dissenting:
Today the majority takes the unprecedented step of holding that police officers do not violate the Fourth Amendment’s protection of the home when they seize an individual standing inside his or her home without a warrant or applicable warrant exception and based only on reasonable suspicion that a crime is being committed therein. The majority reaches this extraordinary result by holding that the expectation of privacy of an individual standing dozens of feet inside his or her home with an open door is the same as that of an individual standing on a public street. See ante at 53. It purports to base this endorsement of police intrusion into the home on the Supreme Court’s decision in United States v. Santana, 427 U.S. 38, 96 S.Ct. 2406, 49 L.Ed.2d 300 (1976), which it claims stands for the proposition that once the door of a home is opened, a home is no longer a home for constitutional purposes, i.e., the special protections for homes set forth in Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), do not apply. See ante at 53. The majority’s reading of Santana is not only incorrect but is irreconcilable with decades of Supreme Court Fourth Amendment jurisprudence. Because I believe that the warrant and probable cause requirements for entry into a home set forth in Payton apply in this case, and that the officers had neither, I would affirm the district court. I therefore respectfully dissent.
I. Did the Heightened Protection of Pay-ton Apply?
I agree with the majority’s formulation of the critical issue in this case: whether the seizure violated the Fourth Amendment depends on whether the officers’ or*58der to evacuate Apartment 1M triggered the heightened protection offered by Pay-ton against warrantless entry into the home. See ante at 50.
The Fourth Amendment expressly protects “[t]he right of the people to be secure in their ... houses.... ” U.S. Const, amend. IV. The Supreme Court has recently re-emphasized that “the importance of the right to residential privacy is at the core of the Fourth Amendment.” Wilson v. Layne, 526 U.S. 603, 612, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999). As the Court explained in Payton:
The Fourth Amendment protects the individual’s privacy in a number of settings. In none is the zone of privacy more clearly defined than when bounded by the unambiguous physical dimensions of an individual’s home — a zone that finds its roots in clear and specific constitutional terms.... In terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to the house.
445 U.S. at 589-90, 100 S.Ct. 1371 (emphasis added). The home is protected against unnecessary government intrusion principally by the warrant requirement for searches and seizures within. See Welsh v. Wisconsin, 466 U.S. 740, 748, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984). Thus, searches and seizures inside a home without a warrant and probable cause to support it are presumptively unreasonable. See Payton, 445 U.S. at 586, 100 S.Ct. 1371.
The majority’s authorization of intrusions into the home without a warrant or warrant exception and based only on reasonable suspicion is predicated on two fundamental errors. First, the majority treats the occupants’ expectations of privacy in Apartment 1M as an all-or-nothing proposition. According to the majority, voluntarily making yourself visible to a person standing in a public area is the same as making yourself available to be physically touched or otherwise seized. However, the Supreme Court has made clear that individuals do not forfeit all privacy rights simply by placing themselves in public view.
In the seminal case of Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), for example, the Supreme Court rejected the government’s argument that a defendant had no expectation of privacy with respect to a telephone conversation he had in a glass-enclosed public telephone booth, holding that “what [defendant] sought to exclude when he entered the booth was not the intruding eye — it was the uninvited ear. He did not shed his right to do so simply because he made his calls from a place where he might be seen.” 389 U.S. at 352, 88 S.Ct. 507. In distinguishing between the acceptable visual monitoring of the individual and his right to be free from invasions of the privacy that otherwise protected him while standing in the telephone booth, the Court explained that what an individual “seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.” Id. Thus, I disagree with the majority that an open door translates into an “open season” on the individual inside.
The second flaw in the majority’s reasoning is its confusion between situations in which the police obtain a warrant or gain probable cause to search or seize based on their observation of someone or something in public view and their simple right to do the observing. For instance, as the majority notes, see ante 50-51, courts have held that warrants and probable cause are not required for visual observations of persons or objects in plain view in homes if viewed by officers from public places, such as from an airplane above a home or from an apartment building yard through an open window. See, e.g., Florida v. Riley, 488 U.S. 445, 449-51, 109 S.Ct. 693, 102 L.Ed.2d 835 (1989) (aerial observations of curtilage of home from helicopter); United States v. Fields, 113 F.3d 313, 321-22 (2d Cir.1997) (observations from apartment building yard through window *59of home). However, that does not mean, as the majority today rules, that such observation alone justifies seizure of the observed persons or objects in the home. While plain view observations may permissibly form the basis for a warrant authorizing officers to enter the home to seize evidence or arrest suspects or for an applicable warrant exception, the plain view doctrine does not dispose of the probable cause and warrant requirements for the entry into the home itself. See Coolidge v. New Hampshire, 403 U.S. 443, 468, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) (“[Pjlain view alone is never enough to justify the warrantless seizure of evidence. [It] may establish the fullest possible measure of probable cause. But even where the object is contraband, this Court has repeatedly stated and enforced the basic rule that the police may not enter and make a warrantless seizure.”); cf. Riley, 488 U.S. at 449-51, 109 S.Ct. 693 (aerial observations permissibly served as basis of search warrant upon which drugs were seized and suspects arrested in curtilage of home); Fields, 113 F.3d at 321-23 (observations from apartment building sideyard through window permissible basis of probable cause and exigent circumstances excused warrant requirement for arrest of suspects and seizure of drugs in home).
The Supreme Court has also held that the plain view doctrine does not obviate the probable cause requirement for searches and seizures. Even if the police are inside an individual’s home on the basis of a legal warrant, the Supreme Court has held that they cannot search or seize objects in plain view that are unrelated to the suspected crime that is the subject of the warrant without separate probable cause as to those items. See Arizona v. Hicks, 480 U.S. 321, 326-28, 107 S.Ct. 1149, 94 L.Ed.2d 347 (1987). In finding that a police officer investigating a shooting violated the Fourth Amendment by physically moving stereo equipment he thought might be stolen in order to obtain the stereo’s serial numbers, the court held that “[a] dwelling-place search, no less than a dwelling-place seizure, requires probable cause, and there is no reason in theory or practically why application of the ‘plain view doctrine’ would supplant that requirement.” Id. at 328, 107 S.Ct. 1149.
Applying the correct analytical framework to this case, I believe that, despite the voluntarily-opened door, defendants still had an expectation of privacy against government entry into their home and seizures of their persons. Certainly they had no expectation of privacy in what any individual could see or hear from the public hallway. If the officers, while standing outside the door, saw drugs or overheard incriminating statements, that evidence could permissibly form the probable cause basis for a warrant or lead them to determine that there were exigent circumstances excusing a warrant. However, that is distinct and separate from defendants’ expectation that no one would invade the sanctity of their home without a warrant or warrant exception and probable cause, an expectation that I believe was reasonable in this case. Likewise, if police cannot seize objects in plain view without probable cause when they are already legitimately standing inside an individual’s home, see Hicks, 480 U.S. at 326-28, 107 S.Ct. 1149, it is unclear why the Fourth Amendment would permit them both to enter the home from outside and to seize the object or person without probable cause, as the majority holds in this case.
Santana is consistent with my analysis of defendants’ expectations of privacy in Apartment 1M as it respected, albeit just barely, the “firm line at the entrance' to the house” drawn by Payton, 445 U.S. at 590, 100 S.Ct. 1371. The position of the defendant with respect to that “firm line,” id., far from being a “metaphysical sub-tlet[y],” ante at 54, was of prime importance in the Court’s determination of whether the heightened protections of homes set forth in Payton apply, not whether the door was open or closed. When the police officers first saw Santana, *60she was “standing directly in the doorway one step forward would have put her outside, one step backward would have put her in the vestibule of her residence.” Santana, 427 U.S. at 40 n. 1, 96 S.Ct. 2406. Although the officers had probable cause to arrest but no warrant, the Court held that at that point no warrant was required because Santana was in an area where she had no expectation of privacy at all. Santana “was not merely visible to the public but was exposed to public view, speech, hearing and touch as if she had been standing completely outside her house.” Id. at 42, 96 S.Ct. 2406 (emphasis added). Thus, in order for the officers to seize, ie. touch, Santana, they would not have had to cross the threshold of her home.
As the officers approached Santana, she retreated into her home. The officers then followed her through an open door and arrested her inside. See id. at 40, 96 S.Ct. 2406. At this stage, the Court did not say that no warrant was required because Santana’s open door vitiated her expectation of privacy in her home. Rather, as the majority concedes, see ante at 52, the Court found that although the officers had probable cause, a warrant or applicable exception to the warrant requirement was still necessary. The Court found that the exigent circumstances of “hot pursuit” excused the warrant requirement. Id. at 42-43, 96 S.Ct. 2406.1 Thus, the majority’s position — that once a door of a home is open, the entire home becomes a public place — cannot be squared with the Santana decision itself. The cases on which the majority relies for its broad interpretation of Santana are distinguishable. See ante at 52. Several of the cases involve defendants who were found to have consented to warrantless entries into their homes, and thus, the decisions were not based on a finding that a warrant was not required because the defendant was in a public place.2 For example, in United States v. Berkowitz, 927 F.2d 1376 (7th Cir.1991), the court reversed the district court’s denial of a defendant’s suppression motion based on his warrantless arrest at the door of his home and remanded for a suppression hearing. See Berkowitz, 927 F.2d at 1385-1388. The court noted that if the facts were as the government claimed — the defendant recognized and submitted to the authority the police had asserted from outside his home — then the arrest would not violate the Fourth Amendment. See id. at 1389. However, the court observed that if the facts were as the defendant claimed'— the police arrested defendant inside his home — the arrest would have violated Payton’s warrant requirement. The court rejected the government’s argument that Santana excused the warrant requirement under defendant’s set of facts because his door was open and stated that the position of defendant in relation to the boundary of his home was the key factor: “Payton forbids any non-consensual warrantless entry into the home absent exigent circumstances. Payton did not draw the line one or two feet into the home; it drew the line *61at the home’s entrance.” Id. at 1388 (emphasis added).
Likewise, United States v. Vaneaton, 49 F.3d 1423 (9th Cir.1995), was a consent case where the police had probable'cause to arrest the defendant but no warrant. In holding that the warrantless arrest of Vaneaton inside his home did not violate Payton, the court observed that “when Vaneaton saw [the uniformed police officers] through the window, he voluntarily opened the door....” Id. at 1427 (emphasis added). The court contrasted that to the violation that occurred in Payton, where “[wjithout any behavior on [his] part that could be construed as consent, the police entered and arrested him on the spot.” Id. at 1426 (emphasis added).3
Finally, this Court in United States v. Crespo, 834 F.2d 267 (2d Cir.1987), disapproved of the position the majority now adopts. Crespo involved the arrest of an individual that began at an open door to his home. See Crespo, 834 F.2d at 269-70. In determining whether the facts of defendant Crespo’s case were such that Santana applied, this Court noted that “we have no precise finding as to Crespo’s position” immediately prior to his arrest. Id. at 270. Because the defendant’s position relative to the threshold of this home was unknown, the Crespo Court applied Payton’s warrant and probable cause requirements. This Court then found that there was probable cause for Crespo’s arrest and that exigent circumstances excused the warrantless entry. Id. at 270-71.
The Crespo Court noted, albeit in dicta, that it “agree[d] in .substance” with the New Hampshire Supreme Court’s decision in State v. Morse, 125 N.H. 403, 480 A.2d 183 (1984). Id. at 270, 480 A.2d 183. The Morse court found Santana inapplicable to a warrantless arrest of a defendant stand- . ing inside the threshold of his open door, and the court distinguished Santana because that defendant was standing directly on the threshold of her door when the officers began to arrest her. See Morse, 480 A.2d at 184-85. In holding that the warrantless entry violated Payton, the Morse court stated “in the face of the [Payton] Court’s holding that the fourth amendment establishes a zone of privacy bounded by the unambiguous physical dimensions of an individual’s home, it becomes very difficult to contend that an individual located entirely within that boundary, as was the defendant here, is in a public place.” Id. at 186 (internal quotation marks and citations omitted) (emphasis added). I, like the Crespo Court, am persuaded by the Morse court’s analysis.
Accordingly, because the occupants of Apartment 1M were within the boundaries of the apartment and had a reasonable expectation of privacy against government entry into the home, .1 would hold that the minimal requirements set forth in Pay-ton — probable cause and a warrant or warrant exception-apply in this case.
II. Did the Police Officers “Enter” Apartment 1M?
Having determined that the requirements of Payton are applicable in this case, there remains the question of whether the officers made a warrantless “entry” into Apartment 1M. The district court held that even if the police did not physically *62enter the apartment,4 they made a war-rantless constructive entry into the home in violation of Payton by “ordering] the evacuation of the apartment while they stood outside the doorway with their shields displayed and their guns drawn.” Gori I, 1999 WL 322651, at *8. I agree.
The occupants of Apartment 1M did not voluntarily choose to exit the apartment; they were ordered to do so by officers with drawn guns. With their show of authority from outside the door, the officers achieved the same result — forcing the occupants into the hallway — as they would have achieved had they crossed into the apartment and removed the occupants.5
Courts in other circuits have recognized that if the police could circumvent Payton simply by forcing the occupants of a home to step outside, Payton’s warrant and probable cause requirements would be meaningless. In United States v. Johnson, 626 F.2d 753 (9th Cir.1980), for example, the court held:
In this case, we are confronted with the situation where the suspect was arrested as he stood inside his home and the officers stood outside his home with drawn weapons. In these circumstances, it is the location of the arrested person, and not the arresting agents, that determines whether an arrest occurs within a home. Otherwise, arresting officers could avoid illegal “entry” into a home simply by remaining outside the doorway and controlling the movements of suspects within through the use of weapons that greatly extend the “reach” of the arresting officers.
626 F.2d at 757, aff'd on other grounds, 457 U.S. 537, 102 S.Ct. 2579, 73 L.Ed.2d 202 (1982); see also United States v. Maez, 872 F.2d 1444, 1455 (10th Cir.1989) (holding Payton violated when “there is such a show of force that a defendant comes out of his home under coercion”); United States v. Winsor, 846 F.2d 1569, 1573-74 (9th Cir.1988) (en banc) (holding location of person arrested, and not officers, determines whether arrest occurs in home); United States v. Morgan, 743 F.2d 1158, 1166 (6th Cir.1984) (same); Scott v. Henrich, 700 F.Supp. 498, 504 (D.Mont.1988) (same); United States v. Levasseur, 699 F.Supp. 995, 999 (D.Mass.1988) (ordering occupants of home out at gunpoint “accomplishes much the same practical result ... as if the[ ] agents had entered the home”), ajfd sub nom. United States v. Curzi, 867 F.2d 36 (1st Cir.1989); State v. Holeman, 103 Wash.2d 426, 693 P.2d 89, 91 (1985) (en banc) (holding location of person arrested determines whether arrest occurs in home).
Because I find that the officers constructively entered Apartment 1M without a warrant or warrant exception, I would affirm the district court’s holding that such an entry violated defendants’ Fourth Amendment rights.6
III. Are Terry Stops In the Home Permissible?
In my view, the majority’s decision is particularly disturbing not only because a *63warrant was absent but because the officers also lacked probable cause to believe that a crime was being committed in Apartment 1M. In order to avoid dealing with this fatal flaw, the majority characterizes the entire encounter between the officers and the occupants of Apartment 1M as a Terry stop and investigation based upon reasonable suspicion. See ante at 53-54, 55-57. The majority’s authorization of Terry stops and investigations of individuals within the boundaries of a home is an unprecedented expansion of Terry. See LaLonde v. Riverside, 204 F.3d 947, 954 (9th Cir.2000) (rejecting officers’ “novel argument that their seizure of LaLonde should not be held to the standard of probable cause, but should instead be evaluated under the less onerous requirements of Terry v. Ohio,” because “Supreme Court ... cases unequivocally hold that probable cause is a precondition for any warrantless entry to seize a person in his home.”) (citing Welsh, 466 U.S. at 749-50, 104 S.Ct. 2091); United States v. Johnson, 170 F.3d 708, 714 (7th Cir.1999) (“No decision of the Supreme Court ... has ever held that the police may conduct a Terry ‘frisk’ of a house or an apartment — that is, approach it on nothing but a suspicion that something is amiss and conduct a brief warrantless search.”). The majority’s expansion of Terry into the home is also unsupported by the rationale for the creation of this limited exception to the probable cause requirement.
The Supreme Court in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), confronted the issue of whether the Fourth Amendment was violated when police officers stopped individuals on the street to ask questions and frisk for weapons, despite lacking probable cause to arrest them. See Terry, 392 U.S. at 15-16, 88 S.Ct. 1868. The Court emphasized that as a general rule, “the police must, whenever practicable, obtain advance judicial approval of searches and seizures through the warrant procedure” and “that in most instances failure to comply with the warrant requirement can only be excused by exigent circumstances.” Id. at 20, 88 S.Ct. 1868. The Court, however, recognized that street encounters between the police and citizens are distinct because they involve “an entire rubric of police conduct— necessarily swift action predicated upon the on-the-spot observations of the officers on the beat — which historically has not been, and as a practical matter could not be, subjected to the warrant procedure.” Id. In recognizing the unique nature of these on-the-street encounters, the Court realized that there is a special need to investigate because the immediate potential for flight by the suspect. Id. at 20-25, 88 S.Ct. 1868. Thus, one primary rationale for allowing Terry stops and investigations is the evasive nature of the activities the police observe on the street.
The Supreme Court in Terry also justified that creation of the Terry exception on the ground that a stop and frisk involves a lesser intrusion than a full-blown arrest. Id. at 26, 88 S.Ct. 1868. “The Terry stop is a far more minimal intrusion [than an arrest], simply allowing the officer to briefly investigate further.” Illinois v. Wardlow, 528 U.S. 119, 120 S.Ct. 673, 677, 145 L.Ed.2d 570 (2000). Supreme Court cases refining the scope of Terry stops and investigations have similarly focused on their minimally intrusive nature. See, e.g., United States v. Place, 462 U.S. 696, 703, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983) (“When the nature and extent of the detention are minimally intrusive of the individual’s Fourth Amendment interests, the opposing law enforcement interests can support a seizure based on less than probable cause.”); Dunaway v. New York, 442 U.S. 200, 212, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979) (“The narrow intrusions involved in” Terry and its progeny are not governed “by the general principle that Fourth Amendment seizures must be supported by the long-prevailing standards of probable cause, only because these intrusions f[a]ll far short of the kind of intrusion associated with an arrest.”) (internal quotation marks and citations omitted). *64In general, “the Supreme Court has defined a minimally intrusive seizure as one that occurs in public and is brief.” Winsor, 846 F.2d at 1576 (citing Terry, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 and United States v. Hensley, 469 U.S. 221, 229, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985)).
Neither of these two rationales underlying Terry and its progeny apply to searches and seizures of individuals within the bounds of a home. The concerns facing officers on the beat are different than those facing officers observing a home. See Lalonde v. Riverside, 204 F.3d 947, 955 (9th Cir.2000) (“The reasons that gave rise to the rule in Te'rry are simply not applicable to a warrantless entry to seize a person within his home.”); United States v. McNeal, 955 F.2d 1067, 1081 (6th Cir. 1992) (Contie, C.J. dissenting) (The majority is “attempting] to transfer a doctrine developed in the context of police encounters with citizens in public places — the ‘Terry stop doctrine’ — to a private residence.”) (emphasis in original). Interactions between officers on the beat and suspects' involve “necessarily swift action predicated upon the on-the-spot observations .... ” Id. at 20, 88 S.Ct. 1868. In contrast, officers who suspect illegal activity by occupants in a home have the luxury, as compared to street officers, of investigating until they have probable cause. They know a suspect’s whereabouts by observing his exits and entrances from the home, while officers on the beat face the possibility that a suspect will have disappeared by the time they gather the additional information needed to have probable cause. The officers in this case were staked out at the apartment trying to confirm their suspicions by observing Apartment 1M.7
The second justification for Terry — the limited nature of the intrusion — seems absent almost by definition when the intrusion is in the home. Even almost two decades after the Terry exception was created and its scope expanded, the Supreme Court made clear in Arizona v. Hicks, 480 U.S. 321, 107 S.Ct. 1149, 94 L.Ed.2d 347 (1987), that police should not be able to routinely search and seize objects in the home absent probable cause. As discussed earlier, see supra at 58-59, the Supreme Court in Hicks addressed the issue of whether police could, once permissibly within a home to investigate a crime, search an object in plain view that they had reasonable suspicion to believe was connected to an unrelated crime. Justice Scalia, writing for the majority, distinguished between an exception to the warrant requirement and allowing searches and seizures based on less than probable cause within a home once an officer is legitimately .inside:
Dispensing with the need for a warrant is worlds apart from permitting a lesser standard of cause for the seizure than a warrant would require, i.e., the standard of probable cause. No reason is apparent why an object should routinely be seizable on lesser grounds, during an unrelated search and seizure, than would have been needed to obtain a warrant for that same object if it had been known to be on the premises.
Id. at 327, 107 S.Ct. 1149.
Implicitly underlying the rationale in Hicks is a notion that no matter how limited the search or seizure within a home, the sanctity of the home is still invaded by the entry into the home itself. Accord Winsor, 846 F.2d at 1574 (“Because the expectation of privacy in one’s home is that most jealously guarded by the Fourth Amendment, the Supreme Court has never suggested that a search of a home, however limited in scope, could ever be considered less than a major intrusion. In the absence of such authority, we follow Hicks in holding that no search of a dwelling may *65be deemed a minor intrusion on Fourth Amendment rights”)- I agree.
The majority’s decision transforms the limited Terry exception into an exception that swallows the Fourth Amendment’s warrant and probable cause requirements. Henceforth, police officers with only reasonable suspicion and no warrant need only wait outside the door of a home until the door happens to open, and, once it does, they can order the occupants out of their home and conduct a search and investigation in order to get the probable cause necessary for an arrest of a suspect or seizure of evidence.8 Moreover, since according to the majority, the reason an open door eliminates Payton’s protections is that it makes a home’s interior visible to the outside, its rule would logically also sanction officers with drawn guns ordering individuals from their home though an open window. In my view, if the Fourth Amendment’s protection of “[t]he right of people to be secure in their ... houses” has any real meaning, such scenarios must be unconstitutional. U.S. Const, amend. IV.
CONCLUSION
Where the home is concerned, the intrusive actions of police officers are “a grave concern, not only to the individual but to a society which chooses to dwell in reasonable security and freedom from surveillance.” Johnson v. United States, 333 U.S. 10, 13-14, 68 S.Ct. 367, 92 L.Ed. 436 (1948). For this reason, as Justice Scalia recognized in Hicks, officers investigating inside homes have to follow up on their suspicions, if possible, by means other than an immediate search, although “[i]t may well be that, in such circumstances, no effective means short of a search exist. But there is nothing new in the realization that the Constitution sometimes insulates the criminality of a few in order to protect the privacy of us all.” Hicks, 480 U.S. at • 329, 107 S.Ct. 1149. I agree that the Fourth Amendment’s protection of the home is worth such preservation. Accordingly, I respectfully dissent.
. . Unlike in Santana, and despite the majority's reference to the "exigencies of the moment,” ante at 55, the government has never argued that exigent circumstances excused the warrant requirement or even that probable cause existed. See United States v. Gori, No. 98 CR 1163(RPP), 1999 WL 816172, at *1 n. 2 (S.D.N.Y. Oct.13, 1999) ("Gori I").
. The majority cannot reasonably characterize this case as one of consent. Defendants were unaware of the presence of the officers outside their door. Moreover, the unidentified "someone” from within Apartment 1M answering the knock of the delivery person, Gori I, 1999 WL 322651, at *2, is totally different from an individual consenting to a warrantless entry by police officers into the apartment. Accord United States v. Berkowitz, 927 F.2d 1376, 1387 (7th Cir.1991) ("A person does not abandon this privacy interest in his home by opening his door from within to answer a knock. Answering a knock at the door is not an invitation to come in the house. We think society would recognize a person’s right to choose to close his door on and exclude people he does not want within his home.”).
. The other two cases relied upon by the majority, United States v. Carrion, 809 F.2d 1120 (5th Cir.1987) and United States v. Herring, 582 F.2d 535 (10th Cir.1978), both hold that the defendants had no expectation of privacy at an open door of a home with little analysis and are distinguishable because the police had probable cause to arrest the defendants. See Carrion, 809 F.2d at 1128; Herring, 582 F.2d at 543. Additionally, Herring was decided before Payton and has been criticized as inconsistent with the rule established by Payton. See United States v. Morgan, 743 F.2d 1158, 1165 (6th Cir.1984) (“[T]o the extent that the Herring court validates the warrantless arrest of an individual standing in the doorway of a private residence absent exigent circumstances, we believe the rule of Payton v. New York, would compel a contrary result had Herring been decided subsequent to the Payton decision.”)
. The district court did not conclusively resolve the factual dispute of whether the officers entered the apartment to move the occupants out into the hall, which it noted would have been a "straightforward” violation of the Fourth Amendment. Gori I, 1999 WL 322651, at *8 n. 8.
. The majority's characterization of the officers' behavior as “ask[ing] the occupants ... to step outside for the purposes of a limited investigation,” ante at 55, fails to take into account the obvious element of coercion observed by the district court in its finding that "a reasonable person, confronted by two police officers who have their guns out of their holsters and guns displayed, who identify themselves as police officers, and who order evacuation of the apartment, would not feel free to remain in the apartment of otherwise leave the scene.” See Gori I, 1999 WL 322651, at *7.
.I limit my discussion to the issue of whether the search and seizure of defendants violated the Fourth Amendment. 1 note that if the majority had found that the search and seizure violated the Fourth Amendment, it would have had to decide what evidence and statements, if any, should be excluded as fruits of the illegal search and seizure.
. The majority's discussion of the safety of the officers, see ante at 55-56, addresses the issue of whether a frisk for weapons was necessary once the defendants were seized. It does not, however, address the issue of whether the officers were justified in seizing the defendants in the first place, which is the threshold issue in this case.
. The majority faults the dissent for not suggesting what reasonable options the officers had under the circumstances and suggests that any option other than the one taken would have placed the officers in an emergency situation. See ante at 55. I agree that exigent circumstances are treated differently under the Fourth Amendment, but the Government has never argued that the officers faced exigent circumstances. See Gori II, 1999 WL 816172, at *1 n. 2. Thus, the issue before this Court is not what the police can do under emergency circumstances, but rather what the Fourth Amendment bars police from doing as a matter of routine police procedure. Without a warrant or probable cause, the police cannot seize individuals in their home, even if that would be the most' convenient investigative technique. As in every pre-warrant situation, the officers had a myriad of investigative techniques available to ' them' that would have passed constitutional muster, such as staking out from afar or using informants. They chose not to use these. Their reasonable suspicion regarding the possibility of criminal conduct in the apartment did not give them the right to effect a forcible seizure of the persons within the apartment.