dissenting.
I disagree with the majority’s application of ORS 133.535(4) to this case and with its conclusion that the officers lacked statutory authority to search defendant’s apartment. I believe that the officers were both statutorily authorized and properly motivated by probable cause and exigent circumstances. Accordingly, I dissent.
As the majority notes, ORS 133.535 sets forth the permissible objects of search and seizure:
“The following are subject to search and seizure under ORS 133.525 to 133.703:
“(1) Evidence of or information concerning the commission of a criminal offense;
*542“(2) Contraband, the fruits of crime, or things otherwise criminally possessed;
“(3) Property that has been used, or is possessed for the purpose of being used, to commit or conceal the commission of an offense; and
“(4) A person for whose arrest there is probable cause or who is unlawfully held in concealment.”
The majority focuses on subsection (4), dealing with warrantless arrests, because it concludes that the only argument made by the state in support of the search is that the officers were looking for minors to arrest for possession of alcohol. ORS 471.430. Because that offense is a mere violation and because peace officers are not authorized to make warrantless arrests for violations, the majority holds that the search in this case was impermissible.
Although I do not take issue with the majority’s statutory interpretation, I believe it construes the state’s arguments much too narrowly and thereby dictates the result it ultimately reaches. The state does not argue, as the majority contends, that its only reason for entering defendant’s apartment was to arrest minors. The state has consistently argued that the officers’ justification for entering the apartment was to look for minors who had been furnished and were consuming alcohol. At trial, the state contended that the officers were confronted with
“* * * probable cause to believe that there are [sic] juveniles who were consuming intoxicants in that residence [and] exigent circumstances to enter that apartment because of the facts of the safety for the individuals and probable cause to believe a crime was being committed * *
That contention was consistent with Officer Chilson’s statement when he informed defendant that they were “specifically looking for minors that might be at the party.” On appeal, the state first argues that the officers entered the apartment to “search for minors who had been furnished liquor or persons involved in the furnishing of liquor to minors.” Later, the state contends:
“The police were confronted with probable cause and exigent circumstances justifying their immediate entry into the apartment, at least for the purpose of apprehending *543minors in possession of liquor and those guilty of furnishing it.” (Emphasis supplied.)
If one were to take portions of the above statements and read them out of context, it might appear that the only justification for the search that has been advanced by the state is that the officers planned to arrest minors. However, when the state’s arguments are considered in total, they are easily broad enough to encompass the argument that the officers were looking for “evidence of or information concerning the commission of a criminal offense.” ORS 133.535(1).
Defendant was, among other things, in custody for furnishing alcohol to minors. The best evidence of that offense would be minors to whom alcohol had been furnished. Presumably, the most likely place to obtain that evidence was inside the apartment. In addition, the officers could have been looking for evidence of minors in possession of alcohol,1 which also would have been most readily available inside the apartment.
Thus, contrary to the majority’s conclusion, the search was statutorily authorized under ORS 133.535(1). Statutory authorization is only the lesser of two obstacles the state must hurdle in order to justify the search. It must also pass constitutional muster, which requires both probable cause and exigent circumstances. The majority concedes that there was probable cause to believe that minors in the apartment were in possession of alcohol. I believe that it is equally apparent that there was probable cause to believe that the minors at the party had been furnished the alcohol which they possessed.
It is also clear that there were exigent circumstances.
*544The party, which had started in defendant’s apartment, had spilled over into the parking lot. As the police officers approached, the youthful revelers sought refuge in the apartment. Some were in the process of escaping from the scene, while others were observed attempting to conceal evidence inside the apartment. Moreover, the officer observed one minor passed out on the couch. In my opinion, the potential loss of evidence, combined with the risk of harm to minors, made the situation sufficiently exigent. The majority concedes in its footnote 2 that I am correct, but contends that we cannot reach this argument because it was not properly raised by the state. Because I believe that the issue was adequately raised, I would reverse the suppression order and remand for further proceedings.
It should be noted that, under ORS 133.535(1), officers may look only for evidence of or information concerning the commission of a “criminal offense.” Furnishing alcohol to minors, ORS 471.410, is a misdemeanor; being a minor in possession of alcohol, ORS 471.430, is a violation. Although “criminal offense” is not defined, I believe it encompasses both misdemeanors and violations. A misdemeanor is a crime, ORS 161.545; a violation is not. ORS 161.565. However, both misdemeanors and violations are “offenses,” see ORS 161.505; compare ORS 161.515 and 161.565, and both are “criminal” to the extent that they involve the “criminal” code. Moreover, within ORS 131.535, when the legislature intended to limit a provision only to “crimes,” it did so expressly. See ORS 131.535(2) (authorizing searches for "fruits of crime” (emphasis supplied)). Accordingly, I believe that the term “criminal offense” is used generically to describe any breach of the criminal code, including violations.