dissenting:
I agree with the majority that the police conduct in the execution of the search warrant in this case did not violate the due process clause of the Fifth Amendment. I dissent, however, from the reversal of the district court’s order suppressing the evidence because I believe that the search was unreasonable under the Fourth Amendment.
The majority finds that the trial judge was wrong in stretching the Rochin line of cases to cover the facts in this case, and essentially rests. Although the majority purports to examine the search under the Fourth Amendment standard of reasonableness, it fails to differentiate adequately between the shockingness and reasonableness standards.
A search can be unreasonable under the Fourth Amendment without offending the Fifth Amendment. See Blackford v. United States, 247 F.2d 745, 750 (9th Cir. 1957). (Blackford and a subsequent case, Rivas v. United States, 368 F.2d 703 (9th Cir. 1966), involved body cavity searches, and both held the searches to be reasonable.)
Here we have no body cavity search for drugs at a border station, but the execution of a warrant to search a backyard for drugs. Instead of digging with a shovel, which might have been hot and dirty work, the officers merely promised a five-year-old child a five dollar bill if he would show them the location of the heroin cache.
The Fourth Amendment requires that any search conducted by the government satisfy the condition of reasonableness, in both the initial justification for the search and the manner in which the search is executed. Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963); United States v. Valenzuela, 596 F.2d 824, 829-830 (9th Cir.), cert. denied, 441 U.S. 965, 99 S.Ct. 2415, 60 L.Ed.2d 1071 (1979); Duncan v. Barnes, 592 F.2d 1336, 1338 (5th Cir. 1979). This reasonableness requirement, with roots deep in American history, protects the individual’s “right to be let alone” against arbitrary, unjustifiable or unreasonable government intrusions. Olmstead v. United States, 277 U.S. 438, 478-79, 48 S.Ct. 564, 572, 72 L.Ed. 944 (1928) (Brandeis, J., dissenting). See also Boyd v. United States, 116 U.S. 616, 624-32, 6 S.Ct. 524, 528-33, 29 L.Ed. 746 (1886). See generally N. Lasson, The History and Development of the Fourth Amendment to the United States Constitution (1937).
Of course, the right embodied in the Fourth Amendment is not an absolute right. It must “give fair leeway for enforcing the law in the community’s protection.” Brinegar v. United States, 338 U.S. 160, 176, 69 S.Ct. 1302, 1311, 93 L.Ed. 1879 (1949). Indeed, privacy must give way in many situations. No person would be secure in his or her person or property if the police were totally immobilized by judicial rules which weakened their capacity to combat crime. Therefore, as is the case with many constitutional rights, the concept of reasonableness within the Fourth Amendment should afford “the best compromise * * * for accommodating * * often opposing interests.” Id.
The standard of reasonableness embodied in the Fourth Amendment demands a balance between the government’s justification for the search and the degree of intru*886sion resulting from the search. Berger v. New York, 388 U.S. 41, 69, 87 S.Ct. 1873, 1888, 18 L.Ed.2d 1040 (1967) (Stewart, J., concurring); Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). More specifically, in the investigation of criminal activity the standard may be viewed as requiring:
“* * * an approach which determines the reasonableness of each investigative technique by balancing the seriousness of the suspected crime and the degree of reasonable suspicion possessed by the police [that the search will in fact lead to evidence that will solve the crime] against the magnitude of the invasion of personal security and property rights of the individual involved * *
Barrett, Personal Rights, Property Rights and the Fourth Amendment, 1960 Sup.Ct. Rev. 46, 63.
No one here attacks the validity of the search warrant. Rather, the focus of Fourth Amendment inquiry in this case is on the manner in which the admittedly justified search of the Penn house and yard was conducted by the police. Although a search warrant need not set forth precisely the procedures to be followed by the executing officers, Dalia v. United States, 441 U.S. 238, 99 S.Ct. 1682, 60 L.Ed.2d 177 (1979), the Supreme Court has only recently reiterated that “the manner in which a [search] warrant is executed is subject to later judicial review as to its reasonableness.” Id. at 258, 99 S.Ct. at 1694. See also United States v. Valenzuela, 596 F.2d at 829-830.
To restate the issue, the question is whether offering young Reginald money to induce him to point out. where, exactly, in the large area covered by the warrant, evidence of his mother’s criminal activity lay hidden was a reasonable manner in which to execute the warranted search. Several factors must be balanced.
Heroin trafficking is serious crime. On the other hand, society also has an interest in the propriety of police tactics regardless of the gravity of the offenses to be prevented. The government is not free to employ any means at hand to restrict heroin distribution. One goal of the Fourth Amendment is to protect the public from unnecessarily intrusive police searches. If the police behave in a manner which brings the law into disrepute, the resulting institutional damage to the government may be as socially undesirable as the crime the police combat.
Questioning individuals about crimes they may have observed is a valuable and respected method by which police obtain information. This is true even when questions are put to children. Everyone is expected to help solve crimes. And although social esteem for informers decreases when they are paid, particularly when they are paid to inform on their own families, paying for information is generally an acceptable police practice.
However, use of very young children as paid informers is offensive because they may be incapable of giving reasoned and voluntary consent. Recruiting a five-year-old child to act as a paid informer against a parent is perceived as singularly reprehensible. Only the most exigent of circumstances might justify that investigatory tactic under the Fourth Amendment standard of reasonableness. A lay person might, for example, applaud a police officer who paid a small child for information to save the life of a kidnap victim buried alive in an underground box. But that same person might well object on moral grounds to paying a small child for information to put a parent in jail for failing to pay parking tickets. The case at bar is not easy; it would not be here en banc if it fell clearly at either end of a continuum.
Here, the offer of money to Reginald was only a shortcut to obtaining evidence the police could have found by a bit of digging. There was testimony that the police intended to “dig up the entire backyard” if their initial efforts at finding the heroin proved fruitless. Indeed, under questioning by defense counsel, the police refused to concede they would not have found the cache of *887heroin without Reginald’s help. The house and yard were secured. The action taken by the police was not necessary to prevent destruction or consumption of the heroin. Simply put, the consequences of not finding the heroin quickly were not so grave as to justify the particular shortcut the officers took.
Thus, the two related inquiries which this circuit identified in Blackford, supra at 752-753, and Rivas, supra at 711-712, as crucial to judicial determination of a search’s reasonableness here support a finding of unreasonableness. The police’s shortcut was unnecessary, except as a time-saver in a situation in which time was not of the essence, and less intrusive methods of carrying out the search were reasonably available.
Moreover, police uncertainty about whether Reginald actually knew where the heroin was located makes their need to use him as a paid informer even less urgent than if he were the last resort. The probability that the police tactic used here would solve the crime under investigation was less than overwhelming.
By offering money to the defendant’s five-year-old son, the police intruded in this case on a family relationship that is highly valued.1 Confidence between parents and their children enhances preservation of the family unit, an interest which the law should promote when it has the opportunity. At least, the law should not unnecessarily make parents and children apprehensive about exchanging information. Nor should the law encourage children to turn against their parents.
Yet like other values, family preservation is not absolute. Recognition of parent-child privacy rights as paramount in all cases might encourage criminally inclined individuals to employ the family as a shield for their criminal work. Where the family is so abused, social gain from judicial advancement of family privacy would be at the expense of injury to the social fabric elsewhere. An intuitive and not unjustifiable notion exists that persons in the business of selling heroin do not deserve to have their privacy protected in circumstances such as these. This rationale may in part explain the majority’s reluctance to enter into a Fourth Amendment balancing exercise.
Yet our law presumes innocence until the contrary is proven by proper process, including legally admissible evidence. The reasonableness of a search is determined by reference to the circumstances known at the time of the search. It is axiomatic that a search that is unreasonable when made does not become reasonable after the fact by virtue of the evidence that is uncovered. Cf. Henry v. United States, 361 U.S. 98, 103, 80 S.Ct. 168, 171, 4 L.Ed.2d 134 (1959) (arrest not justified by what subsequent search discloses).
Finally, we must consider whether the police tactics used here carried with them a probability of harm to the child. Children of tender years do not appreciate all the consequences of their actions. They are very impressionable. Recently, for example, the Federal Trade Commission has acted in response to petitions and a staff report citing massive evidence that children under eight years of age are the helpless victims of aggressive television advertising that will ruin their teeth if not their overall health. See Children’s Advertising, Proposed Trade Regulation Rulemaking and Public Hearing, 43 Fed.Reg. 17967 (1978). Without speculating about the merits of child psychology as applied elsewhere, it seems modest enough here to suggest that paying, or promising to pay, a child to inform upon his or her parents verges upon undue influence.
In addition, Reginald’s experience could leave him with permanent scars. This type *888of exploitation of young children might well cause irreparable psychological damage when the children one day realize, as is inevitable, that they were instrumental in sending their parents to jail. This price may be too high even if the tactic helps in suppressing crime.
Therefore, in balancing the various interests in this case, I find myself sharing the instinctive reaction of the district judge. The conduct of the police was unreasonable. No serious consequences were averted by the shortcut taken in the search and a reasonable alternative method was available to police. The warrant authorized them to dig up the yard. They should have done so. They would not then have made the child the enemy of his mother. In the circumstances of this case the search was conducted in an unreasonable, and thus unconstitutional manner. The order suppressing the evidence should be affirmed.2
KENNEDY, HUG and TANG, Circuit Judges, concur in this dissent.
. Professor LaFave cautions that police execution of a warrant in a manner which unnecessarily damages physical property, “for example, by tearing up linoleum or carpeting,” should be found unreasonable. 2 W. LaFave, Search and Seizure: A Treatise on the Fourth Amendment at 161 and n. 54 (1978). The relationship between a mother and young child is at least as worthy of protection under the Fourth Amendment against unnecessary and damaging governmental intrusion.
. The district court’s finding of shockingness under the Fifth Amendment necessarily incorporates a finding of unreasonableness under the Fourth Amendment. See Blackford v. United States, 247 F.2d 745, 750 (9th Cir. 1957). The majority treats the reasonableness determination as a question of law, although recognizing that it must be based on the facts and circumstances of each case. I would give greater deference to the trial court’s finding under the “clearly erroneous” standard of review.