dissenting.
The majority has reached the wrong result, because it fails to face up to the holdings in State v. Jackson, 296 Or 430, *28677 P2d 21 (1984), State v. Tallman, 76 Or App 715, 712 P2d 116 (1985), and State v. Baldwin, 76 Or App 723, 712 P2d 120 (1985), rev den 301 Or 193 (1986), and also because it misunderstands the record in this case.
Under the law as enunciated in State v. Jackson, supra, if the officer’s observation of the beer can made it “immediately apparent” that a violation of law had occurred, 296 Or at 439, there might be circumstances permitting a further search. If the officer’s observation did not make it “immediately apparent” that a violation of law had occurred, the officer may not search at all. The record in Jackson was capable of different interpretations whether an open container violation was “immediately apparent,” because:
“There was a direct conflict in the evidence as to the location and position of the beer cans when the officer observed them from his place outside the vehicle. The officer testified that they were on the floorboard about six inches or so behind the defendant and front seat passenger and that the cans were upright. He testified that at that point he asked the passenger to get out so he could look at the cans. He testified that at that time he formed a belief that the open container law had been violated. He testified that when the passenger got out defendant reached over and tipped over the cans, spilling the contents on the floor. On cross-examination, the officer’s testimony was somewhat different. He conceded that from outside the vehicle he could see the cans were open but that they could have been empty. He did testify that in his experience if the cans are empty they are lying flat. He also testified that ‘those beer cans were sitting down between the seats.’
“Defendant’s testimony in this particular was diametrically opposed. He testified that one cannot even see from the place where the officer looked into the vehicle the area where the officer contended the cans were. Defendant farther swore that there were beer cans two to three feet behind the driver’s seat in the cargo portion of the vehicle and that cans had spilled out of a sack but that they were empty and not sitting up.” 296 Or at 440 n 5.
Because the trial court had not made findings of fact to support a conclusion that a violation of law was “immediately apparent,” the court remanded the case to the trial court to make findings on that point. It is apparent from the remand instructions that, unless the trial court concluded, on the basis *29of its findings, that a violation was “immediately apparent,” no search or seizure was justified. It is also apparent that, if the trial court found that the open beer cans were lying flat on the floorboard, no “immediately apparent” violation of law would have existed.
Here, taking the officer’s testimony as true, he observed an open beer can lying on its side on the floor boards in back of the driver’s seat. Even assuming, contrary to Jackson, that that observation made it “immediately apparent” that defendant had violated the open container law, he would have been authorized to seize that beer can, which he did. He testified that he turned the can upside down and that there was a “small amount of beer in the bottom”; “some came out.” The can was not cold and there was absolutely no indication that defendant had consumed any alcoholic beverage or had made any furtive motions as if to place the can on the floorboard. The officer testified that he usually did not write a ticket when that was the only evidence he had.
In the trial court, the state relied on the search as being incident to defendant’s arrest on the fugitive arrest warrants and on State v. Brown, 301 Or 268, 721 P2d 1357 (1986), the so-called automobile exception to the warrant requirement. The trial court apparently accepted those arguments, because it denied defendant’s motion to suppress, without making any findings of fact or comments. On appeal, the state concedes that neither of those justifications to search is applicable.
Instead, relying, strangely, on State v. Jackson, supra, it contends that, having found evidence of a violation of the open container law, the officer was entitled to search for more. However, the record does not support findings that would support a conclusion that the officer’s observation made it “immediately apparent” that a violation of law had occurred. Accordingly, Jackson holds that he had no authority to seize the beer can that he did see. But even if he did, whatever probable cause he might have had to believe that defendant had violated the law dissipated. ORS 811.170 prohibits the keeping in a motor vehicle when the vehicle is on the highway, a can containing any alcoholic liquor, which has been opened, or seal broken, or the contents of which have been partially removed. Here, the contents of the can, to all intents and *30purposes, had been completely removed, and for that reason the officer did not cite defendant for that violation.
Because the officer’s assumed probable cause to believe that defendant had violated the law had dissipated, he lacked probable cause to search the car further.
Even if we ignore State v. Jackson, supra, the majority’s conclusion is directly opposed by State v. Tallman, supra, and State v. Baldwin, supra. In Tallman, as an officer approached the defendant’s stopped automobile, the defendant and his passenger were reaching down to the floor as if they were attempting to “stash something in the car.” Because he noticed a strong odor of incense and of burnt marijuana, he asked the occupants to step out of the car. He then searched the front passenger area, discovering a baggie containing less than one ounce of marijuana in plain view on the front floor board and a recently smoked water pipe in the same area, under the front seat. After making that discovery, he continued to search through several grocery bags on the rear seat, finding more marijuana.
We affirmed the trial court’s order suppressing evidence seized from the grocery bags. We pointed out that possession of less than one ounce of marijuana is a “violation” rather than a crime, for which defendant could not have been arrested. We held that, pursuant to ORS 133.072(2), which is virtually identical to ORS 810.410(3) and permits an officer to detain a person for a violation offense for the purposes of investigation reasonably related to the violation offense, identification of the person and issuance of a citation, the officer is not authorized to search further for evidence of that violation. Once the officer had found the baggie and the water pipe, the search for which was logically justified as an investigation reasonably related to the offense, no further search was authorized.
Although the majority discusses State v. Tallman, supra, it contends that defendant ignores ORS 810.410. To the contrary, the majority ignores the fact that that statute is virtually identical to ORS 133.072(2), which is applicable to violation offenses on which we relied in Tallman in reaching our conclusion.
In State v. Baldwin, supra, we held that, after the *31officer had stopped the defendant on a reasonable suspicion of possession of marijuana, he lacked authority to search further after he found a baggie containing less than an ounce of marijuana, a violation offense.
Because the majority’s holding is contrary to State v. Jackson, supra, State v. Tallman, supra, and State v. Baldwin, supra, I dissent.