dissenting.
Because I disagree with the majority’s conclusion “that the information [the officers] had received from the *218informant, coupled with their observation, was sufficient to give them probable cause to search the premises,” I dissent.
The warrantless entry and search of defendant’s property occurred on September 24, 1981. Warrantless searches are per se unreasonable. See State v. Matsen, 287 Or 581, 601 P2d 784 (1979). To justify entry onto private property to seize evidence without a warrant, police officers must have both probable cause and exigent circumstances. State v. Peller, 287 Or 255, 598 P2d 684 (1979); State v. Olson, 287 Or 157, 598 P2d 670 (1979).
Although the trial court found the confidential informant reliable, the police, apparently, did not accept the information as reliable, because they did not seek a search warrant based on it. There are good reasons why they might not. Before issuing a search warrant, a magistrate must make a finding of probable cause. ORS 133.555(2). To support an arrest, “ ‘[pjrobable cause’ means that there is a substantial objective basis for believing that more likely than not an offense has been committed and a person to be arrested has committed it.” ORS 131.005(11). To support a search, probable cause requires a substantial objective basis for believing that there is contraband or evidence of a crime on the premises to be searched. Here, the officers had no such basis for believing that there was marijuana on defendant’s property. The informant never claimed to have seen marijuana on defendant’s property. His assertion that there was marijuana on the property appears to have been based solely on statements made by an unnamed third party. The record does not reveal the basis for the third party’s statements, nor does it indicate that the third party was reliable or was considered by the police to be reliable. In the light of these facts, the informant’s assertion that there were 1000 pounds of marijuana on defendant’s property around September 1 provides little, if any, support for the conclusion that there was marijuana on defendant’s property at that time and even less support for concluding that there were drugs present at the time the intrusion onto the property took place — three weeks or more after the police received the information.
Without the informant’s unsubstantiated secondhand report that there was marijuana on defendant’s property on or about September 1, there is nothing in this record that *219would support a finding of probable cause. Surveillance failed to produce a substantial objective basis for believing that defendant had marijuana on the premises. ORS 131.005(1). The only facts which provide any reason to suppose that there was marijuana present on September 24 are these: on or about September 1, the informant heard orders for marijuana placed by telephone calls to a person called Jim (not an uncommon name), and the informant was present when a person called Jim subsequently delivered the ordered marijuana; the informant was able accurately to describe and then identify the residence property of a person called Jim; and investigation showed that the property was owned by defendant James Pearson.
While those facts implicate a person called Jim in the illegal possession and delivery of a controlled substance sometime around September 1, 1981, and also indicate that the person was almost certainly the defendant, they do not provide sufficient grounds for the officers’ conclusion that there were drugs on defendant’s property on September 24, 1981. Three weeks or more had passed since “Jim” had been observed delivering marijuana. Nowhere in the record does it appear that the informant identified that “Jim” as the defendant. The surveillance of defendant’s property provided no concrete evidence that drug related transactions were taking place there. The fact that guard dogs protected the property, cars came and went, a whirring noise came from the barn and plastic garbage bags were carried from behind the house to the front of the house could at best provide the officers with a suspicion that contraband was present on the premises. A mere suspicion is not sufficient to establish probable cause for a warrantless search. See State v. McManus, 267 Or 238, 517 P2d 250 (1973); State v. Ingram, 251 Or 324, 445 P2d 503 (1968); State v. Dunavant, 250 Or 570, 444 P2d 1 (1968); State v. Ronniger, 7 Or App 447, 492 P2d 298 (1971). It follows that the trial court should have granted defendant’s motion to suppress.
The only remaining question is whether evidence subsequently obtained from execution of the search warrant should also be suppressed. I believe that it should. On facts close to these, the Supreme Court has said:
“What was the very purpose of the unlawful conduct of the police in this case? It was to arrest and convict defendant for *220possession of this primary evidence, this marijuana. How was the unlawful entry to figure in the accomplishment of that purpose? It was to prevent any person from leaving the premises and thereby to ensure that the marijuana believed by the police to be present could not, and would not, be removed. The ‘securing’ of the premises “has effectively reduced the marijuana to the control of the trespassing police as if they had actually discovered and taken physical possession of it. We hold this to be a seizure under both the state and federal constitutions and thereby proscribed as being unreasonable for want of a warrant.” State v. Hansen, 295 Or 78, 97, 664 P2d 1095, (1983).
In the instant case, the officers entered upon defendant’s property without probable cause to do so. By their “freezing the scene,” the marijuana was effectively seized by the police. It follows that the marijuana was unlawfully obtained and, therefore, should not have been used in evidence against the defendant.
Joseph, C.J., and Young, J., join in this dissenting opinion.