dissenting.
I would affirm the trial court’s grant of the defendants’ motion to suppress.
The affidavit in application for a search warrant established probable cause to search one, and only one, apartment. The affidavit and warrant repeatedly described the apartment to be searched as “* * * Apartment Number 2 in the basement of the residence at 240 South Davis Street, said apartment having the letters ECUBB on the door * * This was the only descriptive material in the documents.① There was no such apartment. What the officers executing the warrant discovered was a common area with three separate apartments leading off it. Apparently, being confused about which apartment to search, the officers solved their problem by searching everywhere—the common area and all three apartments.
With these facts in mind, I do not believe any of the cases cited by the majority are on point. All of those cases deal with the question of whether a search warrant is invalid because it does not describe the premises to be searched with sufficient definiteness. See, e.g., State v. Cortman, 251 Or 566, 446 P2d 681 (1968), cert denied 394 US 951 (1969). It cannot be seriously contended that “Apartment Number 2 * * * having the letters ECUBB on the door” is an indefinite *573description. In my view, the ease at bar is an erroneous description case, not an indefinite description case.
There is a basic distinction between these two types of cases. When a search warrant is held to contain an indefinite description of the place to be searched, it is invalid when issued. While the physical characteristics of the premises the executing officers encounter and what they do in an effort to locate the proper place to search are sometimes evidentiary on the question of whether the warrant description is sufficiently definite, the ultimate question remains whether, looking to the language of the warrant, it was valid when issued. Such an analysis was implicit in our decision in State v. Koberstein, 8 Or App 307, 493 P2d 176, Sup Ct review denied (1972), where we held that if the defendants had proved the police knew or should have known that the building in which they lived had separate apartments then the warrant would have been invalid when issued because it failed to designate the apartment to be searched.
On the other hand, while a search warrant containing an erroneous description is valid when issued, it becomes invalid if the executing officers discover that there is an error in the warrant of such magnitude that they are unable to determine what premises the warrant authorizes them to search. The significant inquiry in such a case must center on the nature of the premises the executing officers encountered, rather than on the language of the warrant.
While I find no cases which clearly articulate this distinction between a search warrant description which is fatally indefinite and one which is fatally erroneous, CJS states what to me is a common-sense rule:
“Where it appears that the description of the *574place to be searched is erroneously stated in the warrant, the warrant is invalid. However, where the place has been otherwise described with such definiteness as to leave no discretion to the officer, misdescriptions will be treated as surplusage or as not invalidating the warrant.” 79 CJS, Searches and Seizures 890, § 81.
See also, Mrs. David Combs v. The State, 141 Tex Cr 476, 149 SW2d 971 (1941) (warrant held invalid when police admitted the description of the place to be searched was erroneous).
It is conceded in this case that: (1) there is no such place as “Apartment Number 2 * * * having the letters ECUBB on the door”; and (2) Apartment 2 and the apartment with the letters ECUBB on the door are two separate apartments. Suppose the executing officers had entered a more typical apartment hallway and immediately seen those two separate apartment doors. Since they knew from the affidavit and/or warrant that they had probable cause to search only one apartment, it would be impossible for them to execute the warrant any other way than flipping a coin. The odds would be 50-50 that they would search the right place or would illegally invade someone’s privacy. As I understand the CJS rule quoted above, in such a situation the warrant would be invalid and the officers would not have authority to search either apartment.
Under the factual circumstances of this case, I think the result should be the same. When the officers were in the hall outside the open door to the common area they could see, using flashlights, other doors with “2” and “3” on them leading off the common area. These doors had the kinds of locks on them that indi*575cated to the officers, or reasonably should have indicated to them, that each door was an entry to a separate living unit. Although the officers were thus on notice that something might be wrong with the description in the warrant (“Apartment Number 2 * # * having the letters ECURB on the door”), by their own admission they proceeded to search everywhere without even looking for the letters ECURB.
While, as noted above, the facts in State v. Cortman, supra, are not analogous to those at bar, the policy considerations articulated in Gortman are relevant:
“The purpose of the particular-description requirement is to narrow the scope of the search to those premises for which a magistrate has found probable cause to authorize the search. "When the warrant designates the premises by means that will properly limit the search, there is little risk that other premises will be subjected to unreasonable examination.” (Emphasis supplied.) 251 Or at 569.
As is the case with a warrant vaguely describing the premises to be searched, when a warrant erroneously describes the premises to be searched there is a great “risk that other premises will be subjected to unreasonable examination.” On the facts at bar, this is not just a great risk—it is what actually happened.
I might be more inclined to uphold the search in this case if it were factually established either that: (1) the common area and separate rooms leading off it were really one large apartment jointly occupied by several persons as was the case in People v. Gorg, 157 Cal App2d 515, 321 P2d 143 (1958) (cited by the majority for a different proposition for which it does not stand); or (2) defendant Barber told the executing *576officers that the entire apartment was Apartment 2. However, I believe both of these points have been factually determined by the trial judge contrary to the validity of the search.
As the majority points out, the trial judge “made no special findings of fact.” In such a situation the rule is clear:
“* * * If findings are not made * * * and there is evidence from which such facts could be decided more than one way, we will presume that the facts were decided in a manner consistent with the ultimate conclusion * * * made by the trial court * * Ball v. Gladden, 250 Or 485, 487, 443 P2d 621 (1968).
At the suppression hearing one of the executing officers testified that defendant Barber told them that the entire area they searched was Apartment 2. Barber testified that he made no such statement. Since the trial judge granted the motion to suppress, we are required to presume it was factually determined that Barber never made that statement.
We have frequently applied the rule of Ball v. Gladden, supra, in appeals by defendants. In State v. Fisher, 92 Adv Sh 881, 5 Or App 483, 484 P2d 864 (1971), we noted that the knife cuts both ways—that the Ball v. Gladden, supra, rule is equally applicable in appeals by the state.
Even assuming, arguendo, that the search warrant was valid, since it only authorized, at most, a search of defendant Barber’s apartment (albeit erroneously described), I fail to comprehend how that warrant permitted the officers to search the common area and two additional apartments.
*577The majority states:
“* * * after defendant Blackburn produced two ‘joints’ of marihuana from his room, they [the officers] had probable cause to search Blackburn’s room as well as the common area * * Majority opinion at p 559.
It is true that while being questioned by the officers Blackburn admitted he had marihuana in his room. However, it is important to note that the officers first entered Blackburn’s apartment at about 4 a.m., woke him up, required him to get dressed, took him out to the common area, and then began the questioning that produced the admission relied upon by the majority. The majority cites nothing that makes the initial entry into Blackburn’s room legal. In my opinion it was clearly illegal. I do not believe we should sanction the establishment of probable cause by such cavalier means.
Moreover, it is settled doctrine that no amount of probable cause justifies a search in the absence of a valid warrant or facts bringing the search within one of the exceptions to the warrant requirement. State v. Keith, 2 Or App 133, 465 P2d 724, Sup Ct review denied (1970). Here, there never was a warrant of any land —valid or invalid—to search the common area or Blackburn’s room. And I find nothing in the record creating an exception to the warrant requirement.
For the foregoing reasons I respectfully dissent.
An inference can be drawn from the record that the informant had told the police that the occupant of the room in question was the defendant Barber. If, as additional descriptive material, the affidavit or the warrant, or both, had described the premises to be searched as being occupied by a person named Barber I might well feel differently about the result reached by the majority.