673 F.

2d 554

UNITED STATES of America, Appellee,

v.
Juan Guilbe IRIZARRY and Jose Garcia Rodriguez,
Defendants,
Appellants.
No. 80-1463.

United States Court of Appeals,

First Circuit.
Heard Sept. 9, 1981.
Decided March 19, 1982.

David W. Roman, San Juan, P. R., for defendants, appellants.

H. Manuel Hernandez, Asst. U. S. Atty., Hato Rey, P. R., with whom
Raymond L. Acosta, U. S. Atty., San Juan, P. R., was on brief, for
appellee.
Before COFFIN, Chief Judge, ALDRICH and BREYER, Circuit Judges.
COFFIN, Chief Judge.

This case poses a Fourth Amendment challenge to the validity of a warrantless

search and seizure by federal agents in Puerto Rico. One defendant also raises
the further question of whether his motion for a verdict of acquittal was
properly denied. Our review of the record persuades us that the trial court
should have suppressed some of the challenged evidence, and that one of the
convictions should therefore be reversed.

I. The Facts
2

During the late evening and early morning of January 28-29, 1980, the United
States Drug Enforcement Administration's Puerto Rican office coordinated four
or five arrest teams as they effected about twenty-three different arrests for
federal drug violations. One of those teams was led by DEA Special Agent

Swint. Agent Swint's team included a second DEA agent, two FBI agents, and
two local police officers. Shortly after midnight Agent Swint learned via radio
that Osvaldo Farinas, for whom his team had an arrest warrant, was in a room
at the Isla Verde Holiday Inn. The agents parked their cars near the hotel
security guard post and walked up to the room.
3

Agent Swint knocked on the door to the room and called, "Police. Open the
door." The room had a plate-glass window next to the door, and the curtain on
the window was drawn back about one foot. Agent Swint looked through the
window and saw appellant Guilbe withdraw a revolver from a handbag that was
resting on the dresser. Agent Swint took cover. Two to three minutes later he
called out, "Police, open the door. Come out with your hands up." Three to four
minutes later, the door opened and Guilbe emerged with his hands up, followed
by appellant Garcia and Farinas. All three were arrested in the hallway, were
ordered to lie on the floor, were searched for weapons, and were advised of
their rights in Spanish.

Agent Swint then entered the hotel room "to see if there were any other persons
inside the room." He went through the main room and entered the bathroom,
where he noticed marijuana residue around the sides and the bottom of the
bathtub. He returned to the main room and observed two marijuana cigarette
butts in the ashtray. Agent Swint told the rest of the agents that there was no
one else on the premises, got a bag, and went back to the bathroom to collect
the residue from the tub. The three defendants were then taken back into the
hotel room.

FBI Agent Philip remained in the hallway for a few minutes. He then entered
the room "to see what was happening or what was keeping Special Agent
Swint." He walked straight into the bathroom and saw Agent Swint standing
inside the bathtub. He looked up at the bathroom's drop ceiling and saw that a
soundproofing panel in the ceiling was ajar. He climbed up onto the toilet,
looked into the space in the ceiling and saw an object. He reached into the
ceiling and removed the object, which turned out to be a package of marijuana
and a gun. He then asked for a flashlight, looked in again, and found four
packages: two more guns, a package of cocaine, and a second package of
marijuana.

Before trial, the defendants moved on the basis of stipulated facts to suppress
all evidence found in the hotel room and bathroom. The trial court denied the
motions. At a bench trial, the defendants objected to the use of the seized
evidence, on the basis of the agents' live testimony. The trial court overruled
the objections and found all three defendants guilty of having aided and abetted

each other in possessing a measurable quantity of marijuana and in possessing

cocaine with intent to distribute it. 18 U.S.C. 2, 21 U.S.C. 841(a)(1), 844.
The court also found defendant Guilbe guilty of possession of a firearm while
aiding and abetting the others in their possession with intent to distribute
cocaine, 18 U.S.C. 924(c)(2). Guilbe and Garcia took these appeals. Farinas
chose not to rely on the courts and took off.
II. The Fourth Amendment Challenges
A. Standing of Appellant Garcia
7

In order to challenge on Fourth Amendment grounds the use of evidence at

one's trial, one must demonstrate "a legitimate expectation of privacy in the
area searched". United States v. Salvucci, 448 U.S. 83, 92, 100 S.Ct. 2547,
2553, 65 L.Ed.2d 619 (1980). The hotel room here was registered to appellant
Guilbe. Appellant Garcia, however, offered no evidence of any personal
interest in the room beyond his being "merely present". Indeed, he
affirmatively sought to deny any connection with the room or its contents. It
was therefore perfectly legitimate to introduce evidence seized from the room
against him at trial.

We realize that the government did not challenge Garcia's standing, either
before the trial court or on appeal. That fact, however, does not alone bring us
within the rule of Steagald v. United States, 451 U.S. 204, 208-11, 101 S.Ct.
1642, 1645-47, 68 L.Ed.2d 38 (1981), in which a defendant's standing was held
to be beyond further challenge. In Steagald the government failed to challenge
facts from which the defendant's standing could reasonably have been inferred.
In this case, Garcia never carried his initial burden of offering facts from which
a court might reasonably infer his standing. See United States v. Miller, 636
F.2d 850, 853-54 (1st Cir. 1980). Moreover, in Steagald the government
appeared to have raised the standing issue as part of a last-minute shift in
litigation tactics. In this case, there is nothing to suggest that the government
was deliberately "sandbagging" the district court or shifting strategies.

In the discussion that follows, we consider only whether appellant Guilbe was
denied a fair trial by the admission of the seized evidence.

B. Legitimacy of the Agents' Activities

10

Since the search of the hotel room followed immediately upon the arrest of the
defendants, one might be tempted to analyze it as a search "incident to an
arrest", undertaken to preserve the officers' safety and prevent the destruction of

evidence. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685
(1969). We therefore note explicitly that the government does not invoke the
Chimel exception here, because none of the items seized was within the
"immediate control" of the defendants at the time of their arrest in the hallway.
Id. at 763, 89 S.Ct. at 2040.
11

Instead, the government offers a two-step justification for the seizures by

Agents Swint and Philip. It argues that Agent Swint was entitled to enter and
briefly examine the hotel room because of "exigent circumstances" and that he
was then entitled to seize evidence under the "plain view" doctrine. Similarly,
the government argues that Agent Philip legitimately entered the bathroom and
that the evidence above the bathroom ceiling was in plain view. We analyze
these arguments one step at a time.
1. Exigent Circumstances-Swint's Entry

12

In Coolidge v. New Hampshire, 403 U.S. 443, 454-55, 91 S.Ct. 2022, 2031-32,
29 L.Ed.2d 564 (1971), the Supreme Court summarized the law of warrantless
searches as follows:

13
"Thus
the most basic constitutional rule in this area is that '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'. The exceptions are 'jealously and
carefully drawn', and there must be 'a showing by those who seek exemption ... that
the exigencies of the situation made that course imperative'. '(T)he burden is on
those seeking the exemption to show the need for it.' "
14

This doctrine is often expressed in the shorthand phrase, "warrantless searches

are per se unreasonable in the absence of exigent circumstances". Id. at 479, 91
S.Ct. at 2044.

15

"Exigent circumstances" have traditionally been found in those crisis situations

when there is compelling need for official action and no time to secure a
warrant. Michigan v. Tyler, 436 U.S. 499, 509, 98 S.Ct. 1942, 1949, 56
L.Ed.2d 486 (1978) (warrantless entry into a burning building to put out a
blaze). See also Chimel v. California, supra (search "incident to arrest");
Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967)
(warrantless entry in hot pursuit of an armed robber); Ker v. California, 374
U.S. 23, 40-43, 83 S.Ct. 1623, 1633-1635, 10 L.Ed.2d 726 (1963) (warrantless
entry to prevent destruction of evidence where such destruction is reasonably

thought imminent); United States v. Zurosky, 614 F.2d 779 (1st Cir. 1979)
(warrantless entry into warehouse at 4:25 a. m. when activity inside reasonably
suggests that a breaking and entering is taking place); United States v. Edwards,
602 F.2d 458, 468 (1st Cir. 1979) (warrantless entry to prevent destruction of
heroin reasonably thought imminent); United States v. Miller, 589 F.2d 1117,
1126 (1st Cir. 1978), cert. denied, 440 U.S. 958, 99 S.Ct. 1499, 59 L.Ed.2d 771
(1979) (warrantless entry and reentry of a boat where drowning suspected and
tidal flow created need for swift action).
16

In this case, we agree that the government has carried its burden of
demonstrating a "compelling need" for Officer Swint to enter the hotel room
and perform a post-arrest "security check", in order to determine whether
another, potentially armed, individual was hiding within the room. The record
on this point is somewhat spare and makes it a close issue. Nevertheless, we
believe that it adequately demonstrates that Agent Swint's search was not
motivated by mere curiosity, but rather by a legitimate concern for the safety of
his fellow officers. It was late at night. They had come to the hotel to arrest one
person. Three people had emerged from the room after a five-to-seven minute
delay. Most significantly, one of the three had produced a gun inside the room.
Agent Swint was entirely reasonable in suspecting that a fourth person, also
armed, remained within. Compare United States v. Gamble, 473 F.2d 1274 (7th
Cir. 1973). His entry was necessary to ensure that the potential fourth person
did not attempt to surprise the agents in the hallway and thereby secure the
escape of the other three. Agent Swint obviously could not have sought a
warrant to perform such a security check. "The Fourth Amendment does not
require police officers to delay in the course of an investigation if to do so
would gravely endanger their lives or the lives of others." Warden v. Hayden,
supra, 387 U.S. at 298-99, 87 S.Ct. at 1645-46. See also W. LaFave, Search and
Seizure 6.4, at 431 (1978 & Supp.1981) and cases discussed therein.

17

Having established Agent Swint's right to enter the hotel room we must also
establish that the scope and manner of his search were "strictly circumscribed
by the exigencies which justify its initiation". Mincey v. Arizona, 437 U.S. 385,
393, 98 S.Ct. 2408, 2413, 57 L.Ed.2d 290 (1978); Terry v. Ohio, 392 U.S. 1,
25-26, 88 S.Ct. 1868, 1882-1883, 20 L.Ed.2d 889 (1968). Agent Swint entered
the living room and walked into the bathroom. Nothing in the record suggests
that his search ever deviated from a path corresponding to an objectively
reasonable hunt for an armed fourth person. His search was thus in proper
proportion to the exigency that authorized it; it was not unreasonable under the
Fourth Amendment.

18

2. The "Plain View" Doctrine-Swint's Seizures

19

While carrying out his security check of the bathroom and hotel room, Agent
Swint observed marijuana residue in the bathroom and marijuana butts in the
living room ashtray. After completing his security check, Agent Swint seized
those items. In Coolidge, supra, the plurality opinion stated that where a police
officer has a prior legitimate justification for an intrusion, in the course of
which he inadvertently comes across a piece of incriminating evidence, he may
seize that evidence without a warrant. 403 U.S. at 466-70, 91 S.Ct. at 2038-40.
We have already concluded that Swint legitimately undertook a quick check of
the hotel room and bathroom to ensure that no potentially armed fourth person
remained inside. Ample evidence on the record supports the conclusion that the
marijuana in the bathtub and the butts in the ashtray were located where one
could inadvertently see them while carrying out such a security check. He was
therefore justified in seizing the evidence without a warrant.
3. Agent Philip's Entry into the Bathroom

20

The government argues that a similar analysis supports Agent Philip's seizures
of items from above the bathroom ceiling. It contends that he was legitimately
within the bathroom and that the evidence above the ceiling was in plain view.

21

The record is somewhat confused regarding the circumstances of Agent Philip's

entry into the bathroom. The pretrial stipulation of facts reported that he entered
the bathroom "(a)fter Agent Swint left the bathroom". At trial, however, he
testified that he entered "to see what was detaining" Agent Swint. Given our
conclusion that the second half of the government's argument (that the evidence
was in plain view) is based on faulty analysis, we need not resolve this conflict.
Rather, we will assume that Agent Philip legitimately entered the bathroom.

22

4. The "Plain View" Doctrine-Philip's Seizures

23

The government contends that once Agent Philip had entered the bathroom, he
was entitled to seek out and seize the evidence above the bathroom ceiling
under the "plain view" doctrine. We disagree.

24

When Agent Philip was standing on the bathroom floor, he could not see any
seizable evidence. All he saw was a displaced soundproofing panel. The
government has not argued that as he looked at the displaced panel, it was
"immediately apparent" to Agent Philip that he was looking at evidence of a
crime. Coolidge v. New Hampshire, supra, 403 U.S. at 466, 91 S.Ct. at 2038.
Nor would such an argument be plausible, since Agent Philip did not even
consider seizing the panel as evidence. Instead, Agent Philip became suspicious

that he might be able to find evidence if he looked around above the ceiling. He
therefore undertook a search to see what might be up there. He climbed up onto
the toilet and looked inside. From that vantage point, he saw "the first
something". Although he could not tell what the "something" was, he reached
inside and took it out. He then saw that it was "a weapon, and a package of
green weed". At that moment, it is clear that Agent Philip had evidence in plain
view. "But it is important to keep in mind that, in the vast majority of cases, any
evidence seized by the police will be in plain view, at least at the moment of
seizure. The problem with the 'plain view' doctrine has been to identify the
circumstances in which plain view has legal significance rather than being the
normal concomitant of any search, legal or illegal." Id. at 465, 91 S.Ct. at 2037.
25

We do not question the reasonableness of Agent Philip's suspicion that if he

searched above the ceiling he might find evidence. That is not the point. What
is significant is that, without any prior approval by a detached magistrate, he
launched himself on an exploratory search. And he did so at a time when "
(t)here was no indication that evidence would be lost, destroyed, or removed
during the time required to obtain a search warrant." Mincey v. Arizona, supra,
437 U.S. at 394, 98 S.Ct. at 2414. In fact, the only person with a right to enter
the hotel room was in custody. When Agent Philip was standing on the
bathroom floor, no evidence was in plain view. His warrantless search for such
evidence was not justified by any exigent circumstances* and was therefore
contrary to the Fourth Amendment. Cf. United States v. Jackson, 576 F.2d 749
(9th Cir. 1979) (officer stood in plain view of an open file drawer; his search
through the file for evidence was unconstitutional, no matter how strong his
suspicion that he would find evidence there).

26

In its brief, the government cites United States v. Garcia, 616 F.2d 210, 212
(5th Cir. 1980); United States v. Arredondo-Hernandez, 574 F.2d 1312, 131415 (5th Cir. 1978); and James v. United States, 418 F.2d 1150, 1151 n.1
(D.C.Cir.1969) for the proposition that "the plain view doctrine is not made
inapplicable because a law enforcement agent may have to crane his neck, bend
over, or squat". Examination of those cases, however, reveals that they were
discussing a different "plain view" problem, a problem more accurately termed
one of "open view". They were all analyzing the question of whether an officer
intrudes upon a person's privacy-whether he conducts a search-when he looks
at items that are visible to the public. Thus, the complete quote in James, supra,
reads as follows:

27 the policeman may have to crane his neck, or bend over, or squat, does not
"That
render the doctrine inapplicable, so long as what he saw would have been visible to
any curious passerby." James v. United States, supra, 418 F.2d at 1151 n.1.

(Emphasis added.)
28

See also United States v. Arredondo-Hernandez, supra, 574 F.2d at 1314 n. 1.

Such cases do not have any bearing on Coolidge, which determines what
evidence may be seized without a warrant after an officer has justifiably
penetrated a constitutionally protected area-an area that is not accessible to "any
curious passerby". See 1 W. LaFave, Search and Seizure 2.2, at 242-43.

29

Coolidge authorizes warrantless seizure of items in plain view only "to

supplement the prior justification" for the warrantless search. Coolidge v. New
Hampshire, supra, 403 U.S. at 466, 91 S.Ct. at 2038. The activities an officer
may undertake to expand his field of view are therefore restrained by his
excuse for the warrantless entry. The restraint is not a straitjacket: many
emergency situations will justify fairly energetic undertakings. But it must
always be the exigency that justifies the action; the "plain view" doctrine
cannot, by itself, permit an officer to indulge in a frolic of his own. Id. at 468,
91 S.Ct. at 2039. In sum, where an officer's presence is limited to a particular
justification or purpose, what is in plain view is restricted to what could be
inadvertently seen when his movements are made pursuant to that purpose. We
need not analyze what may have actually been in his mind; movements clearly
outside the scope of his mandate cannot be termed inadvertent. Cf. United
States v. Weber, 668 F.2d 552 at 554-555 (1st Cir., 1981).

30

The government would have us lengthen the leash between the exigency and
the search; but once the nature of the exigency ceases to define the scope of
plain view, the leash could be stretched without limit. A police officer who
entered a student's dormitory room to break up a brawl would be allowed to
clamber up the bookcases to see what sort of illicit matter might be hiding
behind Madame Bovary. Such wide-ranging searches, not countenanced by the
protective reflection of a neutral magistrate and not necessary to respond to an
emergency, are precisely the invasions of privacy that the Fourth Amendment
prohibits.

31

Since the evidence above the ceiling was seized in violation of his Fourth
Amendment rights, its introduction denied appellant Guilbe a fair trial.

III. The Sufficiency of the Evidence

32

Appellant Garcia urges that we reverse the trial court's denial of his motion for
a judgment of acquittal. In reviewing the trial court's decision, we consider the
evidence as a whole, United States v. Indelicato, 611 F.2d 376, 384 (1st Cir.

1979). We draw all inferences that may be reasonably drawn therefrom, in the
light most favorable to the government. We then determine whether a
reasonable person could find guilt beyond a reasonable doubt on each of the
counts. Id.
33

The evidence at trial admissible as to Garcia showed that he was present in the
hotel room with Guilbe and Farinas when the agents arrived. After the knock,
Guilbe took a gun out of a handbag in the main hotel room. Several minutes
later, the three defendants emerged together. In the meantime, Guilbe's gun had
found its way into the bathroom and up above the ceiling, along with two other
guns, marijuana, and cocaine. Other marijuana was in the bathroom tub, and
two marijuana butts were in the main room's ashtray. This evidence supports
the inference that Garcia was aware of the marijuana in the hotel room before
the agents arrived. It supports the further inference that each defendant had
brought one gun to the hotel room and that when the agent knocked they hid all
three guns, the marijuana, and the cocaine. We cannot declare that no
reasonable mind would ever conclude beyond a reasonable doubt, on the basis
of this evidence, that Garcia (1) came to the room with a gun, knowing that
marijuana and cocaine would be present, and (2) deliberately gave the gun to
another defendant, agreeing that it should be hidden along with a measurable
quantity of marijuana and along with cocaine that was intended for distribution.
Such direct personal involvement would constitute a violation of the statutes
under which Garcia was convicted. We find the evidence in this case more
substantial than that adduced in United States v. Mora, 598 F.2d 682 (1st Cir.
1979) and United States v. Mehtala, 578 F.2d 6 (1st Cir. 1978), where no such
direct personal involvement was shown. The trial court did not err in denying
the motion for acquittal, based on the evidence that it had received at trial.

34

The conviction of defendant Garcia is affirmed. The conviction of defendant

Guilbe is vacated on the basis of the trial court's failure to suppress
unconstitutionally seized evidence, and a new trial ordered.

35

BAILEY ALDRICH, Senior Circuit Judge (concurring).

36

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.
37

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.

38

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.

39

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 likely 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.

40

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.

41

Furthermore, dwelling on the use of the ceiling's being an abuse of his tenancya 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.

42

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, --- U.S. ----, 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 "(w)hen 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.

43

BREYER, Circuit Judge (dissenting in part).

44

I dissent from the court's reversal of the conviction of appellant Guilbe Irizarry.
The district court in this case denied the appellant's suppression motion and
then later sustained the reasonableness of the search at trial because the district
court believed that the search was justified by "exigent circumstances." That is
to say, the district court found the search "reasonable" in light of the risks to the
searching officers and the nature of the intrusion upon privacy interests. The
government has not abandoned that theory on appeal. And, the record supports
the district court, particularly if reasonable factual inferences are drawn in its
favor. Cf. United States v. Weber, 668 F.2d 552 at 558-559 (1st Cir., 1981);
and on petitions for rehearing, at 565 (1st Cir. 1981); United States v. Sears,
663 F.2d 896, 902-04 (9th Cir. 1981).

45

The record indicates that the following events occurred. Six officers went to
Room 360 of the Isle Verde Holiday Inn as part of a drug raid seeking the arrest
of several persons throughout the city. They expected to find one man. Instead
they found three, one of whom they saw through a window holding a gun.
Before coming out of Room 360, one of the suspects reached through a hole
that had been pushed open in the bathroom ceiling and placed the gun in the
space beyond. (Other guns and narcotics were also hidden there.) He evidently
failed to pull the ceiling panel back over the entire hole, leaving the opening
half uncovered. One officer then left to find adequate transportation, whichbecause of the raid's equipment needs and the surprising number of suspectswas not readily available. The remaining officers decided that, since hotel
guests and curious onlookers were beginning to congregate outside the room,
they should move the suspects back inside. Three or four of the officers went
with the three suspects back into the room where they were to wait twenty to
twenty-five minutes for a police van. Agent Swint immediately looked into the
bathroom to see if anyone else was there. Soon thereafter agent Philip entered
the room to see if Swint was all right; he walked past the three suspects sitting
on the bed, entered the bathroom, saw the half-opened hole in the ceiling and
looked inside, presumably for the gun. There was no search of wardrobes,
drawers, or any other closed space in the rooms. These facts-all directly
supported or reasonably inferred from the record-are sufficient, in my view, to
support the district court's decision for two related sets of reasons.

46

1. The Supreme Court's discussion in Rakas v. Illinois, 439 U.S. 128, 143-44
n.12, 99 S.Ct. 421, 430-31 n.12, 58 L.Ed.2d 387 (1978) seems to me to require
a holding here that Guilbe, as well as Garcia, lacks standing to assert a Fourth
Amendment claim. The Supreme Court there makes clear that standing exists
only if the record contains some facts from which one might infer a "legitimate
expectation of privacy." See United States v. Miller, 636 F.2d 850 (1st Cir.
1980). Such an expectation is "legitimate" only if it is one that "society is
prepared to recognize as reasonable," and it must have a "source outside of the
Fourth Amendment, either by reference to concepts of real or personal property
law or to understandings that are recognized and permitted by society." The
only fact in the record here suggesting that Guilbe might have had a
"reasonable" or "legitimate" expectation of privacy in the space above the
ceiling when (as this court today holds) Garcia did not, is that Room 360 was
registered to Guilbe (though he was apparently not living there). This fact
alone, in my view, is insufficient. Compare United States v. Weber, at 560.

47

For one thing, the right that Guilbe obtained from the hotel to remain under the
ceiling of Room 360 was not a right to break through the partition and reach
into a space over the ceiling. It was not a right to invade any niche, cubbyhole,

conduit, passage, air conditioning vent, water pipe or any other imaginable
place outside the room's physical boundaries-particularly when he could break
through to such space only through the use of physical force. See Rakas v.
Illinois, 439 U.S. at 145-47, 99 S.Ct. at 431-32. Guilbe had no right to exclude
others from the areas between the walls and ceilings of adjoining hotel rooms.
See Rakas v. Illinois, 439 U.S. at 143-44 n.12, 99 S.Ct. at 430-31 n.12;
Rawlings v. Kentucky, 448 U.S. 98, 105, 100 S.Ct. 2556, 2561, 65 L.Ed.2d 633
(1980). Had a hotel employee, repairman, or any other person been quietly
working in a space between the walls, having entered that space from outside
the room (or for that matter from inside the room assuming a legitimate
presence there) Guilbe could not have complained. Rather, it is the hotel that
had every right to complain about Guilbe's unlawful entry through force into a
space that it owned, controlled and did not rent. Cf. Civil Code of Puerto Rico,
Art. 1445, 31 L.P.R.A. 4052. The Supreme Court has written that a "burglar
plying his trade in a summer cabin during off season," despite a "thoroughly
justified subjective expectation of privacy" has no expectation that is
"legitimate." Rakas v. Illinois, 439 U.S. at 143-44 n.12, 99 S.Ct. at 430-31 n.12.
How can a registration slip here make any more "legitimate" Guilbe's interest in
a space outside the physical bounds of his room?
48

For another thing, unlike the summer cabin burglar, Guilbe could not even have
had much of a subjective expectation of privacy in an open cubbyhole-at least
none which he took any reasonable precaution to protect. See Rawlings v.
Kentucky, 448 U.S. at 105, 100 S.Ct. at 2561; Rakas v. Illinois, 439 U.S. at
152, 99 S.Ct. at 435; United States v. Chadwick, 433 U.S. 1, 11, 97 S.Ct. 2476,
2483, 53 L.Ed.2d 538 (1977). Guilbe and the other suspects left the ceiling
panel ajar-clear notice to anyone entering the room that something was wrong
with the ceiling. This fact was likely to draw a hotel employee to investigate the
space rather than to warn outsiders that privacy was intended. See Morale v.
Grigel, 422 F.Supp. 988, 992 (D.N.H.1976). Cf. United States v. Cleary, 656
F.2d 1302, 1305 (9th Cir. 1981); United States v. Ramapuram, 632 F.2d 1149,
1156 (4th Cir.), cert. denied, 450 U.S. 1030, 101 S.Ct. 1739, 68 L.Ed.2d 225
(1981).

49

The room that Guilbe rented was not in his own home, a condominium, or an
apartment house. It was in a hotel. As both the Second Circuit and the Fifth
Circuit have recognized, although "an individual's Fourth Amendment rights do
not evaporate when he rents a motel room, the extent of the privacy he is
entitled to reasonably expect may very well diminish.... (T)here is ... an element
of public or shared property in motel surroundings that is entirely lacking in the
enjoyment of one's home." United States v. Agapito, 620 F.2d 324, 331 (2d
Cir.), cert. denied, 449 U.S. 834, 101 S.Ct. 107, 66 L.Ed.2d 40 (1980) (quoting

United States v. Jackson, 588 F.2d 1046, 1052 (5th Cir.), cert. denied, 442 U.S.
941, 99 S.Ct. 2882, 61 L.Ed.2d 310 (1979)). The additional facts that the space
at issue here was not Guilbe's but the hotel's, that it was apparently entered by
force, that it was left in a condition that would attract, rather than repel,
investigation, all suggest that this space between the walls was not a "place in
which society is prepared, because of its code of values and its notions of
custom and civility, to give deference to manifested expectations of privacy."
United States v. Taborda, 635 F.2d 131, 137-38 (2d Cir. 1980). If I am correct,
then, as the court holds in the case of Garcia, there are not sufficient facts in the
record "from which a court might reasonably infer ... standing." Majority
Opinion at 557. And, even though the district court did not discuss standing, its
decision must be affirmed. Securities & Exchange Commission v. Chenery
Corp., 318 U.S. 80, 88, 63 S.Ct. 454, 459, 87 L.Ed. 626 (1943).
50

2. At the very least, the facts just discussed show a diminished privacy interest
in the space that was searched. And, given the very limited extent of any
legitimate privacy protection here, I do not see how this court can overrule a
district court's determination that the search was reasonable. Certainly the
record facts reveal some risk-some danger-to the officers from the presence of a
nearby gun. The facts that there were three suspects, not one; that a gun had
been seen by the officers; that the officers had to wait with them for twenty to
twenty-five minutes; that there was noise and confusion outside the room; all
justify some concern on the part of the officers. The thought that the missing
gun was only a few feet away in the bathroom in an open hole above their heads
could reasonably have increased their concern for their own safety. Perhaps it
would have been better practice to handcuff the suspects and shut the bathroom
door, but that could well not have alleviated all of the officers' legitimate
concerns. And, when the fact that they did not go through drawers or closets
but simply looked into so obviously suspicious and "non-private" a place as the
half-opened ceiling space is added to this legitimate concern for safety, it
becomes impossible for me to say that the officers did not behave reasonably
when a district court has concluded that they did.

51

I find no absolute rule of law, either in the Constitution itself or in prior

precedent, requiring reversal here. The Constitution itself uses the phrase
"unreasonable" searches and seizures, a word that, as the Supreme Court held in
Camara v. Municipal Court of the City and County of San Francisco, 387 U.S.
523, 536-37, 87 S.Ct. 1727, 1736-35, 18 L.Ed.2d 930 (1967), calls for
"balancing the need to search against the invasion which the search entails."
Indeed, in language recently quoted with approval by the Supreme Court, Mr.
Justice Black pointed out that the Fourth Amendment

52
prohibits
only 'unreasonable searches and seizures. The relevant test is not the
reasonableness of the opportunity to procure a warrant, but the reasonableness of the
seizure under all the circumstances. The test of reasonableness cannot be fixed by
per se rules; each case must be decided on its own facts.'
53

Coolidge v. New Hampshire, 403 U.S. 443, 509-10, 91 S.Ct. 2022, 2059-60, 29
L.Ed.2d 564 (1971) (concurring and dissenting opinion) (quoted with approval
in South Dakota v. Opperman, 428 U.S. 364, 372-73, 96 S.Ct. 3092, 3098-99,
49 L.Ed.2d 1000 (1976)). Given the risk to safety posed by the nearby presence
of guns, and the limited privacy interest, this search seems to me to be
"reasonable."

54

There are, of course, a plethora of subsidiary legal rules, stating, for example,
that warrantless searches of areas in a house outside the immediate control of an
arrested person are unlawful, Chimel v. California, 395 U.S. 752, 89 S.Ct.
2034, 23 L.Ed.2d 685 (1969); that warrantless searches of an automobile's
passenger compartment (pursuant to an arrest) are lawful, New York v. Belton,
--- U.S. ----, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981); that warrantless seizures of
items in "plain view" are lawful, Harris v. United States, 390 U.S. 234, 88 S.Ct.
992, 19 L.Ed.2d 1067 (1968), and so forth. See generally W.R. LaFave Search
and Seizure 6.7 (1978). These subsidiary rules, however, do not seem to
require that a reasonable search be held unlawful or an unreasonable search be
allowed simply because the search falls on the wrong side of the line that they
draw, for there is no absolute line that will separate for all future cases the safe
from the dangerous, the reasonable from the unreasonable. Rather, these
opinions, offering the guidance of precedent for police and courts alike, appear
sufficiently flexible to take differing circumstances into account, compare
Chimel v. California, supra, with New York v. Belton, supra, and nowhere
seem to relieve a court of all responsibility for assessing the circumstances of
an individual case against the ultimate constitutional touchstone of
"reasonableness."

55

In any event, the rules set forth in recent Supreme Court decisions seem to me
to support, rather than to condemn, the search at issue here. The strongest
contrary precedent is Chimel v. California, supra, in which the Court condemns
warrantless searches outside the area subject to the arrested person's immediate
control. Chimel, however, concerns a search of a house-where privacy
expectations are explicitly protected by the Fourth Amendment, which
consecrates "the right of the people to be secure in their persons, houses, papers
and effects." (Emphasis added.) In the case of houses, one might wish to err, if
at all, on the side of privacy. When the court has considered places where the
interest in privacy is less intense, however, it has allowed warrantless searches

well outside the area delineated in Chimel. Thus, in Belton v. New York, supra,
the Court allowed a search of a car's glove compartment for marijuana well
after the suspects had been taken away from the car and there was no
possibility that they might have obtained access to the compartment to destroy
evidence. See Robbins v. California, --- U.S. ----, ----, 101 S.Ct. 2841, 2844, 69
L.Ed.2d 744 (1981); United States v. Chadwick, 433 U.S. at 12-13, 97 S.Ct. at
2484-2485. Since the privacy interest in the ceiling space here is significantly
weaker than that in an automobile glove compartment and since it is more
important to look nearby for a gun than to look across the road for marijuana, it
seems to me that this is a stronger case for allowing the search than Belton.
Chimel, which concerns a home, not an unrented ceiling space in a motel, does
not hold to the contrary.
56

Finally, I might add that affirmance of the district court's opinion for the
reasons here stated would not authorize the general search of a student's
dormitory ("a student's home away from home"), Morale v. Grigel, 422 F.Supp.
at 997, or bring about the other evils that the court fears would accompany an
extension of the "plain view" doctrine.1

57

For these reasons, I would affirm the district court's decision.

Although the government has not attempted to persuade us that Agent Philip's
search was justified by exigent circumstances, our dissenting brother's interest
in that possibility prompted us to canvass the record with that in mind. We
found no support for such a finding. Moreover, we believe that any chain of
reasoning that turns Agent Philip's hypothetical "apprehension of danger" into a
justification for his warrantless search would be irreconcilable with Supreme
Court precedent
At the time Agent Philip "ascended the throne", the six agents had the three
defendants completely under control. The defendants were seated on the bed,
unarmed, and either were handcuffed or could easily have been handcuffed.
The agents knew that no one else was on the premises. The fact that a gun was
known to be hidden somewhere cannot, by itself, transform the situation into a
crisis. A gun is not a bomb; it is dangerous only if a defendant is holding it.
Were we to find an exigency whenever any plausible or implausible sequence
of events might link a defendant with a gun's potential hiding place, we would
allow warrantless searches of unlimited scope. "The only reasoned distinction is
one between a search of the person arrested and the area within his reach on the
one hand, and more extensive searches on the other." Chimel v. California, 395
U.S. 752, 766, 89 S.Ct. 2034, 2041, 23 L.Ed.2d 685 (1969).

I might add two points about the arguments advanced in the concurring opinion
in this case. First, we are reviewing a factual record made in a district court
which upheld the search here at issue. We are not free to read the record
subjectively, but must ask whether, drawing reasonable inferences against the
defendants, it supports the district court's conclusion. Thus, I cannot infer that
defendants were handcuffed. And, I must infer there was some danger, both
from the objective circumstances and from such subjective statements as that of
agent Philip that in such circumstances "I am always worried about (damage
inflicted upon my person)." Even were I reading the record totally subjectively,
however, I would still find some risk of harm, some danger, present here
Second, whether or not agent Philip had a legal right to stand on the toilet,
while relevant to the matter of "plain view," is not relevant to my understanding
of this case. The question is one of the strength of defendant's privacy interest.
That privacy interest was in the ceiling space. There is no significant additional
invasion of his privacy arising out of the fact that the officer, lawfully in the
bathroom ("to see what was detaining special agent Swint"), stood on the toilet.