concurring in part; dissenting in part.
I agree that defendant’s conviction for driving under the influence of intoxicants should be affirmed.
I respectfully dissent from the majority’s conclusion that the warrantless testing of the powder in the vial taken from defendant at the time of his arrest was illegal. On these facts, I would hold, in conformity with federal authority, see United States v. Jacobsen, 466 US 109, 104 S Ct 1652, 80 L Ed 2d 85 (1984), that no warrant was required to test the powder.
At trial, defendant claimed only that the “seizure” of the vial and its “opening” were unlawful because of lack of probable cause and breach of the “closed container doctrine.”1 At no time did he specifically raise the “testing” issue.2 He should not now be permitted to prevail on that issue in this court. State v. Evans, 290 Or 707, 625 P2d 1300 (1981); State v. Hickmann, 273 Or 358, 360, 540 P2d 1406 (1975); State v. Abel, 241 Or 465, 467, 406 P2d 902 (1965).
In the final analysis, this case presents us with the question of what State v. Lowry, 295 Or 337, 667 P2d 996 (1983) means. We intimated in State v. Flores, 68 Or App 617, 630-636, 685 P2d 999, rev den 298 Or 151 (1984), that Lowry should not be taken at face value. I hold firm to the conviction that the analysis in Flores was, and still is, clear, cogent and correct.
On its facts, Lowry was virtually on all fours with State v. Elkins, 245 Or 279, 422 P2d 250 (1966). It could, and almost certainly should, have been decided on that basis alone. However, the majority opinion in Lowry, in an apparent *54attempt to expound on the meaning of Article I, section 9, of the Oregon Constitution, and the court’s earlier opinion in State v. Caraher, 293 Or 741, 653 P2d 942 (1982), wandered far afield from Elkins to suggest, inter alia, the principle on which the majority now relies, i.e., that testing the contents of a lawfully seized container of a suspected controlled substance requires a warrant. 295 Or 345-348. However, the precise holding in Lowry does not require us to reverse this conviction.3
I do not agree with the dictum in Lowry that testing is a form of search.4 The testing of lawfully obtained evidence has historically been a routine investigatory practice, not an event of discrete constitutional moment. Heretofore, attention has appropriately focused on how the police obtained the evidence. Was the search that brought it to light valid? Was it permissibly seized? I find no constitutional justification for treating events occurring after a valid seizure of contraband as a search having constitutional consequences. Under the facts here, I would hold that the testing did not constitute a search for purposes of Article I, section 9.
The proper analysis for the result in State v. Lowry, supra, is contained in Judge Jones’ concurring opinion. In Lowry, the officer did not have probable cause to seize the pill bottle or to believe that the seized vial contained a controlled substance. In this case, however, Officer Minnis had probable *55cause to seize the vial incident to defendant’s arrest. He also had probable cause to believe that the seized vial contained a controlled substance. He testified that, on the basis of his training and experience, he was 90 percent certain that the vial contained contraband.5 On those facts, I would hold that no separate warrant was required to test the vial’s contents. See State v. Lowry, 295 Or 337, 366, 667 P2d 996 (1983) (Jones, J., specially concurring); State v. Flores, 68 Or App 617, 685 P2d 999, rev den 298 Or 151 (1984);6 see also State v. Gelvin, 318 NW 2d 302, 307-08 (N.D. 1982).
No Oregon authority has ever before held that the *56police need a warrant to test lawfully seized contraband. Is it not just a little surprising that it has taken the Supreme Court more than one hundred years to “discover” a state constitutional mandate for a warrant to test lawfully seized contraband? Does this new requirement mean that an immediate field test incident to a drug related arrest would be invalid? Perhaps this approach is a “novel social experiment” by the Supreme Court. See New State Ice Co. v. Liebmann, 285 US 262, 311, 52 S Ct 371, 386 76 L Ed 747 (1932) (Brandeis, J., dissenting); Truax v. Corrigan, 257 US 312, 344, 42 S Ct 124, 134 66 L Ed 254 (1921) (Holmes, J., dissenting). If so, the Supreme Court has utterly failed to articulate in Lowry any circumstances unique to Oregon that would justify this departure from tradition and authority. It simply fails to disclose why Oregon should have a higher standard of protection in a case such as this than is provided by the Fourth Amendment. See n 7, infra.
Further, there is no principled reason why the result should be different under the Oregon Constitution than under the Fourth Amendment. Article I, section 9, provides in relevant part:
“No law shall violate the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure * * *.”
Amendment IV, United States Constitution, provides in relevant part:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated * * *.”
The failure of the majority opinion in State v. Lowry, supra, to articulate any intent on the part of the framers of the Oregon Constitution, or any circumstances unique to Oregon, that would justify a result different from that reached by the United States Supreme Court under virtually identical language is more than a little troublesome.7
*57Justice Pollock of the Supreme Court of New Jersey has explained:
“As the role of state constitutions expands, it will become increasingly important for state courts to develop a rationale to explain when they will rely on their own constitutions. State courts should not look to their constitutions only when they wish to reach a result different from the United States Supreme Court. That practice runs the risk of criticism as being more pragmatic than principled.” Pollock, State Constitutions As Separate Sources Of Fundamental Rights, 35 Rutgers Law Review 707, 717 (1983).
See also State v. Chrisman, 100 Wash 2d 814, 822, 676 P2d 419, 425 (1984) (Dimmick, J., dissenting); People v. Oates,_Colo _,_, 698 P2d 811, 822 (1985) (Erickson, C.J., dissenting); People v. Disbrow, 16 Cal 3d 101, 199, 545 P2d 272, 284, 127 Cal Rptr 360, 372 (1976) (Richardson, J., dissenting); McGraw, Developments in State Constitutional Law: The Williamsburg Conference (1985); Note, The New Federalism: Toward A Principled Interpretation Of The State Constitution, 29 Stan L Rev 297, 316-19 (1977); Howard, State Courts And Constitutional Rights In The Day Of The Burger Court, 62 Va L Rev 873, 934-944 (1976).
The evidence suppressed here is clearly admissible under federal precedent.8 In United States v. Jacobsen, 466 US 109, 104 S Ct 1652, 1661-63, 80 L Ed 2d 85 (1984), the Court addressed the question of whether a chemical field test of a substance suspected to be cocaine constituted an unreasonable search and seizure under the Fourth Amendment. The court stated:
*58“A chemical test that merely discloses whether or not a particular substance is cocaine does not compromise any legitimate interest in privacy. This conclusion is not dependent on the result of any particular test. It is probably safe to assume that virtually all of the tests conducted under circumstances comparable to those disclosed by this record would result in a positive finding; in such cases, no legitimate interest has been compromised. But even if the results are negative — merely disclosing that the substance is something other than cocaine — such a result reveals nothing of special interest. Congress has decided — and there is no question about its power to do so — to treat the interest in ‘privately’ possessing cocaine as illegitimate; thus governmental conduct that can reveal whether a substance is cocaine, and no other arguably ‘private’ fact, compromises no legitimate privacy interest.”
That discussion is confined to possession of contraband. 466 US at_n 23. It does not suggest that every seizure of a small amount of any material is necessarily reasonable. 466 US at _n 28; see United States v. Place, 462 US 696, 103 S Ct 2637, 77 L Ed 2d 110 (1983); Illinois v. Andreas, 463 US 765, 103 S Ct 3319, 77 L Ed 2d 1003 (1983).
Suppression of the evidence is not appropriate here. This incident occurred in 1982. The constitutional implications of testing lawfully seized contraband had never been addressed by an Oregon appellate court when Minnis sent the contraband to the crime lab. Lowry was decided in 1983. For almost two years, this court has been attempting to understand Lowry. Even now, we are sharply divided on its meaning. At the time of defendant’s arrest, Minnis had no reason to believe that what he did would later be held to be unlawful. Thus, the federal rationale for the exclusionary rule, i.e., deterrence, United States v. Calandra, 414 US 338, 94 S Ct 613, 38 L Ed 2d 561 (1974), is not served by suppression in this case. Insofar as any other state rationale for the exclusionary rule is concerned, see State v. Davis, 295 Or 227, 666 P2d 802 (1983); State v. Neidenbach, 73 Or App 476, 698 P2d 1040, rev allowed 299 Or 522 (1985), it cannot be argued seriously that defendant had any legitimate expectation of privacy in lawfully seized contraband. And as a practical matter, what is to prevent the state from retrying this case without the suppressed test results? Is there any doubt but that we would sustain a conviction based on the testimony of officer Minnis *59that he was 90 percent certain that the vial’s contents were contraband? I think not.9
More than forty years ago, Justice Cardozo warned in Snyder v. Massachusetts, 291 US 97, 122, 54 S Ct 330, 338, 78 L Ed 674 (1934):
“But justice, though due to the accused, is due to the accuser also. The concept of fairness must not be strained till it is narrowed to a filament. We are to keep the balance true.”
I do not in any way question the majority’s good faith in attempting to perform our task as an intermediate appellate court. Nevertheless, in its attempt, the majority’s result strains the concept of fairness. It unreasonably denies justice to the citizens of Oregon. It does not result in a common sense balancing of the legitimate rights of defendant not to be wrongly convicted and the legitimate interest of the people in protection from crime.10
Warden, J. and Rossman, J. concur in this concurrence and dissent.The majority correctly notes that it is not at all clear that there is a “closed container doctrine” under the Oregon Constitution.
It would be enormously, helpful if the Supreme Court would tell us whether opening a closed container and testing its contents is one or two discrete constitutional events. See State v. Lowry, 295 Or 337, 346, 667 P2d 996 (1983); see also State v. Bennett, 72 Or App 733, 737, 697 P2d 213, rev allowed 299 Or 443 (1985); State v. Maher, 72 Or App 543, 547 n 3, 696 P2d 573, rev den 299 Or 314 (1985); State v. Gordon, 71 Or App 321, 327 n 7 and 8, 692 P2d 618, rev den 298 Or 705 (1984); State v. Flores, 68 Or App 617, 638 n 12, 685 P2d 999, rev den 298 Or 151 (1984).
The Supreme Court allowed review in Lowry to consider whether this court had misapplied the law as stated in State v. Elkins, 245 Or 279, 422 P2d 250 (1966), and in the light of State v. Caraher, 293 Or 741, 653 P2d 942 (1982). 295 Or at 339. The holding of Lowry, to the extent that a holding can be found, appears to be that the seizure of the pill bottle was unlawful, because it “was seized in the course of arresting defendant for a crime with which the bottle had nothing to do” and because “defendant was not arrested for or suspected of having any controlled substance. Nor did the indisputable nature of the substance become evident to the officers’ observation simply in the course of the routine of the arrest * * 295 Or at 347. Thus, because the seizure in Lowry was unlawful, consideration of the validity of any subsequent testing was unnecessary to the holding in the case and, therefore, the language in Lowry concerning testing is dictum. See State v. Flores, supra, 68 Or App at 632, and n 4, infra.
I have considerable difficulty in perceiving confirmatory scientific testing of contraband as a “search.” See United States v. Jacobsen, 466 US 109, 104 S Ct 1652, 80 L Ed 2d 85, 100-102 (1984). A “search” occurs when an expectation of privacy that society is prepared to consider reasonable is infringed. A “search” normally has an object: it is aimed at finding something new or different. Testing of the kind involved here would not find anything new; it only would confirm what the police already had probable cause to believe, i.e., that the vial contained contraband.
The majority opinion states that, in the light of the Supreme Court’s rationale in State v. Lowry, the fact that Minnis testified that he was 90 percent certain that the vial contained contraband is without decisional significance. If so, why did the majority in Lowry find it necessary to emphasize twice that there was no independent justification for the seizure other than an arrest for DUII?
“The state does not contend in this case that the arresting officer seized the brown pill container on any suspicion that its contents related to the apparent intoxication that led to defendant’s arrest.” 295 Or at 345.
“[In Lowry] the pill bottle was seized in the course of arresting defendant for a crime with which the bottle had nothing to do. This is the decisive distinction between this case and Caraher, which sustained the warrantless seizure of evidence from Caraher’s purse because ‘the arrest was for possession of a controlled substance [and] it was reasonable to believe that defendant would carry contraband in her purse.’ 293 Or at 759. The present defendant was not arrested for or suspected of having any controlled substance. Nor did the indisputable nature of the substance become evident to the officers’ observation simply in the course of the routine of the arrest, as may happen when unlawful weapons, burglar tools, specific property already known to be stolen, marijuana, or other contraband is discovered in plain view in a traffic stop or a frisk.” 295 Or at 347.
Further, the whole point of Judge Jones’ concurrence in Lowry was based on this very distinction!
In State v. Flores, supra, we stated:
“We shall not read Lowry as making an abstract opportunity to obtain a warrant dispositive under the present circumstances, for two reasons: First, we think it clear that, if that is what was intended, the majority could have said it. It did not. Second, we think that, had Lowry been meant to stand for such a proposition — that the seizure of contraband incident to lawful arrest nonetheless separately requires a warrant before that contraband can be tested — its incredible departure from traditional practice would have been made with greater candor and would have provoked a firestorm of dissent, not a concurrence. Third, such an approach is both impractical and of little protection to the person being searched. We recognize that the opportunity to seek a warrant now has greater significance in a search incident to arrest than it did previously and that, when a search reaches a logical stopping point the police must seek a warrant before proceeding further. However, requiring officers to stop midway in a search like the present one, leave everyone in limbo, and seek a warrant would tend to benefit only the stationers who sell blank search warrant forms.” (Footnote omitted.) 68 Or App at 634.
Judge Linde has written:
“[T]o make an independent argument under the state clause takes homework — in texts, in history, in alternative approaches to analysis. It is not enough to ask the state court to reject a Supreme Court opinion on the comparable federal clause merely because one prefers the opposite result.” Linde, First Things First:
*57Rediscovering The States’Bill Of Rights, 9 U Balt L Rev 379, 392 (1980).
See State v. Nettles, 287 Or 131, 135 n 2, 597 P2d 1243 (1979); State v. Florance, 270 Or 169, 183, 527 P2d 1202 (1974); City of Portland v. Thornton, 174 Or 508, 512, 149 P2d 972 (1944). After several hours of research, I have been unable to find a single case from another state appellate court that lends support to the majority result here. Of course, Lowry cites none.
See United States v. Johns, 469 US_, 105 S Ct 881, 83 L Ed 2d 890 (1985); Nix v. Williams_US_, 104 S Ct 2501, 81 L Ed 2d 377 (1984); United States v. Jacobsen, supra, 466 US 109 at_, (1984); United States v. Ross, 456 US 798, 102 S Ct 2157, 72 L Ed 2d 572 (1982); New York v. Belton, 453 US 454, 101 S Ct 2860, 69 L Ed 2d 768 (1981); United States v. Robinson, 414 US 218, 94 S Ct 467, 38 L Ed 2d 427 (1973); Gustafson v. Florida, 414 US 260, 94 S Ct 488, 38 L Ed 2d 456 (1973); see also Hilley v. State,_Ala Cr App_,_So 2d_, rev den (1985); State v. Gans, 454 So2d 655, 657 (Fla App 5 Dist 1984).
The reversal in this case may ultimately avail defendant nothing. If the police still have the vial (and it would be unusual, to say the least, if they had returned it to defendant), they may even now be able to get a warrant and conduct a new test, thereby producing evidence (test results) that would be admissible at any retrial. See State v. Herbert, 75 Or App 106, 705 P2d 220 (1985) (Gillette, J., concurring).
See Harris, The Return To Common Sense: A Response To “The Incredible Shrinking Fourth Amendment,” 22 Am Crim L Rev 25 (1984).