dissenting.
In my view the trial judge was in error in suppressing the evidence and dismissing the indictment. The rationale for that ruling is restated in the majority opinion as follows: The discovery and search of the motorcycles in the garage was “outside the scope of the homicide investigation, and that it was not authorized by the defendant.” I disagree.
In his motion to suppress the defendant contended:
“* * * [T]he search was. not made pursuant to lawful arrest or search warrant and exceeded the curtilage for which consent was given for search by the officers; and the consent to .search defendant’s residence was limited to evidence of a homi•cide committed in defendant’s residence; and the search was not made pursuant to the consent of the defendant for the search of the garage; the defendant being the only person in charge of the garage.” (Emphasis supplied.)
The issue presented is whether the inspection of the motorcycles on October 18 was unlawful.
Defendant acknowledges in his motion and in argument that he consented to the search of his residence in connection with investigation of the homicide.
In the course of his argument on the motion to suppress, defendant’s’ counsel stated:
“* * - * He [defendant] didn’t object to them searching the house or anything in connection with *59the homocide [sic]. * * * The question is how far we can go astray on investigations * *
The trial court noted, in the course of colloquy:
“I don’t have any problem as to curtilage. I have a problem as to what you are searching for.
* $ *??
Later the court said:
“If this was in connection with a homocide [sic] investigation, I think there is probable cause to fine tooth comb the area but it’s clear from the evidence that this was not in connection with the homocide [sic] investigation.”
The record does not contain evidence of the scope of the consent to search which defendant gave to the police.
In Drummond v. United States, 350 F2d 983, 989 (8th Cir 1965), cert denied 384 US 944 (1966), the court held that the scope of a consent to search “my residence” included a garage in the backyard of the residence.
Secondly, where police officers are on premises pursuant to a valid consent to search, under the “plain view” rule an item falling into their plain view may properly be seized even if the item is not connected with their purpose in entering. State v. McGee, 7 Or App 574, 577-78, 492 P2d 489 (1972); People v. Harrington, 2 Cal 3d 991, 88 Cal Rptr 161, 471 P2d 961 (1970), cert denied 402 US 923 (1971). See also, Bretti v. Wainwright, 439 F2d 1042 (5th Cir), cert denied 404 US 943 (1971).
Under the facts of this case I believe that defendant’s consent authorized the officers to enter the *60garage and check the serial numbers of the motorcycles observed therein. When it subsequently developed that at least one of the cycles in the garage was stolen, the police were authorized to return to defendant’s premises to pursue this investigation. The trial judge erroneously applied the “poisonous tree” doctrine.
I would reverse and remand.