The conclusion is inescapable that admission of defendant’s assertion of her Fourth Amendment rights in this case would not *1358impair to an appreciable extent any of the policies of either the Fourth or Fifth Amendments. Therefore, I would hold that evidence of the exercise by the defendant of her Fourth Amendment right to resist a search without a warrant can be admitted in evidence, at the option of either the prosecution or defense, in any retrial of the defendant on charges of having violated 18 U.S.C. § 3. If admitted, the jury should be given the cautionary instruction required by Little and Camara. This would not be an unjust result because under the circumstances of this case a retrial will occur, to repeat, only if the warrantless search was proper; if improper, the suppression of the fruits of the search will make a trial and conviction extremely unlikely.
. The majority to acknowledge in revisions in response to this dissent that “some costs do attach to the exercise of constitutional rights . ”, See p. 1353. However, it is reasonably clear that the majority continue to view their result as required by constitutional law. It is this belief that the constitution requires their result which I be-Heve to be erroneous and, as I say at slip op. p. 1353, “mischievous.” This latter quality exists because the extent to which an accused can use the principle to distort selectively the facts surrounding an entry to search cannot be reasonably predicted within the limits we normally require in promulgating sound principles of law.