dissenting:
“Searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions.” Mincey v. Arizona, 437 U.S. 385, 390, 98 S.Ct. 2408, 2412, 57 L.Ed. 2d 290 (1978). The majority utters the words but ignores their meaning. It upholds a warrantless search of an attic crawl space reached through a closed trap door located above the defendant’s bedroom, on the theory of “exigent circumstances.” It recognizes the factual scenario (that the search was made after the defendant had been arrested and taken to police headquarters and after all occupants of the house had been located) but, in sweeping language, concludes that the presence of a weapon created an “immediate need to protect the officers as well as the community.” In so doing the majority permits the “exigent circumstances” exception to swallow the Fourth Amendment.
The majority apparently recognizes that it can garner little support from the landmark (“hot pursuit,” contemporaneous seizure with arrest) cases relied upon by the trial court. See Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1966) and Dorman v. United States, 140 U.S.App.D.C. 313, 435 F.2d 385 (1970) (en banc). It bases its holding squarely upon this court’s decisions in Ruth v. United States, 438 A.2d 1256 (D.C.1981) and Vance v. United States, 399 A.2d 52 (D.C.1979). These cases are distinguishable, not only with respect to the degree of intrusion by the search but the alleged necessity for the search as a protective measure.
The majority points out that the issue in Ruth, as here, was the validity of a war-rantless search for a weapon that took place after the defendant had been pursued to his house and arrested.1 There the police, after the arrest, proceeded upstairs, and searched a bedroom where a sack of bloodstained money was discovered behind *1344a dresser. In finding that exigent circumstances justified the warrantless search, this court focused on the fact that the police in arriving on the scene had seen Ruth, in the presence of another person, place something behind the dresser. The search in Ruth, therefore, was legitimate because the police were aware that a serious offense had been committed, the weapon had not been found, and another person had been present when the object thought to be the gun was hidden behind the dresser. Id. at 1260. However, Ruth does not give the police license to conduct a war-rantless search simply because they believe a gun is present. Rather, Ruth permits the police to conduct a limited search for their own safety. The police could engage in “ ‘the precaution of ascertaining whether some other person was still lurking in a back room with the as yet undiscovered sawed-off shotgun.’ ” Id. (quoting Vance v. United States, supra, 399 A.2d at 58).
Similarly, in Vance, the police had seized two of three suspects believed to have been involved in an attempted armed robbery. After the arrests in an apartment, the officers searched a bedroom and discovered incriminating evidence, including a gun. This court upheld the search, concluding that the “police were justified in entering the bedroom as part of a protective search in a hot pursuit situation,” id. at 56, and that “once the police were lawfully in the bedroom, their subsequent search and seizure of the various items of evidence was justified under the plain view doctrine....” Id. Vance is thus of little precedential help here. For here, even if the police were justified in searching the house “as part of a protective search in a hot pursuit situation,” after the suspects were arrested and the house secured, it is not reasonable to believe, and the majority does not press, that such justification would extend to permit a search of the attic crawl space. Indeed the record belies this fact.
Thus, I read the record here as affirmatively showing that the officers were not conducting a protective search of the crawl space. It shows that after appellant had been arrested and removed, one of the several officers on the scene called for, and awaited the arrival of, a crime scene search officer. The crime-expert provided the gloves to an officer who ascended stacked furniture to remove the trap door, and thereafter methodically photographed the area and the items seized. The factual situation is akin to that in Douglas-Bey v. United States, 490 A.2d 1137 (D.C.1985) where Judge Newman writing on behalf of this court reversed and remanded the trial court’s denial of a suppression motion on the authority of Thompson v. Louisiana, 469 U.S. 17, 105 S.Ct. 409, 83 L.Ed.2d 246 (1984).2
Here, the majority approach, reduced to its simplest terms, creates an exigency, by focusing on the presence of the gun in the house. It cites numerous cases for the proposition that “the presence of ... weapons creates a special exigency because of their potential threat to human life.” Majority op. at 1342. Few would disagree with this general proposition. Yet it is not the presence of a gun alone that creates an exigency. Rather, there must be some reason to believe that the gun poses a threat to the police or to the public. One need only look at the cases cited by the majority. In Gaulmon v. United States, 465 A.2d 847, 850 (D.C.1983), for example, it was the presence of a “loaded revolver in plain view in a hotel room” which created the exigency. See also United States v. McKinney, 155 U.S.App.D.C. 299, 477 F.2d 1184 (1973) (per curiam) (presence of sawed-off shotgun in hotel room). In In re F.D.P., 352 *1345A.2d 378 (D.C.1976), the exigency arose because the gun was hidden in bushes in an area frequented by children.3 Here the weapon was not in plain view, it was not in a location of easy accessibility and there was no real threat of destruction. The majority’s speculations about what the other occupants of the house knew and what they would do with that knowledge simply does not create “a need that could not brook the delay incident to obtaining a warrant.” Dorman v. United States, supra, 140 U.S.App.D.C. at 320, 435 F.2d at 392. The suspects had been arrested and the house secured.
Finally, the majority points out that “the police had strong reason to believe that the gun was located in the attic space” and also that the “search was brief and limited.” Both statements are true but irrelevant. They do not add support to the conclusion that the search was justified by exigent circumstances. They might have relevance, under a given factual context, to the argument that the search was incident to a valid arrest, or that the search was made incident to consent, but, as the majority concedes, the government chose not to advance those theories.
If the presence of a gun alone creates an “exigency” justifying a warrantless and intrusive search of a dwelling place, then the Fourth Amendment has lost its meaning. I have not had the discipline to simply conclude, in dissenting, as did Chief Justice Dixon of Louisiana in State v. Thompson, 448 So.2d 666 (La.1984) (cited with approval by the Supreme Court in Thompson v. Louisiana, supra, 469 U.S. at 21 n. 2, 105 S.Ct. at 411 n. 2, as well as Judge Newman in Douglas-Bey v. United States, supra, 490 A.2d at 1139): “I respectfully dissent. All it would take to make this search legal is a warrant.”
. I dissented in Ruth, expressing the fear that the majority was "sanctioning conduct under the umbrella of ‘exigent circumstances’ which does violence to the Fourth Amendment.” Ruth, supra, 438 A.2d at 1263 (Mack, J. dissenting). Today, the majority adds legitimacy to conduct further distorting the "specifically established and well-delineated” exception of exigency.
. In Thompson v. Louisiana, police were called to the defendant’s house by her daughter who told the police that defendant had called to say she had murdered her husband and attempted suicide. The police were admitted to the house by the daughter who directed them to the room where the defendant and her victim were found. Thirty-five minutes after the unconscious defendant had been transported to the hospital and the house secured, homicide investigators entered the residence without a warrant, conducted a general exploratory search and seized evidence not in plain view. The United States Supreme Court held that a Louisiana Supreme Court decision upholding the warrantless "murder scene” search was in direct conflict with its holding in Mincey v. Arizona, supra.
. In the other cases cited by the majority, the exigency resulted not because of the weapon’s "potential threat to human life,” but rather because of the real and substantial possibility that the gun would be discarded. Derrington v. United States, 488 A.2d 1314, 1324 (D.C.1985) (police had obtained information that suspect was at a given location with murder weapon and likely to dispose of it); United States v. McEachin, 216 U.S.App.D.C. 320, 325, 670 F.2d 1139, 1144 (1981) (police learned that defendant was going to dispose of shotgun).