dissenting:
Because the majority in this case places an untenably high burden on the private citizen in creating a legitimate expectation of privacy, I respectfully dissent. The two majority opinions, which rely on distinct although superficially similar analyses, will be discussed separately below.
I. Judge Hanson’s Opinion
As a starting point I assume, as Judge Hanson does, that the court below correctly characterized Zuniga’s actions as a search, albeit a search for a person. Doctrinally, we would thus seem to be placed squarely within the realm of the Supreme Court’s often quoted statement found in Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1972), that “a search conducted without a warrant issued upon probable cause is ‘per se unreasonable . . . subject only to a few specifically established and well-delineated exceptions.’ ” Id. at 219, 93 S.Ct. at 2043 (ellipses in original), quoting Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967). The exception Judge Hanson apparently relies on is the plain view doctrine, which authorizes warrantless seizures in certain limited circumstances.1
A crucial element of the plain view doctrine is that there must have been a “prior justification for an intrusion in the course of which [the police officer] came across a piece of evidence incriminating the accused.” Coolidge v. New Hampshire, 403 U.S. 443, 466, 91 S.Ct. 2022, 2038, 29 L.Ed.2d 564 (1971). Like Judge Hanson, I assume that Zuniga intruded on an area in which Wheeler had at least a limited reasonable expectation of privacy. Unlike Judge Hanson, I cannot find that a police officer’s legitimate desire to contact an individual in order to solve a civil dispute authorizes him to take such extreme steps as putting his eye next to a six foot privacy fence with a gate that the officer then knew was locked, peering through a small crack and subse*1329quently climbing on top of a stack of tires to peer over the fence.2
Clearly the officer’s legitimate purpose entitled him to knock on the garage and to call out to attempt to contact Wheeler (and I note that the officer testified on cross-examination that he did not call out to anyone on the other side of the fence until he was on top of the tires). But I cannot agree that the extraordinary steps taken by Zuniga can be justified as reasonable.
Judge Hanson attempts to buttress his argument by asserting that Wheeler’s privacy interest was limited, claiming that he could have sealed off the one inch crack where the fence met the building and removed the tires that Judge Hanson apparently considers to be an open invitation to passers-by to climb on in order to peer in. I cannot concur in the imposition of such a high burden on citizens’ attempts to preserve privacy. A six foot fence with a locked gate is not enough — apparently extraordinary efforts must be taken to close the gaps that may normally appear in such construction. If tires nearby are an invitation to passersby to climb, are not trees equally so? Or fire hydrants? To me this burden is much too great, and I accordingly must dissent.
II. Judge Choy’s Opinion
Judge Choy bases his opinion on the notion found in United States v. Orcozo, 590 F.2d 789, 792 (9th Cir.1979) and United States v. Copien, 541 F.2d 211, 214 (9th Cir.1976) that “visual observation by a law enforcement officer situated in a place where he has a right to be is not a search within the meaning of the fourth amendment.” Doctrinally, these cases involve situations in which, because there is no legitimate expectation of privacy, there is no fourth amendment right. Thus in Oreozo, “[t]he deputies’ looking through the windows of a vehicle parked on a public street did not violate appellant’s reasonable expectation of privacy; anyone walking past the vehicle could easily have observed the packages of cocaine and heroin.” 590 F.2d at 792. Similarly in Copien, this court refused to find that a legitimate expectation of privacy was violated when an agent saw marijuana debris (admittedly with the aid of a flashlight as it was night) through the back window of an airplane parked at a public airport, noting that “if privacy were desired here, Copien should have closed off the window from public view.” 541 F.2d at 215.
This case is clearly distinguishable. This is not an open vehicle parked on a public street — it is a home. Here Wheeler did close off the area from public view — he put up a six foot solid fence3, albeit with a small gap where the fence met the building. The contraband here was not easily visible — its identification required the officer to peer through a small hole and climb on top of tires. As I stated at the end of Part *1330I, I find Wheeler’s efforts sufficient to create a legitimate expectation of privacy.
I would affirm the district court.
. Although the plain view doctrine is formulated in terms of warrantless seizures, I have no intrinsic doctrinal difficulties with applying it to a situation where, as Judge Hanson concludes occurred here, evidence inadvertently discovered in plain view is used not to justify an on the spot seizure but to supply probable cause for a warrant.
. It is the nature of this behavior that causes me to find the Eighth Circuit’s Anderson case relied on by Judge Hanson to be distinguishable without having to evaluate its merit. To me there is a significant distinction between glancing through a window as one passes it and the far more strenuous and intrusive behavior involved here.
. Judge Choy finds that a six foot fence is not tall enough to create privacy — it “could easily be looked over by a person six feet or taller in height.” Assuming that most people have approximately four to five inches between their eyes and the top of their heads, and given the additional height necessary to look down over an obstacle such as a fence, it seems more realistic to believe that such a fence could be “easily” looked over only by individuals six feet five inches or taller (who, in order to see into the yard, would also have to be standing quite close to the fence). Given that less than one percent of the American adult population is six feet four inches or taller, see National Center for Health Statistics, U.S. Department of Health, Education and Welfare, Weight and Height of Adults 18-74 Years of Age: United States, 1971-74 27, I have to question strongly Judge Choy’s conclusion. To me, a fence that effectively screens out more than 99% of the population does create an expectation of privacy. I also take judicial notice of the fact that Chula Vista zoning ordinances limit the height of such fences to six feet. Wheeler has thus done all the law permits him to do in terms of fence height to create privacy. I cannot see how the majority can demand still more.