c29:No. 76-1744

McCREE, Circuit Judge (dissenting).
I respectfully dissent. The principal issue presented on appeal was whether the district court should have granted a second suppression hearing to permit consideration of appellant’s second motion to suppress. In the second motion, which presented grounds not asserted in the first motion, appellant sought to suppress not only a rifle claimed to have been illegally seized, but also his oral statement elicited by the police when they confronted him with the seized weapon. The majority opinion holds that the seizure of the rifle, which was not claimed to be either contraband or evidence of a crime, was justified by the officers’ concern for their safety. The facts presented in the record on appeal are insufficient to support this conclusion.
I agree that the searching officers had a right to search the room in which the rifle was found, because the warrant authorized the search of the entire premises for marijuana. And even if the warrant had not authorized the search of this room, the officers, under special circumstances, might have been justified in making a cursory survey of the entire premises in order to ensure their safety. See United States v. Sellers, 520 F.2d 1281 (4th Cir. 1975), judgment vacated on other grounds, 424 U.S. 961 (1976); United States v. Blake, 484 F.2d 50 (8th Cir. 1973), cert. denied, 417 U.S. 949, 94 S.Ct. 3076, 41 L.Ed.2d 669 (1974); United States v. Looney, 481 F.2d 31 (5th Cir.), cert. denied, 414 U.S. 1070, 94 S.Ct. 581, 38 L.Ed.2d 476 (1973). But see United States v. Carter, 173 U.S.App.D.C. 54, 522 F.2d 666 (1975); United States v. Gamble, 473 F.2d 1274 (7th Cir. 1973) (both finding searches of premises illegal despite a claim that such a search was necessary to protect the officers’ safety when they entered with only a warrant for an arrest). An object in plain view, but not mentioned in a warrant, may not be seized unless one of the narrow exceptions to the warrant requirement are met. For example, it may be seized if it is contraband, or is believed to be evidence of a crime, or presents an immediate threat to the safety of the officers. The legality of the seizure as a protective measure will depend on the circumstances of each case, and the officers are justified in taking only those measures that are reasonably necessary for their safety. Cf. Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968).
The record on appeal does not, however, provide enough information about the circumstances surrounding the seizure of the rifle to determine whether it was justified. There is some indication that the premises had already been secured and that all occupants of the house had been herded into two rooms where they were effectively under the control of the police officers. If this is true, the second search which produced the rifle cannot be justified as a protective measure. See United States v. Erwin, 507 F.2d 937 (5th Cir. 1975). Furthermore, it is unlikely that bringing the rifle from the bedroom into the crowded room where appellant was being held and confronting him with it contributed to the safety of the police.
If the rifle had been illegally seized, defendant was entitled to a determination whether his remarks to the police when they showed it to him were the fruit of the impermissible seizure and therefore inadmissible at trial. I would remand to allow the district court to make these determinations.
. Appellee did not offer the safety precaution justification in its brief, and it was first asserted in response to questioning by the court at oral argument.
. The officer in charge of the execution of the warrant testified at the first suppression hearing as follows:
Q. You found a clip for the nine millimeter rifle?
A. Yes.
Q. Where did you find this clip?
A. In the basement.
Q. I’m sorry, when did you go to the basement?
A. After the premises were secured and everybody upstairs was put in the living room, I went downstairs to see what was going on, to find out what they found, if they found what they were looking for.
Q. Did you find the clip before or after you found the rifle in the southeast bedroom?
A. I found the clip first.
Q. Then you went back upstairs?
A. Yes.
(Emphasis added.)

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