join, dissenting:
I adhere to the established jurisprudence requiring that a search be made with a warrant issued upon proper showing to a magistrate unless there is probable cause plus exigent circumstances.1
The majority cut new ground by an analysis that runs this way. They accept that the appropriate inquiry is whether Michael’s legitimate or reasonable expectations of privacy were violated. Pursuing this inquiry they first conclude that Michael’s expectation of privacy was diminished because a vehicle was involved and because it was parked in a public place. Next they examine the degree of intrusion and describe it as minimal. Having reached these preliminary conclusions as a predicate, the majority find that the agents had reasonable suspicion that Michael was engaged in criminal activity and that this justified placement (and monitoring) of the beeper without the necessity for a warrant. The subsequent monitoring is then further justi*271fied as not invading Michael’s privacy interest because it only assisted the agents in their performance of lawful surveillance and because the van traveled public roads and was exposed to public view.
In the final step, the majority balance the governmental and public interest in eliminating illegal drug manufacturing against the “minimal” intrusion and find that the warrantless installation and subsequent use of the beeper were “reasonable.”
I agree that the Supreme Court has made clear that protection of a legitimate or reasonable expectation of privacy is the proper inquiry.2
Was Michael’s privacy interest limited and the intrusion nominal? It is simply not an answer to these questions to say “all that is involved is an automobile and everybody knows that automobiles are used publicly,” and “all the officers did was to aid in finding out what they could have observed visually anyhow.” Usually, in defining the contours of legitimate or reasonable expectation of privacy, one must necessarily consider both the nature of whatever corporeal item is involved and the kind of governmental action that is claimed to have improperly invaded the privacy interest that the victim has in the item. It is obvious that an automobile moves freely in public and parks in public places and, because it is open to view, the owner has no reasonable or legitimate expectation that the exterior of the vehicle will not be seen through visual observation. Furthermore, the owner has no reasonable expectation of privacy in the numbers on his license plate and the identification numbers fixed to the door post or stamped on the frame or on the engine block. A court might well sustain an officer’s running his finger down the side of a publicly parked car to collect a dust sample. The courts have even sustained taking a paint sample from the exterior surface of a car previously seized and impounded.3 But the nature and use of the tangible item are not the end of the inquiry. One must also ask “privacy against what kind of governmental action?” Or, in the Supreme Court’s phrase, what is the “scope of the intrusion”? Bell v. Wolfish, 441 U.S. 520, 559, 99 S.Ct. 1861, 1885, 60 L.Ed.2d 447, 481 (1979). It is only when this question is asked that we conclude that the public use of a vehicle and its exposure to public view do not justify searching interior portions of the vehicle not in plain view without either a warrant or probable cause plus exigent circumstances. The same applies to a suitcase. It is movable, generally used in full public view, freely handled and touched by common carrier personnel while the owner is traveling by public transportation. There is no privacy interest protecting against observation of its exterior. But no one any longer seriously argues that the suitcase’s qualities of mobility and public exposure permit police to open it without a warrant or exigent circumstances plus probable cause.
It is both inaccurate and disingenuous to treat the governmental intrusion in this case as limited to the mere transitory and de minimis trespass committed by attaching a small object to the van. The significant intrusion arises from the capacity of the small device to emit a signal that identifies to police the location of the vehicle. The officers, by attaching the electronic device, made the van into a mechanism for reporting to the government its own location and necessarily the location of persons occupying it. The government, without Michael’s consent or knowledge, made him into a broadcaster of the details of his own affairs. The listener is the government. The signals are simple. But they are damning. This is far from minimal. It strikes at the heart of the protection that the Fourth Amendment affords to the person and his affairs and effects in the relationship between him and his sovereign. This signifi*272cant intrusion into Michael’s affairs cannot be justified on the ground that the electronic device was attached to his automobile and the privacy interest in an automobile is not strong.4
Actually, the government’s action comes close to impinging on interests protected by the Fifth Amendment. The government, by a trespass minimal in the physical sense, causes the unwitting suspect to become a reporter to the government of information incriminating to himself.5 We view with loathing totalitarian systems that require a person traveling from one place to another to check in with the police and report on his movements. The majority treat as trivial the privacy interest against one’s unwittingly but continuously making the same kind of report through an electronic device attached to the property by which he moves from place to place. I do not consider this trivial.
Significantly, while eschewing common law property concepts as irrelevant, the majority employ these same concepts to conclude that the officers’ actions here were merely a minimal, technical and transitory trespass. In a property sense the majority are correct. But these property-rooted justifications tell only a fraction of the story.
The majority refer, n. 14, to the pen register case 6 in which installation and use of a register at the telephone company’s central office to record numbers dialed by the defendant did not violate the Fourth Amendment because the telephone user always conveys to the telephone company numerical information that can be permanently recorded at the will of the company, and the user has no reasonable expectation that the telephone company will not disclose this recorded information to police. If Michael were a user of a commercial shortwave radio system by which he could talk from his van to his office, and his transmissions could be taped by the owner of the system in order to compute user charges on a time basis, Michael might not be able to complain if the police put a bug at the owner’s headquarters to pick up what Michael said over the air. But Michael is not a subscriber to a commercial service, the use of which may involve giving up his privacy interests. He is not even knowingly sending signals of any kind to anyone.
Surveillance of the car through monitoring the attached beeper cannot properly be justified on the ground that this merely aids officers who could visually surveil the vehicle. Freedom to visually observe does not of itself justify other means that might reveal the same information. If for no other reason, the beeper’s scope is wider than the surveilling eye can visually observe. It does not shut off if the van enters private property and leaves public view so that it may no longer be seen. It does not turn off when the owner parks the van in his garage and locks the garage door to protect against entry by others, including police officers. If an officer broke into a car and secreted himself in the back seat in order to find the car’s route and destination, we would summarily reject an argument that his act was constitutionally justified because another officer might have obtained the same information by following the car. Moreover, this “alternative availability” rationale (a sort of first cousin to the discredited “inevitable discovery” rule) ignores the interest that one has against being made into a self-incrimináting broadcaster of his own affairs.
The standard that reasonable suspicion of criminal activity is a justification for a war-rantless search is newly created in this case. No case is cited to support it.7 In oral *273argument government counsel were asked to supply cases supporting this theory. Counsel could come up with nothing. Sitting en banc we have the power to create this new rule subject to Supreme Court review. But there should be some better basis than the mischaracterization of the intrusion as a nickel and dime trespass, and the fact that the police were trying to catch illegal drug manufacturers. As surely as the sun rises, reasonable suspicion will now be urged as justification for intrusions that even the majority would accept as serious, and searches heretofore barred by the Fourth Amendment will be urged as valid because done in pursuit of all types of suspected criminal activity. In fact, few searches are made for any reason other than attempts to catch suspected law violators.
In their final point the majority hold that the governmental interest in eliminating illegal drug manufacturing is to be balanced against Michael’s expectation of privacy to determine if the Fourth Amendment has been violated. Justifying a search on the basis that it is handy for the police is a new theory. In this country the balancing is done in the magistrate’s office through a request for a warrant based upon probable cause, or under circumstances so exigent and knowledge sufficiently strong that we dispense with the requirement of a warrant. Bell v. Wolfish, supra, held that visual body cavity searches in a prison could be conducted on inmates who had just had contact visits with persons from outside the prison, without the necessity of probable cause. Prison officials testified that the searches were necessary not only to discover but also to deter the smuggling of weapons, drugs and other contraband into the institution. The court dealt with what is called “a unique place fraught with serious security dangers,” in which smuggling of money, drugs, weapons and other contraband were common occurrences and inmate attempts to bring these items into the facility by concealing them in body cavities were documented in the record. No such unique facility or problem is involved in this case. The only interest in the government’s end of the “balancing” to which the majority refer is that this is a drug case. No special need was shown for the information sent by the beeper. Indeed, one of the grounds on which the majority justify the governmental action is that the police could have obtained essentially the same information by visual surveillance.
. None of the other exceptions to the warrant requirement, such as search incident to arrest, is even arguably involved.
. My approach is different from that of Judge Tate — if different at all — only in degree. His convincing dissent emphasizes the invasion of property interests while I prefer to emphasize governmental invasion of the individual’s expectation of privacy.
. Cardwell v. Lewis, 417 U.S. 583, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1970).
. Surely the government cannot attach a camera to one’s bedroom window and photograph those inside and justify it on the ground that windows are visible to all and made to see through and thus enjoy no privacy. The Fourth Amendment protects people not chattels.
. This is different from dye on the bank’s bait money. The bank robber has no privacy interest in the loot.
. Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979).
. In another part of the opinion the majority refer to Adams v. Williams, 407 U.S. 143, 92 *273S.Ct. 1921, 32 L.Ed.2d 612 (1972) as justifying an “intermediate response” based on something less than probable cause. In Adams the officer reached through the window of a car and removed a loaded pistol from the defendant’s waistband. This action was held valid as “a limited intrusion designed to insure [the officer’s] safety,” under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Probable cause then existed to arrest Williams for unlawful possession of the weapon. The present case is unrelated to the limited protective actions authorized under Terry.