(concurring):
I concur in the judgment of the court and in the language and reasoning of the entire opinion, except that portion (paragraph II B(l)) dealing with the entry into Martino’s yard and seizure of the brown paper bag of heroin on the chair under the telephone book. I write more in the spirit of inquiry than of disagreement with the majority’s view, though I place a little more emphasis on the limitations of the degree of “privacy” that Martino might expect under the circumstances and a little less on the exigencies of the circumstances involved, which from a law enforcement officer’s standpoint were surely as exigent as circumstances can be.
Thus I start, as I believe the majority does, with the proposition that this case is one which concerns the very limited situation-in which the law enforcement officer(s) involved had no real opportunity to obtain a warrant, so that nothing I say bears upon the more usual case where only delay is involved in the obtaining of a warrant. But I have trouble with the concept that “exigent circumstances” alone can justify warrantless searches, and I do not read the majority opinion as saying that they do. To the individual law enforcement officer, the circumstances for a warrantless search and seizure always appear exigent. And I do not read any Supreme Court case as going so far as to hold that there is a categorical exception for “exigent circumstances,” although some cases do refer to that phrase, see, e. g., New York v. Belton, - U.S. -,-, 101 S.Ct. 2860, 2862, 69 L.Ed.2d 768 (1981); Payton v. New York, 445 U.S. 573, 583, 100 S.Ct. 1371, 1378, 63 L.Ed.2d 639 (1980).
*879A case like this one, as the majority recognizes, is not readily soluble by examination of the property rights in the invaded place. Prior to Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), Martino’s backyard would have been considered “curtilage” entitled to some Fourth Amendment protection, see, e. g., Care v. United States, 231 F.2d 22, 25 (10th Cir.), cert. denied, 351 U.S. 932, 76 S.Ct. 788, 100 L.Ed. 1461 (1956). In an urban setting “curtilage” was treated more or less as coextensive with a fenced yard, e. g., Weaver v. United States, 295 F.2d 360 (5th Cir. 1961); Hobson v. United States, 226 F.2d 890, 894 (8th Cir. 1955), but the fact that the gate was open and that the type of fence opened the yard to public view in this case would — even under the old analysis— have cut the other way. See Polk v. United States, 291 F.2d 230, 232 (9th Cir. 1961), aff’d after remand, 314 F.2d 837 (9th Cir.), cert. denied, 375 U.S. 844, 84 S.Ct. 96, 11 L.Ed.2d 72 (1963).
Since Katz v. United States and its reinforcement by, and perhaps expansion in, Rakas v. Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, 430, 58 L.Ed.2d 387 (1978), both standing and the substantive scope of the Fourth Amendment are said to depend “not upon a property right in the invaded place but upon whether the person who claims the protection of the Amendment has a legitimate expectation of privacy in the invaded place.” Id. at 143, 99 S.Ct. at 430. See also Katz v. United States, 389 U.S. at 361, 88 S.Ct. at 516 (Harlan, J., concurring). But just as, in Judge Henry Friendly’s words, “[tjerming a particular area curtilage expresses a conclusion; it does not advance Fourth Amendment analysis,” United States v. Arboleda, 633 F.2d 985, 992 (2d Cir. 1980), cert. denied, 450 U.S. 917, 101 S.Ct. 1362, 67 L.Ed.2d 343 (1981), the problem with the “expectation of privacy” approach — the “expectation” language of which was taken from Justice Harlan’s concurring opinion, the validity of which he subsequently came to doubt, see United States v. White, 401 U.S. 745, 786, 91 S.Ct. 1122, 1143, 28 L.Ed.2d 453 (1971) (Harlan, J., dissenting) — is that the Katz formulation also “can, ultimately, lead to the substitution of words for analysis,” id. As Professor Amsterdam teaches us, even while lauding the thrust of Katz as expanding rather than reconstructing the boundaries of Fourth Amendment protection, “[i]n the end, the basis of the Katz decision seems to be that the fourth amendment protects those interests that may justifiably claim fourth amendment protection.” Amsterdam, Perspectives on the Fourth Amendment, 58 Minn.L.Rev. 349, 385 (1974). Of course, as he adds, “this begs the question.” Id.
In other contexts I have indicated, and this court has held, that Professor Amsterdam’s “regulatory” approach to the Fourth Amendment, requiring police rule-making so as to “confine police discretion within reasonable bounds,” id. at 416, may make good sense. See United States v. Vasquez, 612 F.2d 1338, 1348 (2d Cir. 1979) (Oakes, J., dissenting) (airport search), cert. denied, 447 U.S. 907, 100 S.Ct. 2991, 64 L.Ed.2d 857 (1980); United States v. Barbera, 514 F.2d 294 (2d Cir. 1975) (border search). Even if the Supreme Court were inclined to take this approach, however, which it has shown little sign of doing, but see Delaware v. Prouse, 440 U.S. 648, 663, 99 S.Ct. 1391, 1401, 59 L.Ed.2d 660 (1979), it would be very difficult to devise a set of police rules that would cover the situation in the case at hand. Legal rules in such a case have a certain practical irrelevancy that brings to mind Michael Meltsner’s observation that “no one feels so irrelevant as a lawyer in a shoot-out.” See Amsterdam, supra, 58 Minn.L.Rev. at 378 (quoting M. Meltsner, Cruel & Unusual 36 (1973)). Perhaps this is what the Supreme Court is driving at in its references to “exigent circumstances” — the case is not amenable to pre-conceived rules.
In the situation then that is aided neither by the simplistic curtilage analysis of yesteryear nor by the Katz-Rakas “expectation of privacy” approach, nor even by Professor Amsterdam’s regulatory approach — which in many cases I would enthusiastically endorse — our task is to determine whether the search and seizure was unreasonable under *880the circumstances, at least when, as here, the officer had probable cause to believe that the premises contained not merely evidence but contraband. This process involves, it seems to me, a balancing. We must look at the area involved, the degree of governmental intrusion, the degree of the property owner’s expectation of privacy, and the circumstances requiring immediate reaction by the officer.
Martino’s expectations of privacy were greatly diminished here, if present at all. Not only was the heroin left in a chair in a yard with the gate open and the chair visible through the fence, but Martino had invited DeFelice, the confidential informant, to the yard “for the specific purpose of executing a felonious sale of narcotics,” Lewis v. United States, 385 U.S. 206, 210, 87 S.Ct. 424, 427, 17 L.Ed.2d 312 (1966).1 Martino’s backyard had thereby been “converted into a commercial center to which [an] outsider[] [was] invited for purposes of transacting unlawful business,” id. at 211, 87 S.Ct. at 427. Thus, had DeFelice been a government agent, he could have removed the heroin after the arrest. Id. at 210-11, 87 S.Ct. at 427. See also Boyd v. United States, 116 U.S. 616, 623-24, 6 S.Ct. 524, 528-29, 29 L.Ed. 746 (1886) (a search for and seizure of contraband is different from a search to obtain information); 21 U.S.C. § 881(a) (there is no property interest in controlled substances). As an informant, DeFelice may, I believe, be considered to have been acting as a government agent, see United States v. Valencia, 645 F.2d 1158, 1168-69 (2d Cir. 1980) (an informant is treated as an agent for entrapment purposes); what is sauce for the goose is sauce for the gander. In any event, agent Toal was simply following in DeFelice’s footsteps, if not in his shoes.
Moreover, agent Toal not only had probable cause to believe the heroin was where he found it, but the fast-developing situation precluded resort to a magistrate. This is, I believe, the underlying basis for the “automobile exception” cases such as United States v. Mannino, 635 F.2d 110, 115 (2d Cir. 1980). That those cases involve vehicles that can be moved makes them none the less applicable in the balancing approach I favor here, where the heroin could as easily have been moved. To my mind, the “automobile exception,” involving an underlying element of ready moveability absent which the “exception” is inapplicable, Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), may be viewed less mechanically as involving an underlying balancing such as I think is involved in this case.
I would conclude that, given the agents’ probable cause and the fact that the heroin was seized immediately following the arrest of Martino, it was not unreasonable under the Fourth Amendment for agent Toal to enter the yard to seize the brown paper bag in light of the following circumstances: (a) the bag was reasonably believed to contain contraband — a vast quantity of heroin; (b) the transaction had been interrupted by an arrest made necessary because there was so much money involved that the government was properly unwilling to entrust it to the informant or turn it over to the culprit; and (c) the seller’s expectation of privacy had been so greatly diminished as to be, if not de minimis, slight.
The Fourth Amendment itself speaks in terms of “unreasonable searches and seizures,” of course, and the Supreme Court has reminded us, albeit in a case involving a warrant (although it also involved contraband), that there are some cases turning simply on “applying the ultimate standard of reasonableness embodied in the Fourth Amendment.” Michigan v. Summers, 452 U.S. 692, 700 & nn. 11-12, 101 S.Ct. 2587, 2592-93 & nn. 11-12, 69 L.Ed.2d 340 (1981). Here, where there was clearly and concededly probable cause, I have little difficulty in concluding that the warrantless search and seizure was, on balance, reasonable. I make this inquiry uncertain that my *881method of reaching this result is the proper one; I believe we need further enlightenment from Higher Authority.
. Justice Stewart cited Lewis with approval in his opinion for the Court in Katz, 389 U.S. at 351, 88 S.Ct. at 511.