dissenting.
In order to sustain the conviction in this case, the court is prepared to decide that an Oregon state police officer may stop motorists at a temporary "checkpoint” set up at his own discretion in order to investigate whether they perhaps have committed a criminal offense, without either probable cause or grounds for suspicion that any occupant of the vehicle has done so. This result is rationalized by a faulty analysis of the governing constitutional law and, in consequence, of Oregon law. The rationalization has farreaching implications which will set the courts, and thus those who must advise law enforcement officers, on a future course of illogical, purely ad hoc distinctions.
I cannot agree that the majority opinion is a correct statement of the law. This dissent will show, first, the errors in the majority’s purported application of the fourth amendment, and second, its consequent misstatement of Oregon law.
I. The issues.
Certain postulates are not in dispute. It is common ground between the majority opinion and this dissent that the question of state law governing this case is antecedent to the question whether defendant was "seized” in violation of the federal fourth and fourteenth amendments. As recent decisions of this court have repeatedly held, a court’s obligation in a case that involves potential statutory and constitutional challenges to governmental action is to determine, first, whether the action is authorized by law; second, whether it is limited by the same or another law; third, whether it is limited by the state constitution and, if the action passes these tests, whether it contravenes the federal Constitution. See State v. Scharf 288 Or 451, 454-455, 605 P2d 690 (1980), and *870cases there cited; Jarvill v. City of Eugene, 289 Or 157, 168-171, 613 P2d 1 (1980). What is meant is a logical, not a temporal, sequence of analysis, for constitutional limits sometimes bear on deciding what authority the lawmaker meant to assert. See e.g. State v. Smyth, 286 Or 293, 296, 593 P2d 1166 (1979); Carden v. Johnson, 282 Or 169, 177, 577 P2d 513 (1978); Oregon Medical Association v. Rawls, 281 Or 293, 300, 574 P2d 1103 (1978) (and cases cited therein); Tharalson v. State Dept. of Revenue, 281 Or 9, 13, 573 P2d 298 (1978); State v. Jackson, 224 Or 337, 345, 356 P2d 495 (1960); City of Portland v. Welch, 229 Or 308, 316, 364 P2d 1009, modified and reh. den. 229 Or 316, 318, 367 P2d 403 (1961).1
There is, however, substantial disagreement over the constitutional limits within which Oregon law is designed to be administered. The majority opinion attempts to show that the stop in this case, if authorized, would not violate the fourth amendment; it then implicitly assumes that the stop fell within the ordinary law enforcement authority of the state police officer. I believe that the majority misconstrues and unjustifiably expands the exceptions to the requirement of strict "probable cause” under the fourth amendment, and that consistent with constitutional limits Oregon law restricts stops for purposes of investigating past criminal conduct to circumstances in which an officer "reasonably suspects that a person has committed a crime.” ORS 131.615.
It also is undisputed that the officer’s order to stop and the temporary detention of defendant and her x car were a "seizure” within the constitutional meaning of that word. The majority holds that such a seizure *871without any individualized grounds is permissible in order to inquire into possible past criminal conduct as long as it is conducted at a stationary checkpoint, and this even when the checkpoint is set up at the discretion of an officer in the field unconfined either by a systematic administrative scheme or by prior judicial approval. I believe, to the contrary, that a "checkpoint” exception from the constitutional requirement of individualized grounds for a warrantless seizure has been recognized only in the context of "regulatory” programs, that is to say, programs designed to accomplish a preventive or corrective aim rather than inquiry into past criminal acts and conducted in conformity with known and systematic administrative authorization rather than at the discretion of police officers.
Oregon law, properly construed, remains within the constitutional bounds, as I shall show. But after the majority’s opinion it does not. The issue is not whether the state could design a valid program of systematic inquiries in the course of administering its resources of fish and game. But the record before us does not show that the stop was made under any such program. The error lies in attempting nevertheless to sustain this seizure, at the price of hazardous implications that the majority does not and logically cannot confine to offenses under the game laws. Because the premises of the decision are important beyond its facts, they need to be examined with care.
II. The court’s misinterpretation of federal law.
Concentrating its attention on the issue of federal more than that of Oregon law, the majority opinion seeks support for its result in selected quotations from United States Supreme Court opinions in rather different cases. One sequence of four cases involved the efforts of officers of the United States Immigration and Naturalization Service to prevent aliens from entering or remaining in this country illegally. Almeida-Sanchez v. United States, 413 US 266, 93 S Ct 2535, 37 L Ed 2d 596 (1973); United States v. Brignoni-Ponce, 422 US 873, 95 S Ct 2574, 45 L Ed *8722d 607 (1975); United States v. Ortiz, 422 US 891, 95 S Ct 2585, 45 L Ed 2d 623 (1975); United States v. Martinez-Fuerte, 428 US 543, 96 S Ct 3074, 49 L Ed 2d 1116 (1976). Another case concerned a state police officer’s stop of an otherwise unsuspected driver in order to check his driver’s license and the vehicle’s registration. Delaware v. Prouse, 440 US 648, 99 S Ct 1391, 59 L Ed 2d 660 (1979). But these precedents do not support the validity of the stop in the present case..
First and most obviously, the cited precedents do not support the present holding, since the government lost in every case except United States v. Martinez-Fuerte. In each of the others the Supreme Court found a violation of the fourth amendment. Thus, far from relying on these precedents, the majority is reduced to distinguishing them and searching out language that it believes would allow a contrary result here. It gets sidetracked into distinctions between searches and stops and why a warrant may be required for one and not the other, none of which is at issue here. And Martinez-Fuerte, which sustained a stop, also is more obstacle than help to the majority, for there the Supreme Court stressed that the stop was valid only because the checkpoint was permanent and was conducted under prescribed agency rules rather than at the discretion of a field officer.
In Martinez-Fuerte the Supreme Court pointed out that the border control checkpoint had been operated at the same location (San Clemente, California) for 24 years, and it expressly confined its holding to "permanent checkpoints.” 428 US at 566, n. 19. A chief reason was that such checkpoints involve less discretionary enforcement activity. "The location of a fixed checkpoint is not chosen by officers in the field, but by officials responsible for making overall decisions as to the most effective allocation of limited enforcement resources.” 428 US at 559. These officials’ discretion is exercised in accordance with applicable statutes and regulations. Id. at note 13. Again, the Court rejected defendant’s argument that Border Patrol seizures required some kind of prior judicial *873scrutiny on the ground that "the need for this is reduced when the decision to 'seize’ is not entirely in the hands of the officer in the field, and deference is to be given to the administrative decisions of higher ranking officials.” 428 US at 566.
This emphasis on the permanence and fixed, nondiscretionary conduct of checkpoints shows that Martinez-Fuerte demands the opposite result on the present facts even if its evaluation of stops without individualized grounds were otherwise applicable. But my disagreement with the majority is not only over such details as the degree to which the officer’s checkpoint was "fixed” or "roving,” although this alone would be decisive. Beyond this, I believe the majority errs in transferring that evaluation from the context in which the Supreme Court developed it — the context of inspections for preventive or corrective purposes— to the different and wider context of seizures aiming at the discovery and punishment of past offenses. No Supreme Court decision applies the "border search” analogy in that wider context, and if this were to happen, I would not import it into Oregon’s law of search and seizure.
The rules governing the validity of stopping vehicles for regulatory inquiries or inspections have evolved from one of two lines of decisions that reduced the "probable cause” requirement under the fourth amendment. As I have said, it is undisputed that the stop in this case was a "seizure” within the constitutional meaning of the word. Cf. United States v. Martinez-Fuerte, supra, 428 US at 556. Ordinarily a person or property may be seized only upon evidence providing probable cause to do so under a criminal statute or other law that the officer purports to enforce. Two distinct lines of decisions, however, treat some kinds of searches and seizures as not "unreasonable” in circumstances short of the strict requirement of probable cause.
One line is derived from Terry v. Ohio, 392 US 1, 88 S Ct 1868, 20 L Ed 2d 889 (1968), and Sibron v. *874New York, 392 US 40, 88 S Ct 1889, 20 L Ed 2d 917 (1968). It arose from the need to stake out constitutional contours for street encounters between police officers and persons who for some reason aroused an officer’s suspicion without giving rise to probable cause for an arrest. In this context, the Court declined to find a violation of the fourth amendment in a brief detention at the site of the encounter accompanied by a limited pat-down for weapons if the officer reasonably suspects the person to be armed. While these original decisions focused on the legality of the search rather than the initial stop, they were understood to imply that the stop and temporary detention themselves, if compelled by a show of authority, must also be based upon some reasonable grounds for suspicion and investigation. Cf. Adams v. Williams, 407 US 143, 145-146, 92 S Ct 1921, 32 L Ed 2d 612 (1972). The Terry rationale for reasonable police conduct in brief, unplanned, individualized encounters under circumstances raising a suspicion of criminal conduct does not reach systematic, general or random stops for investigation.
Nothing in Terry or the cases that follow it gives any credibility to the notion that without any grounds of suspicion persons can be stopped and questioned in order to discover whether they have committed a past criminal offense, if only the stop and questioning is conducted at a "checkpoint.” Yet that is what the majority countenances in this case.
Contemporaneously with Terry v. Ohio, supra, another line of decisions began to reduce the strict requirements of probable cause for so-called administrative or "regulatory” inquiries. These began with the requirements for obtaining access to premises for housing code and safety inspections of conditions on the premises. Camara v. Municipal Court, 387 US 523, 87 S Ct 1727, 18 L Ed 2d 930 (1967); See v. City of Seattle, 387 US 541, 87 S Ct 1737, 18 L Ed 2d 943 (1967); Marshall v. Barlow’s, Inc., 436 US 307, 98 S Ct 1816, 56 L Ed 2d 305 (1978). A variation dealt with regulatory agency inspections of certain intensively *875regulated businesses such as dealers in liquor, Colonnade Catering Corp. v. United States, 397 US 72, 90 S Ct 774, 25 L Ed 2d 60 (1970), and firearms, United States v. Biswell, 406 US 311, 92 S Ct 1593, 32 L Ed 2d 87 (1972). Insofar as we deal here with the seizure of a person rather than with premises, we do not face the question of search warrants at issue in those cases. Rather, their relevance for understanding the later vehicle cases lies in the importance the Supreme Court attached, first, to the difference between regulatory and penal objectives of the inquiry and second, to the nondiscretionary, statutory and administrative regularity of the inspection procedure.
These two themes were prominent in Camara, in which the Court required that "reasonable legislative or administrative standards for conducting an area inspection are satisfied,” after taking pains to state that the administrative inspections were needed for preventive purposes and disclaiming any change in the fourth amendment standard for investigations of crime. 387 US 535, 537-538. They were reaffirmed as recently as Marshall v. Barlow’s, Inc., supra, when the Court spoke of probable cause, not "in the criminal law sense,” but in the sense of adherence to the "reasonable legislative or administrative standards” demanded in Camara. 436 US at 320. The Court’s distinction again made it clear, if it needed to be made clear, that this reduced standard of probable cause under the fourth amendment referred to legislatively authorized and carefully circumscribed programs of administrative inquiry into existing conditions for the purpose of correcting the condition itself. It would not allow either an agency or a magistrate to authorize dragnet methods of unconsented searches or seizures to discover, for example, whether anyone in the targeted area or population had stolen property, or used marijuana, or engaged in prostitution. Without that distinction between preventive or corrective administration and "catching criminals” — law enforcement in the "criminal law sense”— nothing would remain of the need for individualized grounds for suspicion that the Supreme Court has maintained from Terry v. Ohio, *876supra, to this year’s Reid v. Georgia, 448 US 438, 100 S Ct 2752, 65 L Ed 2d 890 (1980), whenever the dragnet is systematic enough. Of course the Supreme Court has held no such thing. But there is serious reason for concern when a majority of this court can believe that the Supreme Court’s analysis of regulatory inspections extends to such criminal law enforcement.
The majority appears to believe that the Supreme Court’s distinction applies only to searches. There is no basis for this. The same fourth amendment refers to "searches and seizures” in a single, consecutive phrase. The differences between entering stationary premises and stopping a moving person, in or outside a vehicle, are relevant to the reasonableness of proceeding without a prior warrant. That is hot at issue here. And insofar as a brief stop and inquiry is less "intrusive” (in the Court’s current word) than an entry or a search, the factual basis that can constitute "probable cause” may be less. But the majority confuses these differences with the distinction between regulatory and penal law enforcement. By denying that the distinction applies to stops, it holds in effect that ordinary criminal investigation may "seize” a person without any individualized grounds whatever, as long as this is done at a stationary "checkpoint.”
Neither United States v. Martinez-Fuerte nor Delaware v. Prouse lends support to that conclusion. Contrary to the majority’s assumption, these as well as earlier decisions apply the theory of regulatory inspections in contexts other than the search of premises. The Border Patrol cases emerged from the longstanding practices of immigration officials (like those of customs officials) in preventing the unlawful entry of persons or goods into the United States. These practices created problems requiring resolution by the Supreme Court when they moved from the border or port of entry to locations well within the United States. But their aim and their constitutional justification cation remain what they are at the border: the actual exclusion or expulsion of the unlawful entrant or *877goods. Cf. United States v. Ramsey, 431 US 606, 97 S Ct 1972, 52 L Ed 2d 617 (1977) (sustaining authority to search letter from abroad reasonably suspected to contain contraband). If the object of a stop were not the discovery and expulsion of unlawful entrants or goods themselves but, rather, the discovery of evidence of past smuggling operations simply for purposes of criminal prosecution, the stop could not be justified under the Border Patrol cases even if it were conducted at a permanent "checkpoint.”
The same is true of the checks for driver’s licenses and vehicle registrations in Delaware v. Prouse. Possession of a valid license and vehicle registration are a state’s regulatory requirements for driving on the public highways. They are checked in order to determine whether the vehicle and driver are qualified to be on the road then and there, much like inspections of safety equipment such as lights or brakes. If the object were to inquire into past offenses for possible prosecution — whether a driver previously had driven a car before the effective date of her license or while its headlights were inoperative, let alone whether she had bought gasoline with an invalid credit card or shot a doe— then the stop would not be saved by being conducted at a stationary checkpoint.
In sum, the majority is misled by its preoccupation with the stationary or mobile character of the police officer’s checkpoint into disregarding the context in which the Supreme Court has made that a relevant question. It became relevant in the context of the administrative inspection of drivers and vehicles for regulatory purposes. Besides the administration of customs and immigration regulations and vehicle and drivers’ license laws, these include such familiar examples as obligatory stops at truck weight scales or agricultural inspections. Cf. Stephenson v. Department of Agriculture & Consumer Services, 342 S2d 60 (Fla 1976), appeal dismissed 434 US 803, reh. den. 434 US 960 (1977). It is not relevant to law enforcement stops which are made on individualized probable cause (even when reduced to reasonable suspicion) to suspect *878a person of an offense. Such stops may be made on the move as much as at stationary checkpoints, as the Terry v. Ohio line of cases shows. If the law were as the majority conceives it, the way to stop and investigate air travelers for possible drug offenses, as in Reid v. Georgia, supra, would be simply to set up a stationary checkpoint at airport exits. But this obviously is a very different thing from the preventive checkpoints administered at boarding points in order to exclude dangerous persons or items from the airplane.
The distinction between preventive or corrective administration and criminal investigation thus is the first step in the analysis, before a question of characterizing the "checkpoint” arises. The Supreme Court has not confined the distinction to the inspection of buildings, as the majority thinks, and there would be little sense in that. Housing and business premises are checked for unsafe conditions in order to correct them; so are trucks and automobiles, airplanes, or vessels, as well as the qualifications of their operators; and the object of border searches for unlawful entrants or contraband is to exclude them. It is not primarily to inflict punishment for harm already done. Although violations may carry potential criminal penalties, the compelled inspection is "administrative” or "regulatory” only when these possible penal consequences are incidental and secondary to a program designed to prevent or correct the harmful condition itself.
The Border Patrol cases and Delaware v. Prouse have correctly been categorized as regulatory inspection cases. Chapter 10 of Professor LaFave’s Treatise on Search and Seizure is entitled: "Inspections and Regulatory Searches.” Section 10.5 begins: "The concern in this section is with yet another variety of administrative searches, the so-called border search.” 3 LaFave, Search and Seizure 275. Likewise the treatise places Delaware v. Prouse under the administration of "Vehicle Use Regulations,” as distinguished from roadblocks for criminal investigation, which are analyzed in conjunction with Terry v. Ohio *879and its progeny in chapter 9. 3 LaFave, Search and Seizure 140-141, (1978 and Supp. 27-34, 1980).2
III. Fallacies of the court’s "balancing”
The majority believes that it can escape the burdens of rigorous analysis by simply invoking the magic term "balancing.” The "balancing” that follows may perhaps say something about the adequacy of that contemporary formula as a guide to courts that are called upon to translate constitutional law into operational rules.
The majority’s "balancing” is perfunctory, compressed into two brief paragraphs. The first states that a great many people buy hunting and fishing licenses in this state, that much of the state consists of public land, and that game law enforcement is a difficult task. The paragraph continues that the time and location of the stop was "where hunting activity was to be expected” and thus a method likely to be effective "to meet its goals.” The second paragraph concedes that the stop was not shown to be governed by any regulations or policies other than the officer’s own discretion but disregards this because the roadblock stopped or slowed every motorist "sufficiently for the policeman to make a decision as to whether a further inquiry was called for.” These brief propositions then lead the majority without more to "conclude that the governmental interest in the enforcement of laws for the preservation of wildlife in this state is sufficiently substantial to justify the minimal intrusion upon the fourth amendment rights of those stopped for brief questioning and a visual inspection of their vehicles.” With regret, I must say that this treatment trivializes the grave task of deciding the constitutional rights of men and women in this state.
First, the majority endorses the effectiveness of the "method” to "meet its goals” without describing the "goals.” The record shows that the officer was not *880engaged in conservation activities, checking licenses or advising potential hunters on their way into hunting areas. He was checking for completed violations of the law, that is to say, for criminal offenses. Of course the ultimate "goal” of many criminal laws is to deter commission of the offense, but that simply puts this case with all other criminal law enforcement stops. Catching offenders for prosecution is not the same kind of goal as excluding or expelling aliens or preserving wildlife while it is still alive.
Second, if the court’s "balancing” formula applied to criminal law enforcement stops without individualized grounds, which I deny, the majority offers no evidence that bears either on the nature or magnitude of the harm the roadblock method is supposed to prevent or on its asserted effectiveness. Surely, if the court paid its own formula the respect of taking it seriously, one would expect some attempt to discuss the relevance of the cited number of hunting licenses. How many purchasers of these licenses kill game illegally? Is much of the state’s enforcement effort directed at hunting which is illegal only for failure to buy a license, i.e. to a financial concern? What is the magnitude of losses of game from unlawful hunting in relation to the total stock?
Similarly, how many persons are "seized” by police officers in pursuit of game law violations? How many of these stops produce proof of a violation? A deep and obvious gap in the majority’s unsupported assumption of "effectiveness” is that the opinion does not explain what an inquiring officer can do if a person not otherwise under suspicion declines to answer the officer’s question, or responds that he has shot nothing and drives on. The court does not say that the officer may insist on looking into the trunk or back end of a closed vehicle, and for good reason, since that is a search. Nor does the opinion explain how his mere question is so effective as to justify the stop, since such an evaluation must assume a citizen who acts on his rights, not the effectiveness of counting on the citizen’s ignorance.
*881Obviously evidence bearing on these matters would be crucial if the majority’s "balancing” were more than the prescribed label for the conclusion itself. But the majority does not believe that the Supreme Court’s "balancing” formula really requires attention to such questions. The opinion offers no evidence concerning them, and there is none in the record. '?
The easiest and most common fallacy in "balancing” is to place on one side the entire, cumulated "interest” represented by the state’s policy and compare it with one individual’s interest in freedom from the specific intrusion on the other side, as the majority does here. What balance is likely to be struck between the momentary inconvenience of one person stopped to answer a question and the protection of thousands of the public’s deer? Yet it is plain that to "balance” one person’s rights with cumulated majoritarian interests in this fashion flies in the face of the premise of constitutionally guaranteed individual rights against the state. The semantic "balance” looks different when it matches the freedom of thousands of citizens from being stopped and questioned by police officers against the chance that one or a few will admit to a hunting or fishing violation.
Third, the majority’s approach is unworkable because it purports to strike the "balance” ad hoc, limited to the particular police stop on the date and at the location in this case. It does not and cannot provide rules for the legality of police stops at other locations and different times. Would a "game checkpoint” be legal on a highway leading into a town from a hunting area, or on a day toward the end of the season (or out of season)? But the purpose of legal rules, and particularly constitutional rules, is to govern official conduct toward the vast majority of citizens against whom no evidence is obtained, not to provide a defense for the few who end up in court. This again shows that the majority has misunderstood the Supreme Court’s use of "balancing” in testing systems of administrative inquiry, not individual police roadblocks.
*882At bottom, the majority’s "balancing” is perfunctory because it simply attaches no weight to the "seizure” represented by a roadblock stop and questioning. But on its own terms, that view proves too much. If that method may be used to stop persons without individualized grounds to suspect them of violating the game laws, why not for investigation of more serious criminal offenses, for instance under the drug laws? Surely not because the state’s interest is less. Again, the majority’s fallacy lies in its refusal to distinguish between criminal law enforcement, as in this case, and the Supreme Court’s fourth amendment analysis of systematic regulatory programs. I therefore return to that analysis.
IV. The requirement of nondiscretionary administration.
The Supreme Court’s acceptance or rejection of relaxed standards for unconsented entries, stops, or inspections in true administrative programs has emphasized a particular concern and its corresponding safeguards. The concern is that the decision whether, how, and whom to investigate not be left to the discretion of the officer in the field. The corresponding safeguards, beyond the requirement of legislative prescription of the program, are administrative regularity in its execution or prior approval by a magistrate.
The Supreme Court’s approach does not assume that officers are empowered in the pursuit of their duties to conduct any search or seizure not forbidden by the fourth amendment. To the contrary, its examination of the various business inspection programs, the Border Patrol stops of automobiles, and the mail search in United States v. Ramsey, supra, scrutinizes the statutory authorization of the officers’ actions preliminary to reaching a constitutional issue, though the statutory authority of course cannot exceed constitutional bounds.3 Thus, in Colonnade Catering *883Corp,, supra, the Court ordered suppression of evidence seized by an unconsented search because the officers lacked statutory authority, even though their actions, if authorized, would not have violated the fourth amendment.
The mere fact of statutory authorization is not enough. The question is whether the law or deliberate agency policies promulgated under it give reasonable direction and limits to the investigatory power or leave that power at large in the hands of individual officers. Thus the Supreme Court wrote in explanation of a warrant requirement in Camara v. Municipal Court:
"[W]hen the inspector demands entry, the occupant has no way of knowing whether enforcement of the municipal code involved requires inspection of his premises, no way of knowing the lawful limits of the inspector’s power to search, and no way of knowing whether the inspector himself is acting under proper authorization . . . The practical effect of this system is to leave the occupant subject to the discretion of the official in the field. . . .”
387 US at 532. With the occupant’s right to demand a warrant, "the decision to enter and inspect wdll not be the product of the unreviewed discretion of the enforcement officer in the field.” See v. City of Seattle, 387 US at 545. In United States v. Ortiz, supra, the Court was "not persuaded that the checkpoint limits to any meaningful extent the officer’s discretion to select cars for search. . . . This degree of discretion to search private automobiles is not consistent with the Fourth Amendment.” 422 US at 896. By contrast, in United States v. Martinez-Fuerte, the Corut noted that "[t]he location of a fixed checkpoint is not chosen by officers in the field, but by officials responsible for making *884overall decisions as to the most effective allocation of limited enforcement resources,” and that this discretion of Border Patrol officials would be exercised in accordance with applicable statutes and regulations. 428 US at 559 and n 13. And most recently, in Delaware v. Prouse:
"The marginal contribution to roadway safety possibly resulting from a system of spot checks cannot justify subjecting every occupant of every vehicle on the roads to a seizure — limited in magnitude compared to other intrusions but nonetheless constitutionally cognizable — at the unbridled discretion of law enforcement officials. To insist neither upon an appropriate factual basis for suspicion directed at a particular automobile nor upon some other substantial and objective standard or rule to govern the exercise of discretion 'would invite intrusions upon constitutionally guaranteed rights based on nothing more substantial than inarticulate hunches . . . .’ Terry v. Ohio . . .”
The Court continued:
"This kind of standardless and unconstrained discretion is the evil the Court has discerned when in previous cases it has insisted that the discretion of the official in the field be circumscribed, at least to some extent. . . . [Apart from the cases involving closely regulated business enterprises] regulatory inspections unaccompanied by any quantum of individualized, articulable suspicion must be undertaken pursuant to previously specified 'neutral criteria.’ Marshall v. Barlow’s, Inc. . . .”
Delaware v. Prouse, 440 US at 661-662. The Court went on to suggest that a state could develop other methods to check vehicles or drivers, possibly including stops at roadblocks, "that do not involve the unconstrained exercise of discretion.” 440 US at 663. Again, it must be remembered that the state’s concern in the Delaware case was to police the qualifications of vehicles and drivers to be on the road at all, not with the occupants’ prior or current compliance with unrelated laws, just as in the border search cases the concern was with the exclusion or expulsion of persons or goods whose very presence was the condition to be *885prevented or corrected, not with dragnet stops to discover perpetrators of previously committed or unrelated crimes.4
V. The importance of a systematic program.
It may be questioned why it should matter whether a person is subjected to a temporary detention, inquisition, or search in pursuit of a systematic program promulgated by responsible agency officials or at the discretion of individual law enforcement officers in the field. This may, indeed, seem immaterial when such an action is viewed only from the perspective of the single individual ensnared in one particular instance. It is, however, an important element of the exception under which this and similar stops without any particularized suspicion are sought to be justified.
The guarantees of the fourth amendment and Oregon’s article I, section 9, have a broad role as institutional and procedural safeguards in shaping the conduct of governmental officers before the fact, of which their role as a shield for the defendants prosecuted on illegally seized evidence is only the consequence. See Amsterdam, Perspectives on the Fourth Amendment, 58 Minn L Rev 349, 367-369, 416-417 (1974); Bacigal, Some Observations and Proposals on the Nature of the Fourth Amendment, 46 Geo Wash L Rev 529 (1978). The security and freedom from unwarranted official impositions that the search and seizure clauses guarantee is that of "the people,” of men and women going about their everyday business, not only or primarily the interests of criminal suspects. Thus officers may undertake "searches” or "seizures” without consent only upon "probable cause” in some form, either found to be so in advance by a magistrate or, if urgency makes this impossible, then such as a magistrate properly would approve if presented to him. Any kind of unconsented inspection without individual *886probable cause represents an exception to the general rule.
The exception for so-called "administrative” or "regulatory” entries or stops for inspection without any grounds for individualized suspicion depends on the premise that the particular practice is indispensable in order to prevent or correct a specified harmful condition, and that "probable cause” for expecting to find instances of that condition by systematic means exists in the mass when probable cause does not exist with respect to any single instance. Unless this premise fits the challenged action, the exception for a "generalized” form of probable cause developed in the line of decisions from Camara v. Municipal Court to Delaware v. Prouse does not apply.
Thus it is in the nature of this exception that both of its aspects depend upon a generalized or program-wide assessment. To the extent that the Supreme Court’s fourth amendment rule calls for the state’s assertion of an exceptionally important public interest in the preventive or corrective administration of the program, this assessment necessarily belongs in the first instance to the responsible legislative and executive officials, not the individual officer. The same is true of assessing the probability that a proposed form of systematic inspection will produce a significant percentage of instances of the condition to be prevented or corrected, and that it is essential in order to accomplish this purpose. Again, these are judgments that can only be made on a program-wide basis, not ad hoc by field officers. And only legislative or agency-wide rules or a magistrate’s warrant can confine the purposes, times, places, manner, and targets of "administrative” inspections to those justified by the foregoing assessment. By contrast, when an unconsented entry or stop and investigation is undertaken by an officer against a person and in a place, time, or manner selected in his own discretion, though in the best of faith, it is indistinguishable from the stops without any articulable basis for individ*887ualized suspicion that remain forbidden to law enforcement officers even under Terry v. Ohio, supra. 5
The foregoing describes relevant parts of the fourth amendment framework within which the Oregon law governing this case must be examined. It is evident that the question is not whether one or another kind of stop or search may be made under a state’s "game laws” any more than, for instance, under its "drug laws” or its "traffic laws.” Instead, the initial inquiry must be into the source and purpose of the authorization for the investigatory action, the standards prescribed to confine discretion in administering this authority, the level of official accountability at which discretion is exercised, and the degree of ad hoc *888improvisation or compliance with a prescribed, systematic program that led the officer to take the challenged action.
VI. The stop and the Oregon statutes.
When evidence for a prosecution is discovered as a result of a warrantless seizure, a motion to suppress calls upon the prosecution to show that the seizure was lawful or that the evidence would have been discovered irrespective of the seizure. ORS 133.673 - ORS 133.693.6 Cf. State v. Warner, 284 Or 147, 160-161, 585 P2d 681 (1978); State v. Groda, 285 Or 321, 331, 591 P2d 1354 (1979) (concurring opinion); cf. State v. Wilson, 31 Or App 783, 787, 571 P2d 554 (1977); State v. Downes, 19 Or App 401, 404-405, 528 P2d 110 (1974). Since the state here does not make the latter claim, it must demonstrate the lawfulness of Miss Tourtillott’s initial stop, or "seizure,” by the state police officer.
The record contains very little that would show whether this stop was conducted under the kind of administrative program and constraints outlined above. This is not surprising in a local prosecution of a traffic offense, given the novel and unsettled character of the issues, but it confines the state’s case within the limitations of this record and of judicial notice. Cf. State v. Warner, supra, 284 Or at 159, 161.
The only witness called for the state was the arresting police officer. He testified that he was manning a "game check station” that had been established on a rural highway by placing in the middle of the road a yellow sign with the message "Attention hunters . .. *889all vehicles must stop.” His purpose was to "check hunters” for "anything basically to do with hunting violations.” He testified that besides himself, there was a fish and wildlife department employee nearby who was there "to gather statistics, to see the hunters’ success.” Miss Tourtillott obeyed the instruction on the sign. The officer then asked for her driver’s license, and she admitted that her license was suspended.
This record falls far short of explaining the salient characteristics that might give legal validity to operating a "game check station.” It does not elucidate under whose direction the officer was acting, who made the determination that a game check station should be established at that time and place, or perhaps at a number of places, and for how long, nor the scope or limits of the assignment given those who were to conduct the check. To the extent that one may draw any inferences from the brief testimony, they seem to be that the checkpoint was temporary and mobile, and that its location, duration, and manner of operation were left to the personnel in the field. From the officer’s statements that he was looking for hunting "violations” and the nearby agency employee was collecting statistics of the hunters’ "success,” it may also be possible to infer that the check was directed at persons who appeared to have been hunting rather than at those who appeared about to go hunting.7 It is difficult to treat a generalized stop of hunters on the way out of the woods or fields in order to check for poaching or other game law violations as an "administrative” stop for preventive rather than criminal law enforcement purposes, since it comes too late to save the game. The inspections under the housing code in Camara, the immigration checkpoints in MartinezFuerte, and the license and registration checks in Delaware v. Prouse would be somewhat more plausible analogies for a program directed at checking the *890hunting licenses of persons apparently headed toward hunting areas than of those leaving them.8
The parties invoke different statutory law as governing the stop in this case. Defendant relies on ORS 131.615, which provides:
"(1) A peace officer who reasonably suspects that a person has committed a crime may stop the person and, after informing the person that he is a peace officer, make a reasonable inquiry.
"(2) The detention and inquiry shall be conducted in the vicinity of the stop and for no longer than a reasonable time.
"(3) The inquiry shall be considered reasonable only if limited to the immediate circumstances that aroused the officer’s suspicion.”
The state concedes that if this statute applies, the officer did not have reasonable suspicion that defendant had committed any offense when he stopped her car. However, the state contends that the requirements of ORS 131.615 do not apply to "checkpoint stops” authorized under another law, and it claims that authority to operate "game violation checkpoints” may be inferred from the wildlife laws, ORS chapter 496. To this, defendant responds that even if such a source of authority might theoretically exist, the state has not shown that the officer acted under a properly authorized program for "administrative” purposes and including the requisite safeguards, and that therefore the stop to inquire into possible hunting "violations” must be tested under ORS 131.615. On the record before us, defendant’s argument should prevail.
ORS 131.615, supra, is written in terms of authorization. It does not purport to govern all possible stops to the exclusion of any other authorization. It does, however, govern those stops in which the intended inquiry concerns a suspected criminal offense and *891which cannot be shown to rest on another authorization.
The statutes cited by the state for such an alternative authorization, ORS 496.645, 496.660, and 496.675, do not help it here.9 These sections deal with warrantless arrests, searches, and seizures directed against suspected violators of the wildlife laws and, to be constitutional, necessarily require compliance with the standards governing such law enforcement actions. But the present defendant was not arrested or searched on suspicion of having violated the law. The officer expressly disclaimed any such suspicion.
*892This does not mean that the agency responsible for the management of wildlife in this state, the State Department of Fish and Wildlife, ORS 496.080, may not be authorized to develop and operate a properly designed system of administrative checks on the licensed and regulated activities of hunting and fishing for wildlife.10 ORS 496.138 assigns to the State Fish and Wildlife Commission the authority to formulate the necessary policies and programs, including rules made under the Oregon Administrative Procedure Act.* 11 And the department may enforce its rules by the use of peace officers and state police officers as well as its own personnel. ORS 496.605 - ORS 496.615. Of course this authority and any rules or enforcement procedures adopted under it must remain, in the words of article I, section 9, a "law” that does not "violate the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure.”
On the record before us, it does not appear that the Department has adopted any administrative system of checkpoints for the purposes of wildlife management, or that the present stop was made pursuant to such a systematic program. Nor does examination of the Oregon Administrative Rules promulgated under ORS chapter 496 disclose any administrative program or policy of which we might take judicial notice. Thus we have here no occasion to test a depart*893mental program of "game check points” against article I, section 9, or the 4th amendment, nor to determine whether the particular program is one that would require the prior approval of a magistrate. The short of it is that this stop was not based on the department’s exercise of administrative authority under ORS chapter 496 and therefore cannot be justified as such.
To the contrary, it appears from this record that the stop was made at the discretion of an officer in the field, in order to discover possible violators of the wildlife laws after the fact with a view to criminal prosecution. This does not differ from other law enforcement stops merely because the laws being enforced concern illegal hunting rather than another illegal activity. Unlike an "administrative” stop, such a law enforcement stop, if short of cause for an arrest, is governed by ORS 131.615.
In summary, the state has not demonstrated that defendant was stopped pursuant to a properly authorized administrative program designed for preventive or wildlife management purposes and including the necessary safeguards described in this opinion. Nor was the stop in this case authorized by ORS 131.615 as a law enforcement stop on reasonable suspicion of crime. Since the stop itself was not shown to have been lawful, there is no need to consider defendant’s further argument that a stop which might be properly made for the administration of the game laws cannot be used for an inquiry into the driver’s licensing laws. Under ORS 133.683, supra, once the stop itself was unjustified, the subsequently discovered evidence of defendant’s traffic offense should have been suppressed.
Denecke, C.J., and Lent, J., join in this dissenting opinion."[T]he proper sequence of analysis is first, whether a particular official action is authorized by law, second, whether it contravenes the Oregon constitution, and only then whether it satisfies the fourteenth amendment; for when a state in fact protects a person’s asserted rights under its law, there can be no question of violating the fourteenth amendment.”
State v. Greene, 285 Or 337, 349, 591 P2d 1362 (1979) (concurring opinion).
See also 1 K. C. Davis, Administrative Law Treatise 262 (2d ed 1978), "Automobiles Near Border.” The Davis treatise does not deal with criminal law enforcement. But the Border Patrol cases are administrative law.
"It is clear, of course, that no Act of Congress can authorize a violation of the Constitution. But under familiar principles of constitu*883tional adjudication, our duty is to construe the statute, if possible, in a manner consistent with the Fourth Amendment. . . .”
Almeida-Sanchez v. United States, 413 US at 272.
We recently held that a police officer must stay within his authority when he purports to enforce the wildlife laws, without regard to any constitutional violation. Dickens v. DeBolt, 288 Or 3, 602 P2d 246 (1979).
See, e.g., United States v. Brignoni-Ponce, 422 US at 883 n 8. Thus the Supreme Court has also noted with respect to the "administrative” stops by the Border Patrol that these were conducted by specialized personnel not concerned with general law enforcement.
Professor W. R. LaFave has written about the importance of systematic rather than ad hoc rules under the fourth amendment:
". • • Fourth Amendment doctrine, given force and effect by the exclusionary rule, is primarily intended to regulate the police in their day-to-day activities and thus ought to be expressed in terms that are readily applicable by the police in the context of the law enforcement activities in which they are necessarily engaged. A highly sophisticated set of rules, qualified by all sorts of ifs, ands, and huts and requiring the drawing of subtle nuances and hairline distinctions, may be the sort of heady stuff upon which the facile minds of lawyers and judges eagerly feed, but they may be 'literally impossible of application by the officer in the field.’
"If the rules are impossible of application by the police, the result may be the sustaining of motions to suppress on Fourth Amendment grounds with some regularity, but this can hardly be taken as proof that 'the people’ are 'secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.’ Rather, that security can only be realized if the police are acting under a set of rules which, in most instances, makes it possible to reach a correct determination beforehand as to whether an invasion of privacy is justified in the interest of law enforcement. . . .
"[A contrary effect can be avoided only] if certain search and seizure rules are expressed in terms of 'standardized procedures’ or a 'set routine,’ that is, if there are some rules which 'will be applied to all cases of [a certain] type, regardless of particular factual variations,’ in lieu of more sophisticated but less precise rules requiring ad hoc decision making by both police and courts. Such an approach seems particularly appropriate for those forms of police action which involve relatively minor intrusions into privacy, occur with great frequency, and virtually defy on-the-spot rationalization on the basis of the unique facts of the individual case.”
LaFave, "Case-by-Case Adjudicatiori’ Versus "StandardizedProcedures"-. The Robinson Dilemma, 1974 S Ct Rev 127, 141-143.
ORS 133.673 provides that objections to the evidentiary use of illegally seized "things” shall be made by motion to suppress in advance of trial. ORS 133.693(4) provides that on a motion to suppress "evidence seized as the result of a warrantless search,” the prosecution has the burden to prove the validity of the search. ORS 133.683 extends suppression to evidence discovered as a result of a search or seizure that would lead to the suppression of "things,” unless the prosecution shows that it would have discovered the evidence anyway. When a warrantless seizure results in the discovery of nonphysical evidence that would not otherwise have been discovered, the prosecution burden to justify the initial seizure follows from the combination of ORS 133.683 and 133.693(4).
The officer testified that some cars whose occupants plainly seemed not to be hunters were waved on without inquiry.
We need not in this case decide whether gathering fish or game statistics alone could be a sufficient reason to conduct a general checkpoint stop of vehicles under a properly confined program. An agency employee engaged in that function might not turn his attention from game statistics to the enforcement of the traffic laws or the search for persons to be served with unrelated warrants or summonses, as the police officer did in this case. Cf. note 4, supra.
ORS 496.645:
"Any person authorized to enforce the wildlife laws may, without warrant, arrest any person violating any of the wildlife laws, and take the person before any court having jurisdiction of the offense. The court shall proceed without delay to hear, try and determine the matter and enter judgment according to allegations and proofs.”
ORS 496.660:
"(1) Any person mentioned in ORS 496.645 may search any person, and examine any boat, automobile, aircraft, conveyance, vehicle, game bag, game coat or other receptacle for wildlife, or cold storage rooms, warehouses, taverns, boarding houses, restaurants, club rooms, outhouses, saloons, depots, hotels and all other places, except private dwelling houses, wherein wildlife may be kept or sold, and examine all packages and boxes held either for storage or shipment which they have reason to believe contain evidence of violations of the wildlife laws.
"(2) Any hindrance or interference to such search is prima facie evidence of a violation of law by parties who hindered or interfered, or attempted to hinder or interfere, in the search or examination.
"(3) If upon diligent search or inquiry or both, the person can discover evidence sufficient in his judgment to secure a conviction, or if the person has cause to believe he has sufficient evidence to justify it, he shall at once institute proceedings against the alleged offenders.”
ORS 496.675:
"The persons mentioned in ORS 496.645 may at any time, without warrant, seize and take possession of:
"(1) Any wildlife which has been caught, taken or killed, or had in possession or under control, which have been killed, had in possession or shipped, at any time, in any manner or for any purpose contrary to the wildlife laws.
"(2) Any guns, boats, fishing or other apparatus used for the purpose of hunting or fishing, at any time, in any manner or for any purpose contrary to the wildlife laws.”
ORS 496.004 defines wildlife:
"(12) Wildlife’ means game fish, wild birds, amphibians, reptiles and wild mammals except whales and porpoises.”
The department includes the State Fish and Wildlife Commission, the State Fish and Wildlife Director, and other necessary personnel. ORS 496.080.
ORS 496.138:
"(1) The commission has the authority to formulate and implement the policies and programs of this state for the management of wildlife, and may perform all acts necessary to administer and cany out the provisions of the wildlife laws.
"(2) In accordance with any applicable provision of ORS 183.310 to 183.500, the commission may promulgate rules to carry out the provisions of the wildlife laws.”