CONCURRING OPINION BY
MENOR, J.I concur in the results reached by the Court on the facts of this case. I, too, would affirm the defendants-appellants’ convictions.
I also agree with the Court that the principles enunciated in Katz v. United States, 389 U.S. 347 (1967), must govern the disposition of the constitutional issue involving the surreptitious recording of defendant-appellant Lester’s conversation with a government informer, by means of a tape recorder strapped to the informant’s person. The Delegates to the 1978 Constitutional Convention made *673it clear that “[t]he privacy provision within Article I, Section 5 [now Article I, Section 7], should be construed in light of the language in Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed.2d 576 (1967), regarding reasonable expectation of privacy.” Comm, of the Whole Rep. No. 15,3d Const. Conv., reprinted in I Proceedings of the Const. Conv. of Hawaii of 1978, at 1024 (1978). The language in Katz which this court has adopted as its guide in construing the search and seizure provisions of the Hawaii Constitution is that of Justice Harlan:
My understanding of the rule that has emerged from prior decisions is that there is a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as “reasonable.” Thus a man’s home is, for most purposes, a place where he expects privacy, but objects, activities, or statements that he exposes to the “plain view” of outsiders are not “protected” because no intention to keep them to himself has been exhibited. On the other hand, conversations in the open would not be protected against being overheard, for the expectation of privacy under the circumstances would be unreasonable. [389 U.S. at 361, Harlan, J. concurring.]
Thus, this court has held that in determining the legitimacy of a defendant’s claim of privacy, the test to be applied is (1) whether the defendant has exhibited an actual (subjective) expectation of privacy and (2) whether the expectation is one which society deems to be reasonable. State v. Texeira, 62 Haw. 45, 609 P.2d 131 (1980); State v. Dias, 62 Haw. 52, 609 P.2d 637 (1980).
Although the Fourth Amendment has been held to protect persons and not places, Katz v. United States, supra, the place where an activity is conducted is nevertheless one of the factors to be considered in determining whether an individual has exhibited an actual expectation of privacy and whether society considers such expectation to be reasonable. Id.; State v. Kaaheena, 59 Haw. 23, 575 P.2d 462 (1978). In this connection, this court has also said:
Every individual has expectations of privacy with regard to his person wherever he may go, be it a public park or a private place; yet this is not so with regard to places where an individual happens to be. The place must be of such a character as to give rise reasonably to these expectations of privacy. [State v. Dias, 52 Haw. *674100, 107, 470 P.2d 510, 514 (1970).] (emphasis in original).
All intrusions upon a person’s privacy will not always rise to the level of a constitutional infringement. The point at which they become impermissible will oftentimes depend, in part, upon the conduct of the individual himself. Thus, where an individual chooses to engage in activity outside of his private premises, where the risk of its exposure to a curious passerby or a curious eavesdropper is more evident, it cannot seriously be argued that his subjective expectation of privacy as to that activity and the view society will take as to the reasonableness of his expectation must necessarily be the same as where he engages in the same activity inside his home.
In this case, the conversation between Lester and the government agent (Tuttle) was held in a public park, an area open to the public where the likelihood of being overheard, surreptitiously or otherwise, must be deemed to have been greater than in more private surroundings. The essence of the conversation obviously was not of the ordinary variety, but the record fails to reveal that it was conducted under circumstances from which it may be determined that the defendant had taken precautionary measures to insulate his statements from other potentially listening ears. In short, the defendant has not been shown to have exhibited that actual expectation of privacy that the first prong of the Nate test requires. Where a person engages in activity which he knowingly exposes, or which is likely to be exposed, to public view or hearing, he will not be deemed to have exhibited an actual expectation of privacy as to that particular activity. State v. Texeira, supra; State v. Dias, supra. Thus, I am not at all convinced that the search and seizure provisions of the Hawaii Constitution, as construed in accordance with the language of Katz, were intended to proscribe the consentless recording of conversation anywhere and under all circumstances. See also State v. Brackman, 178 Mont. 105, 117, 582 P.2d 1216, 1222 (1978) (Haswell, C.J. and Harrison, J. dissenting).
In- the circumstances of this case, therefore, I join the Court in upholding the introduction of the tape recording at trial against the defendant. Had this been a situation, however, where there had been a simultaneous transmission of the conversation to other hidden and listening enforcement agents, I would have been constrained to find otherwise. For there is indeed a recognizable differ*675ence between a government agent using a recording device and other officers listening in and recording the conversation. United States v. White, 401 U.S. 745, 788, 792 (1971) (Harlan, J. dissenting). The distinction lies in the degree of the intrusion and the qualitative impact it has upon the privacy interests of the individual. “Recognition of this difference is, at the very least, necessary to preserve the openness which is at the core of our traditions and is secure only in a society that tolerates official invasion of privacy simply in circumscribed situations.” Id. In the latter situation, an intercept warrant would be required.
I would also draw the line where the conversation takes place within the defendant’s home, or other private surroundings. “A man’s dwelling, generally, is a place where he expects privacy, and except as to conduct, objects, and statements which he knowingly exposes to public view, he will be deemed to have exhibited an actual expectation of privacy therein.” State v. Dias, supra, 62 Haw. at 55, 609 P.2d at 640. And as Justice Harlan has also pointed out, “a man’s home is, for most purposes, a place where he expects privacy.” Katz v. United States, supra, 389 U.S. at 361. The same can also be said with respect to activity within a person’s private office, in his closed automobile, or other private place. In any of the foregoing circumstances, an individual’s subjective expectation of privacy is more readily inferable and it would be one which society would just as readily consider to be reasonable.
Concededly, an undercover government agent who is a party to the conversation may repeat what is said, State v. Roy, 54 Haw. 513, 510 P.2d 1066 (1973), and the defendant must be presumed to have run the risk of its repetition. But I am not convinced that a fortiori he is presumed to have also chosen to run the risk of having his statements memorialized by a sophisticated instrument of whose presence and existence within the privacy of his personal surroundings he knows nothing about. However the United States Supreme Court may view the Fourth Amendment to the Federal Constitution in this context, see United States v. While, supra; United States v. Caceres, 440 U.S. 741 (1979), I would respectfully suggest that under Article I, Section 7, of the Hawaii Constitution, the surreptitious recording or transmission of a defendant’s conversation with an undercover government agent within the confines of his private surroundings is proscribed. See also State v. Sarmiento, 397 So.2d 643 (Fla. 1981). I *676would find it unthinkable that simply because an individual has invited another into his home, or other private place, he must be held to expect that his visitor may be carrying concealed upon his or her person sophisticated instruments intended to record, transmit, or videotape all that transpires within those premises. Such an expectation has not yet become commonplace in our society. Nor should it be allowed to become so.