dissenting:
I dissent most reluctantly. I do so only because I believe that United States v. Place, 462 U.S. -, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983), leaves me no alternative.
Prior to Place, Judge Ely wrote an excellent, well-reasoned, and scholarly opinion, in which I readily concurred, holding that a dog sniff of luggage constitutes a fourth amendment intrusion. United States v. Beale, 674 F.2d 1327 (9th Cir.1982). I agreed with Judge Ely that under our Constitution, law enforcement officials could not simply, without any justification, use dogs to sniff luggage or other containers designed to hold personal and private articles. Accordingly, we adopted a standard requiring “founded” or “articulable” suspicion before such an invasion of constitutionally protected interests could concur. Since then, however, it seems to me that the Supreme Court has made it clear in Place that it does not agree that the Constitution affords citizens as much protection as we thought it did.
I agree with the majority that we should follow the Supreme Court’s statements in Place regarding dog sniffing, even though they may be dictum. I also agree that the critical language is the following:
[W]e conclude that the particular course of investigation that the agents intended to pursue here — exposure of respondent’s luggage, which was located in a public place, to a trained canine — did not constitute a “search” within the meaning of the Fourth Amendment.
103 S.Ct. at 2644-45.
My only disagreement with the majority is over the effect of the Supreme Court’s language. I think it leaves no room for-application of the fourth amendment to dog sniffs of luggage located in a public place.1 While the term “search” is flexible and may refer to a “full blown search” or a “limited search”, i.e., a simple pat down, there still must be a “search” or a “seizure” before a fourth amendment violation can occur. See Terry v. Ohio, 392 U.S. 1, 19, 24-25, 88 S.Ct. 1868, 1881, 1882, 20 L.Ed.2d 889 (1968). Thus, I believe that we cannot require “founded” or “articulable” suspicion before a dog sniff of luggage located in a public place may be conducted.
. Certainly Place does not authorize the use by law enforcement officials of dogs to sniff persons. As we said in our earlier Beale opinion, such use of dogs "is normally inconsistent with the concepts embodied in our Constitution.” 674 F.2d at 1336 n. 20. I do not believe that Place in any way requires us to change that view.