dissenting from the denial of a rehearing en banc:
This case was decided at a unique time of transition for this court. Several judges who originally voted to hear the case en banc left the court before they could participate in the decision, and our rules did not permit the newly appointed judges to participate. Because the decision may have a profound effect on the law of this circuit and on the conduct of law enforcement officers, the case should be reheard en banc by the court as now constituted.
The majority opinion is deeply troubling for reasons well expressed by my brothers GOODWIN, KENNEDY, and FERGUSON. It ignores the body of case law emphasizing the significance of the family and expanding the zone of constitutional protection we accord the private sanctuary of family life.1 *890A parent’s relationship with her young child certainly falls within this protected area. The majority is on dangerous and frightening ground when it ties the level of constitutional protection to the court’s perception of the quality of the Penn family.2 This invites police to apply an “Ozzie and Harriet” test by which the reasonableness of a search is based in part on the worthiness of the family.
On another level, the majority overlooks our duty to give harried police officers clear guidance about permissible investigatory techniques. The majority creates uncertainty by making the reasonableness of the search depend on such vague factors as the severity of the offense, the character of the suspect, and the quality of Penn’s family and mothering.
Finally, the majority misconceives the function of the exclusionary rule. We are concerned not with the guilt or innocence of the particular defendant, but with providing guidelines for future police conduct towards other, perhaps innocent, citizens.3 To prevent police from employing young children as spies against their parents we must hold that such tactics will yield no admissible evidence.
. See Moore v. City of East Cleveland, 431 U.S. 494, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977), in which Justice Powell, speaking for a plurality of the Court, said: “Our decisions establish that the constitution protects the sanctity of the family precisely because the institution of the family is deeply rooted in this Nation’s history and tradition.” 431 U.S. at 503. See *890also Smith v. Organization of Foster Families for Equality & Reform, 431 U.S. 816, 842-47, 97 S.Ct. 2094, 2108-11, 53 L.Ed.2d 14 (1977); Wisconsin v. Yoder, 406 U.S. 205, 213, 92 S.Ct. 1526, 1532, 32 L.Ed.2d 15 (1972); Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 1212, 31 L.Ed.2d 551 (1972); Griswold v. Connecticut, 381 U.S. 479, 482-86, 85 S.Ct. 1678, 1680-82, 14 L.Ed.2d 510 (1965); Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 442, 88 L.Ed. 645 (1944); Pierce v. Society of Sisters, 268 U.S. 510, 534-35, 45 S.Ct. 571, 573, 69 L.Ed. 1070 (1925); Meyer v. Nebraska, 262 U.S. 390, 399-402, 43 S.Ct. 625, 626-28, 67 L.Ed. 1042 (1923).
. See ante at 881 & n. 6.
. See Stone v. Powell, 428 U.S. 465, 486, 96 S.Ct. 3037, 3048, 49 L.Ed.2d 1067 (1976).