concurring.
I join in the opinion of the court. I wish to add two additional points:
1. The lead opinion is at pains to point out that, on this state’s appeal, the state is limited to the theories it advanced in the trial court. That is correct. State v. Hickmann, *114273 Or 358, 540 P2d 1046 (1975). Because of that limitation on our analysis, we are not called upon to indicate how — if at all — our formulation of the doctrine of “progressive probable cause” in State v. Flores, 68 Or App 617, 685 P2d 999, rev den 298 Or 151 (1984), might have an impact on a similar factual situation, had that theory been urged below. As I noted in concurring in State v. Brody, 69 Or App 469, 474, 686 P2d 451 (1984):
“It is probably regrettable that the posture of these cases as they reach us — some as defendant’s appeals, some as the state’s — has such an impact: the very same set of facts can produce two antithetical appellate opinions, at least when viewed solely in terms of the result. Before attempting to rely on any appellate decision in the search and seizure area, therefore, counsel should always check to see who was appealing. The answer may significantly limit the sweep of otherwise broad language.” (Emphasis in original).
2. While I agree with the majority that the result and certain of the language in State v. Lowry, 295 Or 337, 667 P2d 996 (1983), lead us to the result we reach in this case, I am not altogether sanguine about utilizing that case as an analytical tool. My reservations about it are fully set forth in this court’s opinion in State v. Flores, supra, 68 Or App at 632-636 (and in the dissent here of Van Hoomissen, J.) and need not be repeated. I simply wish to note that, having disposed of the case as we do here, not all issues are resolved.
The biggest remaining issue is: Is the case over? Put differently: Can the state still, in some way or other, establish the identity of the contents of the paper fold? We are not required to decide that question at this time, but it is a very real one, and I wish to state my own view.
If the police have rightfully seized what they believe to be contraband, they are going to hold it whether or not criminal charges ensue, because no one has a right, constitutional or otherwise, to possess contraband. Whether tested or not, police retention of material like that taken from defendant in this case is absolutely, unassailably reasonable. Therefore, although we hold that the testing of the material without a warrant in this case violated the Oregon Constitution, it may avail defendant nothing. The police may still have more of the material; a warrant can be obtained, and the remaining *115material can be tested. There can be no doubt that the outcome of a second test would be the same as the first. If there remains any of the material, the error in not obtaining the first warrant would be, therefore, harmless beyond a reasonable doubt.
Of course, we cannot know in every case that there remains some of the suspect material to test. We do not know that here. When we know, we can affirm. When we do not, we must remand and the state may then, if it has any excess material, seek a warrant. (In fact, after this opinion, I should think that the state would routinely do so when a motion to suppress is filed.)
I recognize that this view at least impliedly calls into question one sentence from Lowry, viz:
“Other ‘effects’ unrelated to the reason for the [particular] arrest may be seized if their nature as contraband is evident on sight or, if this determination requires tests of an unknown substance or opening of a closed container, to secure them for the least amount of time needed to obtain a warrant for this purpose upon a showing of probable cause that [a] further search is justified.” 295 Or at 348. (Emphasis supplied.)
I follow Lowry because it is what I am required, as a judge of an intermediate appellate court, to do. That includes an obligation to try to rationalize those things which the opinion may not have adequately explained. See State v. Westlund, 75 Or App 43, 705 P2d 208 (1985).
However, I have not the foggiest idea what the court could conceivably have meant by the foregoing statement from Lowry. Judge Buttler, in his separate opinion, finds a theory, which I can only label “the right to a speedy search,” in it. Unlike the effort — successful, I think — to find a rationale for some portions of Lowry, see, generally, State v. Westlund, supra, I can find none for this idea, at least as to contraband to which no one except the police has a possessory right.1
*116With these reservations — which are rather significant — I concur.
See also State v. Westlund, 75 Or App 43, 705 P2d 208 (1985) (slip opinion at 15, n 10). I repeat here what I said there:
“If we [as a majority of this court] have erred in our effort to give form and substance to State v. Lowry, the Supreme Court needs to see that there is a crying need to say so.”