dissenting.
I dissent from the decision of the majority.
•The majority' bases its decision upon the' grounds that the' defendant consented to the search and the *626officers had probable cause to arrest for theft and, therefore, the search is justifiable as incident to arrest.
The state seems to have conceded that neither of these grounds were sufficient. The state wrote in its brief:
“Counsel for defendant devotes the major portion of his appellant’s brief to the task of negating the application of a search incident to arrest, search in an emergency situation and consent searches. As the facts clearly demonstrate that none of those search situations is relevant to the present case, which consisted of an inventory search, this brief will be confined to meeting defendant’s argument (App Br pp 13-15) that the inventory search was invalid.”
I am of the opinion that the state was correct in its concessions; however, the search cannot be validated as an inventory search because the property was in a closed, locked truck, not visible from the outside. The truck is like the fishing tackle box in State v. Keller, 265 Or 622, 510 P2d 568 (1973). No reason is shown why the police needed an inventory of the contents of a locked truck.
I am of the opinion that the search cannot be justified as a consent search because the consent was coerced. The defendant did not want the police to unlock the truck; therefore, the defendant hid the key in his boot. After he was in jail and under arrest under a warrant for assault, he refused twa requests by the police for his key. He finally “gave in” on the third demand. Under such circumstances I believe there was duress as a matter of law.
Assuming the officers had probable cause to search the truck, there is no showing of any exigent cir*627cumstances to excuse not going to a magistrate and seeking a warrant. At the time of the search the truck was impounded on the courthouse parking lot. It was locked and the defendant had the key.
I am not certain what the state of the law is in our court or in the United States Supreme Court. Chambers v. Maroney, 399 US 42, 90 S Ct 1975, 26 L Ed2d 419, reh den 400 US 856, 91 S Ct 23, 27 L Ed2d 94 (1970); Coolidge v. New Hampshire, 403 US 443, 91 S Ct 2022, 29 L Ed2d 564, reh den 404 US 874, 92 S Ct 26, 30 L Ed2d 120 (1971); and Cady v. Dombrowski, 413 US 433, 93 S Ct 2523, 37 L Ed2d 706 (1973), leave me uncertain about the United States Supreme Court.
Our decision in State v. McCoy, 249 Or 160, 437 P2d 734 (1968), is now a doubtful precedent because it purported to follow United States v. Rabinowitz, 339 US 56, 70 S Ct 430, 94 L Ed 653 (1950), which was expressly overruled by Chimel v. California, 395 US 752, 89 S Ct 2034, 23 L Ed2d 685 (1969). The Oregon Court of Appeals stated that it would probably have held a warrantless search of an automobile brought to the police station to be improper except they were bound by State v. McCoy, supra (249 Or 160). State v. Keith, 2 Or App 133, 143, 465 P2d 724 (1970).
I believe the most desirable principle to be that when the police have probable cause to search an automobile but there are no circumstances reasonably preventing them from delaying their search until a warrant is sought, a warrant should be a prerequisite.
O’Connell, C. J., joins in this dissent.