concurring and dissenting.
I respectfully dissent from Part II of the majority opinion dealing with the motion to suppress evidence discovered in a warrant-less search of Bruton’s mobile home. I otherwise concur in the opinion.
The majority’s analysis defies basic fourth amendment principles protecting against unreasonable searches of the home.
First, it is fundamental that “physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.... ” United States v. United States District Court, 407 U.S. 297, 313, 92 S.Ct. 2125, 2134, 32 L.Ed.2d 752 (1972).
Second, a warrantless search of a house can be justified as incident to a lawful arrest only if it is confined to the area within the arrestee’s reach. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969).
Third, a warrantless contemporaneous search of a home cannot be justified even where a valid arrest has been made of the resident in the vicinity of the house; this is true even if there is probable cause to believe contraband is in the house. Vale v. Louisiana, 399 U.S. 30, 90 S.Ct. 1969, 26 L.Ed.2d 409 (1970); James v. Louisiana, 382 U.S. 36, 86 S.Ct. 151, 15 L.Ed.2d 30 (1965).
Fourth, last term, the Supreme Court held a warrantless and nonconsensual entry cannot be made into a suspect’s home in order to make a routine felony arrest. Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980).
Fifth, last week the Supreme Court emphasized the importance of the right of privacy of the home in holding that a law enforcement officer may not legally search for the subject of an arrest warrant in the *829home of a third party without first obtaining a search warrant. Steagald v. United States,—U.S.-, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981).
The majority’s holding does violence to these principles and simply adds confusion to the otherwise distinct line between legal and illegal searches of the home. The majority justifies a warrantless “sweep search” as an exigent circumstance, thus avoiding the warrant requirement of the fourth amendment. Under the circumstances existing here this exception is untenable and erodes the basic protections just recited. Under this reasoning the exception engulfs the rule in almost any arrest situation.
We should keep in mind the Government bears the burden of proving that the facts support an exception to the warrant requirement, and the reasonableness of the officers’ belief that an exceptional situation exists is to be reviewed under an objective standard. See Root v. Gauper, 438 F.2d 361, 364 (8th Cir. 1971). The courts have given close examination to claims that fear of accomplices justified searches of this sort. For example, in United States v. Dien, 609 F.2d 1038, 1046-47 (2d Cir. 1979), aff’d on rehearing, 615 F.2d 10 (2d Cir. 1980), the agents had information that the suspect had accomplices. However, when agents were at the scene, they saw no other persons. Furthermore, the agents did not conduct an immediate search “as would normally be expected if one suspected hidden accomplices.” Id. at 1047. The court concluded, therefore, that “[t]here is no basis for finding exigent circumstances since the agents had no grounds for believing, nor did their conduct indicate that they in fact believed, that there were any other persons in the studio.” Id. See also United States v. Carter, 522 F.2d 666, 674-76 (D.C.Cir.1975) (no information about whereabouts of accomplices; no movements observed); United States v. Basurto, 497 F.2d 781, 787-91 (9th Cir. 1974) (defendant was armed in a prior incident, and when arrested turned toward house and yelled “it’s the police”; insufficient to justify search); United States v. Cooks, 493 F.2d 668, 672 (7th Cir. 1974), cert. denied, 420 U.S. 996, 95 S.Ct. 1437, 43 L.Ed.2d 679 (1975) (presence of two men with guns and “mere possibility” of others insufficient); United States v. Gamble, 473 F.2d 1274, 1276-77 (7th Cir. 1973) (information that defendant possessed firearm and “rustling noises” inside house insufficient). Cf. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969).
In the present case, the Government brings forth pitifully little evidence to support its claim that the officers reasonably feared that an armed accomplice was inside the trailer. No one saw any sign of another person. In fact, the officers saw Bruton lock the door of the trailer from the outside with a padlock. Further, the officers’ behavior at the scene is inconsistent with this claim. There was testimony that the search of the mobile home did not begin until several minutes after Bruton’s capture, and that in the meantime and afterwards a group of agents stood around outside the mobile home’s windows. If the officers actually feared an attack one would expect them to seek positions of safety. It defies common sense that an agent of the F.B.I. would crawl through a small window space in a mobile home in sincere anticipation that a dangerous gunman was hiding inside. The instincts of self-preservation of any reasonable person would dictate otherwise, let alone the sensitive and careful judgment of a trained law enforcement officer. Finally, there was uncontradicted testimony that an agent told Bruton after the shooting that “we’ve got your partner across town”, indicating an awareness that the accomplice was not then in Bruton’s mobile home.
I know of no decision which has gone this far. This is not a situation where the home was used as an armed fortress in a shootout with the police. Clearly under these circumstances the police would have a right to secure the premises. See United States v. Young, 553 F.2d 1132 (8th Cir.), cert. denied, 431 U.S. 959, 97 S.Ct. 2686, 53 L.Ed.2d 278 (1977). Nor is this a factual situation where the police make an arrest within the premises and “fan out” to make *830certain no other accomplices are inside who might provide a danger or hindrance to an effective arrest. See United States v. Briddle, 436 F.2d 4, 7 (8th Cir. 1970), cert. denied, 401 U.S. 921, 91 S.Ct. 910, 27 L.Ed.2d 824 (1971). Nor is this a case of “hot pursuit” where the officers follow a suspected armed felon into a house that he had entered minutes before. See Warden v. Hayden, 387 U.S. 294, 299, 87 S.Ct. 1642, 1646, 18 L.Ed.2d 782 (1967).
Finally, the claim by the law enforcement agents that they did not have time to obtain a search warrant is not relevant here. As the Supreme Court points out in Steag-aId, “[I]f a magistrate is not nearby, a telephonic search warrant can usually be obtained. See Fed.R.Crim.Proc. 41(c)(1), (2).” -U.S. at-, 101 S.Ct. at 1652. The irony of today’s holding is that under Steagald, officers with a warrant for Prince’s arrest could not conduct a warrant-less search of Bruton’s home. They could, however, conduct the same warrantless search simply by asserting a belief that Prince was a dangerous accomplice who might be lurking in Bruton’s home.
I would reverse Bruton’s conviction for possession of firearms and remand for a new trial in which the firearms obtained in the search of the mobile home were suppressed.