(concurring).
I join fully in Chief Judge Coffin’s opinion, but wish to comment separately on the dissent. There is always a problem when a court applies the rule that warrantless searches, with defined exceptions, are unreasonable per se, e.g., Katz v. United States, 1967, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576, to strike down an otherwise concededly reasonable search. And it is always nettlesome that the rule, designed to protect the public at large, invariably results in benefiting undeserving members. Given the constitutional requirement, the strength of the rule, however, is not in its flexibility, but in its inflexibility.
First, what the dissent does not say. It concedes that the items lay beyond plain view. It makes no claim of exigency in the sense of a danger of loss or destruction of evidence. As to finding exigency in the sense of personal apprehension, I think a government agent would be affronted. Armed officers bent on arrest; the defendants unarmed; a bolt for the.bathroom ceiling, becoming a target on a pedestal, would have been suicidal. Moreover, nothing in the record suggests the men were not handcuffed, and it strains credulity to think they were not. And, surely, the officers could not be permitted to create an artificial exigency by leaving a door open, and the men loose and free to move about. United States v. Griffith, 7 Cir., 1976, 537 F.2d 900, 904. With respect, that it threatened their safety is invention; no officer testified to it. In such absence I find it impossible to sustain the government’s burden by inferring that four, or even three officers would have been concerned with a possible gun available only by standing on the toilet in another room.
It was natural, knowing a gun to be around — unless defenestrated — to want to look for it. So would it be if there were known to be drugs or other desirable items, but probable cause is a justification for a warrant, not a substitute.
Turning to standing, even assuming that defendants initially pushed the ceiling panel back, I question the inference that they left it “ajar” as “notice to anyone entering the room,” and hence refuting privacy. More *562likely they thought it restored, and it thereafter fell open. From personal experience I would take notice that such perversity is customary. In any event, even if it did “attract investigation,” privacy was manifestly intended.
To come to more basic matters, I am troubled by the concept of measuring a hotel guest’s privacy by what is customarily used. Would it permit officers a free look under the carpet? In the toilet tank? A guest might wish to put something private in a place not customarily used to keep it from an overly inquisitive chambermaid, or, indeed, from prying trespassers. Nor does it seem persuasive that a guest could not complain if a repairman were to enter the ceiling space from outside. Management could insist on employees entering anywhere in case of need. United States v. Bomengo, 5 Cir., 1978, 580 F.2d 173, cert. denied, 439 U.S. 1117, 99 S.Ct. 1022, 59 L.Ed.2d 75. The fact that this diminishes the guest’s expectation of privacy does not confer government rights. Stoner v. California, 1964, 376 U.S. 483, 489, 84 S.Ct. 889, 893, 11 L.Ed.2d 856; United States v. Jeffers, 1951, 342 U.S. 48, 51, 72 S.Ct. 93, 95, 96 L.Ed. 59.
Furthermore, dwelling on the use of the ceiling’s being an abuse of his tenancy — a matter between him and the hotel — cannot avoid the fact that the officers could not reach the gun without further trespassing on the privacy Guilbe purchased by renting the room. If Jones stole an envelope, even a government envelope, and put drugs inside and locked the whole thing in his suitcase, the officers could not justify their invasion of the suitcase by pointing out that Jones had no right to the envelope. Even assuming no right of privacy in the ceiling, there were substantial rights in the bathroom. In the dissent’s seeming principal authority, United States v. Agapito, 2 Cir., 1980, 620 F.2d 324, cert. denied, 449 U.S. 834, 101 S.Ct. 107, 66 L.Ed.2d 40, a motel case, the court said, “We emphasize that the agents had a legal right to be where they were.” Id. at 331. Only with difficulty, and the invocation of the plain view exception, has the court supported the search of the bathtub. To stand on the toilet and reach into the ceiling aperture, went a big step beyond. I do not quarrel with weighing the need against the invasion, but I believe the dissent substantially misapprehends both.
To return to the beginning, unlike the dissent, particularly in its discussion of Chimel v. California, 1969, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685, I do not read New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), as opting for judicial flexibility in determining, on a case to case basis, what is reasonable. Rather, the Court complained that “[wjhen a person cannot know how a court will apply a settled principle to a recurring factual situation, that person cannot know the scope of his constitutional protection, nor can a policeman know the scope of his authority.” Id. 101 S.Ct. at 2864. A warrant is standard procedure. To stretch ourselves to devise excuses only encourages laxity and, ultimately, more judicial fodder.