with whom ROBERTS, Justice, joins, dissenting.
I respectfully dissent.
I conclude that the motion judge correctly determined that Officer Sabins had no legitimate law enforcement reason justifying his presence in Cloutier’s dooryard when he made his observations, and therefore the judge’s suppression order should remain undisturbed by this court.
To come within the guarantees against unreasonable searches and seizures afforded by the Fourth Amendment of the United States Constitution, an individual must entertain a reasonable expectation of privacy with respect to the activities for which Fourth Amendment protection is sought. Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576 (1967). The Katz test of reasonable expectation of privacy is met if 1) a person has manifested a subjective expectation of privacy with respect to a place or object, and 2) society is willing to recognize that expectation as reasonable. Id
In the present case, the court has assumed that Cloutier entertained a subjective expectation of privacy in his basement activities. The question this case turns on, therefore, is whether this subjective expectation is one that society would recognize as reasonable. We find the answer to that question by determining whether Officer Sabins was rightfully on Cloutier’s property when he made his observations.
In State v. Band, 430 A.2d 808 (Me. 1981), we stated that an individual does not enjoy an absolute expectation of privacy in the driveway or walkway of his residence. 430 A.2d at 818-19. This is premised on the owner’s implied invitation to the public to enter those areas for legitimate social or business purposes. Rand indicates that this implied invitation is also extended to policemen who enter on legitimate police business:
[A] walkway or path to provide access to people to and from [a residence] negates an actual subjective absolute expectation of privacy on the part of the occupants, but admits of a reasonable expectation that various members of society may use the driveway [walkway or path] in their personal or business pursuits with persons residing therein, including the police on legitimate police business.
Id. 430 A.2d at 818 (emphasis added).
The motion judge determined that Officer Sabins had no legitimate law enforcement reason that would justify his presence in Cloutier’s dooryard at the time he made his observations through Cloutier’s basement window. This determination impliedly concludes that since Officer Sabins had no reason for being by the window, Cloutier’s subjective expectation of privacy in his basement activities is one that socie*1282ty would find reasonable. I find the judge’s reasoning convincing:
I do not find the proposition that it is proper for any reason at any time for a police officer to be on somebody’s premises, in their backyard, in their driveway, knocking on their door or looking in their windows, unless there’s some reason.... I’m not imputing Sergeant Sabins’ motives or his intentions or what he does as a person, but he simply isn’t a person. He is the State of Maine, interfering in someone’s home, and there’s gotta be a reason for that to be done.... It just doesn’t jibe to think that at 8:00 in the evening, with the neighbors’ houses all lit up, being that close, that a burglar’s gonna be in the cellar with the lights on. It just seems much more susceptible that somebody’s either down there working or somebody’s gone off and left the light on for a reason. Whether it’s to keep the canary happy or to grow dope, that’s the business of the person that lives there. And I’m satisfied that, without something more — some other reason because he is an officer of the State of Maine, that he had not the right to go on the premises. On that basis, the motion for suppression is granted.
The court, however, upon review of the same “uncontroverted” facts before the trial court, reaches the opposite legal conclusion, namely, that Officer Sabins was an implied invitee engaged in legitimate police business when he made his observations, and therefore Cloutier’s expectation of privacy in his basement is not one society would deem reasonable. The court bases its conclusion on an assumption that legitimate police business can include “action based on a suspicion that turns out to be without substantial basis, provided the suspicion is held in good faith rather than as a pretext for an arbitrary search.” The court further states that “that does not necessarily mean that the officer has to have probable cause or even an objectively reasonable suspicion that criminal activity is afoot.” The court cites no authority for these assertions, and I am deeply disturbed by the implications of today’s decision.
The court essentially indicates that as long as a police officer’s conduct is not pretextual, he can enter a residential driveway or walkway, proceed to the door, and observe from this vantage point items and activities in the home so long as he has a subjective “good faith” belief that he has a reason for being there. I find this notion abhorrent to the privacy values embodied in the constitution of a free society. The vision of police officers peering into private homes in the dark of night with so little justification for achieving their vantage point conjures up the practices of repressive societies that place little value on individual liberty and personal privacy. The standard for determining whether an officer is engaged in legitimate police business must be based on something more than this court is requiring by today’s decision.
I agree with the motion judge that Officer Sabins was not on legitimate police business when he entered Cloutier's property and made his observations and therefore for the purposes of the Fourth Amendment cannot claim the status of an implied invitee. He came to Cloutier’s neighborhood to investigate a barking dog complaint. He had received no report of a burglary at Cloutier’s residence, and had no evidence as he entered the private property that there was a burglary in progress. The “suspicion” that prompted him to walk up Cloutier’s driveway and knock on his door was based on the facts that there had been previous burglaries in the community and there was a light on only in the basement.
This “suspicion,” which the court concedes was “tenuous,” falls short of the kind of legitimate police business that would allow law enforcement personnel to use residential walkways in the same manner as the general public. See Rand, 430 A.2d at 818. Clearly, the subjective expectation to be free from this kind of thinly supported intrusion by police would be recognized by society as reasonable. A homeowner at work in his basement would not expect to have his domestic tranquility disturbed by a policeman knocking at his door or peering in his basement window in the nighttime merely because the resident lives *1283in a community in which there had been burglaries and because he has illuminated only the area of the house in which he is working.
The Fourth Amendment prohibition against unreasonable searches and seizures does not allow a police officer to act on every “good faith” whim and enter on private residential property. Before he may do so, he must at least have an objectively reasonable justification for the incursion in order to come within the implied invitation of the property owner.
The motion judge’s conclusion that was impliedly based on this higher standard was legally correct. Accordingly, because the officer had no legitimate basis for being on Cloutier’s doorstep, his observations of the basement’s interior constituted an unreasonable search in violation of the Fourth Amendment.
I would affirm the judgment.