dissenting:
I respectfully dissent for the reasons that Judge Ely expressed in two excellent panel opinions: Beale I, 674 F.2d 1327 (9th Cir.1982), and Beale II, 731 F.2d 590 (9th Cir.1983). I write further mainly to point out that the majority, in telling us that a dog sniff is not a search, fails to tell us what it is. I submit that the intruding canine nose, Beale I, 674 F.2d at 1334, like the intruding eye and the uninvited ear, Katz v. United States, 389 U.S. 347, 352, 88 S.Ct. 507, 511, 19 L.Ed.2d 576 (1967), deserves a more exacting Fourth Amendment inquiry than the majority has given it.
In holding that the police may employ a trained narcotics detection dog to sniff Beale’s luggage without implicating the search clause of the Fourth Amendment, the majority makes three errors. First, it denigrates the reasonable expectation of privacy that travelers retain in their luggage. Second, it fails adequately to explain how an obvious intrusion into someone’s personal effects — his suitcases — is not a search. Finally, the majority never even reaches the critical question the panel faced below: whether the sniff, if not a full-blown search, nonetheless constitutes an investigatory stop triggering the more modest Fourth Amendment standards of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). I consider each matter in turn.
A. Personal Effects and the Fourth Amendment
The majority makes light of using a dog to sniff luggage for cocaine because this technique is less intrusive than having the dog sniff the person who owns the luggage. The majority also tells us that the sniff in this case caused Beale no inconvenience or embarrassment because the Florida detectives, unlike the police in United States v. Place, — U.S. —, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983), detained nei*1293ther the man nor his luggage for an appreciable length of time.
Behind this rationalization lurks the assumption that a person’s privacy interest in his luggage is less important than his privacy interest in his person or home. I agree that sniffing the luggage rather than the owner is somewhat less intrusive. I disagree, however, with the premise that no intrusion at all occurs.
This is a “what you don’t know, won’t hurt you” approach. It permits the authorities secretly to inspect luggage whenever the owner happens to become separated from it. It thumbs its nose at the rule that “[n]o less than one who locks the doors of his home against intruders, one who safeguards his personal possessions in this manner [by placing them in a locked suitcase] is due the protection of the Fourth Amendment Warrant Clause.” United States v. Chadwick, 433 U.S. 1, 11, 97 S.Ct. 2476, 2483, 53 L.Ed.2d 538 (1977). The Fourth Amendment, after all, protects from unreasonable searches and seizures “[t]he right of the people to be secure in their persons, houses, papers, and effects." U.S. Const, amend. IV (emphasis added).
“[L]uggage is a common repository for one’s personal effects, and therefore is inevitably associated with the expectation of privacy.” Arkansas v. Sanders, 442 U.S. 753, 762, 99 S.Ct. 2586, 2592, 61 L.Ed.2d 235 (1979). Luggage does not lose its Fourth Amendment protection simply because it is highly mobile, see id. at 764-65, 99 S.Ct. at 2593-94, or because it turns up in public places, see id. at 767, 99 S.Ct. at 2594 (Burger, C.J., concurring in the judgment). To the traveler away from home, the closed suitcase containing personal belongings represents one of the few bulwarks of privacy. Therefore, I cannot agree that Fourth Amendment protections are inoperative merely because the thing searched is luggage rather than the owner.
B. The Dog Sniff as a Search
The majority believes that a canine sniff does not implicate the Fourth Amendment. Again I disagree. The critical question in every Fourth Amendment case is whether the intrusion at issue is one that a free society is willing to tolerate. United States v. Solis, 393 F.Supp. 325, 328 (C.D.Cal.1975), aff'd in relevant part, 536 F.2d 880, 881 (9th Cir.1976); see 1 W. LaFave, Search and Seizure § 2.2(f), at 286 (1982); Amsterdam, Perspectives on the Fourth Amendment, 58 Minn.L.Rev. 349, 403 (1974). I do not believe that a free society should be willing to tolerate the spectre of trained dogs randomly sniffing private luggage to help the police determine whether someone is carrying contraband. “It would be intolerable if the police, in no way limited by the Fourth Amendment, were free to utilize dogs to undertake ‘a wholesale examination of all baggage in the hope that a crime might be detected.’ ” 1 W. LaFave, supra § 2.2(f), at 286 (quoting United States v. Bronstein, 521 F.2d 459, 465 (2d Cir.1975) (Mansfield, J., concurring), cert. denied, 424 U.S. 918, 96 S.Ct. 1121, 47 L.Ed.2d 324 (1976)). Yet the majority moves in this direction.
The authorities invaded Beale’s reasonable expectation of privacy in the contents of his luggage when they employed a trained dog to sniff for drugs. As Judge Ely wisely pointed out, the detectives needed the dog; they could not detect the substance by relying on their unaided senses. Beale I, 674 F.2d at 1333-34. When using dogs to ferret out contraband, the police are not simply walking around hoping to come across evidence of a crime. Instead, they are investigating. They are trying to find something. They are seeking evidence in hidden places. If this activity does not qualify as a “search,” then I am not sure what does. The majority, in any event, offers little reasoning to back up its finding that the intrusion was not a search.
To me, there is little practical difference between employing a trained dog to sniff luggage and permitting a police officer, acting without consent or a search warrant, to view the suitcase through an x-ray machine, United States v. Henry, 615 F.2d 1223, 1227 (9th Cir.1980), or simply to open it, United States v. Bronstein, 521 F.2d 459, 464 (2d Cir.1975) (Mansfield, J., concurring), cert. denied, 424 U.S. 918, 96 S.Ct. 1121, 47 L.Ed.2d 324 (1976). In each *1294instance, the police learn about the presence or absence of particular contraband in the suitcase. The fact that, in using a trained dog, the authorities learn less information about the remaining contents (such as clothing, toilet articles, and books) matters little if the information leads to the same result — namely, detecting and exposing illicit items.
C. The Dog Sniff as a Terry Investigative Stop
Even if I were satisfied that the dog sniff at issue was not a search, I would still adhere to Judge Ely’s reasoning in Beale I that the sniff was an invasion of privacy deserving some level of Fourth Amendment scrutiny. Judge Ely thought that
what Beale sought to exclude when he locked his suitcase was not only the intruding human eye — it was also the intruding canine nose. One who reposes his personal effects, including contraband, in a locked suitcase is surely entitled to assume that a trained canine will not broadcast its incriminating contents to the authorities.
Beale I, 674 F.2d at 1334 (footnote and citations omitted).
But despite finding that Beale retained an expectation of privacy against having the contents of his suitcase “broadcast” to the police, Judge Ely still would not have required the authorities to establish full probable cause to conduct the dog sniff. Instead, he would have required only that the officers establish a “ ‘founded’ ” or “ ‘articulable’ ” suspicion of crime under the standards set out in Terry v. Ohio, 392 U.S. 1, 20-27, 88 S.Ct. 1868, 1879-83, 20 L.Ed.2d 889 (1968). Beale I, 674 F.2d at 1335. As Judge Ely explained in Beale II:
Rather than follow an illogical approach of ignoring the source of the judicial authority to establish reasonable restraints on canine investigations, we think it infinitely more sensible to recognize that the scope of the Fourth Amendment encompasses this investigative technique. Moreover, the restraint adopted here is the eminently reasonable one of simply requiring that before using a trained dog to investigate the very private contents of personal luggage for evidence of crime, the police have some articulable reason, not necessarily amounting to probable cause, to suspect that the luggage may contain contraband.
Beale II, 731 F.2d at 595-96 (emphasis in original).
The majority, however, has chosen the illogical approach. It has not explored whether the canine investigation, if not a “search” requiring probable cause, is nonetheless a lesser “intrusion” or “invasion” subject to some modicum of Fourth Amendment protection.
The majority’s all-or-nothing approach to awarding Fourth Amendment protection suffers from three defects. First, it completely removes the judiciary’s responsibility for supervising limited invasions of Fourth Amendment rights. See, e.g., Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 369, 92 L.Ed. 436 (1948) (discussing importance of a neutral authority passing on reasonableness of search warrants). The police need no longer justify to a neutral magistrate their plans to use trained dogs—either before the sniff at a probable cause hearing, or afterward during a suppression hearing. The authorities are free, on the basis of hunches and guesses, to employ dogs to sniff personal luggage for the purpose of detecting contraband.
Second, the majority overlooks circumstances in the Supreme Court’s key decisions indicating that the intermediate Terry approach is appropriate in dog sniff cases. Place, for example, did not hold that the Government did not need to provide any basis for conducting the sniff. Instead, Place held that the authorities could briefly detain luggage based on an articulable suspicion that the owner was a drug courier. See 103 S.Ct. at 2644. This inquiry preceeded any discussion about whether the authorities could then employ a canine sniff. Id. Relying on these facts, Judge Ely simply held the Government to the modest burden of articulating a reasonable suspicion. He correctly reasoned that such suspicion is present when the suitcase owner fits the drug courier profile that narcot*1295ics agents commonly use to identify drug smugglers. In so doing, Judge Ely recognized both the Government’s Terry-type need to conduct flexible, on-the-spot investigations, and society’s interest in avoiding random and capricious intrusions into travelers’ luggage and personal effects.
Third, the majority all too readily forfeits what little Fourth Amendment protection might still obtain in this developing area of police work. The reasonable suspicion standard is already easy to meet. If courts fail to hold the authorities to even this low threshold of reasonableness, then the Fourth Amendment will no longer offer the protection against arbitrary authority that the Framers insisted on.
Justice Douglas worried about the “powerful hydraulic pressures” that bear on courts to water down constitutional guarantees. Terry v. Ohio, 392 U.S. 1, 39, 88 S.Ct. 1868, 1889, 20 L.Ed.2d 889 (1968) (Douglas, J., dissenting). I fear that with today’s decision, the majority has ventured beyond watering down Fourth Amendment protections. Instead, in a new category of cases, it has defined them out of existence.