dissenting.
I believe the search was legal. It will be remembered that the defendant was arrested in the upstairs apartment. A search, of undisclosed intensity, was made of that apartment. That search did not produce the fruits of the crime. The police knew a bank-deposit bag had been stolen, and reasonably assumed that it was still in the possession of the thief.
The record reveals that the defendant took the police to his own apartment. For all practical purposes, the officers were in his apartment by invitation. The defendant would not have been allowed to *255stop in Ms rooms without Ms escort. WMle lawfully in the defendant’s rooms, an officer noticed the changed condition of the wall panel.
Knowing that the loot from the tavern had not yet been found, and knowing that the loot was likely to be somewhere about the defendant’s lodgings, the officer reasonably believed it had been hidden behind the wall panel. I do not believe that the officer’s subsequent search was exploratory.
The fruits of crime are seizable with a warrant under OKS 141.010. They are equally seizable in a search made without a warrant as a proper incident of a lawful arrest. State v. Chinn, 231 Or 259, 373 P2d 392 (1962).
The critical question in this case is whether the search that uncovered the loot was a reasonable incident of the arrest that had just been made. The search was intensive, but it was made of an area that showed evidence of a recent attempt at concealment. Under the circumstances, I am satisfied that the intensity of the search was not so unreasonable as to disqualify the search as an incident of the arrest.
The majority does not hold that the search automatically became unreasonable when it was shown that the officers could have sent one of their number to a magistrate for a warrant. A warrant no doubt could have been obtained. However, the search was made in the defendant’s presence, and while the officers weré in the process of removing him from his home. It was part of the same transaction in which he was arrested.
The majority treats the arrest of the defendant in the upstairs apartment as a completed transaction. The opinion implies that once the defendant had been placed under police control, and the officers had seen *256to their safety from hidden weapons, confederates, and the like, their power to search was exhausted and could not be revitalized. This ignores the right of the officers to seize the fruits of the crime. There is no Fourth Amendment reason in this case to treat the arrest as a split-level transaction and thereby to deny the officers the right they clearly would have had to search the defendant’s rooms if they had made the arrest in his apartment. See Abel v. United States, 362 US 217, 80 S Ct 683, 4 L Ed2d 668 (1960); United States v. Rabinowitz, 339 US 56, 70 S Ct 430, 94 L Ed 653 (1950); Harris v. United States, 331 US 145, 67 S Ct 1098, 91 L Ed 1399 (1947). It would seem that this search was incidental to the arrest.
If a search is incidental to a lawful arrest, the search is not made unlawful simply because it might also have been justified under a warrant which the officers could have obtained. United States v. Rabinowitz, 339 US 56, supra. The alternative rule, that any search made by officers in the execution of an arrest is arbitrarily declared illegal and the fruits thereof excluded from evidence when it appears that it was possible to obtain a search warrant, was announced by the United States Supreme Court, but was abandoned after two years as unrealistic. Compare Trupiano v. United States, 334 US 699, 68 S Ct 1229, 92 L Ed 1663 (1948), and United States v. Rabinowitz, supra.
Perry and Denecke, JJ., join in this dissent.