(dissenting) — "When indeed will reasonable means to search stop and 1984 begin?"6 The prospect of canine sniffers lying in wait at every corner, conducting what under these facts must be termed an exploratory search, offends my sensibilities and the principles underlying the Fourth Amendment.
Courts from other jurisdictions have previously wrestled with the question of the Fourth Amendment's applicability to the activities of the canine cannabis connoisseur. While there is disagreement over whether sniffing by the uninvited canine nose constitutes a search, the cases are virtually unanimous in requiring or finding that the police officer entertained a reasonable suspicion regarding the presence of contraband in the particular area to be searched prior to employing the canine's drug-sensitive senses.7
Where the police officer has no such antecedent justification, however, resort to the canine's senses has been condemned as an exploratory search or, more appropriately, a *823sniffing expedition, violative of the Fourth Amendment.8 This case falls squarely into the latter category.
The essential purpose of the proscriptions in the Fourth Amendment is to impose a standard of "reasonableness" upon the exercise of discretion by government officials, including law-enforcement agents, in order '"to safeguard the privacy and security of individuals against arbitrary invasions. Thus, the permissibility
of a particular law-enforcement practice is judged by balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests.
(Footnotes and citations omitted.) Delaware v. Prouse, 440 U.S. 648, 59 L. Ed. 2d 660, 667-68, 99 S. Ct. 1391 (1979). The balance of interests, in my mind, weighs in favor of requiring the police officer to entertain a reasonable suspicion before resorting to the canine's olfactory senses to ferret out contraband among the personal belongings of an individual who consigns his packages or baggage to a common carrier.
The hallmark of a search is the intrusion into an area which a person is entitled to enjoy as private. Katz v. United States, 389 U.S. 347, 19 L. Ed. 2d 576, 584, 586, 88 S. Ct. 507 (1967). While a person's expectation of privacy legitimately diminishes when packages or baggage are consigned to a common carrier, I cannot agree that all Fourth Amendment protections are forfeited, thus authorizing wholesale examinations in the hope that a crime might be detected. United States v. Bronstein, 521 F.2d 459, 464, 465, 31 A.L.R. Fed. 920 (2d Cir. 1975), cert. denied, 424 U.S. 918 (1976) (J. Mansfield, concurring opinion). Shipment of personal effects by common carrier is a fact of life in our highly mobile society.
On the other hand, the degree of intrusion presented by the use of a trained dog to sniff the free air outside of the *824package is less offensive in comparison with, for example, the ransacking of a personal residence or the indiscriminate use of sophisticated electronic surveillance devices. Therefore, the legitimate role of trained dogs in crime detection must be recognized.
J. Mansfield, in his concurring opinion in United States v. Bronstein, supra, reconciled these competing interests by declaring a canine sniff a reasonable search when, in advance of employing the canine's senses, the police officer has reasonable grounds to suspect the presence of contraband in a particular area. This approach, which I endorse, represents a thoughtful balance between the individual's expectation of privacy and the legitimate governmental interest in crime detection and prevention.
The requirement that a police officer entertain a reasonable suspicion in advance of official interference with the individual's legitimate expectation of privacy appears in other Fourth Amendment contexts as well. In Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 909, 88 S. Ct. 1868 (1968), the court endorsed the protective pat-down search for weapons by a police officer, without a warrant and without full probable cause, where he has reason to believe that he is dealing with an armed and dangerous individual. The police officer must be able to point to specific articu-lable facts which, taken together with their rational inferences from those facts, reasonably warrant that intrusion.
In United States v. Brignoni-Ponce, 422 U.S. 873, 45 L. Ed. 2d 607, 611, 95 S. Ct. 2574 (1975), the court analogized the roving patrol stop to the on-the-street encounter in Terry v. Ohio, supra, and held that except at the border and its functional equivalents, officers on roving patrol may stop vehicles if they are aware of specific articulable facts taken together with rational inferences from those facts that reasonably warrant suspicion that the vehicles contain aliens who may be illegally in the country.
Again, in Delaware v. Prouse, supra, the court declared random automobile stops by police officers unreasonable *825under the Fourth Amendment in the absence of an "articulable and reasonable suspicion" justifying the particular stop. These cases and others recognize the important role the Fourth Amendment plays as a limitation upon police conduct even though the particular law enforcement practice falls short of a full-blown search. Terry v. Ohio, supra at 19.9
Here, police Detective Ray entertained no articulable or reasonable suspicion regarding the presence of contraband at the Greyhound Terminal in advance of Chinook's nosing it out. Unlike the cases from other jurisdictions, there was no tip from a reliable informant or prior police surveillance of the area in question which could be said to have legitimately aroused the officer's suspicions. The activities of the officer amounted to a general, routine, exploratory search of the package express area based upon nothing more substantial than, perhaps, an inarticulable hunch. The individual's expectation of privacy is thus subject to the unlimited discretion of the police officer, uncurbed by the Fourth Amendment. To condone the use of a trained dog in this manner invited wholesale sniffing expeditions of the individual and his possessions in the hope that a crime might be detected, thus eroding the principles underlying the Fourth Amendment and the public's right to be let alone. Therefore, I respectfully dissent.10
Reconsideration denied August 20, 1979.
Review denied by Supreme Court January 16, 1980.
Lederer & Lederer, Marijuana Dog Searches after United States v. Unrue, The Army Lawyer, DA Pam 27-50-12, 11 (Dec. 1973) (referring to the book by G. Orwell, 1984 (New Am. Lib. ed. 1971) — which presents a futuristic view of the world subject to increased governmental regulation.)
In the following cases, the use of the trained dog was upheld because the police officer's reasonable suspicions had been previously aroused by (1) a tip from a reliable informant: United States v. Bronstein, 521 F.2d 459, 31 A.L.R. Fed. 920 (2d Cir. 1975), cert. denied, 424 U.S. 918 (1976); State v. Martinez, 26 Ariz. App. 210, 547 P.2d 62 (1976), aff'd, 113 Ariz. 345, 554 P.2d 1272 (1976); People v. Furman, 30 Cal. App. 3d 454, 106 Cal. Rptr. 366 (1973); Wolkind v. Virginia, 440 U.S. 958, 59 L. Ed. 2d 770, 99 S. Ct. 1498 (1979); (2) police corroboration of an unreliable tip: United States v. Solis, 536 F.2d 880 (9th Cir. 1976); United States v. Fulero, 498 F.2d 748 (D.C. Cir. 1974); State v. Elkins, 47 Ohio App. 2d 307, 354 N.E.2d 716 (1976); or (3) police surveillance of an individual suspected of trafficking in drugs: United States v. Venema, 563 F.2d 1003 (10th Cir. 1977); United States v. Meyer, 536 F.2d 963 (1st Cir. 1976); United States v. Race, 529 F.2d 12 (1st Cir. 1976); State v. Quatsling, 24 Ariz. App. 105, 536 P.2d 226 (1975); People v. Campbell, 67 Ill. 2d 308, 367 N.E.2d 949 (1977), cert. denied, 435 U.S. 942.
United States v. Bronstein, supra at 464 (J. Mansfield, concurring opinion); People v. Evans, 65 Cal. App. 3d 924, 134 Cal. Rptr. 436 (1977); People v. Williams, 51 Cal. App. 3d 346, 124 Cal. Rptr. 253 (1975).
Accord, Torres v. Commonwealth of Puerto Rico, 439 U.S. 815, 61 L. Ed. 2d 1, 99 S. Ct. 2425 (1979): "[T]he grounds for a search must satisfy objective standards which ensure that the invasion of personal privacy is justified by legitimate governmental interests.1’ (Italics ours.)
In footnote 5 of the majority opinion, grave doubts are expressed as to the legality of canine searches in a public waiting room or of carry-on luggage, parcels or other personal effects on or near the person, since such a search would invade a person's legitimate expectation of privacy. I fail to perceive any difference in fact between the present case and the use of a canine's olfactory senses in the above mentioned situations. The dog is not invading the person or personal effects — it is *826merely sniffing or smelling the free air in and around the person and his possessions — the same as the package in this case. If the air emanating from the person or his possessions is free or public air, what is to prevent the indiscriminate use of the trained dog in any public place, searching anyone or anything in sight?