dissenting, with whom BROWN, Chief Justice, joins.
I have struggled to discover what is wrong with this case. Certainly, it is not a wrongful act to serve a civil summons and complaint. Neither is it wrong for an officer serving that civil summons and complaint to observe the surroundings in which it is served. I cannot believe that in Wyoming it is wrong to serve an arrest warrant. Furthermore, reasonable efforts on the part of arresting officers to protect themselves should not be denigrated. Lastly, our law justifies the seizure of contraband which is perceived in plain view at a place where an officer has a right to be. I am not persuaded that the Supreme Court of this State chooses to indiscriminately set aside convictions of possessing drugs with intent to distribute them. I am pressed to the conclusion that what is wrong in this case is the failure of the majority to perceive the role of this Court, to understand the facts established by the record and to follow appropriate rules of law in deciding the issues. Without question, I would affirm Dianne Brown’s conviction.
*1098The majority says, “[T]he record convinces us that appellant’s arrest, pursuant to an outstanding warrant, was merely a pretext utilized by the sheriff’s office to enable them to search appellant’s home for evidence of narcotics.” Later the majority says that, “[W]e cannot escape the conclusion that the underlying intent or motivation for the arrest and search was the officers’ desire to search appellant’s home for evidence of narcotics.” Those are factual determinations, and an appellate court does not resolve questions of fact. As we said in Neilson v. State, Wyo., 599 P.2d 1326, 1330 (1979), cert. denied, 444 U.S. 1079, 100 S.Ct. 1031, 62 L.Ed.2d 763 (1980):
***** First, the trial court did not make findings on appellants’ motion to suppress. When such findings are made, they are binding on this court unless clearly erroneous. When such findings are not made, this court upholds the general ruling of the trial court if it is supportable by any reasonable view of the evidence.” (Citations omitted.)
To the same effect with respect to the failure to make findings is Patterson v. State, Wyo., 691 P.2d 253 (1984), cert. denied, sub nom. Spoon v. Wyoming, 471 U.S. 1020, 105 S.Ct. 2048, 85 L.Ed.2d 311 (1985).
In this case, following the presentation of testimony at a hearing, the district court in its Order Denying Defendant’s Motion to Suppress stated:
“THE COURT FINDS AND CONCLUDES:
“1. The law enforcement officer’s protective sweep of the above named defendant’s home was justified by the totality of the circumstances.
“2. The protective sweep was not of such an intensive nature to be violative of the 4th Amendment.
“3. The controlled substances found by the officers, and subsequently used as a basis for a search warrant, falls under the “Plainview Doctrine.”
“4. The scope of the search, conducted pursuant to the search warrant, was reasonable and conformed with the description of the places and things to be searched for, set out in the search warrant.”
According to Neilson v. State, supra, because the district court made no finding with respect to pretextual search, this court should uphold the suppression if it is supportable by any reasonable view of the evidence. Clearly, it is.
Of course, the quoted findings and conclusions of the district court do not specifically address the concept of pretextual search. There is a reason for that. It was expressly disavowed by the appellant in the district court. The transcript of the hearing on the motion to suppress establishes the disavowal:
“THE COURT: Does it come down, then, in your view — does the analysis finally sift down to a question of whether or not, based upon the totality of the facts, it appears that this search was merely, as you recall it, I think, earlier, a ruse and it was that — the purpose was to go there and figure some way to get in the house and look around—
“MR. SOWADA: No. No.
“THE COURT: As opposed to protecting yourself? I don’t think it comes down to that kind of an analysis.
“MR SOWADA: No. I think that civil liability comes down to that kind of analysis, and I don’t think it would be justifiable in this case. That’s where civil liability ought to come in.”
The court has a disagreement about what the record discloses. Consequently, attached hereto as Appendix A are photocopies of pages 91 and 92 of the transcript of the hearing on the motion to suppress evidence. These pages followed some 18 pages of dialogue about the protective sweep.
One may ask how the pretextual arrest proposition became present in this appeal. Literally, the answer is from nowhere or perhaps from everywhere.1 The majority *1099of the court is persuaded that the doctrine of pretextual arrest was a concern of the court. Attached hereto as Appendix B are photocopies of pages 129 through 134 of the transcript of the hearing on the motion to suppress evidence which encompass the decision of the court announced from the bench. The concept of pretextual arrest is absent from these remarks. In Harries v. State, Wyo., 650 P.2d 273, 277 (1982), this court was confronted with a failure to instruct on a theory first asserted by the appellant on appeal, and we said:
“ * * * The trial court was not asked to pass upon the legal aspect of the proposition. Accordingly, we cannot further consider the contention.
‘ * * * [W]e will not consider matters raised for the first time on appeal unless they go to jurisdiction or are otherwise of such a fundamental nature that the court must take cognizance of them. * * * ’ Nickelson v. People, Wyo. 607 P.2d 904, 908 (1980).”
The upshot is that the majority opinion in this case chooses to reverse a conviction based upon a theory which was not presented or argued in the trial court, and which is not eligible for consideration under the concept of plain error. We find manifested an omniscience which appellate courts generally disavow and always should eschew.
Even if the issue were before us, it is erroneously decided. In this opinion, the court rejects the method of analysis that has been followed by this court and has come to be recognized as proper for determining the constitutionality of a search, that is whether or not the search objectively was reasonable. E.g., Ortega v. State, Wyo., 669 P.2d 935 (1983); Kish v. State, Wyo., 642 P.2d 453 (1982); Jessee v. State, Wyo., 640 P.2d 56, reh. denied, 643 P.2d 681 (1982). Instead, this court chooses to make its own subjective evaluation with respect to the officers’ motives in conducting a lawful search. The conclusion is that because the arrest of the appellant by the execution of a valid warrant must have been a pretext for a search, the appellant is entitled to have her conviction set aside.
The pretext arrest rationale probably should not apply in cases where there is a pre-existing warrant outstanding. State v. Davis, 35 Wash.App. 724, 669 P.2d 900 (1983). More positively, in its recent cases, the Supreme Court of the United States definitely has indicated that the subjective rationale of officers conducting a search is not relevant to a determination of the constitutionality of the search. The question is whether the officers’ conduct was lawful under an objective standard. Any subjective evaluation is limited to the determination of whether the exclusionary rule should be applied once objective unlawfulness has been identified. United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984); Patterson v. State, supra.
The majority relies upon State v. Blair, Mo., 691 S.W.2d 259 (1985), cert. granted, — U.S. —, 106 S.Ct. 784, 88 L.Ed.2d 762 (1986), dismissed on the ground that the writ of certiorari was improvidently granted, — U.S. —, 107 S.Ct. 1596, 94 L.Ed.2d 678 (1987). It is unfortunate that the majority did not also note the discipline with which that court approached the case. There the finding of pretextual arrest was made as one of fact in the trial court. That decision was affirmed by the Missouri Court of Appeals and again affirmed by the Supreme Court of Missouri. In its lead to that opinion that court said:
“This case involves three well-known principles of law:
“First and foremost is the constitutional protection of citizens from unreasonable searches and seizures by requiring the authorities to secure a search warrant based on probable cause, ‘describing the place to be searched, or the person or thing to be seized * * * ’ Mo. Const, art. 1, § 15; U.S. Const., amend. IV ‘[A]ll warrantless searches, subject only to a few well delineated exceptions, are per se constitutionally offensive.’ State v. Peterson, 525 S.W.2d 599, 603 (Mo.App.1975).
“Second is the case law-supported rule that upon review of a trial court’s order, the facts, and reasonable inferences arising therefrom, are to be stated favorably *1100to the order challenged on appeal. See State v. Giffin, 640 S.W.2d 128, 130 (Mo.1982).
“Third is the case law-supported rule that the reviewing court is free to disregard contrary evidence and inferences, and is to affirm the trial court’s ruling on a motion to suppress if the evidence is sufficient to sustain its findings. Giffin, supra; State v. Baskerville, 616 S.W.2d 839, 843 (Mo.1981); State v. Rainbolt, 676 S.W.2d 527, 528 (Mo.App.1984).”
About the first of these principles, there is no dispute. The majority in the instant case proceeds antithetically to the second and third principles invoked by the Supreme Court of Missouri. It is noted that the majority seeks to bootstrap its position when alluding to the irrelevant factor of the protective sweep. It says “We conclude that this finding was clearly erroneous.” No evidence is alluded to, for the obvious reason that there is none, which would support that statement.
The pertinent rule in this instance is found in Scott v. United States, 436 U.S. 128, 138, 98 S.Ct. 1717, 1723, 56 L.Ed.2d 168 (1978), in which the Court said:
“We have since held that the fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer’s action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action.”
See also Washington v. Chrisman, 455 U.S. 1, 102 S.Ct. 812, 70 L.Ed.2d 778 (1982).
The commentators have come to agree that the proper analysis is an objective not a subjective evaluation. Professor LaFave, quoted out of context by the majority, in his conclusion relating to the vitality of the doctrine of pretextual arrest following Scott v. United States, supra, says:
“To the extent that lower court cases of the kind now under consideration have tended, in the course of suppressing evidence on Fourth Amendment grounds, to stress the ulterior motives of the police, they may appear to run contrary to the Scott principle. But the inquiry in these cases into ‘the underlying intent or motivation of the officers involved,’ it would seem, has ordinarily been prompted by an inability of the courts to ascertain in a more direct fashion whether the police in the particular case had departed from their usual practice. This is not to suggest, however, that inquiry into motivation is either a desirable or an accurate means of resolving that issue. For one thing, there is hardly a perfect correlation between motivation and deviation. Presence of an ulterior motive may show why an officer might want to depart from the usual procedure but does not show that he has done so, and even in the absence of an ulterior motive the officer may have by inadvertence failed to conform to the usual practice. Secondly, and perhaps more important, there is no reason to believe that courts can with any degree of success determine in which instances the police had an ulterior motive. As Professor Amsterdam has quite persuasively noted:
“ ‘But surely the catch is not worth the trouble of the hunt when courts set out to bag the secret motivations of police in this context. A subjective purpose to do something that the applicable legal rules say there is sufficient objective cause to do can be fabricated all too easily and undetectably. Motivation is, in any event, a self-generating phenomenon: if a purpose to search for heroin can legally be accomplished only when accompanied by a purpose to search for a weapon, knowledgeable officers will seldom experience a first desire without a simultaneous onrush of the second.’
“Underlying the Scott rule, then, is the sound notion (expressed earlier by three members of the Court in Massachusetts v. Painten) that ‘sending state and federal courts on an expedition into the minds of police officers would produce a grave and fruitless misallocation of judicial resources.’
“What this means, then, is that the Scott approach of disregarding ‘the underlying intent or motivation of the officers involved’ is correct even in the situation which is now under discussion, provided *1101there are more reliable and feasible means of determining in a particular case whether or not the challenged arrest or search was arbitrary. This can best be accomplished by more widespread application of the requirement utilized by the Supreme Court in South Dakota v. Op-perman, namely, that the Fourth Amendment activity ‘was carried out in accordance with standard procedures in the local police department.’ * * * ” 1 W. LaFave, Search and Seizure, § 1.4(e) at 95-96 (2d ed. 1987). (Footnotes omitted; emphasis in original.)
Professor Amsterdam quoted by Professor LaFave has been a vigorous and successful advocate of constitutional rights. His acceptance of Scott is particularly noteworthy as well as his explanation for the reason the subjective pretextual search doctrine should be rejected. See United States v. Hawkins, 811 F.2d 210 (3d Cir.1987). All this raises a substantial doubt that Taglavore v. United States, 291 F.2d 262 (9th Cir.1961), relied on by the majority still presents sound federal law.
In focusing upon the protective sweep, the majority constructs its own straw man and then proceeds to identify and reject him. The only facts material to the resolution of this case are found in the presence of the arrest warrant; the arrest of Dianne Brown; Dianne Brown’s return to the inside of the trailer home after she was arrested; the fact that Corporal Murphey followed her inside; and while in a place where he was lawfully entitled to be, Corporal Murphey saw contraband in plain view. Those facts justify the findings of fact and conclusions of law made by the district court beyond legitimate question. The officers then proceeded to do what this court has often told them to do and that is obtain a search warrant. The incriminating evidence was the product of the search conducted to that warrant and was unrelated in any way, despite the suggestions of the majority opinion, to anything that was perceived during the protective sweep. In its decision from the bench, the trial court stated with respect to the protective sweep:
“And I’m also mindful of the fact that the protective sweep was limited in scope and did produce no evidence at all.
“If he had gone in and started looking through drawers, something beyond a merely protective sweep, then I think that evidence would be properly sup-pressable.”
When this case is analyzed from an objective perspective, there is nothing present which demonstrates an unlawful search. The police officers in accordance with the rule recognized in Washington v. Chris-man, supra, acted lawfully in following Dianne Brown when she went back into the trailer home after being arrested pursuant to the arrest warrant. The district court correctly found that it was reasonable for the officers to do a protective sweep. Corporal Murphey was in a place where he was lawfully entitled to be when he saw the marijuana cigarette in plain view. The right to seize evidence in plain view of police officers in a place where they have a right to be has been accepted by this court. McCutcheon v. State, Wyo., 604 P.2d 537 (1980); Kish v. State, supra; Ortega v. State, supra. That fact then was used as the basis for obtaining a valid search warrant which was executed to unearth the evidence which led to Brown’s conviction. This series of actions was carried out in accordance with standard procedures, and there is nothing in the record to refute that objective standard.
There is a suggestion of unwarranted delay in executing the arrest warrant, but according to our opinion in Kimbley v. City of Green River, Wyo., 663 P.2d 871 (1983), that is not a significant factor. The majority casts aspersions upon the necessity for a protective sweep in this instance, but a more valid perspective might be obtained by reading the record of the hearing and the district court’s remarks. For example, in dialogue with counsel for the appellant, the district judge stated:
“THE COURT: But is that the dangerous part? Or is the dangerous part when — even if she doesn’t — if she doesn’t resist — when you turn her around, handcuff her, and turn your *1102backs and start walking towards the police car to get her put in it?
“I mean, we’ve had — it wasn’t very long ago that two officers were shot in this community walking away from a very routine check of a dwelling. They went to a dwelling because there had been a report of an entry. They went there and found nothing and start walking back to their police car and they’re opened up on.
* * * # # *
“THE COURT: One of them’s dead, and one of them was shot.”
In their zeal to free the “lady in pajamas” (according to the record Dianne Brown was wearing pajama-type clothing) from the consequences of her criminal activity and to refute the views of the dissenting justices, the majority disregards the record and proceeds upon facts of its own invention. It does seem that a reference to the medieval double-headed battleax which was strapped to the side of a motorcycle parked in the yard in front of Dianne Brown’s house trailer speaks more eloquently to the situation which the officers perceived to be present. The presence of a 12-guage sawed-off shotgun in the trailer along with other firearms further justifies their perception of danger. Nevertheless, the majority opinion ridicules the concerns of these officers. Ridicule may be appropriate to some levels of debate, but that style of denigration is unbecoming to an opinion of the highest court of a state.
Furthermore, the majority opinion suggests that the protective sweep was conducted to secure the officers from the dangers posed by the “lady in pajamas,” and the utter illogic of that position must be apparent to even a casual reader. While her attire probably would not be material to whether she could fire the sawed-off shotgun, they knew where she was. They were entitled to a legitimate concern about the presence of a third person other than Dianne Brown or the identified male person. I would hope that law enforcement officers will not be unduly offended by this slight of their efforts to enforce the law set forth in the majority opinion.
This search was lawful. The evidence was properly seized. Dianne Brown’s conviction should be affirmed rather than reversed.
APPENDIX A
even inquiring, total cooperation—
THE COURT: Does it come down, then, in your view — does the analysis finally sift down to a question of whether or not, based upon the totality of the facts, it appears that this search was merely, as you recall it, I think, earlier, a ruse and it was that — the purpose was to go there and figure some way to get in the house and look around—
MR. SOWADA: No. No.
THE COURT: —as opposed to protecting yourself? I don’t think it comes down to that kind of an analysis.
MR. SOWADA: No. I think that civil liability comes down to that kind of analysis, and I don’t think it would be justifiable in this case. That’s where civil liability ought to come in.
What the question is here is that if this kind of search does occur is it violative under the circumstances and — of the Constitution of the United States — and is it the kind of thing that we ought to be protected against as citizens, not to the extent of suing the State but to the extent of being protected as a result of the exclusionary rule.
We don't have to have them — I mean, that’s fraud. That’s — that’s illegal. We don’t have to have that go to that extent to exclude this.
In addition — there’s another event here that I think ought to be analyzed a little differently and I think more strictly against the State. They have to make the arrest when they can make the arrest. Now, true, there’s a reason not to arrest Dianne Brown — possibly there’s a reason — I don’t think there is a justifiable reason in this case — but there could be a reason not to arrest Dianne Brown until a sweep was made, a protective sweep was made.
*1103Hopefully, the parties in the mobile home, if they’re dangerous people, are going to assume that the police are there for another reason, and, so, they won’t take any violent measures right away. They— they — assuming—not assuming — but seeing that she’s going to be arrested.
But what actually happens, as a matter of fact in this case, is they announce to her before anything happens at all that we’re going to arrest you.
THE COURT: But is that the dangerous part? Or is the dangerous part when— even if she doesn’t — if she doesn’t resist— when you turn her around, handcuff her, and turn your backs and start walking towards the police car to get her put in it?
I mean, we’ve had — it wasn’t very long ago that two officers were shot in this community walking away from a very routine check of a dwelling. They went to a dwelling because there had been a report of an entry. They went there and found nothing and start walking back to their police car and they’re opened up on.
APPENDIX B
WEDNESDAY, OCTOBER 30, 1985
(Whereupon, the proceedings were commenced, in chambers at 3:15 p.m. The defendant was not present.)
THE COURT: This is State v. Brown.
I’ve had an opportunity to do some reading on the area of search and seizure and have reached a decision in the case.
I’ve not had enough time to really organize my thoughts in as coherent a fashion as I’d like to, but I understand that you’re both anxious to have the decision announced. So, if you’ll forgive an inarticulate announcement, I can at least tell you what my decision is and the basis for it.
I am not going to suppress the evidence obtained in the search of Dianne Brown’s house.
I think that the protective sweep, first of all, was justified by the totality of the circumstances in the case and point to the fact that the officer knew that the people in there were at least suspects in dealing with controlled substances, there was some reason to believe that there may be weapons in the house from the clicking that sounded like bullets being transferred to the receiver of a weapon, the knife sheath, the ax on the motorcycle. All of those things point to that.
I recognize, as the cases uphold, that a search, although reasonable at its inception, may violate the Fourth Amendment by its intensity and scope.
I don’t find that that happened in this instance. The protective sweep, it seems to me, was merely that. The officer — whether he was accompanied by Mrs. Brown or not seemed to me to be immaterial. The point is that he walked very briskly through the rooms. He was apparently looking for other people and not searching for contraband or evidence of a crime.
The resulting observance by the officer of the suspected marijuana, it seems to me, was a result of his observing things which were plainly open to his view.
He got into the living room, I think, either by following Mrs. Brown in there or with her consent. In either event, it was appropriate for him to be there.
Certainly, as the Court said in Washington v. Chrisman, that the — it was not unreasonable for the policeman to monitor, as a matter of routine, the movements of an arrested person, as his judgment dictates. That was the instance where he followed a boy up to his dormitory room to get identification after he had picked him up for being a minor in possession and the boy went up to the room and the officer accompanied him. When he got to the room, he discovered marijuana seeds and other controlled substances.
That was originally suppressed by the — I think it was the State Appellate Court— and the United States Supreme Court upheld that as reasonable on the part of the officer.
And they also said — and I think that this is appropriate to the protective sweep, as well — that the officer’s custodial authority over an arrestee doesn’t depend upon a *1104reviewing court’s after-the-fact assessment of the arrest situation.
And they were speaking there specifically about balance and whether or not the officer had a legitimate interest in protecting himself from the possible attack.
I think that’s true in deciding whether or not a protective sweep is in order should be left largely to the officer’s discretion, provided that there are objective factors that support that decision.
Coming back, then, I think the plain view doctrine is clearly applicable in the living room. The object was in plain view.
As the Court stated in Coolidge v. New Hampshire, object in plain view during a search incident to arrest that is appropriately limited in scope under existing law may be seized without a warrant.
Clearly, I think they could have seized the roach at that time. The search was — if there was a search at all — was permissible. That, I think, also meets the test announced in Chimal.
I’m not unmindful of your argument, Mr. Sowada, about the policy of the exclusionary rule to serve to deter police conduct. But as it was pointed out in Terry v. Ohio, the exclusionary rule is powerless to deter invasions of constitutionally-guaranteed rights where the police either have no interest in prosecution or are willing to forego prosecution in the interest of serving some other goal.
And I really don’t think in this instance that suppressing the evidence would serve any legitimate deterrent — would have any legitimate deterrent effect.
I think the officer’s testimony was that he was going to look through that house, whether she consented or whether she didn’t. Clearly, his motive, I think, was to protect himself, and he was going to do that. And whether the evidence was suppressed or not I don’t think would have anything to do with whether or not he would be deterred in conducting such protective sweep in the future.
And I’m also mindful of the fact that the protective sweep was limited in scope and did produce no evidence at all.
If he had gone in and started looking through drawers, something beyond a merely protective sweep, then I think that evidence would be properly suppressable.
I just don’t see any evidence that the arrestee was moved into a situation to enable the police to search. If that were the case — and this is also to your argument about arresting at the first opportunity, which I think is perhaps a more attenuated standard than that you argued. Certainly, the police cannot wait to arrest until they have an opportunity to do a search incident if that’s their motive because I think clearly in this case it was not. The first time Mr. Mader went over, he was invited into the living room. The second time, they— by most accounts — they announced to her that she was arrested before they even entered the dwelling.
If they had those ulterior motives based upon her prior conduct, I think it would have been reasonable for the police to have assumed they could have gotten into her living room, and they would have tried to do that before they arrested her. And that wasn’t the evidence, and I don’t believe that that was their motive.
And I think, finally, you had some complaints about what — or what things were seized.
I think pretty clearly on the — pursuant to the warrant the police were searching for marijuana or any other evidence of crime that they come across in the search so long as the search was reasonably the product of the warrant and they were, in fact, looking for the material described, that is, controlled substances.
I just don’t buy the argument that the police would have gone to all that effort to get a search warrant to pick up that one roach which they could have seized without a warrant at the time it was sought.
As far as the officers’ presence in securing the premises for the couple hours or however long it took to get the warrant. Seguera v. United States was a case where the police secured a house for 19 hours while no one was there, and the Supreme Court upheld that.
*1105In this instance, I don’t know if the boyfriend was — had any legitimate claims to the premises or not. Nevertheless, all the evidence was that he appeared to live there, and the evidence that I heard indicated that there were no restrictions upon his comings or goings. In fact, he left halfway through, and he apparently had some possessory rights if not some posses-sory interest in the premises.
The evidence was that no searching was done, they were merely there for the purposes of making sure that no evidence or contraband was removed.
Anything else?
MR. COWAN: I have nothing, Your Honor.
MR. SOWADA: Nothing.
THE COURT: Okay. You’ll prepare the order, please.
MR. COWAN: Yes, Your Honor.
(Whereupon, the proceedings were concluded at 3:25 p.m.)
* * * * * *
. One is reminded of the marvelous wisdom contained in Hans Christian Andersen's wonderful tale "The Emperor’s New Clothes.” Hans Christian Andersen, Eighty Fairy Tales (Pantheon Books, New York 1976).