The opinion
DONALD S. RUSSELL, Circuit Judge,
dissenting.
I cannot agree with the majority’s disposition that the officers have not violated clearly established law. The Fourth Amendment prohibits “unreasonable searches and seizures.” It is not reasonable for officers to invite reporters into a private home while they execute an arrest warrant. In this case, the act of bringing reporters into the Wil-sons’ home, and allowing them to take photographs and remain in the home, was particularly unreasonable. The officers clearly had the wrong man, and the reporters, complete strangers to the Wilsons, photographed them in embarrassing states of undress.
At 6:45 in the morning, plainclothes officers entered the Wilsons’ home while Mr. and Mrs. Wilson were lying in bed. Hearing a commotion, Mr. Wilson, wearing only his undershorts, got up to investigate, and encountered a number of plainclothes officers with guns in his living room. When Mrs. Wilson, wearing only a thin, sheer nightgown, came out of the bedroom, she found her husband face down on the floor with an officer holding a gun to his head.
The officers should have immediately realized that Charles Wilson was not Dominic Wilson. A photograph and description of Dominic Wilson given to the officers identified him as 27 years old, 185 pounds and clean shaven. Charles Wilson, Dominic’s father, was 47, weighed 220 pounds, and wore a beard that was almost completely white. Nonetheless, Charles Wilson was kept face down on the floor for at least 10 minutes while the police determined that Dominic Wilson was not in the house.
*1077 While all this was going on, two Washington Post reporters took photographs of the scene and the interior of the Wilsons’ home. The reporters, a male and a female, had entered the Wilsons’ home with the officers and at their invitation.
I believe the officers acted unreasonably in this case, first by allowing the reporters into the home, and then by permitting them to take photographs of Mr. Wilson face down on the floor in his undershorts, and Mrs. Wilson in her sheer nightgown. I agree with the Second Circuit’s analysis that Fourth Amendment jurisprudence long ago clearly established that police may not invite reporters into private homes when they are executing warrants if those reporters are neither “expressly nor impliedly authorized to be there.” Ayeni v. Mottola, 35 F.3d 680, 686 (2d Cir.1994). Furthermore, the majority reads our opinion in Buonocore v. Harris, 65 F.3d 347 (4th Cir.1995), too narrowly. Although the strict holding of Buonocore addressed the issue of third parties who accompanied officers on the execution of a search warrant, and then exceeded the limits of the warrant, the opinion can be fairly read to prohibit “government agents from bringing a private citizen into [the Wilsons’] home” whose presence is unrelated to the execution of the warrant. Id. at 353 .
Finally, because the Supreme Court is not likely to offer guidance in this area anytime soon, see Parker v. Boyer, — U.S.-, 117 S.Ct. 1081 , 137 L.Ed.2d 216 (1997), denying cert. to 93 F.3d 445 (8th Cir.1996) (no clearly established law prevented reporters from entering private home with police), I would use this opportunity to apply the analyses of Ayeni and Buonocore to these facts.
I respectfully dissent.