(dissenting).
I respectfully dissent. The majority’s holding that Officer Asher did not “search” the appellant’s locked duffel bag and that the weapon was in “plain view” eviscerates the plain meaning of those words under the Fourth Amendment. The test is constitutional; it does not turn on a judge’s view of reasonable police practices. United States v. Lawson, 487 F.2d 468, 475 (8th Cir. 1973).
A warrantless search, irrespective of the existence of probable cause, is per se unreasonable except for a few well-delineated exceptions. Coolidge v. New Hampshire, 403 U.S. 443, 468, 91 S.Ct. 2022 (1971); Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Moreover, the fact that evidence is in plain view at the time of its seizure by the police has no independent legal significance. Coolidge v. New Hampshire, supra at 465, 91 S.Ct. at 2037.
* * * The problem with the “plain view” doctrine has been to identify the circumstances in which plain view has legal significance rather than being simply the normal concomitant of any search, legal or illegal.
The police properly took possession of the duffel bag following the accident. The protrusion of the weapon’s barrel was sufficient, under decisions of this Court, to provide the officers with probable cause to believe the appellant guilty of violating 26 U.S.C. § 5861(d).1 It was not justification for breaking into the bag.
The limits on the doctrine are implicit in the statement of its rationale. The first of these is that plain view alone is never enough to justify the warrantless seizure of evidence. This is simply a corollary of the familiar principle discussed above, that no amount of probable cause can justify a warrantless search or seizure absent “exigent circumstances.” * * *
Coolidge v. New Hampshire, supra at 468, 91 S.Ct. at 2039 (emphasis included).
Moreover, mere custodial possession is not an exception to the warrant requirement justifying an intrusion greater than that necessary to the performance of the officer’s caretaking duties. See Cardwell v. Lewis, 417 U.S. 583, 94 S.Ct. 2464, 41 L.Ed.2d 325, 336 n.8 (1974); Preston v. United States, 376 U.S. 364, 367, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964); United States v. Lawson, supra at 471—472. Yet, that is the only justification offered to uphold the search and seizure of the weapon here.2 This was not an inventory search;3 the appellant was *601not under arrest; and there was no possibility that the duffel bag would be carried away before the officers could obtain a warrant.
The majority’s reliance on the automobile cases is also in error. None hold that probable cause alone is sufficient to justify a warrantless search.
In enforcing the Fourth Amendment’s prohibition against unreasonable searches and seizures, the Court has insisted upon probable cause as a minimum requirement for a reasonable search permitted by the Constitution. As a general rule, it has also required the judgment of a magistrate on the probable-cause issue and the issuance of a warrant before a search is made. Only in exigent circumstances will the judgment of the police as to probable cause serve as a sufficient authorization for a search. * * *
Chambers v. Maroney, 399 U.S. 42, 51, 90 S.Ct. 1975, 1981 (1970).
. I continue to adhere to the view that
* * * police [do not] have probable cause to arrest anyone found in possession of a sawed-off shotgun in the absence of probable cause to believe [the weapon] is unregistered. * * *
United States v. Cecil, 457 F.2d 1178, 1181 (8th Cir. 1972) (dissenting opinion) (citation omitted).
There was no showing here that the officers had reason to believe the weapon was not registered to the appellant.
. The observation of Judge Aldrich in United States v. Church, 490 F.2d 353, 356 (9th Cir. 1973), cert. denied, 416 U.S. 983, 94 S.Ct. 2385, 40 L.Ed.2d 760 (1974), is well taken:
* * * Where the burden of obtaining a warrant can be readily met, officers should exercise forethought rather than claim they are blameworthy only by hindsight.
. In deciding whether an inventory search was necessary and reasonable, we quoted with approval from Mozzetti v. Superior Court, 4 Cal.3d 699, 94 Cal.Rptr. 412, at 417, 484 P.2d 84, at 89:
This contention is rebutted by recognition of the vehicle owner’s countervailing interest in maintaining the privacy of his personal effects and preventing anyone, including the police, from searching suitcases, and other closed containers and areas in his automobile at the time the police lawfully remove it to storage. In weighing the necessity of the inventory search as protection of the owner’s property against the owner’s rights under the Fourth Amendment, we observe that *601items of value left in an automobile to be stored by the police may be adequately protected merely by rolling up the windows, locking the vehicle doors and returning the keys to the owner. The owner himself, if required to leave his car temporarily, could do no more to protect his property.
United States v. Lawson, 487 F.2d 468, 476 (8th Cir. 1973).