dissenting in part; concurring in part.
The majority holds the search unlawful, stating that “we have been referred to no cases, nor has our independent research uncovered any cases, which extend the scope of a Terry [Terry v. Ohio, 392 US 1, 88 S Ct 1868, 20 L Ed 2d 889 (1968)] protective search into the private recesses of one’s dwelling when an officer stands at the threshold with merely reasonable suspicion to support an interrogation.” I dissent because incident to the lawful stop of a suspect, circumstances may exist which authorize police to enter a home to search an area within reach of a suspect.
THE TRIAL COURT FINDINGS AND CONCLUSIONS
After the hearing on the motion to suppress, the trial judge made careful findings of fact and conclusions of law. Each finding is supported by substantial evidence:
“FINDINGS OF FACT
“1. The police were dispatched to 4737 North Interstate, Portland, Oregon, on a call regarding an altercation with a possible gun involved.
“2. Upon arriving at 4737 North Interstate, the police were met by citizen, Kevin Allen, who appeared to be excited and reported that his girl friend was in Motel Room No. 9 with the defendant. That he had observed the defendant in possession of an automatic pistol and that he believed his girl friend was possibly being raped at that time.
“3. The police knocked at the door of Room No. 9 and received no response but could hear movement within the room. The police knocked again and announced their identity.
“4. A woman, Katherine Wambolt, opened the door and exited Room No. 9 quickly.
“5. The police were able to observe the defendant behind the partially-opened door. The defendant was ordered to come from behind the door showing his hands. The defendant complied.
*249“6. The defendant denied possession of a gun and objected to the officers’ presence in the room. The officers placed a wrist-hold on the defendant.
“7. The police observed in plain view, protruding from a knapsack on the bed nearest the door, an empty handgun holster. The officers searched the knapsack.
“8. The officers searched a second knapsack which was located immediately adjacent to the door of the motel room and where defendant had been standing when the police entered the room. Drugs were found.
“9. A loaded automatic pistol was found under the mattress of the bed nearest the door, within three feet of the defendant. [Emphasis added.]
‡ ‡ ‡ ‡
“CONCLUSIONS OF LAW
* * * *
“2. The officers were faced with an emergency and had an obligation to investigate Mr. Allen’s allegations of a possible rape in progress and possession of a weapon. * * *.
“3. The officers had a right to ascertain the location of the weapon and neutralize the weapon prior to continuing their investigation. * * *.
“4. The empty holster gave the officers probable cause to search that area of the room for a weapon for their own protection.
“5. The officers had the right to seize the gun.
C<sje ‡ ‡ »
THE SEARCH FOR THE GUN WAS VALID UNDER THE FOURTH AMENDMENT AND ARTICLE I, SECTION 9, OF THE OREGON CONSTITUTION
We all agree that law enforcement officers, in discharging their law enforcement duties, can and should take reasonable measures to protect themselves and others from harm by persons detained on suspicion of a crime. The key word in that proposition is “reasonable.” It would not be reasonable to search an overparked motorist’s car for a gun incident to the issuance of a parking ticket. On the other hand, it *250might be a dereliction of duty for a police officer to fail to frisk one suspected of having held up a bank using an automatic pistol. It would be reasonable to search not only the suspect; it would also be reasonable to search the area within the suspect’s reach, as well, if the suspect denies having a gun and there exists reasonable suspicion that the defendant has a gun.
The police had probable cause before entering the room to believe that the defendant was in possession of an automatic pistol. The police also had reason to suspect that a rape or kidnapping may have occurred.
The majority ignores significant facts: The police had reason to fear for their own safety because the defendant might use the gun to escape or harm the policemen or others.1 The police did not know the suspect. They did not know what measures he might take to escape. The defendant denied having a gun. They had reason to be concerned about the gun. The police officers, in entering the room, seizing the defendant, and searching for the gun, were faced with a situation which reasonably led them to perceive a significant threat to their safety and possibly a threat to the safety of others. On that basis, they were entitled to take reasonable action to avoid or minimize that risk. One reasonable alternative was to enter and search the area near the defendant in order to discover the gun.
Both the state and federal constitutions use the term “unreasonable” searches or seizures. The risks facing police should be considered in determining whether the search or seizure is “unreasonable.” The rule should be: If an officer has reasonable suspicion that a suspect is engaged in criminal activity, and has reasonable suspicion that the suspect is armed, and if the situation creates a perception that a significant threat to the safety of the officer or others exists, the officer may detain the suspect for a limited period of time for questioning and may conduct a patdown of the outer clothing and may search areas within reach of the suspect.2
*251My analysis begins with Terry v. Ohio, supra. The opinion states:
«* * * [W]e cannot blind ourselves to the need for law enforcement officers to protect themselves and other prospective victims of violence in situations where they may lack probable cause for an arrest. When an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others, it would appear to be clearly unreasonable to deny the officer the power to take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm.” 392 US at 24.
The court concluded:
“Our evaluation of the proper balance that has to be struck in this type of case leads us to conclude that there must be a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime. The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger. * * * And in determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or ‘hunch,’ but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience. * * 392 US at 27.
*252Terry was followed by Adams v. Williams, 407 US 143, 92 S Ct 1921, 32 L Ed 2d 612 (1972). There, an officer was alone on car patrol duty in a high-crime area when a citizen approached and informed him that an individual seated in a nearby car was carrying narcotics and had a gun in his waist. After calling for assistance, the officer approached the car to investigate the citizen’s report. He tapped on the car window and asked the suspect to open the door. Instead, the suspect rolled down the window. The officer reached into the car and removed a fully loaded revolver from the suspect’s waistband. That gun had not been visible to the officer from outside the car, but was precisely where the citizen’s report had indicated it would be. The officer then placed the suspect under arrest.
After holding that the citizen’s tip afforded the officer reasonable suspicion justifying further investigation, the court held that the officer’s actions were lawful, stating:
“The Court recognized in Terry that the policeman making a reasonable investigatory stop should not be denied the opportunity to protect himself from attack by a hostile suspect. ‘When an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others,’ he may conduct a limited protective search for concealed weapons. 392 US, at 24 * * *. The purpose of this limited search is not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence, and thus the frisk for weapons might be equally necessary and reasonable, whether or not carrying a concealed weapon violated any applicable state law. So long as the officer is entitled to make a forcible stop, and has reason to believe that the suspect is armed and dangerous, he may conduct a weapons search limited in scope to this protective purpose. Id., at 30, 20 L Ed 2d at 911.
<<* * * *
“* * * Under these circumstances the policeman’s action in reaching to the spot where the gun was thought to be hidden constituted a limited intrusion designed to insure his safety, and we conclude that it was reasonable. The loaded gun seized as a result of this intrusion was therefore admissible at Williams’ trial. * * 407 US at 146, 147-48. (Footnote omitted.)
*253Pennsylvania v. Mimms, 434 US 106, 98 S Ct 330, 54 L Ed 2d 331 (1977), involved a stop of an automobile for expired license plates and a later patdown search of the driver who had a large bulge under his jacket. This statement concerning hazards to investigating officers is pertinent:
“We think it too plain for argument that the State’s proffered justification — the safety of the officer — is both legitimate and weighty. ‘Certainly it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties.’ Terry v. Ohio, supra, at 23, 20 L Ed 2d 889, 88 S Ct 1868, 44 Ohio Ops 2d 383. And we have specifically recognized the inordinate risk confronting an officer as he approaches a person seated in an automobile. ‘According to one study, approximately 30% of police shootings occurred when a police officer approached a suspect seated in an automobile. Bristow, Police Officer Shootings — A Tactical Evaluation. 54 J. Crim LC & PS 93 (1963). — ’ Adams v Williams, 407 US 143, 148 n 3, 32 L Ed 2d 612, 92 S Ct 1921 (1972). We are aware that not all these assaults occur when issuing traffic summons, but we have before expressly declined to accept the argument that traffic violations necessarily involve less danger to officers than other types of confrontations. United States v. Robinson, 414 US 218, 234, 38 L Ed 2d 427, 94 S Ct 467, 66 Ohio Ops 2d 202 (1973). Indeed, it appears ‘that a significant percentage of murders of police officers occurs when the officers are making traffic stops.’ * * *” 434 US at 110.
See also Warden v. Hayden, 387 US 294, 298-99, 87 S Ct 1642, 18 L Ed 2d 782 (1967).
Other courts have reached similar conclusions. In United States v. McClinnhan, 660 F2d 500 (DC Cir 1981), police received an anonymous phone tip reporting a man carrying a sawed-off shotgun concealed in a black briefcase. Less than one minute later they arrived at the scene and observed a man, fitting the description, standing less than one foot from a black briefcase. One officer seized the briefcase, walked two to three feet away, opened it, and found a loaded sawed-off shotgun. They then arrested the defendant. After upholding the stop, the court ruled that the seizure and search of the briefcase for the sawed-off shotgun were lawful. The court observed that “the immediate protection of the investigating officers from possible assault, or the broader danger to the community of permitting one assertedly possessed of a sawed-off shotgun *254to proceed on his way unhindered,” satisfied the doctrine of exigent circumstances justifying an exception to the warrant requirement. 660 F2d at 503. The court stated:
“ ‘[I]t takes little imagination’ to suppose that, following or in the course of Officer Bryant’s patdown of appellant, the latter might well have gone for the weapon at his feet, resulting at the least in a dangerous scuffle for access to the weapon. For all practical considerations, Officer Bement’s action in seizing the briefcase simultaneously and gaining control himself of the sawed-off shotgun can be legitimately regarded as a part of the total Terry weapons search justified in these particular circumstances.” 660 F2d at 504.
No safe alternative to the seizure and search of the briefcase existed. The court summarily rejected the suggestion that the officers could have done nothing, noting that that was “a course whose risks are obvious.” Id. Asking the defendant to open his briefcase was unsatisfactory, because “had he refused, they would have been no better off than before.” Id. Nor was separating the defendant from his briefcase adequate; that measure “would obviate the danger only for the length of the stop; at some point they would be compelled to return the briefcase to appellant and thus place themselves in the danger they sought to avoid.” Id.
Finally, the court rejected the defendant’s suggestion that the police should have seized the briefcase and later obtained a warrant for its search. First, citing Chambers v. Maroney, 399 US 42, 90 S Ct 1975, 26 L Ed 2d 419 (1970), the court found that the seizure would not necessarily have been less intrusive than an immediate search. Second, the court branded as “speculative” the notion that the officers could have obtained a warrant to search the briefcase on the basis of a partially corroborated anonymous tip. Id. at 505. But see Illinois v. Gates, 103 S Ct 2317, 75 L Ed 2d 527 (1983). Having failed to obtain a warrant, the officers would be forced to return the briefcase, “leading to a recrudescence of the original danger.” Id. The court emphasized that its holding was limited to a warrantless search for “an immediately-accessible dangerous weapon.” Id.
Recently, United States v. McClinnhan was followed in People v. Lambert, 84 AD2d 849, 444 NYS2d 168, 170 (1981). *255See also United States v. Johnson, 637 F2d 532 (8th Cir 1980); United States v. Wilkerson, 598 F2d 621, 625 (DC Cir 1978).
I concede that none of the cited cases involved entry of premises. Each case involved an on-the-street detention and search. I am mindful that one’s expectation of privacy in one’s home (I treat the motel room as the defendant’s home) is greater than on the street or in the car. I grant that the police had neither probable cause to arrest nor probable cause to believe that defendant had committed a crime.
In most of the cases discussed above there existed neither probable cause to arrest nor probable cause to believe that a crime had been committed. In each case the search was upheld, however, because there existed another dynamic dangerous factor — a need to search to protect the police officers on the spot. That is the factor which I find present here. The majority does not.
I, too, am troubled by the entry into the home. But once the crucial factor exists — a need to search for the protection of the police — I would not forbid police to do what they did here, for the risk to the police is the same, on whichever side of the threshold defendant is standing.
Apparently the majority would require the police politely to stand outside the threshold and invite the defendant to come outside to talk before immediate action is taken to avoid risk of potential harm to themselves and others from an automatic handgun. As viewed from the detached solitude of a judge’s chambers, inviting the defendant outside may have been a preferable alternative. But that is all it is — a reasonable alternative. True, we have an obligation to see that the rights of a defendant are protected. But the life and safety of police and others also weigh in the balance.
The defendant concedes that “the police had reasonable suspicion to detain and question the defendant, and possibly had reason to believe that he might be armed with a deadly weapon.” The defendant argues that “the proper procedure would have been to perform a frisk, outside his motel room if necessary.” The police had a right to frisk the defendant. In my opinion, they had a right to cross the threshold to perform a frisk and search areas within reach of the defendant.
*256If the defendant refuses to come outside to be frisked, must the officers turn and leave? Allen had reported that defendant was armed with an automatic pistol. A woman had left the defendant’s room hurriedly, which led one of the officers to believe that she “definitely wanted out of the room.” This fact tended to corroborate Allen’s statement that his girlfriend was being held in the room against her will.
That the defendant had not been arrested when the search was made is not material to the análysis. Persons not arrested may present as great a danger to police and others as an arrested person, for the risk of a suspect grabbing for a weapon may be a factor in both cases, particularly where the defendant denies the existence of a weapon and the police have reason to fear that the defendant has one. This statement from Chimel v. California, 395 US 752, 763, 89 S Ct 2034, 23 L Ed 2d 685, 694 (1969), although made in a case involving a search incident to arrest, is in point:
“* * * When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise, the officer’s safety might well be endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee’s person in order to prevent its concealment or destruction. And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course, be governed by a like rule. A gun on a table or in a drawer in front of one who is arrested can be as dangerous to the arresting officer as one concealed in the clothing of the person arrested. There is ample justification, therefore, for a search of the arrestee’s person and the area ‘within his immediate control’ — construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.” 395 US at 762-63.
See also Williams v. State, 19 Md App 204, 310 A2d 593, 599 (1973); 3 W. LaFave, Search and Seizure 134-35, § 9.4 (1978). Granted, once officers determine that the suspicion which led to the initial entry is without substance, the officers must depart rather than explore the premises further. I do not agree with the majority that “any ‘emergency’ existing prior to [the woman’s] exit dissipated at the point she walked out of the *257door.” This was not a potentially unsafe situation of the officers’ own making. It was a dangerous situation, occasioned by the conduct of the defendant, requiring immediate appropriate action. Initially, the emergency here was concern for a possible rape victim. Upon observation of the suspect a second emergency presented itself — the safety of the police officers. In an emergency, time may be critical to the health and welfare of the victim, the officer, and others. It is this unique quality of an exigency that justifies, and sometimes requires, prompt and immediate responsive conduct on the part of the police in order effectively to counteract the dangers inherent in any exigent situation. In this posture, exigent circumstances take precedence over the warrant requirement.
I recognize that no search can be justified by hindsight, but as the police stood in the doorway of the motel room they were being confronted by at least two possible felonies in progress. The fact that they did not know that one of the felonies in progress was an ex-convict in possession of a firearm in no way diminishes the fact that the suspect knew he was committing a felony in progress and that the police were in his doorway. The police initially were unaware that the suspect was an ex-convict, and this cannot justify their entry into the room. Entry must stand or fall on the reported rape and succeeding events. But these facts illustrate the type of situations that the police can be confronted with. The danger was not “remote.”
This result is not only a reasonable extension of Terry; it is necessary to achieve the goal stated in Terry— police safety. The police officers were authorized to frisk the defendant and search the area within reach of the defendant, and under the circumstances of this case, to cross the threshold to do so. Although the question is a close one, I would uphold the search for the gun.
I also disassociate myself from the exclusionary rule discussion on pages 230-37 of the majority opinion. The basis for the majority’s holding is that the defendant’s constitutional rights were violated. The evidence therefore should be excluded. The discussion and holding beginning on page 231 with Weeks v. United States, 232 US 383, 34 S Ct 341, 58 L Ed *258652 (1914), and ending on page 237 with State v. Laundy, 103 Or 443, 204 P 958, 206 P 290 (1922), is unnecessary. I agree that the drugs found on the defendant’s person should be suppressed.
Campbell, J., joins in this opinion.One of the policemen testified:
“* * * We felt that there was a strong possibility that a crime had been committed or was about to be, and when we went into the room, one of my main concerns was to locate the weapon so that we could render it useless so that nobody could — would be hurt by it ourselves or anyone else.”
The Court of Appeals in a related context wrote:
*251“* * * The officer’s basis for entering the residence is not based on probable cause to believe a crime has been or is being committed; consequently, a probable cause analysis is irrelevant in determining if the entry was permissible. The inquiry is whether the facts available to the officer would lead a prudent and reasonable officer to see a need for immediate action to protect life or property. Wayne v. United States, 318 F2d 205 (DC Cir 1963). When faced with what he reasonably and in good faith believes to be an emergency, an officer’s action should not be reviewed with severe judicial scrutiny in light of a hindsight analysis of the evidence. Even if the officer’s conclusion that an emergency situation existed is ultimately determined to be erroneous, his actions should be upheld if the circumstances, as they appeared at the time of entry, would lead a prudent and reasonable officer to conclude immediate action was necessary. An officer facing a perceived emergency must make a hasty decision. He is not afforded the luxury of calm detached deliberation as are the judges reviewing his conduct.” State v. Jones, 45 Or App 617, 620-21, 608 P2d 1220 (1980).