dissenting in part.
I disagree with my colleagues’ conclusion that the gun must be suppressed. In my view, the appellee did not carry the burden of showing that he had what used to be called “standing” and what is now referred to as a reasonable expectation of privacy in the ceiling of the bar, so as to entitle him to the protection of the Fourth Amendment.
Initially, I cannot suppress a comment upon the parties’ arguments with respect to Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978). Apart from the United States Supreme Court’s rigid and broadly comprehensive per se rule expressed in Mincey and some of its antecedents, the search at issue in this case strikes me as a reasonable one. Certainly, this search by police officers summoned to the scene at the behest of the owners and licensee of record to investigate a shooting and killing is a long country mile from the writs of assistance and other intrusive indignities forced upon the colonists which provided the impetus for the Fourth Amendment. As the United States Supreme Court has upon occasion recognized, the Fourth Amendment prohibits only un -reasonable searches. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); South Dakota v. Opperman, 428 U.S. 364, 372-73, 96 S.Ct. 3092, 3098-99, 23 L.Ed.2d 1000, 1007 (1976), quoting the dissenting opinion of Justice Black in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971).1
I can no more imagine Thomas Jefferson or James Madison acting judicially and favorably entertaining a motion to suppress a similarly found pistol in a tavern in Virginia in the 1790s than I can conceive that a nation so recently descended from Plymouth Rock and Ellis Island requires the application of such a broad and monolithic exclusionary rule to protect the right of domestic and work-place privacy. To me, the application of an exclusionary rule under circumstances like these and in the absence of statutory directive represents an artificial and elitist notion of justice, rather than the common man’s quest for equal justice.under law. When one considers that the issuance of a search warrant in a case of this nature would be or at least should be immediately obtainable as a matter of right, it seems to me a slavish elevation of formality over substance to hold that this inevitably discoverable2 weapon cannot be introduced into evidence in the homicide prosecution. And even if the search is to be deemed unreasonable, the interest of society in the orderly and complete presentation of the State’s case seems to me under the facts here to outweigh grossly any interests favoring suppression. I realize, however, that these considerations are foreclosed by a fair reading and application of the Mincey decision and by Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).
Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), allocated to *443the moving defendant the burden of showing “standing.” While Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978) changed the focus of inquiry to whether the defendant had a reasonable or legitimate expectation of privacy, the burden of showing the affirmative of this entitlement logically remains with the defendant. See Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980); United States v. Smith, 621 F.2d 483 (2nd Cir.1980), U.S. cert. den. 449 U.S. 1086, 101 S.Ct. 875, 66 L.Ed.2d 812 (1981); United States v. Miller, 636 F.2d 850 (1st Cir.1980).
Appellee did not assert that he was an owner of the business. Rather, he acknowledged that Grace Gillespie owned the business. Appellee declined to assert that he was the manager. He described himself as the “head bartender.”
Critically, however, the premises in question is a bar, what the English have for years called a public house, or “pub.” The bar was open to the public and it appears clear from the briefs and record before us that the dropped ceiling in question was in the public barroom portion of the premises and therefore presumably within open and obvious public view.
A number of the cases involving the assertability of a protectable interest in business premises are discussed in 3 W. LaFave, Search and Seizure: A Treatise on the Fourth Amendment, § 11.3(d) (1978). Mancusi v. DeForte, 392 U.S. 364, 88 S.Ct. 2120, 20 L.Ed.2d 1154 (1968) is a leading case. The focus in business premises cases is sometimes different from that in cases involving residential premises and frequently involves an inquiry into the degree to which others and especially the public are excluded from an area where work is performed.
In State v. Williams, 84 N.J. 217, 417 A.2d 1046 (1980), the court upheld the defendant’s standing to assert a Fourth Amendment violation where the defendant was the custodian of a tavern and the objectionable search took place in a storage room where he kept his tools. The court took pains to note that the area was not open to the public.
As the majority notes, the question before us is two-fold: first, whether the individual exhibits an actual or subjective expectation of privacy; and second, whether the subjective expectation of privacy is one that society is prepared to recognize as reasonable. Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979).
Here, I can readily agree with the majority that the defendant exhibited a subjective expectation of privacy. I disagree, however, that the second prong of the test has been met. Had the defendant chosen the cash register or perhaps a drawer or cupboard or other receptacle behind the bar in which to place the weapon, I could well agree that his expectation of privacy was reasonable and should be honored. But on the record as it is developed here, the question is whether one has a reasonable expectation of privacy in or behind the openly visible “skin” or lining of a public barroom. On the record here, I cannot answer that question in the affirmative. It seems to me that the defendant’s use of the publicly visible ceiling stands out like a sore thumb, and negatives the reasonable expectation of privacy that would attach to other parts of the premises.
United States v. Irizarry, 673 F.2d 554 (1st Cir.1982), cited by the majority, involved a temporary residence, i.e., a motel room. The public did not have the right to be present in and observe the room, or its bathroom.
I agree with the majority in their disposition of the hypnosis issue, and in their conclusion that appellee’s motion to suppress was timely. I disagree with and dissent from the majority’s conclusion that the gun must be suppressed.
NOTE: The Honorable RICHARD M. DAVIS, a Judge pro tempore of a court of record, has been authorized to participate in this matter by the Chief Justice of the Arizona Supreme Court, pursuant to Arizona Const, art. VI, § 20.
. Justice Black stated in his dissent in Coolidge that the test of the reasonableness of a search cannot be fixed by “per se” rules. 403 U.S. at 509-510, 91 S.Ct. at 2059-60. Cases such as Mincey indicate to the contrary. The tendency toward formulation of per se rules, at least in some areas, carries with it the potential for cutting full inquiry and justice off at the pass. See, e.g., Arizona v. Maricopa County Medical Society, 457 U.S. 332, 102 S.Ct. 2466, 73 L.Ed.2d 48 (1982).
. The ceiling tile was askew and a cloth material was hanging down from it. '